A Dane County judge has sided in favor of Enbridge Energy Company, taking a $25 million spill clean-up insurance requirement out of pipeline permit and prohibiting Dane County zoning from reconsidering it.
Dane County Circuit Court Peter Anderson made the ruling on Sept. 26, in the lawsuit Enbridge filed against Dane County, asking for the court to take out the insurance condition for the Town of Medina pump substation because it was illegal under a last-minute provision that Republican lawmakers put in the state biennial budget.
The Dane County Board of Supervisors voted to keep the condition in the permit with the hopes that the state law would change in the future and the company would have to provide the spill clean-up insurance.
The Line 61 pipeline upgrades will almost triple oil sand flow through the pipeline that runs through Wisconsin.
An Enbridge spokesperson said the company was pleased with Anderson’s decision, and estimated that the year-long work on the substation would finish up in November.
Dane County Board Sharon Corrigan said Judge Anderson’s decision essentially rewrote the permit and took out a condition that was critical in getting it approved.
“The county did its best to make sure that company had the insurance to protect against a spill. We felt the state changed the rules on us. We are disappointed by the judge’s decision,” Corrigan said on Wednesday.
Corrigan said the county has made no decision on whether or not it will appeal.
Lawyers for 350 Madison, an environmental group that advocated for the $25 million clean-up insurance, and represent landowners who filed a lawsuit against Enbridge asking for the insurance protection, said Judge Anderson based his ruling on two incorrect facts and the company was not eligible for the budget rider provision.
The group has accused Republican lawmakers and Gov. Scott Walker of passing legislation as political favors to large corporations.
350 Madison spokesperson Peter Anderson (no relation to the judge) said they are reviewing future legal challenges.
“We will try to convince the courts that dirty back room dealings—in which Gov. Walker has engaged in ‘pay-to-play,” granting corporate bailouts by means of budget riders—have to stop if we are to retain the substance and not just the form of democratic government,” he said.
Enbridge lawyer Matt Hetzner denied the company’s involvement in the budget provision when asked by Judge Anderson in court on Monday.
“We did not have any involvement and did not lobby for it and didn’t have anything to do with it,” Hetzner said. “We can only speculate on how it got in there.”
Dane County counsel David Gault suggested to the court that perhaps it was Santa Claus that helped out the company.
Dane County Zoning and Regulation Committee issued a permit in April 2015 asking for the $25 million environmental impairment liability requirement (EIL), under a consultant’s advice to make sure the company could handle a spill.
Enbridge was set to appeal the county zoning condition in July but a last minute provision put in 2015-17 biennial budget, signed into law July 2015, prohibited counties from requiring extra insurance from pipeline companies.
That action prompted a Dane County zoning administrator to take the provision out, but the county board deemed that action unauthorized and reinstated it in December 2015 with a note that it was unenforceable under state law.
The Canadian oil company filed a lawsuit against Dane County in January 2016 asking that the insurance condition be taken out of the permit because it created a legal uncertainty for the company if the state law would change.
At a July court hearing, Judge Anderson ruled that the county had no authority to impose the additional insurance.
Dane County counsel asked Judge Anderson to consider sending the permit back to rezoning board, something that he denied during Monday’s hearing.
Anderson said he based his decision on point of law and not on the merits of whether the insurance was needed or not, or if the pipeline expansion was a safety risk or not.
Enbridge officials have refuted the need for additional insurance from the beginning, saying the company has $860 million in general liability insurance and sudden and accidental coverage to cover spill clean-up.