Photo: Mark Borchardt
Two lawsuits involving Enbridge Energy represent the latest development in Dane County’s standoff with the behemoth 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 “carries comprehensive general liability insurance coverage that includes 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.
The two cases were consolidated because of numerous overlapping issues.
The dispute came 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 Justice Gableman against ethics charges without charge.
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
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.”
In late June 2018, Enbridge appealed the Court of Appeals’ 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, 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 Supreme Court heard oral argument on March 26, 2019. Unfortunately, two out of the three liberal justices, J. Abrahamson and J. Dallet, withdrew from the case, with no reason given.
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. Dane County’s insurance expert, David Dybdahl, has skewered Enbridge’s arguments.
Whatever the outcome, the case has broken new ground, and the lessons learned are already informing similar struggles elsewhere: The Minnesota Public Utilities Commission, for example, made its approval of Line 3 subject to a cleanup insurance requirement modeled on Dane County’s. Moreover, this David-and-Goliath battle delayed Line 61 expansion for 3 years and reduced oil flow by billions of gallons, at enormous cost to Enbridge in oil carriage fees, high-priced attorney fees, and unfavorable publicity.
Here, Attorney PK Hammel speaks about the March 26 proceedings before the Supreme Court:
The Supreme Court is likely to issue its decision within two months.
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)
Wisconsin Supreme Court to hear oral argument in Enbridge appeal, Waterloo/Marshall Courier, 3/28/19
Wisconsin Supreme Court Takes Up Crude Oil Pipeline Debate, Milwaukee Public Radio, 3/27/19
Wisconsin Supreme Court hears arguments in Enbridge pipeline expansion case; justices question county process, La Crosse Tribune, 3/27/19
Wisconsin Supreme Court hears arguments in Enbridge pipeline expansion case; justices question county process, Wisconsin State Journal, 3/26/19
Enbridge, Dane County Argue Their Case Before State’s High Court, Wisconsin Public Radio, 3/26/19
Wisconsin Supreme Court Hears Dispute Over Enbridge Insurance, Wisconsin Public Radio, 3/26/19
Wisconsin Supreme Court hears dispute over Enbridge insurance, Duluth News Tribune, 3/26/19
Phyllis Hasbrouck: State Supreme Court should protect the people, not Enbridge, Cap Times, 3/24/19
Emily Park: Enbridge should be required to carry extra liability insurance, Cap Times, 3/22/19
Matt Rothschild: It should be ‘case closed’ for Enbridge at state’s high court, Cap Times, 3/19/19
Fate of Enbridge Pipelines May Send More Oil Through Wisconsin, Wisconsin Public Radio, 12/13/18
Janette Rosenbaum: State high court review of Enbridge case smacks of politics, The Cap Times, 9/21/18
Pipeline company fighting against insurance requirement in Supreme Court, The Waterloo/Marshall Courier, 9/20/18
Dane County v. Enbridge goes to the Wisconsin Supreme Court [Interview with 350 Madison’s Peter Anderson], WORT 89.9FM, 9/17/18
Wisconsin Supreme Court Will Review Case Between Enbridge, Dane County, Wisconsin Public Radio, 9/14/18
Dane County pipeline case moves to Supreme Court, The Cap Times, 9/13/18
Wisconsin Supreme Court grants review in ‘Enbridge v. Dane County,’ Wisconsin Gazette, 9/13/18
Lobbyists, lawmakers thwart home rule — Matt Rothschild, Wisconsin State Journal, 9/9/18
Minnesota Department Of Commerce says Enbridge insurance coverage Is lacking, Superior Telegram, 9/7/18
Minnesota Department Of Commerce Says Enbridge Insurance Coverage Is Lacking, Business North, 9/5/18
Commerce: Enbridge’s liability insurance won’t cover oil spill, Duluth News Tribune, 9/5/18
US officials say Enbridge lacked insurance for proposed pipeline, Insurance Business Canada, 9/5/18
Minnesota Department Of Commerce Says Enbridge Insurance Coverage Is Lacking, Wisconsin Public Radio, 9/4/18
Sens. Mark Miller and Fred Risser: High court shouldn’t bail out Enbridge, Wisconsin State Journal, 9/1/18
Oil company asks state Supreme Court to review pipeline permit case, Sun Prairie Star, 7/10/18
Appeals court hits Enbridge in Dane County case, Cap Times, 5/25/18
State Appeals Court Sends Enbridge Pipeline Expansion Back To Dane County, Wisconsin Public Radio, 5/25/18
Appeals court sends Enbridge insurance dispute back to Dane County over massive pipeline project, Milwaukee Journal Sentinel, 5/24/18
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)