SAVE THE DATE! The Wisconsin Supreme Court will hear oral argument in the case of Enbridge v. Dane Co. on January 22, 2019, at 1:30. Listen to 350 Madison’s Peter Anderson on the Court’s surprising decision to grant Enbridge’s petition for review.
Photo: Mark Borchardt
Two lawsuits involving Enbridge Energy represent the latest development in Dane County’s standoff with the $130 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 (ZLR) 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 Keystone XL.
The victory was undercut just three months later when Enbridge, or someone acting on its behalf, lobbied key legislators to insert a last-minute provision in the 2015–17 state budget (Wis. Stat. § 59.70(25)). The provision states that counties may not require a pipeline company to obtain insurance if the company has coverage for “sudden and accidental pollution liability,” which Enbridge claims to have.
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 the budget provision. The county refused to comply, arguing that the insurance provision was legally required before the county could issue a conditional use permit that balanced the company’s interests with the county’s—that is, without the insurance 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 ZLR.
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.
The dispute was before Judge Anderson in Dane County Circuit Court on September 27, 2016, 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 agreed with Enbridge that Dane County’s insurance condition should be removed from the ZLR’s conditional use permit on the basis that it was invalidated by the 2015 budget provision. However, 350 Madison’s attorneys, Thomas Burney and Patricia Hammel, believed that the ruling was based on two incorrect facts and that Enbridge did not even qualify for the budget rider.
The case was appealed, and briefing was completed in May 2017.
Court of Appeals & Supreme Court
350 Madison Attorney PK Hammel at oral argument 1/24/18Oral argument was held before the Court of Appeals the morning of January 24, 2018. The questions posed by the three appellate judges demonstrated that they understood everything about the case and would not be confused by irrelevancies. They focused like a laser on the fact that Enbridge has never shown anyone—the ZLR or its insurance expert; the county board; the circuit court judge; or the court of appeals—its insurance policy, making it impossible to determine if in fact the company has the “sudden and accidental” coverage required to void the county’s conditional use permit. That left Enbridge’s attorney little chance to make a credible case.
In this brief video, 350 Madison’s attorney Patricia Hammel gives a succinct and upbeat summary of the appellate court hearing.
On May 24, 2018, the Court of Appeals unanimously reversed the 2016 circuit court decision (decision here). In sending the matter back to the ZLR, the Appeals Court’s decision underlined “the undisputed fact that potential insurance conditions are integral to the consideration of a permit” (¶ 100). It also concluded that Enbridge had failed to show that it carries the “sudden and accidental” coverage required to trigger the statute (¶ 96).
Hammel credited the court with taking landowners’ concerns seriously, saying, “Our clients look forward to having insurance protection against a devastating tar sands spill and proof that Enbridge continues to have such insurance in force. We must protect people living by pipelines until we can stop relying on fossil fuels.” 350 Madison’s Peter Anderson declared the decision “a stunning victory for citizen activism, for an outstanding legal team, and a courageous County Board.”
However, in late June 2018, Enbridge appealed the decision to the Wisconsin Supreme Court, and the court decided to take the case in September. Wisconsin Manufacturers and Commerce (WMC), the biggest lobbying group in the state Capitol, has filed a brief in favor of Enbridge. This is the same WMC that has spent $2.7 million to help elect the pro-business majority on the court, raising the question of whether justice can prevail.
The Appeals Court decision, if upheld, would send the case back to the Zoning Committee for further proceedings. On remand, the ZLR would need to determine whether Enbridge does in fact carry insurance satisfying the statutory condition. If the committee determined that it does, the amendment would void the insurance requirement. However, the Court of Appeals’ recitation of the facts makes clear that there is little chance that it does. What’s more, the Minnesota Department of Commerce has determined that Enbridge lacks adequate liability insurance to cover potential spills from its proposed Line 3.
The Supreme Court has scheduled oral argument in the case for January 22, 2019, at 1:30. Save the date!
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 are listed by case—Enbridge v. Dane County, brought by Enbridge, and Campbell v. Enbridge, brought by adversely affected landowners—followed by supplementary documents.
Enbridge v. Dane County
Transcript of Court’s Oral Ruling (9/27/16)
Enbridge Closing Brief (6/8/16)
Landowners’ Reply Brief (5/27/16)
Dane County’s Reply Brief (5/24/16)
Campbell v. Enbridge
Other Technical Documents
Section 10.255(2)(h) of the Dane County Ordinances (setting standards for issuing a conditional use permit)
State appeals court sends Enbridge pipeline permit back to county committee over insurance issue, Wisconsin State Journal, 5/24/18
Explained: Enbridge pipeline case headed for appellate decision, Capital Times, 2/20/18
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
Landowner Lawsuit Still Alive! (4/13/16)
Update on Landowner Lawsuit (3/30/16)
Update on Enbridge Pipeline Expansion (9/30/15)
Update on WI Tar Sands Struggle (9/10/15)