A18-1291 A18-1292

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1283
A18-1291
A18-1292

In re Applications of Enbridge Energy, Limited Partnership,
for a Certificate of Need and a Routing Permit for the Proposed Line 3 Replacement
Project in Minnesota from the North Dakota Border to the Wisconsin Border.

Filed June 3, 2019
Reversed and remanded
Florey, Judge
Dissenting, Connolly, Judge

Minnesota Public Utilities Commission
File Nos. PL-9/CN-14-916; PL-9/PPL-15-137

Paul C. Blackburn, Honor the Earth, Callaway, Minnesota; and

Frank Bibeau, Honor the Earth, Deer River, Minnesota (for relator Honor the Earth)

David J. Zoll, Charles N. Nauen, Rachel A. Kitze Collins, Arielle S. Wagner, Lockridge
Grindal Nauen, P.L.L.P., Minneapolis, Minnesota (for relator Mille Lacs Band of Ojibwe)

Joseph Plumer, White Earth, Minnesota (for relators White Earth Band of Ojibwe and Red
Lake Band of Chippewa Indians)

Scott R. Strand, Environmental Law & Policy Center, Minneapolis, Minnesota (for relator
Friends of the Headwaters)

Thomas H. Boyd, Eric F. Swanson, Betsy Schmiesing, Kyle R. Kroll, Winthrop &
Weinstine, P.A., Minneapolis, Minnesota (for respondent Enbridge Energy , Limited
Partnership)

Keith Ellison, Attorney General, Lisa A. Crum, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Public Utilities Commission)

Considered and decided by Florey, Presiding Judge; Cleary, Chief Judge; and
Connolly, Judge.

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S Y L L A B U S
I. In determining the project alternatives to be considered in an environmental-
impact statement (EIS) under the Minnesota Environmental Policy Act (MEPA) , a
responsible governmental unit (RGU) does not err by taking the project proposer’s
objective into consideration when defining the purpose of and need for the project , or by
excluding from consideration alternatives that would not meet that objective.
II. An RGU acts in a manner that is arbitrary, capricious, and unsupported by
substantial evidence when it determines adequate a final EIS that fails to address potentially
significant issues raised during scoping and in public comments on the draft EIS.
III. MEPA does not require completion of a traditional cultural properties (TCP)
survey; an EIS may be determined adequate before a federal TCP survey is complete if the
discussion of potential impacts to historic and cultural resources is otherwise sufficient.
O P I N I O N
FLOREY, Judge
In these consolidated certiorari appeals, relators environmental organizations and
tribal bands, challenge a decision by respondent Minnesota Public Utilities Commission
(commission) determining adequate a final EIS (FEIS) for the proposed Line 3 pipeline
project of respondent Enbridge Energy , Limited Partnership (Enbridge). Although we
reject most of relators’ assertions of error, we agree that the FEIS is inadequate because it
does not address the potential impact of an oil spill into the Lake Superior watershed.
Accordingly, we reverse the commission’s adequacy determination and remand for further
proceedings consistent with this decision.
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FACTS
In April 2015, Enbridge filed applications for a certificate of need (CN) and routing
permit (RP) to allow the installation of 337 miles of 36-inch diameter pipe, and associated
facilities, from the North Dakota-Minnesota border to the Minnesota-Wisconsin border.
The proposed pipeline would replace the existing Line 3, which is part of Enbridge’s
Mainline System.
Existing Line 3 crosses into north western Minnesota from North Dakota, connects
to a terminal at Clearbrook (the Clearbrook terminal), and continues east across northern
Minnesota, through Carlton , and into Wisconsin, where it connects with a terminal in
Superior, Wisconsin (the Superior terminal). Existing Line 3 crosses through the Leech
Lake and Fond du Lac Reservations pursuant to leases that will expire in 2029. In its CN
and RP applications, Enbridge proposed a route for the replacement Line 3 that would
follow the existing Line 3 corridor from North Dakota to Clearbrook and Carlton to
Superior, but would take a more souther ly route between Clearbrook and Carlton, which
would avoid crossing the reservations. Figure 2.1 -1 from the EIS, reproduced in color
below, illustrates the location of the existing mainline corridor (which houses Line 3 and
other pipelines) and Enbridge’s proposed new route (Applicant’s Preferred Route, or
APR).
1
1This image is also available in color at: https://mn.gov/eera/web/project-
file?legacyPath=/opt/documents/34079/Line3%20FEIS%20Ch%2002%20Project%20De
scription.pdf, on page 2-2.

