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Sens. Mark Miller and Fred Risser: High court shouldn’t bail out Enbridge

September 1, 2018

Shortly after Wisconsin became a state, the chief justice of the Wisconsin Supreme Court, Edward Ryan, gave a prophetic speech at the UW Law School. Speaking to future generations, he warned of the danger from “vast combinations of unexampled capital.”

Today, a $126 billion cross-border Canadian corporation, the Enbridge pipeline company, embodies Chief Justice Ryan’s worst fears. The result threatens the health and safety of Wisconsin’s 5.8 million citizens.

Enbridge, headquartered in Calgary, became notorious eight years ago when it ignored three warnings about cracks in its tar sands oil pipeline crossing Marshall, Michigan. Enbridge’s failure to act caused the worst inland oil spill in U.S. history when the pipe burst.

Almost a million gallons of black goo cascaded 36 miles down the Kalamazoo River, sending 150 families fleeing, and fouling 4,435 acres of shoreline. Incredibly, the company took 17 hours to shut the pipeline down. Ten days earlier Enbridge assured Congress “[o]ur response time [is] almost instantaneous.” Regulators compared the response to “Keystone Kops,” found that the company exhibited “a culture of deviance,” and experienced “a complete breakdown of safety.” Over the next six years, the disaster cost Enbridge $1.2 billion to try to clean up.

In 2014, with that disaster ongoing, Enbridge hoped its plan to triple the capacity of another of its tar sands pipelines near Marshall would go unnoticed by Dane County. The proposal was located on farmland zoned Ag-1. Fortunately, county zoning officials became aware, and Enbridge had to apply for the required permits.

Enbridge’s commercial insurance contains blanket pollution exclusions. Dane County, concerned about those exclusions, directed the company to purchase dedicated cleanup insurance as a condition for issuing a permit. Similarly, Minnesota’s Public Utilities Commission recently found Enbridge’s insurance inadequate

Requiring this additional insurance coverage is a measured, modest and market-based approach to ensure Dane County taxpayers will not be forced to pay to clean up any future accidents. Without that, Enbridge could follow the abusive coal industry tactic, which is to declare bankruptcy to shed environmental obligations.

Though the extra insurance could have been purchased for a modest premium, Enbridge fought the requirement. In fact, it spent more on lobbying and litigation to resist the requirement than the insurance would have cost. They got a compliant Republican-controlled Legislature to sneak a last minute, anonymous amendment into the 2015 state budget to prohibit Dane County from requiring the spillage insurance. Gov. Scott Walker signed the provision.

In a challenge to that provision, the Court of Appeals found that the hastily written clause does not apply in this instance because the insurance condition is nullified only if Enbridge already carried minimum insurance coverage. It appears the company does not even seem to have that. Enbridge has now petitioned our Wisconsin Supreme Court to bail it out for its botched amendment.

Enbridge argues it doesn’t have to show its policy for the court, and instead can claim it has coverage – even if it doesn’t. Now it has resorted to the type of blank political demands by corporate giants that former Chief Justice Ryan warned against. Wisconsin Manufacturers and Commerce’s supporting brief to the Supreme Court argues “[l]ocal governments are unlawfully attempting to expand their authority to eviscerate private property rights and thwart the express will of the people of Wisconsin.”

“Thwart the express will of the people”? Hardly. This clandestine amendment had no author, no public hearing, and no informed vote. In fact, it thwarts the express will of the people of Dane County.

“Which shall rule,” asked Chief Justice Ryan in his 1873 speech, “wealth or mans?” When the court acts on Enbridge’s attempt to abuse its enormous wealth to upend the rule of law, we will know the answer.

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