Dane County cannot reconsider the permit that it issued for expansion of a tar sands oil pumping station, a Dane County judge ruled Tuesday, following up on a ruling he made in July in which he said the county must remove an insurance requirement from the permit that was invalidated by state law.
Circuit Judge Peter Anderson said in July that Dane County could not impose a condition requiring Enbridge Energy to carry $25 million in cleanup insurance as Enbridge expanded its town of Medina pumping station, even though the county knew it couldn’t be enforced.
County lawyers, saying that the permit might not have been issued without the insurance condition, had asked in July that the county be allowed to reconsider the permit, perhaps to add other conditions. But on Tuesday, Anderson said the permit would remain as it is drawn, minus the insurance requirement.
The county’s Zoning and Land Regulation Committee approved the permit in April 2015 with the insurance requirement included. Enbridge, protesting the insurance requirement, appealed to the County Board in May 2015. In early July, Republican state lawmakers passed a budget provision barring such insurance requirements.
In October, Enbridge asked that any reference to the insurance requirement be stricken from the permit, but in December the County Board voted to keep the requirement, which it said would allow the county to enforce the insurance requirement should state law ever change.
Anderson said that by waiting until December to vote, the county had given itself plenty of time to consider and adopt any other permit restrictions, knowing that state law made the insurance requirement unenforceable.
“But they didn’t do any of that,” Anderson said. Instead, he said, the board kept the unenforceable insurance condition in place. As of December, Anderson said, when the County Board signed off on the permit, the county was satisfied with what it had in place.
“So if it goes back to them, what are they going to do?” Anderson asked. “They were already satisfied with that. That’s the world as it exists today. Those conditions are unenforceable, just as they were back in December.”
Anderson said that the permit had not been finalized before the state law took effect, because Enbridge’s appeal to the county board was pending.
Assistant Corporation Counsel David Gault argued that by removing the insurance provision, the court was effectively rewriting the permit. He said that it couldn’t be assumed that minus the insurance provision, the permit would even have been issued by the board.
Enbridge’s Line 61 carries Canadian tar sands oil through Wisconsin to a refinery in Illinois.
Enbridge sued Dane County in January over the inclusion of the insurance requirement in the permit. About a month later, a group of property owners who live near the pumping station sued to enforce the insurance requirement.
The landowners’ lawsuit was merged with Enbridge’s lawsuit and their claims were subsequently dismissed, but the landowners remained as party to the matter. On Tuesday, Anderson shut down requests by the group’s lawyers seeking reconsideration of his July decision. He said that he wouldn’t reconsider his decision and advised the group to appeal.
But Anderson also questioned the timing of the law barring county-imposed insurance, and asked Enbridge’s lawyers whether the company had lobbied for the state law barring the insurance requirement. Enbridge had nothing to do with the enactment of the law, its lawyers said.