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After initial ly setting the CN and RP applications for separate contested -case
proceedings and initiating environmental review in the RP docket, t he commission
combined the CN and RP dockets a nd ordered that a joint EIS be prepared. The
commission, as the RGU, authorized the Min nesota Department of Commerce’s Energy
Environmental Review and Analysis division (DOC -EERA) to prepare the EIS, and the
Minnesota Department of Natural Resources (DNR) and Minnesota Pollution Control
Agency (MPCA) were brought in as assisting agencies.
The project proceeded through scoping, a process that determines the range of issues
to be addressed in an EIS. A final scoping decision document was issued on December 5,

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2016, and a draft EIS (DEIS) was released on May 15, 2017. Following a public-comment
period, during which DOC -EERA received approximately 2,860 public comments, an
FEIS was released on August 17, 2017.
After receiving the FEIS, the commission issued an order extending the statutory
deadline for determining the adequacy of the FEIS and referring the matter to the Office of
Administrative Hearings (OAH) for development of the record and a recommendat ion on
the adequacy of the FEIS. On November 1, 2017, an administrative-law judge (ALJ) issued
proposed findings and conclusions and a recommendation that the commission determine
the FEIS adequate.
On December 14, 2017, the commission issued an order determining the FEIS
inadequate and identifying four deficiencies to be remedied before the FEIS could be
determined adequate. On February 12, 2018, DOC -EERA issued a revised FEIS ,2 which
the commission met to discuss on March 15, 2018. On May 1, 2018, the commission issued
an order adopting the ALJ report as revised and determining the FEIS adequate. The
commission issued an order denying reconsideration on July 3, 2018.
Relators Friends of the Headwaters (FOH), Honor the Earth (HTE), and Mille Lacs
Band of Ojibwe, Red Lake Band of Chippewa Indians, and White Earth Band of Ojibwe
(the Bands), filed three certiorari appeals, which this court consolidated for consideration.3

2 Hereinafter, we refer to the February 12, 2018 revised FEIS as “the FEIS” unless there is
a need to distinguish between the initial and revised documents.
3 After oral argument, FOH submitted to this court a letter citing to supplemental
authorities. See Minn. R. Civ. App. P. 128.05 (governing citation of supplemental
authorities). Enbridge then submitted a responsive letter, requesting that the court strike
FOH’s letter or allow additional argument. See id. (allowing letter response to citation to

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ISSUE
Is the commission’s decision determining the FEIS adequate based on errors of law,
unsupported by substantial evidence, or arbitrary or capricious?
ANALYSIS
Minnesota Environmental Review
Environmental review in Minnesota is governed by the Minnesota Environmental
Policy Act (MEPA ), Minn. Stat. §§ 116D.01-.11 (2018). MEPA is patterned on the
National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370m-12 (2012 & Supp.
2017), and Minnesota courts ha ve in appropriate circumstances relied on federal caselaw
applying NEPA. See No Power Line, Inc. v. Minn . Envtl. Quality Council , 262 N.W.2d
312, 323 n.28 (Minn. 1977) (noting that court had used federal caselaw to interpret MEPA);
In re N.D. Pipeline Co. LLC, 869 N.W.2d 693, 698 (Minn. App. 2015) (noting that court
may look to federal courts’ application of NEPA for guidance), review denied (Minn. Dec.
15, 2015) ; see also Citizens Advocating Responsible Dev . v. Kandiyohi Cty. Bd. of
Comm’rs, 713 N.W.2d 817, 826 (Minn. 2006) (CARD) (declining to apply language in
NEPA regulations that is not present in MEPA regulations). As directed by MEPA, the
Minnesota Environmental Quality Board (EQB) has promulgated administrative rules

