A Bayfield County judge has issued a partial stay against the permits allowing Enbridge to construct its reroute of the Line 5 pipeline across northern Wisconsin. The stay only applies to construction at four waterway crossings.
The Bad River Band of Lake Superior Chippewa Indians, along with a group of environmental and civic organizations, filed the lawsuit in Iron County Circuit Court against Enbridge’s construction permit in February after an administrative law judge had previously upheld the Department of Natural Resource’s decision to grant the permits.
Enbridge is being forced to reroute the pipeline, which has crossed the state for decades, after a federal judge ruled in 2022 that it illegally crossed Bad River tribal land. The tribe and allied groups have opposed the reroute, arguing it still poses a threat to local waterways and Lake Superior while infringing on the tribe’s treaty rights to access public land.
In his ruling, issued May 15, Judge John Anderson wrote that the tribe must clear a high legal bar to be granted a stay because the administrative trial process already established the basic facts of the case. Comparing his role to that of an appellate court assessing a circuit court ruling, he wrote that he can’t give the petitioners an opportunity to a “fresh opportunity to relitigate those contested issues and facts” of the case.
“Considering the deference the Court must give the ALJ regarding its factual findings, it is very difficult to issue a full stay of permits primarily because petitioners disagree with the ALJ’s findings,” he wrote.
But he found that the administrative law judge had misinterpreted a previous case upon which Enbridge argued it had the right to conduct construction across waterways without permission from the person who owns the “riparian” area near those waterways.
“These are highly sensitive areas, not only for Bad River, which relies on these waters, but also for all the citizens of this state,” he wrote. “The Bad River and its headwaters and tributaries are a unique and special place. On this narrow legal issue, the irreparable harm near this waterway which cannot easily be rectified by other means or remedied at law is weighed against the need to show a strong likelihood of success.”
Anderson found that Enbridge will be required to obtain additional permits for its construction at the four waterways.
After the ruling, John Petoskey, the tribe’s attorney, said the halt to construction will protect the tribe from immediate harm.
“I’m relieved to have this partial construction freeze protecting the Band from further immediate harm,” said Earthjustice Senior Associate Attorney John Petoskey. “We trust the Court will agree that Wisconsin’s unlawful permitting decisions — which have ultimately put northern Wisconsin wetlands, waterways, and tribal nations at existential risk — deserve serious legal scrutiny.”
Enbridge spokesperson Juli Kellner said in a statement that the company is in the process of obtaining DNR permits to work on the relevant waterways, that the permits include conditions to mitigate environmental damage and that the ruling won’t delay construction.
“State permits include 250 conditions and mitigation plans which avoid, minimize, monitor, and remedy environmental impacts,” she said. “Line 5 is critical energy infrastructure serving 10 refineries and propane production facilities — and continues to operate safely and reliably delivering critical, affordable energy to the Midwest and Great Lakes regions.”
