Photo: Mark Borchardt

Photo: Mark Borchardt

Two lawsuits involving Enbridge Energy represent the latest development in Dane County’s standoff with the $43 billion Canadian pipeline company over its expansion plans.

350 Madison won a significant victory in April 2015 when the Dane County Zoning and Land Regulation Committee required that Enbridge obtain spill cleanup insurance. Dane County imposed the requirement as a condition of approving Enbridge’s Waterloo pump station, which is part of the company’s plan to triple the volume of tar sands oil flowing through Line 61. At full capacity, the pipeline would carry 1.2 million barrels per day through the state, 45% more than the now-rejected Keystone XL.

Enbridge v. Dane County concerns Enbridge’s demand that Dane County remove the insurance requirement from the pump station permit on the basis that it was invalidated by a state budget provision adopted as part of the 2015–17 state budget. The county has refused to comply, arguing that the insurance requirement was foundational to its approval of the permit, and that without the requirement, the permit could not have been granted at all.

In Campbell v. Enbridge, seven landowners with property adjacent to the pump station assert that even if the state budget provision, apparently inserted at Enbridge’s behest, barred the county from enforcing the insurance requirement, it did not similarly bar enforcement by affected landowners. They further argue that the budget provision is not retroactive. They ask the court to enjoin Enbridge from opening its expanded pump station unless it purchases the cleanup insurance demanded by the county zoning committee.

The landowner lawsuit was originally assigned to Judge Richard Niess, but he consolidated it with Enbridge’s case before Judge Peter C. Anderson (no relation to 350 Madison’s Peter Anderson) because of numerous overlapping issues.

Latest Developments in the Case

The dispute was before Judge Anderson in Dane County Circuit Court on September 27, when Enbridge brought in as its new lawyer Governor Walker’s “fixer,” Atty. Eric McLeod, most well known for representing without charge Justice Gableman against ethics charges.

Judge Anderson ruled that Enbridge did not have to comply with Dane County’s insurance condition because some unknown entity secured a budget rider in the 2015 budget (Wis. Stat. § 59.70(25)) to override local zoning in limited circumstances applicable solely to Enbridge’s dispute with the county. He ruled that the insurance condition should be removed from the company’s permit. 350 Madison’s attorneys, Thomas Burney and Patricia Hammel, believe that Judge Anderson based his ruling on two incorrect facts and that Enbridge does not even qualify for the budget rider.

350 Madison’s Peter Anderson said these questions will be pursued in the days ahead: “We will try to convince the courts that dirty backroom dealings—in which Governor Walker has engaged in ‘pay to play,’ granting corporate bailouts by means of budget riders—have to stop if we are to retain the substance and not just the form of democratic government.” In the end, 350’s Anderson noted, “it took the federal courts to hold that the lead paint manufacturers could not take advantage of the corrupt $750,000 get-out-of-jail budget rider from Governor Walker, and we hope the courts will reach the corresponding conclusion regarding Enbridge.”

“By bringing Atty. McLeod into its legal fight to ensure that taxpayers are left paying the tab for its future disasters,” 350’s Anderson said, “Enbridge is sending the people of Dane County the message that it intends to turn the political screws on anyone who stands in its way.” Reflecting on the victory by First Nation tribes against Enbridge’s Northern Gateway pipeline, 350’s Anderson predicted: “Those Canadian oil barons are going to find that Dane County has been inspired to give their company the same reception here.”

Essential Sources

Listed below are technical documents related to the litigation,
news articles, blog posts, and background sources. Sources
are listed in reverse chronological order (most recent first).

Technical Documents

Technical documents are listed by caseEnbridge v. Dane County, brought by Enbridge, and Campbell v. Enbridge, brought by adversely affected landownersfollowed by supplementary documents.