supplemental authorities). But Enbridge did not file a motion to strike, see Minn. R. Civ.
App. P. 127 (requiring requests for relief to be made by motion), and has not established
that FOH’s submission was improper, see Minn. R. Civ. App. P. 128.05 (allowing
submission of letter identifying “pertinent and significant authorities” that “come to a
party’s attention after the party’s brief has been filed or after oral argument but before
decision”). Nonetheless, the supplemental authority provided does not alter our analysis.

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governing environmental revie w under the act . See Minn. Stat. § 116D.04, subd. 5a
(directing promulgation of rules); Minn. R. 4410.0200-.9910 (2017) (EQB rules).
Preparation of an EIS is mandatory under MEPA in relation to both CN and RP
proceedings, and the commission is the RGU tasked with completing the EIS. See Minn.
Stat. § 116D.04, subd. 2a(a) (requiring EIS when “there is potential for significant
environmental effects resulting from any major governmental action”); Minn. R.
4410.4400, subp. 24 (designating commission as RGU for “routing of a pipeline subject to
the full route selection procedures under [Minn. Stat. §] 216 G.02”); see also In re N.D.
Pipeline Co., 869 N.W.2d at 698 (interpreting MEPA to require commission to complete
EIS before issuing CN).
An EIS is an “analytical rather than an encyclopedic document which describes the
proposed action in detail, analyzes its significant environmental impacts, discusses
appropriate alternatives to the proposed action and their impacts, and explores methods by
which adverse env ironmental impacts of an action could be mitigated.” Minn. Stat.
§ 116D.04, subd. 2a(a). “The [EIS] shall also analyze those economic, employment, and
sociological effects that cannot be avoided should the action be implemented.” Id.
“The purpose of an EIS is to provide information for governmental units, the
proposer of the project, and other persons to evaluate proposed projects which have the
potential for significant environmental effects, to consider alternatives to the proposed
projects, and to ex plore methods for reducing adverse environmental effects.” Mi nn. R.
4410.2000, subp. 1. “The agency’s role in the preparation of an EIS is not to serve as an
arbiter between two opposing parties, as a judge is expected to do in the adversary process.”

8
No Power Line, 262 N.W.2d at 327. “Instead, it is expected to be a source of independent
expertise whose scientific investigation can uncover the data necessary to make an
informed environmental decision.” Id.
As an investigative tool, the EIS does not authorize or preclude an action and does
not take the place of permit or other proceedings governing a particular project. See, e.g.,
Iron Rangers for Responsible Ridge Action v. Iron Range Res. , 531 N.W.2d 874, 880
(Minn. App. 1995) (“MEPA’s purpose is to force agencies to make their own impartial
evaluation of environmental considerations before reaching their decisions.” (quotation
omitted)), review denied (Minn. July 28, 1995). When an EIS is required, however, no
permits may be issued until an EIS has been determined adequate. Minn. Stat. § 116D.04,
subd. 2b(3). And, “[t] o ensure its use in the decision -making process, the [EIS] shall be
prepared as early as practical in the formulation of an action.” Minn. Stat. § 116D.04, subd.
2a.
The EIS process begins with “scoping” to determine the appropriate limits of the
EIS in terms of “form, content, and level of detail” and to determine “the alternatives [to
the project] that are appropriate for consideration in the [EIS].” Id., subd. 2a(h); see also
Minn. R. 4410.2100 (governing scoping process). For projects for which an EIS is
mandatory, an environmental-assessment worksheet is used as a scoping document. Minn.
R. 4410.2100, subp. 2. And the RGU must prepare a draft scoping-decision document that
is released for public comment and hold at least one scoping meeting before a final scoping-
decision document is completed. See Minn. R. 4410.2100, subps. 2-3.

