The fight over whether Enbridge Inc. needs spill insurance to expand its pumping operation through a portion of Dane County just moved to the state Supreme Court.
The Supreme Court agreed last week to review an appellate court decision that required the pipeline company to show proof of spill insurance before winning a zoning permit to triple its capacity to pump tar sands through a pumping station in the town of Medina in northeastern Dane County.
The Medina station is one of 13 pumping Canadian tar sands from Superior to Flannigan, Illinois. Enbridge wants to increase pumping capacity through the line from 400,000 barrels a day to 1.2 million.
In May, the state’s 4th District Court of Appeals ruled that Enbridge had to show proof that it has $25 million in spill insurance. That’s the amount of insurance Dane County required for the expansion.
Dane County approved the permit in 2015 with the insurance requirement. But the Republican-led state Legislature passed a law around the same time that barred local governments from requiring pipeline companies to have insurance if the company already has pollution insurance. The law, the origin of which was never made public, appears to benefit Enbridge alone.
Enbridge maintains that it has the required insurance, but has refused to show proof, citing proprietary information.
The appellate court’s actions overturned a decision by Dane County Circuit Judge Peter Anderson who sided with Enbridge, citing the hastily passed state law.
"Enbridge continues to believe the Dane County Circuit Court’s decision to strike the unlawful insurance requirements from the (conditional use permit) is the correct course of action to be taken," says a statement from Enbridge spokeswoman Jennifer Smith. "The CUP continues to remain in effect during this appeal and this does not impact operations at the Waterloo Station which is fully constructed."
Dane County Corporation Counsel David Gault said he’s not surprised by the high court’s review.
“Our Supreme Court doesn’t take that many cases, so it is relatively rare,” he said. “But I was not shocked that they took this case."
The court currently has a 4-3 split favoring conservatives, who are considered by some to be more aligned with Republicans and business interests.
Gault declined to comment on potential political factors in the case.
Gualt said the county will try to convince the court to remand the issue back to the Dane County Zoning Committee, which likely would never have approved the permit without the insurance requirement.
“Our position is that by stripping those conditions out and letting the permit stand, the circuit court was in effect rewriting the permit,” he said, “and that was in excess of the court’s authority.”
He said a decision is likely to come sometime next year.
The appellate court also ruled in favor of a group of property owners near the pumping station who say they have the legal right to see proof of spill insurance.
The county required the insurance because of concerns over the 2010 843,000-gallon Enbridge spill that fouled 35 miles of Michigan’s Kalamazoo River. That's the largest inland spill in U.S. history and cost $1.2 billion to clean up.
The company has already ramped up capacity on the tar sands line. Enbridge's Smith said the line was pumping 930,000 barrels a day, up from its previous capacity of about 400,000 barrels.