MADISON — A legal fight over an insurance requirement for Enbridge expanding its oil pipeline near Waterloo in Dane County will be drawn out until September. That’s when a judge could decide whether the provision should be taken out of the project’s permit or go back to the Dane County Zoning and Land Regulations Committee to start all over again.
At a Monday hearing, Dane County Circuit Court Judge Peter Anderson ruled that the county couldn’t maintain a $25 million spill cleanup insurance provision on a conditional-use permit for a Town of Medina pumping station near Waterloo because the permit wasn’t finalized until after a state law, passed last July, prohibited the requirement. During the legal battles, work on the Enbridge project at the pump station has continued. The project will double the volume of tar sand oil being transported through the county on Line 61 that runs from Superior to northern Illinois. Enbridge filed a lawsuit in January against the county asking a judge to remove the provisions because it was against state law. A lawsuit, filed in February by seven landowners near the pump station contended that the state law was not retroactive and the insurance condition should stand.
While Monday’s decision favored Enbridge, Judge Anderson made no ruling to take the provisions out of the permit after attorney David R. Gault, representing Dane County, argued that the additional insurance condition shouldn’t be removed.
“You can’t just rip those conditions out because we don’t know if the committee would have approved the permit without it,” Gault told the judge.
The Dane County Zoning Department had issued a permit in April 2015 asking for the $25 million environmental impairment liability requirement (EIL), under a consultant’s advice. A last-minute provision put into the 2015-17 state biennial budget, which was signed into law July 2015, prohibited counties from requiring extra insurance from pipeline companies. That action prompted Dane County zoning officials to take out the provision, but the county board deemed that action was unauthorized and reinstated it with a note that it was unenforceable under state law.
Enbridge Attorney Thomas Pyper argued in court on Monday that the provision be struck from the permit because it created legal uncertainty for the company were the state law to change. Pyper contended that the permit process should not start over again.
“The ZLR (Dane County Zoning and Land Regulations Committee) could have started over in October when they issued the permit conditions with a note that they were unenforceable, but they were fine with going forward without the conditions,” Pyper said.
He also argued that, under the law, a conditional-use permit could not be pulled unless the holder was doing something wrong and not following the conditions.
From the beginning, Enbridge officials refuted the need for additional insurance, and they appealed the condition, stating that the company has $860 million in general liability insurance and sudden and accidental coverage to clean up spills. The county board voted in December to keep the provision in, with some supervisors saying it possibly could be enforced if the law changes.
Judge Anderson ordered both sides’ attorneys to submit briefs in advance of a Sept. 27 hearing.
Enbridge spokesperson Jennifer Smith said on Tuesday that the continued legal battle will not halt the company work on the substation project in the Town of Medina. She said completion is expected late summer/early fall.
The company has faced no legal challenges to the 13 other project permits it received for substation work in Wisconsin.