Oil, Water, and the Judges

By Winona LaDuke
- News From Indian Country -
The Husky Oil Refinery’s catastrophic spill and fire during late April illustrates the problem of oil and water.  With immense gratitude for the firefighters who extinguished the  fire, we are alive. They were able to stop the fire before it spread to the tank of hydrogen fluoride, 200 feet away. That would have been a major catastrophe.

According to the Star Tribune, a “dense cold killing cloud” would have put l80,000 people at risk. We got a break, we all should be grateful. The situation we are in is dangerous, getting more so. The oil/asphalt which gushed and burned was delivered by Enbridge, through their present lines to the Husky Refinery. Enbridge and Husky are both Canadian corporations, who have an immense impact on the future of our region.  The impact on Gichi Gummi, or Lake Superior, and our health of this accident is not clear, nor will it be this year as lingering contamination is unknown.

Neil Carman, a former refinery inspector for the Texas Commission on Environmental Quality and now with the Lone Star chapter of the Sierra Club explained, “The unburned chemicals in the smoke are full of polycyclic aromatic hydrocarbons... they have benzene in them... They are very nasty chemicals. They are human carcinogens. It’s microscopic stuff,’’ Carman said. “Even where the plume looks like it’s dissipating, these little particles are still out there”

Wilma Subra, a chemist and technical adviser for the Louisiana Environmental Action Network, said polynuclear aromatic hydrocarbons can remain in soil, on grass, on homes and in water long after it has settled out of the air - sometimes for years after events like fires and train derailments.

“By the time they (EPA) took the air samples, the unburned hydrocarbons were already out of the air. They should be testing the property downwind where the smoke deposited.”

All we know is that we are lucky, and that it’s time to clean up, not make more of a mess.

This aerial image from video provided by KSTP-TV in Minneapolis, shows smoke rising from the Husky Energy oil refinery after an explosion Thursday, April 26, 2018, at the plant in Superior, Wis. Several people were injured in the explosion and thousands evacuated out of the city. Husky uses Enbridge oil pipelines that run through this property to bring Husky excavated oil products to the United States where it is refined at this production facility. KSTP-TV via AP

Minnesota Judge Does Not Recommend Pipeline Route

Essentially, that’s what Administrative Law Judge Anne O’Reilly said in the April 23 decision on the proposed Line 3.   Noting, climate change is increasing; Enbridge’s liability is limited, and the old pipeline would be abandoned, leaving the mess for Minnesota landowners and tribes, the Administrative Law Judge did believe that Enbridge needs a non-leaking pipeline, but did not recommend approving the so called “preferred route” and opening a new corridor.  Instead, the judge ruled that the permit, if granted, should be in the present corridor.  The Judge noted clearly that she could not order sovereign tribes to grant an easement. This is a problem for Enbridge, as a quarter of the line crosses Leech Lake, Red Lake and Fond du Lac reservations, and more crosses treaty territory.  

As Judge O’Reilly notes, “To give Applicant the right to place and, thereafter, maintain Existing Line 3 (and five other pipelines) on the Leech Lake and Fond du Lac Reservations, both Tribes had to voluntarily execute a grant of easement for right-of-way to Applicant. An evaluation of those easement agreements – and the current sentiment among tribes about pipelines running through tribal property – shed light on why Applicant has chosen to pursue a new route for Existing Line 3 outside of the Mainline corridor. It also brings into question whether Applicant will be required to remove Existing Line 3 from the Reservations if the Commission allows the line to be abandoned in-place, as proposed. Moreover, it begs the question of what will happen in 2029 when the existing easements for these six pipelines in the Mainline corridor expire…”

The Leech Lake government has been adamant about the opposition to the routing of the pipeline in the old corridor; and Red Lake has asked the company to remove pipes illegally trespassing on tribal trust land. This leaves Enbridge in a legal and policy conundrum. Enbridge has proceeded with extreme confidence, and placed all corporate eggs in one basket - a new route.

That route, called the “preferred route”, cuts south of Park Rapids, Outing, the White Fish Lake chain, and the heart of Sandy Lake territory. They have done no major assessment of another route. Although the company says that most landowners support the line, the company does not disclose that many easements are granted across the tax forfeiture land in some of the poorest counties in the state.

Spring has finally come. Winter, the longest I can remember in my history, lingered, and lingered.

In Ojibwe traditions, the time of the Wiindigo came, Gaa Biboonike the Winter Maker finally has been sent to rest by Ziigwan, Spring. Climate change related disasters caused the US $l90 billion last year, from the collapse of Puerto Rican infrastructure to the California wildfires. This year we hit 440 PPM Co2, the largest amount of carbon in our atmosphere in history.  