Enbridge v. Dane County

Transcript of Court’s Oral Ruling (9/27/16)

Enbridge Closing Brief on Appropriate Remedy (9/1/16)

Landowner Plaintiffs’ Brief in Support of Affirming ZLR Action or Remanding to ZLR (8/23/16)

Dane County’s Reply Brief on Appropriate Remedy (8/19/16)

Enbridge Initial Brief on Appropriate Remedy (8/1/16)

Enbridge Closing Brief (6/8/16)

Landowners’ Reply Brief (5/27/16)

Dane County’s Reply Brief (5/24/16)

Enbridge Initial Brief in Consolidated Action Before Judge Anderson (4/25/16)

Enbridge Petition for Writ of Certiorari Against Dane Co., Dane Co. ZLR, and Dane Co. Bd. of Supervisors (1/4/16)

Campbell v. Enbridge

Landowner Response to Enbridge Motion to Dismiss (3/24/16)

Enbridge Motion to Dismiss Landowner Lawsuit Against Enbridge for Enforcement of Insurance Provision (3/2/16)

Landowner Lawsuit Against Enbridge for Enforcement of Insurance Provision: Complaint for Injunction (2/8/16)

Other Technical Documents

Section 10.255(2)(h) of the Dane County Ordinances (setting standards for issuing a conditional use permit)

Report by Insurance Expert David Dybdahl to Zoning and Land Regulation Committee  (4/8/15)

News Articles

The Dirty Truth Behind Tar Sand Oil, Milwaukee Courier, 10/15/16

Judge pulls Enbridge spill insurance out of permit, county zoning can’t reconsider, Sun Prairie Star, 10/3/16

Dane County can’t redo Enbridge pipeline permit, judge rules, Wisconsin State Journal, 9/27/16

Permit Will Stand For Enbridge Pump Station In Waterloo: Dane County, Landowners Challenged Enbridge Over Insurance Requirement, Wisconsin Public Radio, 9/27/16

Battle over Enbridge oil pipeline insurance continues, DeForest Times-Tribune, 7/14/16

Battle over Enbridge oil pipeline insurance continues, Jefferson County Daily Union, 7/13/16

Dane County and Enbridge battle it out in the courtroom, WKOW.com, 7/11/16

Judge says county can’t require Enbridge to carry spill insurance — but there’s a twist, Wisconsin State Journal, 7/11/16

Enbridge court cases move toward July court decision, Sun Prairie Star, 4/15/16

Judge To Take Up Lawsuits From Enbridge, Landowners Regarding Pipeline Expansion, Wisconsin Public Radio, 4/12/16

Landowners Want Company To Carry Special Insurance, Wisconsin Public Radio, 4/12/16

Groups build ‘Line 66’ opposition, Sun Prairie Star, 4/5/16

Dane County landowners sue Enbridge, Cambridge News, 2/22/16

Wisconsin Landowners Sue Enbridge over Spill Insurance, WDIO.com, 2/10/16

Landowners Sue Enbridge Energy Over Dane County Pipeline Project: Lawsuit Is Trying To Get Company To Buy Special Insurance, Wisconsin Public Radio, 2/10/16

Wisconsin landowners sue Enbridge over spill insurance, Pantagraph, 2/9/16

Wisconsin landowners sue Enbridge over spill insurance, NBC15.com, 2/9/16

Wisconsin landowners sue Enbridge over spill insurance, Miami Herald, 2/9/16

Wisconsin landowners sue Enbridge over spill insurance, The Washington Times, 2/9/16

Landowners sue Enbridge over pipeline pump insurance, Wisconsin State Journal, 2/9/16

Dane County landowners sue over pipeline project, Wisconsin Gazette, 2/9/16

Land owners file suit against Enbridge, Sun Prairie Star, 2/8/16

Enbridge heads to court over insurance requirement, Sun Prairie Star, 1/8/16

Pipeline insurance spews out lawsuit, Insurance Business Magazine, 1/6/16

Pipeline company sues county over moot insurance requirement, Wisconsin State Journal, 1/5/16

County’s toothless insurance requirement is minor risk in Enbridge’s business, Wisconsin State Journal, 12/26/15

Catching Up: Disputed Enbridge permit language, Wisconsin State Journal, 12/21/15

