A Wisconsin judge is weighing whether to halt construction on Enbridge’s Line 5 reroute in northern Wisconsin, telling lawyers Thursday he’ll only issue a stay if he believes the underlying appeal has a real shot at winning.
Iron County Circuit Judge John Anderson spent nearly four hours at the Bayfield County Courthouse in Washburn pressing both sides on one central question: how likely is this judicial review to succeed? His answer to that question will decide whether pipeline work stops while the courts catch up.
The case pits Enbridge against the Bad River Band of the Lake Superior Chippewa Indians and allied environmental groups, who filed for a stay after an administrative court judge approved permits in February for a 41-mile reroute of the existing pipeline through Iron County. The original Line 5 corridor crossed the Bad River reservation, which courts found was an illegal trespass on tribal land. Enbridge’s answer was to go around.
The tribe’s argument
That workaround doesn’t fix the problem, according to the Bad River’s legal team.
John Petoskey, an Earthjustice attorney representing the tribe, told Judge Anderson the band has an interest that goes beyond property lines. “The natural landscape is far more than a resource. It’s a way of life,” Petoskey said, as reported by Michigan Advance. “That way of life requires a sustainable environment. It’s undisputed that the project will cause an impact.”
When Anderson pressed on what counts as “irreversible” harm, Petoskey pointed to the wetlands. Destroy a wetland that hasn’t been touched in a century, he said, and it won’t recover. “When wetlands are destroyed, they don’t clean water or control floods and no longer provide services that help the tribe,” he said.
Petoskey added a detail that reframes the reroute not as a compromise but as a new constraint. The new pipeline corridor would create a restricted zone around the reservation where tribal members who enter could face felony charges.
The legal hook
The stay petition rests on more than environmental harm. Opponents of the pipeline told the court the Wisconsin Department of Natural Resources misapplied a state statute governing navigable waterways when it approved Enbridge’s permits. That’s the legal thread they’re asking Anderson to pull. If the DNR got the law wrong, the argument goes, the permits should never have been issued and work shouldn’t be proceeding while a court decides.
Attorneys for the DNR and Enbridge pushed back. They said the permit process was exhaustive, received significant public scrutiny, and that the judicial review is unlikely to succeed on the merits. Stopping a multi-hundred-million-dollar infrastructure project mid-construction, they argued, is not a remedy courts hand out lightly.
What Anderson said
The judge didn’t tip his hand Thursday. He told lawyers he expects written briefs from all parties by April 27, after which he’ll rule on the stay. His framing was specific: he said he would only halt construction if he was convinced the judicial review would “not go further,” meaning he’s gauging the probability the appeal fails, not whether it wins. That’s a fine but meaningful distinction.
Pipeline reroute work north of Mellen in Iron County is already underway. The Army Corps of Engineers’ permitting database shows the federal permitting structure that underlies projects of this scale, but the immediate fight is in state court in Wisconsin.
What’s at stake
For the Bad River Band, this isn’t an abstract regulatory dispute.
The tribe has argued for years that Line 5, in its original path, posed a catastrophic risk to waterways they depend on for wild rice, fishing, and drinking water. The reroute was supposed to be the resolution. Instead, it opened a new front.
Environmental groups supporting the stay argue that completing a 41-mile pipeline while a court reviews whether it should have been permitted at all would leave any ruling hollow. You can’t unpipe a pipeline. You can’t undig a wetland.
Enbridge has countered that delay itself causes harm, citing economic costs and energy supply considerations. The DNR has backed that position by defending its permitting process as thorough and legally sound.
Judge Anderson’s April 27 deadline gives both sides a narrow window to sharpen their briefs. His ruling, expected sometime after that date, will determine whether construction on the Iron County reroute keeps moving or gets frozen in place while Wisconsin’s courts figure out whether the state followed its own rules to get here.
