In re Enbridge Line 3 Replacement Project in Minn. Kittson

• Decision Date: 30 August 2021
• Docket Number: A20-1513
• Parties: In the Matter of Enbridge Line 3 Replacement Project in Minnesota Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater, Hubbard, Wadena, Cass, Crow Wing, Aitkin, St. Louis, and Carlton Counties Section 401 Water Quality Certification.
• Court: Minnesota Court of Appeals

In the Matter of Enbridge Line 3 Replacement Project in Minnesota Kittson, Marshall, Pennington, Polk, Red Lake, Clearwater, Hubbard, Wadena, Cass, Crow Wing, Aitkin, St. Louis, and Carlton Counties Section 401 Water Quality Certification.

No. A20-1513

Court of Appeals of Minnesota

August 30, 2021

This opinion is nonprecedential except as provided by Minn. R Civ. App. P. 136.01, subd. 1(c).

Minnesota Pollution Control Agency File No. 2014-01071-TJH

Joseph Plumer, White Bear Lake, Minnesota (for relator Red Lake Band of Chippewa Indians)

Frank Bibeau, Deer River, Minnesota (for relator White Earth Band of Ojibwe)

Paul C. Blackburn, Minneapolis, Minnesota; and Frank Bibeau, Deer River, Minnesota (for relator Honor the Earth)

Scott R. Strand, Environmental Law &Policy Center, Minneapolis Minnesota (for relator Friends of the Headwaters)

Moneen S. Nasmith (pro hac vice), Earthjustice, New York, New York (for relator Sierra Club)

Christina K. Brusven, Haley L. Waller Pitts, Althea M. Huyser, Fredrikson &Byron, P.A., Minneapolis, Minnesota (for respondent Enbridge Energy, Limited Partnership)

Keith Ellison, Attorney General, Peter J. Farrell, Oliver J. Larson, Assistant Attorneys General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Florey, Presiding Judge; Jesson, Judge; and Smith, Tracy M., Judge.

SMITH TRACY M., Judge

In this certiorari appeal, relators Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Sierra Club, Honor the Earth, and Friends of the Headwaters challenge the decision by respondent Minnesota Pollution Control Agency (the MPCA) to issue a section 401 certification under the federal Clean Water Act for the Line 3 replacement project proposed by respondent Enbridge Energy Limited Partnership. Relators contend that the MPCA's decision to grant the section 401 certification was based on legal error because (1) the MPCA failed to consider alternative routes for the pipeline, (2) the MPCA improperly determined that the project would comply with state water-quality and wetlands standards, (3) the MPCA improperly limited the scope of its authority under section 401 to discharges and construction impacts, and (4) the MPCA improperly shifted the burden of proof to relators. Respondents MPCA and Enbridge contend that this appeal is moot because, shortly after the MPCA issued its section 401 certification, the U.S. Army Corps of Engineers (the Corps) issued its final section 404 permit for the project and, respondents argue, reversing the section 401 certification will not affect the permit. Respondents also argue that, in any event, the MPCA did not err.

We conclude that this appeal is not moot and therefore address relators' challenges to the section 401 certification. Addressing those challenges, we conclude that the MPCA's section 401certification is not affected by legal error and is supported by substantial evidence in the record. We therefore affirm the MPCA's decision.

FACTS

This appeal is one of several matters brought to us regarding replacement Line 3.^[1]The facts regarding the project are set forth in more detail in our previous decisions. Because the appeal at hand concerns the MPCA's decision to grant a section 401 certification for the project, we focus here on the regulatory framework and facts related to that decision.

The Regulatory Framework

Because replacement Line 3 will cross state lines and navigable waters, the federal Water Pollution Control Act-commonly known as the Clean Water Act-applies to the project. 33 U.S.C. §§ 1251-1387 (2018). The Clean Water Act generally prohibits the discharge of pollutants into navigable waters without a permit. 33 U.S.C. § 1311. In this case, the project requires a permit from the Corps under section 404 of the Clean Water Act. See 33 U.S.C. § 1342(a).

The Clean Water Act establishes a two-tiered system that provides a role to both the federal and state governments in protecting navigable waters. In re 401 Water Quality Certification, 822 N.W.2d 676, 679 (Minn.App. 2012). The federal government is responsible for issuing the relevant permit for a proposed project that involves discharge of pollutants into public waters. See, e.g., 33 U.S.C. § 1342(a)(1). But, under section 401 of the Clean Water Act, the federal permit cannot issue unless the state where the discharge would originate either certifies that the discharge will comply with state water-quality standards or waives certification. 33 U.S.C. § 1341(a)(1). A state issuing a 401 certification may include conditions to ensure that the project complies with the state's water-quality standards, and the federal government is required to incorporate those conditions into its permit. 33 U.S.C. §§ 1342(a)(1), 1341(d); 40 C.F.R. § 122.44(d) (2019). Under section 401, a state must act on a certification request within one year or the state automatically waives its certification authority. 33 U.S.C. § 1341(a)(1).