9
Following scoping, an RGU must complete and make available for public comment
a DEIS and hold an informational meeting in the county where the project is proposed.
Minn. R. 4410.2600, subp. 2. The RGU must then respond to timely substantive comments
received on the DEIS and prepare the FEIS. Id., subp. 10.
After an FEIS is released a nd distributed, see Minn. R. 4410.2700, subps. 3 -5, the
RGU must make a determination on the adequacy of the FEIS, see Minn. R. 4410.2800
(2017). An FEIS shall be deemed adequate if it
A. addresses the potentially significant issues and
alternatives raised in scoping so that all significant issues for
which information can be reasonably obtained have been
analyzed in conformance with [Minn. R.] 4410.2300, items G
and H;
B. provides responses to the substantive com ments
received during the [DEIS] review concerning issues raised in
scoping; and
C. was prepared in compliance with the procedures
of the act and [Minn. R.] 4410.0200 to 4410.6500.

Minn. R. 4410.2800, subp. 4. “An [EIS] shall be prepared and its adequacy determined
within 280 days after notice of its preparation unless the time is extended by consent of the
parties or by the governor for good cause.” Minn. Stat. § 116D.04, subd. 2a(j). If the RGU
determines the FEIS inadequate, the RGU has 60 days to prepare an adequate EIS. Minn.
R. 4410.2800, subp. 5.
Certiorari Review
An RGU’s decision on the adequacy of an EIS is appealable to this court by petition
for a writ of certiorari. Minn. Stat. § 116D.04, subd. 10. This court reviews the decision

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under the Minnesota Administrative Procedure Act (MAPA) , Minn. Stat. §§ 14.001-.69
(2018) to determine whether
the substantial rights of the [relators] may have been prejudiced
because the administrative finding, inferences, conclusion, or
decisions are:
(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction
of the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of
the entire record as submitted; or
(f) arbitrary or capricious.

Minn. Stat. § 14.69; see Minn. Stat. § 116D.04, subd. 10 (directing review under MAPA).
“Substantial evidence consists of: 1) such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion; 2) more t han a scintilla of evidence; 3) more
than ‘some evidence’; 4) more than ‘any evidence’; and 5) evidence considered in its
entirety.” CARD, 713 N.W.2d at 832 (quotation omitted). And
an agency ruling is arbitrary a nd capricious if the agency
(a) relied on factors not intended by the legislature; (b) entirely
failed to consider an impor tant aspect of the problem;
(c) offered an explanation that runs counter to the evidence; or
(d) the decision is so implausible that it could not be explained
as a difference in view or the result of the agency’s expertise.

Id.
Appellate courts “accord substantial deference to the agency’s decision.” Id. at 833.
The burden is on relators to demon strate agency error. Id. “[This court’s] role when
reviewing agency action is to determine whether the agency has taken a ‘hard look’ at the

11
problems involved, and whether it has ‘genuinely engaged in reasoned decision-making.’”
Id. at 832 (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)).
With all of these principles in mind, we turn to relators’ arguments for reversing the
commission’s decision determining the FEIS adequate. We address the numerous
arguments in the following sections covering (1) the identification of alternatives in the
FEIS; (2) the analysis of environmental impacts in the FEIS; and (3) alleged “danger
signals” indicating that the commission failed to take a “hard look” at the adequacy
question.
I. The FEIS sufficiently identifies alternatives to the project, incl uding a “no
action” alternative.

An EIS must address “appropriate alternatives to the proposed action and their
impacts.” Minn. Stat. § 116D.04, subd. 2a(a). With respect to alternatives, the EQB rules
provide:
[T]he EIS shall compare the potentially significant impacts of
the proposal with those of other reasonable alternatives to the
proposed project. The EIS must address one or more
alternatives of each of the following types of alternat ives or
provide a concise explanation of why no alternative of a
particular type is included in the EIS: alternative sites,
alternative technologies, modified designs or layouts, modified
scale or magnitude, and alternatives incorporating reasonable
mitigation measures identified through comments received
during the comment periods for EIS scoping or for the draft
EIS. An alternative may be excluded from analysis in the EIS
if it would not meet the underlying need for or purpose of the
project, it would likely not have any significant environmental
benefit compared to the project as proposed, or another
alternative, of any type, that will be analyzed in the EIS would
likely have similar environmental benefits but substantially
less adverse economic, employme nt, or sociological impacts.
Alternatives included in the scope of the EIS . . . that were

12
considered but eliminated based on information developed
through the EIS analysis shall be discussed briefly and the
reasons for their elimination shall be stated. T he alternative of
no action shall be addressed.

