On April 14th Dane County Zoning and Land Regulation Committee made a groundbreaking decision to require Enbridge to seek a conditional use permit before proceeding and as a condition of the permit, and to require Enbridge to, among other things, obtain specific environmental cleanup insurance.
Yesterday, May 4th, Enbridge appealed. In the case of zoning committee decisions, appeals start before the full County Board, where a ¾ vote is required to overturn the committee decision.
That, though, is not where our eyes need to focus for the next phase of this battle. We had a unanimous vote from the zoning committee and are near certain to have at least close to that before the full Board. There is no way whatsoever that they could get a ¾ vote to overturn. After that, Enbridge will need to appeal to either Dane County Circuit Court (where they are unlikely to receive a favorable decision either) or, more likely they will seek to establish jurisdiction in federal circuit court, where they would hope for a more favorable reception to their claim that federal law preempts any local requirement. From there, appeals next go to the regional state or federal Court of Appeals and then to the Supreme Court.
Until and unless Enbridge gets a court to reverse the county’s condition, they will not be able to install the pump station in Dane County to increase capacity from 560,000 barrels per day (bpd) to 1.2 million bpd. Differing reports suggest that they will be able to increase their capacity somewhat even without Dane County’s pump station because the other pump stations are built. Sometimes they have said they can increase to 800,000 bpd and at other times, to 1.0 million bpd. In either case, that is a big hit.
We have a very strong case in court, in no small measure because of the great care with which we established the record below, but law is unpredicatble and there is no way to be certain what will eventually ensue.
We anticipate that the next battle royal on this for us will be when Enbridge, in all likelihood, seeks to overrule county zoning authority over oil pipelines as an 11th hour, slipped in, amendment to the state budget bill.
To read why the Enbridge tar sands pipelines through the Midwest are the Other KXL, read here.