Enbridge appeal denied by county board, Sun Prairie Star, 12/9/15

Environmental group continues challenge of Dane County pipeline pumping station, Wisconsin Gazette, 12/4/15

Landowners, Environmental Group Continue Challenge of Dane County Pipeline Pumping Station Conditional Use Permit, Progressive Dane Blog, 12/3/15

Enbridge cites state law in asking Dane County to remove insurance reference in permit, Wisconsin State Journal, 10/20/15

Enbridge appeal removed from agenda, Waterloo/Marshall Courier, 7/23/15

Enbridge pipeline puts Dane County in danger (by Dane Co. Supervisors Tim Kiefer and Maureen McCarville), DeForest Times Tribune, 7/23/15

State protects Enbridge, not Wisconsin (by Patrick Miles, chair of the Dane Co. Zoning & Land Regulation Committee), The Herald Independent, 7/23/15

Enbridge pipeline endangers Dane County (by Dane Co. Supervisors Tim Kiefer and Maureen McCarville), Waunakee Tribune, 7/22/15

State protects Enbridge, not Wisconsin (by Patrick Miles, chair of the Dane Co. Zoning & Land Regulation Committee), Lodi Enterprise, 7/22/15

Enbridge’s legislative end run (by Patrick Miles, chair of the Dane Co. Zoning & Land Regulation Committee), Milwaukee Journal Sentinel, 7/20/15

Patrick Miles: State Budget provision put Enbridge before citizen, Wisconsin State Journal, 7/20/15

Mary M. Kolar: GOP usurps local control to help Canadian corporation, Cap Times, 7/20/15

Budget contains ‘a grab bag of anti-conservation policy, Wisconsin Gazette, 7/16/15

Enbridge Energy pipeline appeal officially removed from county agenda, Wisconsin State Journal, 7/15/15

Documents Show Energy Firm Helped Craft Changes To State’s Eminent Domain Law, Wisconsin Public Radio, 7/9/15

350 Madison Blog Posts

Enbridge Pursues Its Case Against Dane County with New Representation from Governor Walker’s “Fixer” (9/27/16)

Enbridge Appeal to Dane Co. Board 12/3/15: Full Transcript (6/9/16)

Landowner Lawsuit Still Alive! (4/13/16)

Update on Landowner Lawsuit (3/30/16)

Landowners File Suit Against Enbridge to Force Imposition of Insurance Requirement Before Expanding Pipeline Flow (2/9/16)

Dane County Bd. of Supervisors Rejects Enbridge Appeal 27-2 (12/3/15)

Update on Enbridge Pipeline Expansion (9/30/15)

Update on WI Tar Sands Struggle (9/10/15)

Enbridge Appeals Zoning Committee Requirement for Specific Environmental Cleanup Insurance (5/5/15)

Additional Sources

Press releases can be found here; a comprehensive news archive, here; and general background, including a film and webinar, here.

 

Tar Sands Campaign

Stop Tar Sands Expansion in Wisconsin! Most people have heard of the Keystone XL pipeline and the threat it would have posed to the climate and the environment. Much less well known is the fact that the world’s largest pipeline carries toxic tar sands oil right through Wisconsin, including Dane County. 350 Madison invites you to join the fight against tar sands expansion in Wisconsin!

Divestment Campaign

The 350 Madison Divestment Campaign is part of an international movement pressing universities and colleges (including UW–Madison), local governments, religious organizations, other institutions to sell off fossil fuel assets and invest in cleaner alternatives. If it's wrong to wreck the planet, then it's wrong to profit from that wreckage! Join us—sign our petition urging UW to divest!

Local Energy Action

The Local Energy Action Team works to move the Madison area off fossil fuels by reducing energy use and moving to 100% renewable energy. The team pushes MGE to get off coal and other fossil fuels, supports 100% clean energy for our communities. promotes clean transit options that serve everyone, helps 350 Madison members reduce their carbon footprint, and advocates for energy equity.