A three-judge panel of the 4th District Court of Appeals unanimously reversed a 2016 circuit court decision in the case of Enbridge versus Dane County on Thursday, May 24.
The reversal will send the oil company pipeline back to the Dane County Zoning and Land Regulation Committee to determine if the Canadian pipeline company has met state-mandated insurance requirements.
Circuit Court Judge Peter C. Anderson had overturned the requirement in Dane County’s conditional use permit that Enbridge purchase cleanup insurance before increasing its volume of tar sands oil flowing through Line 61, which runs near Marshall, according to a press release issued by 350 Madison.
A new pumping station on Cherry Lane in the Town of Medina was constructed in 2016 to assist with the flow of the oil. At that time, a conditional use permit (CUP) was sought from Dane County.
Attorney Patricia Hammel, who led 350 Madison’s legal team together with Attorney Thomas Burney, 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.”
Enbridge spokeswoman Jennifer Smith said the current CUP remains intact. “Enbridge is reviewing the ruling now and will evaluate potential next steps,” according to a statement from the company. “The Waterloo station is critical infrastructure for the state of Wisconsin and the region. The station has been fully constructed since 2017.”
Smith said there is a 30-day period in which parties can file a petition to request the Supreme Court of Wisconsin review the ruling or the CUP goes back to the county’s zoning committee.
In 2015, the zoning committee approved the CUP, requiring the company carry $25 million in cleanup insurance. Enbridge officials appealed the decision to the Dane County Board. The county board voted to keep the additional insurance requirement in the permit.
In July of that year, lawmakers passed a provision in the state budget eliminating the need for additional insurance.
Tar sands oil is an especially dangerous type of oil for a number of reasons, according to 350 Madison’s Tar Sands Leader Mary Beth Elliott. First, it is abrasive and corrosive and thus more likely to cause leaks in a pipeline. Second, when it does leak, it is much more hazardous and essentially impossible to clean up because it sinks instead of floats in water. Third, because of its tar-like consistency, its extraction releases three times more greenhouse gas emissions than conventional crude oil.
Elliott also pointed out Enbridge’s safety record. The company was responsible for more than 800 spills between 1999 and 2010, including the largest inland oil pipeline spill in U.S. history—the 2010 Kalamazoo River disaster, which cost $1.2 billion to only partially clean up, she said.
350 Madison spokesperson Peter N. Anderson (no relation to the circuit court judge) applauded the appeals court decision as vindication of the group’s four-year campaign to protect the citizens of Wisconsin from liability for cleanup costs in the event of an Enbridge spill. It was 350 Madison that first pointed out that Enbridge needed to get a conditional use permit and that cleanup insurance should be a key condition.
According to Anderson, the county resisted Enbridge’s pressure to take its word for it that the general liability policy it carried provided adequate protection. The committee understood the inadequate nature of such policies and demanded a specific policy intended for environmental cleanups, called environmental impairment liability insurance.
The appeals court decision sends the case back to the zoning committee for further proceedings. The committee will determine whether Enbridge had properly shown that it carries insurance required by state law. If Enbridge’s insurance meets those conditions, the amendment would void the insurance requirement.
Anderson said the decision is “a stunning victory for citizen activism, for an outstanding legal team, and a courageous county board.”