The Biden administration delivered a small victory for green activists on Wednesday, saying it would scrutinize the environmental effects of a portion of the Line 5 oil pipeline in Michigan, wading into a long-waged battle.
That win proved short-lived. Later that night, the Biden administration defended the Trump administration’s support of the contentious Line 3 oil pipeline expansion in northern Minnesota in a federal lawsuit challenging a key permit.
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In this case, the Department of Justice said the approval last year of permits for Line 3, a different project owned by the same company, Enbridge, followed legal obligations to consider the project’s environmental effects.
The administration’s gymnastics over pipelines this week caused environmental activists to accuse President Joe Biden of taking an “inconsistent” approach to interstate oil and gas infrastructure and not being fully committed to his pledge to cut emissions from fossil fuels, the main driver of climate change.
“The Biden administration’s approach to Trump-era pipelines has been wildly inconsistent and unacceptable,” said Collin Rees, senior campaigner with Oil Change U.S., which advocates keeping fossil fuels in the ground. “Biden appears to have abandoned any pretense of listening to science or environmental justice communities.”
Tom Russo, a former analyst at the Federal Energy Regulatory Commission specializing in fossil fuel infrastructure, argued the Biden administration’s approach is “pragmatic” because it is appropriately reviewing projects on a case-by-case basis.
The Biden administration would face legal scrutiny and be accused of being arbitrary and capricious if it wholesale wiped out previously approved fossil fuel projects that undergo intense regulatory processes and have gone through multiple levels of review by career professionals at permitting agencies.
“There is no inconsistency from Biden here,” said Christi Tezak, a managing director at ClearView Energy Partners who studies interstate pipelines. “Just because it was issued under the last administration, a permit is not guaranteed to be flawed. The best protection against shifting political winds is following law and regulations.”
After securing the death of the high-profile Keystone XL last month, emboldened environmentalists projected confidence about their chances of convincing Biden to intervene in other oil pipeline disputes.
The defeat of Keystone XL came as the company developing the pipeline deemed it nonviable after Biden canceled a key permit for it on his first day in office. But that decision also prompted backlash from labor groups, a key Biden constituency, that said the cancellation would kill thousands of construction jobs.
“Canceling Keystone helped placate the environmental Left, but it also created significant divisions with another — namely labor and working-class voters,” said Tony Clark, an energy industry attorney at Wilkinson Barker Knauer, who was formerly a Republican member of the Federal Energy Regulatory Commission.
Since then, Biden has demonstrated reluctance to oppose other pipelines approved in the Trump administration targeted by environmentalists. These projects differ from Keystone XL, which was never built, in that they are either operational or enhancing existing pipelines.
This spring, the Biden administration declined to order the controversial Dakota Access oil pipeline to shut down while it completes an environmental review, dealing a blow to green groups and Native American tribes that had sought to stop it from operating.
The $9 billion Line 3 pipeline expansion is especially representative of the challenge facing Biden.
Enbridge is looking to replace an aging pipeline to transport crude from Canada’s Alberta oil sands, the same emissions-intensive source that would have been used in Keystone XL, through the state’s watersheds and tribal lands to Superior, Wisconsin.
Enbridge says the expansion is needed to replace an existing pipeline from the 1960s that is corroding and only operating at half capacity.
The Obama administration negotiated a consent decree with Enbridge in 2016 that blessed replacing Line 3, making it hard to characterize as a Trump-era project.
“Project opponents ignore that,” Tezak said.
Still, Line 3 has perhaps been the top target of activists. Earlier this month, protesters gathered in northern Minnesota, leading to tense standoffs with police and the arrests of more than 160 people.
Groups fighting the project said it threatens drinking water because of leaks and infringes on the rights of indigenous people who use the headwaters for hunting, fishing, and harvesting wild rice.
Line 3’s opponents assert the Biden administration could revoke a Clean Water Act permit issued during the Trump administration. But for now, the administration is defending a decision by the U.S. Army Corps of Engineers to issue those permits, arguing the review properly considered the effects to wetlands, the climate, low-income populations, and Tribal rights to hunt, fish, and gather.
“With some of these other cases, it can be more difficult to play arbitrary politics. Making a unilateral decision to overrule them is much tougher,” Clark said.
In the case of Line 5, the Biden administration’s Army Corps of Engineers announced this week it would conduct an environmental impact statement for Enbridge’s proposal to construct a tunnel and new pipeline to replace a portion of the current pipeline that runs under the Straits of Mackinac connecting Lake Michigan and Lake Superior.
Michigan Gov. Gretchen Whitmer, a Democrat, has ordered the entire 645-mile Line 5 pipeline operated by Enbridge to shut down, citing risks that the pipeline could leak or spill oil.
However, Enbridge has defied Whitmer’s shutdown order. The Biden administration’s authority to scrutinize the project is limited to the proposed crossing of the Straits of Mackinac. It could still eventually issue the permit after choosing to do a lengthier environmental impact statement rather than a shorter assessment, a course that would potentially make a future approval more legally durable.
“It may take longer, yes, but for a long-lived asset, could wind up being worth it if the permit winds up stronger as the result of a more robust review,” Tezak said.
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Activists say Biden should stop mulling and cancel pipeline projects now, arguing no new oil and gas infrastructure is compatible with a carbon-free future.
“Projects like Line 3 and Dakota Access that Biden has refused to stop are just as deadly for the climate as Keystone XL and Line 5 where they’ve intervened,” Rees said.
