The Biden administration has been outspoken about its commitments to climate action and environmental justice. But, in the legal arena, it keeps falling down on the job. The latest disappointment came Wednesday, when the administration asked a court to toss complaints from environmental and tribal groups seeking to stop the Line 3 pipeline so that the controversial project can proceed.
“We were hoping that if the Biden team is going to be real about their commitments that they’ve made in the executive orders that they have issued since coming into office on climate, on tribal issues, on environmental justice, that, at a minimum, they weren’t going to come out with a full-throated, doubling-down defense of the Trump administration’s previous decision,” said Moneen Naismith, an attorney with Earthjustice involved in the case. “Unfortunately, that’s what we saw last night in their filing.”
Protests against the Line 3 pipeline have been mounting this summer in Minnesota, where hundreds have been arrested in recent weeks demonstrating against quickly-moving construction on the last segment of the pipeline. The protests are the latest in a drawn-out, years-long battle over the project, which is technically a replacement for a decades-old pipeline owned by Canadian oil giant Enbridge Energy. If it’s completed, the new pipeline would carry 760,000 barrels of heavy crude per day from tar sands fields in Canada into the U.S., and lock in fossil fuel use for decades to come.
The full project is almost finished. But crucially, Line 3 takes a new route in Minnesota, including through the Fond du Lac Reservation and several treaty lands of Ojibwe bands. It’s this section of the pipeline that has been most contested, as Anishinaabe groups and others have argued that the construction violates treaty rights on the land and that local and federal authorities did not do their due diligence in approving the project.
The lawsuit in question was filed late last year against the federal government by Earthjustice on behalf of two Anishinaabe tribes, Honor the Earth, and the Sierra Club. It argued that the Trump-era Army Corps of Engineers didn’t adequately consider tribal rights, climate change, and other environmental impacts when it approved the final permit the pipeline needed. On Wednesday, the Justice Department issued a late-night response brief to the suit, arguing that the Army Corps of Engineers’ work last year was just fine, thank you, and that it didn’t need to do any more work. It also asked the court to reject any more arguments from environmental and Indigenous groups and allow the pipeline to move forward.
“They’re both defending against us and going on the offense,” Nasmith said.
There were a lot of ways the Biden administration could have responded to this initial filing, said Nasmith, that would have sent a much softer message, ranging from simply choosing to defend its position without going on the offense all the way to agreeing with the plaintiffs and ordering that the Army Corps redo its assessment. And this particular move doesn’t mean that the challenge to the pipeline is doomed; the suit will proceed, and the Army Corps, Nasmith said, could still decide to pull the permits independent of the Department of Justice’s filing. But with construction in Minnesota moving at a brisk pace, having the Biden administration’s weight thrown on the side of the pipeline means it’s a lot harder to slow that momentum down.
“It’s not a good sign that they’re doubling down and pushing so hard to defend a decision that is clearly at odds with the policies and the promises that President Biden has made since his election,” Nasmith said.
While portions of the Biden administration have been hard at work implementing sweeping climate policy and rolling back the environmental damage wrought by the Trump administration, when it comes to lawsuits, it’s been a different story. At best, many of the legal moves the administration has made are misguided; at worst, they actively allow fossil fuel polluters to keep on keeping on.
In April, the administration pulled a one-two punch on climate activists in court when it first asked a district court to shut down a long-standing climate case against the federal government brought by 21 young people. Two days later, the administration said it would keep the Dakota Access pipeline operational while a new permit was being issued for the controversial pipeline, disappointing activists in the long and drawn-out battle to shut that line down. (A judge on Wednesday tossed that lawsuit, delivering a defeat to the Standing Rock Sioux who had been fighting the pipeline for years.) Meanwhile, in May, the Department of Justice signaled that it would support an enormous oil drilling project in the Arctic facing legal challenges from Indigenous and conservation groups.
As lawsuits become increasingly crucial methods for groups and individuals to set precedents and hold polluters accountable, the fact that the Biden administration is going to bat for polluters is troubling. It also reneges on Biden’s climate plan during the campaign, which called for the “Justice Department to pursue these cases to the fullest extent permitted by law and, when needed, seek additional legislation as needed to hold corporate executives personally accountable—including jail time where merited.”
“I think it’s great to make promises and make policies that sound great, but at the end of the day you have to put your money where your mouth is and back those words up with actions,” said Naismith. “With the focus on tribal justice, on environmental justice, it’s really disappointing to this level of all-out defense of a decision that so clearly falls short on all of those issues.”