Minn. R. 4410.2300(G).
In this case, the FEIS examines the potential environmental impacts of Enbridge’s
proposed project and separately analyz es potential impacts of alternatives for the CN
decision (syst em alternatives) and RP decision (route alternatives and route -segment
alternatives). For the CN decision, the FEIS identifies and analyzes the alternatives of no
action, continued use of existing Line 3, use of other pipelines, system alternative SA-04,4
transportation by rail, transportation by truck, existin g Line 3 supplemented by rail, and
existing Line 3 supplemented by truck. For the RP decision, the FEIS identifies and
analyzes impacts for four route alternatives (RA-03AM, RA-06, RA-07, and RA-08), and
24 route -segment alternatives. Figure 4.3 -1, reproduced in color below, illustrates the
locations of the various route and route-segment alternatives.5

4 SA-04 is a pipeline route that would pass through Minnesota but not connect to the
Clearbrook or Superior terminals, rather connecting to Enbridge’s Mainline System in
Illinois.
5 This image is also available in color at: https://mn.gov/eera/web/project-
file?legacyPath=/opt/documents/34079/Line3%20FEIS%20Ch%2004%20Alternatives%
20Complete.pdf, on page 4-21.

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A. Defining need for and purpose of project
Because “[a]n alternative may be excluded from analysis in the EIS if it would not
meet the underlying need for or purpose of the project ,” Minn. R. 4410.2300(G),
determining the scope of appropriate alternatives nece ssarily depends in part on a need-
and-purpose analysis. See, e.g., Theodore Roosevelt Conservation P’ship v. Salazar, 661
F.3d 66, 72 (D.C. Cir. 2011) (“Because the goals of an action delimit the universe of the
action’s reasonable alternatives, determining whether an agency has included all
reasonable alternatives requires us to decide fi rst whether the agency has reasonably
defined its stated goals.” (quotation and citation omitted)). It is the agency’s responsibility

14
to define the purpose of the project, and this court should not determine an EIS inadequate
based on the stated purpose unless it is unreasonable. See Simmons v. U.S. Army Corps of
Eng’rs, 120 F.3d 664, 669 (7th Cir. 1997); Citizens Against Burlington, Inc. v. Busey, 938
F.2d 190, 199 (D.C. Cir. 1991); see also Sierra Club, Inc. v. U .S. Forest Serv., 897 F.3d
582, 598 (4th Cir. 2018) (“The statement of a project’s purpose and need is left to the
agency’s expertise and discretion, and we defer to the agency if the statement is
reasonable.” (quotation omitted)).
In this case, the FEIS defined the commission’s need for the EI S as “primarily to
help inform the Commission’s decision s by evaluating the potential human and
environmental effects of permitting the proposed Line 3 Project, considering reasonable
alternatives, and exploring methods for reducing adverse effects.” The FEIS defined
Enbridge’s purpose for the project as replacing the existing Line 3, which has been in
operation since the 1960s, has suffered a high amount of corrosion and long-seam cracking,
has been operating at a decreased pressure, and is required to be replaced under a consent
decree between Enbridge and the E nvironmental Protection Agency and United States
Coast Guard. Because the existing Line 3 connects to terminals in Clearbrook and
Superior, the commission primarily limited its consideration to alternatives, including
pipelines, that would serve those same locations. 6 The commission found that the “FEIS
properly defined the need and purpose for the Project as replacing the exis ting Line 3