Enbridge’s proposed Line 3 would add 220 million more metric tons of C02 to the environment annually.  As well, it turns out that Enbridge, although the third largest corporation in Canada, is not liable for a catastrophic spill here, whether in Hubbard County or the heart of Wild Rice territory. That’s what Judge O’Reilly found in her 450 plus page decision, recommending against issuing Enbridge a permit for a new route.

Although Enbridge is the third largest corporation in Canada, O’Reilly found that through a series of limited liability subsidiaries, the mother ship is protected from liability for a spill of catastrophic magnitude.  “As explained by Applicant’s own witness, Chris Johnston, neither Enbridge, Inc. nor Applicant’s limited partner, EEP, would be liable for spills or costs of cleanup that could or might result from the Line 3 Project…. as a limited partner, EEP’s financial exposure and risk is limited solely to its capital contribution in Applicant.”  

In short, O’Reilly finds that liability would remain with the people and land of Minnesota, not the big Canadian corporation. That’s a bit of a problem in her mind, and along with the recognition of the ecologically sensitive corridor, the broader issues of energy economics, survival of Anishinaabe people, and deep concerns about “abandonment”, which span many pages of the report.

The Judge did not recommend the new corridor. For Superior Mayor Jim Paine, the catastrophe of an Enbridge Oil explosion at the Husky Refinery was probably enough to jar his city and all of us, frankly into a dose of reality of not only that oil and water do not mix, but that we are in a dangerous time.

Necessity Defense

The dangers of this time were also recognized by the Minnesota Court of Appeals in a landmark case of two women charged with turning the valves at Enbridge’s Clearbrook facility and stopping the flow of oil. On April 23, hours before the ALJ decision, the Minnesota Court of Appeals recognized the unusual “necessity defense” case for the Water Protectors.  

Faced with felony charges, Emily Johnston and Annette Klapstein shut off valves on October 11, 2016 as a part of a national coordinated effort by Climate Direct Action activists who shut down five pipelines carrying tar sands oil from Canada.  Tar Sands oil is considered the dirtiest oil in the world.   

This is a moment in history. State agencies like the Department of Health, Commerce, the Administrative Law Judge, tribal governments and at least 68,000 people have testified against Enbridge’s Line 3 proposal. As Annette Klapstein and Emily Johnston courageously face felony charges for stopping the tar sands pipeline, it is indeed a time of necessary and courageous action.

Water Protectors prepare to camp on the line in the l855 treaty territory. Over half the line is on public lands, where anyone can camp for up to two weeks at a time. Summer is the season of excellent camping in Minnesota, and for many of us “necessary action”.

In the meantime, Summer is here, full of promise after a brutal winter. Let us pray for our Gichi Gummi, Lake Superior and those who live on her shores in Superior. And, let us be grateful for the water and life bestowed upon us.

About that Hydrogen Flouride

According to the Duluth News Tribune, the Husky Refinery is one of about 50 nationally that still uses hydrogen fluoride to process high-octane gasoline. An acid catalyst, hydrogen fluoride is one of several federally regulated toxic chemicals at the refinery, such as propane and butane. The refinery can handle about 78,000 pounds of hydrogen fluoride, according to federal EPA records from 2012.

“It’s a deadly chemical. A lot of things can burn your skin, but this stuff can go through your skin,’’ Carman said. “It’s the worst-case scenario chemical in every refinery that uses it. It’s what sets the parameters for evacuations. It’s basically a kill zone that can go out several miles. ... And the thing is, they don’t have to use it. There are other options, like sulfuric acid, which is not nearly as deadly. It won’t kill you if it’s released like hydrogen fluoride will.”

According to the Centers for Disease Control and Prevention, hydrogen fluoride is a highly dangerous gas, forming corrosive and penetrating hydrofluoric acid upon contact with moisture. On any exposed skin, it immediately converts to hydrofluoric acid, which is corrosive and toxic and requires immediate medical attention upon exposure. Breathing in hydrogen fluoride at high levels, or in combination with skin contact, can cause death from an irregular heartbeat or from fluid buildup in the lungs. The gas can also cause blindness by rapid destruction of the corneas.In high doses, hydrogen fluoride can cause convulsions and death from irregular heartbeat, and when exposed to water it is “one of the strongest acids known.” Nice to think that the Refinery is on the shore of Lake Superior.

An EPA report from 1993 said a vapor release “could pose a significant threat to the public, especially in those instances where hydrogen fluoride is handled at facilities located in densely populated areas.” Twenty-five years later, about a third of American refineries still use the compound. The Center for Public Integrity said refineries using hydrogen fluoride put a combined 16 million people at risk.

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