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Crude tar sands pumping station

A judge will consider whether Dane County officials would have approved a permit for Enbridge Energy to expand its pumping station had the permit not required additional spill insurance — a condition nullified by Republican lawmakers in a state budget provision.

State Journal archives

A judge has ruled that a special insurance requirement included in a Dane County permit for the expansion of a pipeline pumping station was not finalized before state lawmakers invalidated it. However, the conflict over the pipeline will return to court this fall to determine whether the county would have issued the permit without the condition.

Several landowners near Enbridge Energy’s town of Medina pumping station filed a lawsuit in February, contending that a provision Republicans added to the 2015-17 state budget that bars counties from imposing spill insurance requirements was not retroactive. That would mean a condition included in the county’s permit requiring the Canadian oil pipeline company to carry $25 million in cleanup insurance would still be in effect. The lawsuit argued the county can’t enforce the provision itself, but that statutes allow property owners in the same zoning district to do so.

On Monday, Dane County Circuit Judge Peter Anderson sided with Enbridge, ruling that because the permit was still being appealed into December, it was not finalized before Republicans changed the law in July of last year.

But seconds after hearing the oral decision, David Gault, assistant corporation counsel for Dane County, fired back that the county’s Zoning and Land Regulation Committee might not have approved the permit at all had it not included the insurance requirement.

“Clearly those conditions were an integral part of even issuing the permit,” Gault said. “I don’t think you can just rip those conditions out and say, ‘Go forth with your conditional use permit now,’ because clearly the committee thought this was something that had to be there to even grant the permit in the first place.”

The argument was enough to persuade Anderson to ask for new briefs and schedule a Sept. 27 hearing.

“I guess I finally learned this: That it’s probably best not to shoot from the hip as a judge,” Anderson said, adding that the point had not been raised in previous court filings.

Enbridge’s Line 61 already carries Canadian tar sands crude through Wisconsin to a refinery in Illinois, but it has been pumping below the capacity the pipeline was engineered for.

The county’s Zoning and Land Regulation Committee in April 2015 approved a permit that allowed the company to expand its town of Medina pumping station. But it included the additional insurance requirement to appease concerns brought about by a 2010 spill in Michigan, in which an Enbridge pipeline ruptured, fouling miles of the Kalamazoo River. The spill remains one of the worst inland oil spills in U.S. history.

Upset with the additional insurance requirement, the company appealed to the County Board that May. In early July, Republican lawmakers intervened with the last-minute budget provision barring such conditions. The change in state law prompted County Board leadership to remove consideration of the appeal from the board’s agenda later that month.

The company returned to the County Board in October, asking that any reference to the insurance requirement be removed from the permit. On Dec. 3, Supervisors voted 27-2 against changing the permit to allow the county to enforce it should the state law change again.

Thomas Pyper, an attorney representing Enbridge, told the judge the county could have restarted the permit process at the time, but it went ahead and approved it knowing the insurance condition wasn’t enforceable.

“They were fine with going forward without those conditions being enforceable,” Pyper said.

Improvements at the pumping station are already underway and Enbridge and officials told Anderson they have no reason to stop construction.Peter N. Anderson, of 350 Madison Climate Action Team, said the ultimate outcome of Judge Anderson’s Monday decision won’t be known until after his decision at the Sept. 27 hearing.

“Essentially, if they go back to square one, which is what Mr. Gault has suggested, then the process would be one in which insurance could not be required but other assurances could be considered,” he said.

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