6 The one exception is SA -04, a system alternative that would connect to Enbridge’s
Mainline System farther south.

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pipeline with a new pipeline that increases the capacity of Enbridge’s pipeline system to
transport Canadian crude oil to Minnesota and regional refineries.”
FOH argues that the FEIS defines the purpose of the project too narrowly as
delivering crude oil to the Clearbrook and Superior terminals and, as a result, does not
analyze certain alternatives that would have less potential environmental impact. FOH
argues that the true purpose of the project is to “deliver crude oil to Enbridge’s refinery
customers, almost all of which are located in the lower Midwest, eastern Canada, and the
Gulf Coast.” Thus, it asserts, the alternatives to the project considered by the FEIS should
encompass other methods of delivering to the refineries that do not involve the Clearbrook
and Superior terminals.
In support of this argument, FOH relies on Van Abbema v. Fornell , in which the
Seventh Circuit held that “the evaluation of ‘alternatives’ mandated by NEPA is to be an
evaluation of alternative means to accom plish the general goal of an action; it is not an
evaluation of the alternative means by which a particular applicant can reach his goals.”
807 F.2d 633, 638 (7th Cir. 1986). The D.C. Circuit, however, has rejected this view,
reasoning that “[w]hen an agency is asked to sanction a specific plan . . . the agency should
take into account the needs and goals of the parties involved in the application. ” Busey,
938 F.2d at 196; see also Theodore Roosevelt Conservation P’ship, 661 F.3d at 73 (holding
that Bureau of Land Management (BLM) did not err by stating purposes as to act upon a
private proposal: “This objective permits a reasonable range of alternatives that either
reject the proposal or adopt it to varying degrees or with alterations.”). And other circuits
similarly have recognized the relevance of a project proposer’s goals in defining the need

16
for and purpose of the project. See Nat’l Parks & Conservation Ass’ n v. Bureau of Land
Mgmt., 606 F.3d 1058, 1071 (9th Cir. 2010) (“Our task is to determine whether the BLM’s
purpose and need statement properly states the BLM’s purpose and need, against the
background of a private need, in a manner broad enough to allow consideration of a
reasonable range of alternatives.”); see also Louisiana Wildlife Fed’ n, Inc. v. York , 761
F.2d 1044, 1048 (5th Cir. 1985) (“Indeed, it would be bizarre if the Corps were to ignore
the purpose for which the applicant seeks a permit and to substitute a purpose it deems
more suitable.”).
Based on our review of MEPA, the EQB rules, and the federal caselaw, we conclude
that the commission did not err by defining the purpose of and need for the project with
reference to Enbridge’s stated purpose. Because the commission was asked to “sanction a
specific plan” —the Line 3 replacemen t project proposed by Enbridge —it appropriately
took “into account the needs and goals of the parties involved in the application.” Busey,
938 F.2d at 196 , 199 (“A n agency cannot redefine the goals of the proposal t hat arouses
the call for action . . . .”). Enbridge’s stated need and goal is to replace a pipeline that
connects to t he Clearbrook and Superior terminals. Accordingly, we conclude that the
decision to exclude from consideration alternatives that would not connect to these
terminals was reasonable and does not provide a basis for reversal.
B. No-action alternative
An EIS must address the alternative of “no action.” Minn. R. 4410.2300(G).
Neither MEPA nor the EQB rules define the nature of the no -action alternative, but the
federal Council of Environmental Quality (CEQ) has provided some helpful guidance. See