In Minnesota, the MPCA is responsible for responding to requests for section 401 certifications. Minn. Stat. § 115.03, subds. 1, 4a (2020). Under the procedure laid out in administrative rules, the project proposer first submits an application to the MPCA. Minn. R. 7001.1420, 7050.0285 (2019). In connection with its application, the applicant must prepare an antidegradation assessment and submit information regarding that assessment to the MPCA. Minn. R. 7050.0285, subp. 2.^[2] Then the MPCA conducts its own antidegradation review based on the antidegradation assessment provided by the applicant and on "other reliable information" for the purpose of determining "whether the proposed activity will satisfy the antidegradation standards in part 7050.0265." Minn. R. 7050.0285, subp. 3.

Under the antidegradation standards, the MPCA may approve a proposed activity "only when existing uses and the level of water quality necessary to protect existing uses are maintained and protected." Minn. R. 7050.0265, subp. 2 (2019). The MPCA may not approve a proposed activity "that would permanently preclude attainment of water quality standards." Id., subp. 4 (2019). The antidegradation standards do not prohibit all degradation. Id., subp. 5 (2019). In general, the MPCA may approve an activity that results in some degradation provided that (1) there are no prudent and feasible alternatives available that would avoid the degradation and the degradation caused by the proposed activity will be "prudently and feasibly minimized," (2) "lower water quality resulting from the proposed activity is necessary to accommodate important economic or social changes in the geographic area in which degradation of existing high water quality is anticipated," (3) approving the 401 certification will help achieve compliance with all applicable federal and state water pollution control measures, and (4) the MPCA provides intergovernmental coordination and public participation during the process. Id. The MPCA may allow compensatory mitigation as a means of preserving the existing uses of waters to be affected by a proposed activity if certain conditions are met. Id., subp. 3(A)(1) (2019).

Based upon its antidegradation review, the MPCA must prepare and give public notice of a written preliminary decision whether to issue a 401 certification. Minn. R. 7001.1440, 7050.0295, subp. 4 (2019). The MPCA must include in its preliminary determination whether the project meets antidegradation standards or whether conditions attached to a 401 certification will ensure that the project can meet antidegradation standards. Minn. R. 7050.0285, subp. 4. A public-comment period follows the public notice, during which persons may also petition for a contested-case hearing. Id., subp. 5; Minn. R. 7000.1800, subp. 1 (2019). The MPCA then determines whether any petitions warrant holding a contested-case hearing. Minn. R. 7000.1900, subp. 1 (2019). Following the public-comment period and any contested-case hearing, the MPCA makes its final determination whether to approve, approve with conditions, deny, or waive a section 401 certification of the project. Minn. R. 7001.1450 (2019). The MPCA may issue a section 401 certification only if it concludes that there is "reasonable assurance that the activity will be conducted in a manner that will not violate applicable water quality standards." Minn. R. 7001.1470, subp. 1(C) (2019).

Replacement Line 3 Project

The replacement Line 3 project is a proposed crude-oil pipeline running from the North Dakota-Minnesota border to the Minnesota-Wisconsin border, to be built and operated by Enbridge. The pipeline will replace an aging pipeline that is operating at limited capacity due to safety and spill concerns. In October 2018, the Minnesota Public Utilities Commission (PUC) granted a certificate of need for, and approved the route of, replacement Line 3, and, in May 2020, following a remand from this court for further environmental review, the PUC reissued its orders granting the certificate of need and routing approval. We recently affirmed the PUC's decisions. See Enbridge II, 2021 WL 2407855, at *2.

Replacement Line 3's approved route through Minnesota will differ from the route of the existing pipeline. Along the new route, replacement Line 3 will cross more than 200 streams and rivers, and the proposed construction activities will discharge dredged or fill material into Minnesota wetlands and streams.

Enbridge's Section 401 Certification Application

Enbridge filed its application for a section 401 certification on November 15, 2019.^[3]On March 2, 2020, the MPCA issued its preliminary determination to grant a section 401 certification. The preliminary determination included 28 conditions to be incorporated into the section 404...