17
Forty Most Asked Questions Concerning CEQ’s National Environmental Policy Act
Regulations, 46 Fed. Reg. 18,026-27 (Mar. 23, 1981). Under that guidance, in a case
involving a government decision on a proposed project, the alternative of no action means
that the proposed activity would not take place. Id. And, “[w]here a choice of ‘no action’
by the agency would result in predictable actions by others, this consequence of t he ‘no
action’ alternative should be included in the analysis.” Id. Nevertheless, extensive analysis
of the no-action alternative is not required. See Hammond v. Norton, 370 F. Supp. 2d 226,
241-42 (D.D.C. 2005) (holding that discussion of no action that “ recapitulat[ed] the
possible negative effect of pipeline construction and, by extension, the environmental
effects that would not occur absent pipeline construction” and discussed unmet demand for
petroleum products, laid “out the costs and benefits of the no action alternative with enough
specificity to allow meaningful comparison with other alternatives. No more is required.”).
And, under certain circumstances, it may be appropriate to analyze multiple no -action
alternatives. See, e.g., Indigenous Envtl. Network v. U.S. Dep’t of State, 347 F. Supp. 3d
561, 575 (D. Mont. 2018) (“Uncertainty regarding what would happen in the absence of
Keystone supported the discussion of three no action alternatives in the 2014 [supplemental
EIS].”).
In this case, the FEIS acknowledged the need to address a no-action alternative and
reasoned that “a Commission decision to deny the CN is the ‘No Action’ alternative.” The
FEIS further reasoned that, “[i]f the Commission determines that the demand for increased
shipping capacity exists but denies the CN, [Enbridge or other entities] c ould reasonably
be expected to meet shipper demand through other means, such as a different pipeline

18
system, or by train or truck.” And the FEIS reasoned that denial of the CN could lead to
any of the following: (1) continued use of existing Line 3, (2) use of other pipelines;
(3) system alternative SA -04 (a pipeline not connecting to the Clearbrook and Superior
terminals); (4) use of rail; (5) use of trucks; (6) existing Lin e 3 supplemented by rail; and
(7) existing Line 3 supplemented by truck. The FEIS accordingly analyzed environmental
impacts for each of these no-action alternatives.
HTE asserts that the no-action analysis in the FEIS is inadequate because it (1) fails
to consider effects of upgrades to Enbridge’s existing pipelines; and (2) incorporates an
unrealistic rail alternative. Essentially, HTE challenges the commission’s predictions of
the actions that Enbridge or others would take in reacti on to a decision d enying the CN .
These predictions are findings based on agency judgment, which we review to determine
“whether the agency has adequately explained how it derived its conclusion and whether
that conclusion is reasonable on the basis of the record.” Minn. Power & Light Co. v. Minn.
Pub. Utils. Comm’n, 342 N.W.2d 324, 330 (Minn. 1983).
With respect to upgrades to existing pipelines, HTE asserts that the commission
erred by not considering the potential environmental impacts of upgrades to existing
Enbridge pipelines that HTE asserts have been proposed by Enbridge and could
accommodate the additional demand proposed for the Line 3 replacement. HTE bases this
argument on several slides from Enbridge investor presentations that HTE submitted to the
commission. The commission responds that there is no evidence in the record of any
upgrades that would meet the capacity provided by the project. The commission’s
explanation is reasonable on the basis of the record. The investor slides on which HTE

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relies support no more than speculation about Enbridge’s expansion plans. Although the
commission is required to take into account “predictable actions by others” in its no-action
analysis, the commission reasonably determined not to include speculative Enbridge
upgrade plans in the no-action analysis. HTE has not met its burden to demonstrate agency
error in this regard.
With respect to the railroad analysis, HTE asserts that the commission erred by
failing to consider a “realistic” rail alternative as part of the no-action analysis. HTE bases
this argument on expert testimony presented by Enbridge during the CN proceedings ,
indicating the rail routes that would most likely be used if the Line 3 replacement were not
built. HTE argues that the FEIS analysis of a rail alternative is flawed because it relies on
different routes, and thus analyzes different environmental impacts than would be analyzed
for the routes identified by Enbridge’s exp erts. The commission responds that the FEIS
rail analysis was based on “in formation the DOC -EERA had in hand, which included
assumptions about oil being transported from Gretna at the Canadian border to Superior,
WI via Clearbrook, MN to mirror the delivery capabilities of the Project to transport oil
between those two end points.” The commission’s explanation is reasonable on the basis
of the record, and HTE has failed to meet its burden to demonstrate error in this regard as
well.

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II. The FEIS fails, in part, to address environmental impacts identified in scoping
and raised by public comments.

An EIS must discuss environmental impacts of the proposed action and appropriate
alternatives. Minn. Stat. § 116D.04, subd. 2a(a). With respect to environmental effec ts,
the EQB rules provide:
[F]or the proposed project and each major alternative there
shall be a thorough but succinct discussion of potentially
significant adverse or beneficial effects generated, be they
direct, indirect, or cumulative. Data and analys es shall be
commensurate with the importance of the impact and the
relevance of the information to a reasoned choice among
alternatives and to the consideration of the need for mitigation
measures; the RGU shall consider the relationship between the
cost of data and analyses and the relevance and importance of
the information in determining the level of detail of
information to be prepared for the EIS. Less important material
may be summarized, consolidated, or simply referenced. The
EIS shall identify and briefly discuss any major differences of
opinion concerning significant impacts of the proposed project
on the environment.

Minn. R. 4410.2300(H) (2017). An EIS may be determined adequate only if it “addresses
the potentially significant issues and alternatives raised in scoping ,” and “ provides
responses to the substantive comments received during the draft EIS review.” Minn. R.
4410.2800, subp. 4 (emphasis added).
A. Potential impacts of an oil spill on Lake Superior

As the FEIS acknowledges, a potential environmental impact of this pipeline project
is an accidental release of crude oil —an oil spill. Chapter 10 of the FEIS is devoted to
analyzing the potential impacts of an oil spill for the APR and each of the project, route,
and route-segment alternatives. In addition to providing a baseline spill-risk analysis based

21
on past spills, analyzing the behavior of crude oil in a spill, assessing the potential resource
impacts of an oil spill on resources along the AP R and alternatives, and addressing spill
prevention and mitigation, the FEIS incorporates a study modeling the potential spread of
oil from spills at seven sites along the APR and alternat ive routes . The seven spill-
modeling sites were chosen to represent a diversity of environmental conditions. Three of
the sites are at separate locations on the Mississippi River; none of the sites are in the Lake
Superior watershed.7
HTE argues that the FEIS is inadequate because it fails to address the impact of an
oil spill into the Lake Superior watershed. Throughout the environmental-review process,
environmental organizations and members of the public raised concerns about the impact
of an oil sp ill on Lake Superior and its watershed, including the St. Louis River Estuary.
The final scoping decision document (FSDD) addressed this concern, stating:
Impacts to Lake Superior and Great Lakes : The EIS will
consider potential impacts to the Lake Super ior watershed
including potential impacts of oil spills along the proposed
Project. Potential impacts to the Great Lakes from incidents
involving transportation of crude oil by ship, rail, or other
pipelines are existing potential effects and not changed by the
construction or operation of the proposed pipeline.8

7 The seven selected sites are (1) Mosquito Creek to Lower Rice Lake (47.4604-95.3066);
(2) Mississippi River at Ball Club (47.2360-93.9596); (3) Sandy River (46.6363-93.2431);
(4) Shell River Crossing to Twin Lakes (46.8196 -95.0430); (5) Red River (48.70533 -
97.1148); (6) Mississippi R iver at Palisade (46.6983 -93.4950); and (7) Mississippi River
at Little Falls (46.0483-94.3420).
8 This language appears in a section titled “Issues Entirely or Partially Outside the Scope
of the EIS,” but it makes affirmative statements that the impact to Lake Superior and its
watershed will be considered.

22
Notwithstanding this language in the FSDD, the DEIS did not address the potential impacts
of an oil spill in the Lake Superior watershed. Concerns about Lake Superior were renewed
in public co mments on the DEIS. But, in spite of the se persistent concerns, neither the
FEIS nor the responses to comments directly address the failure to analyze potential
impacts of an oil spill on Lake Superior and its watershed.
The responses to comments generically address ed concerns ove r the modeling
approach used. While those responses may support the reasonableness of a decision to
model spills at a limited number of locations, they do not explain why none of those
locations were situated within the Lake Superior watershed, or otherwise address the very
specific concerns raised about Lake Superior and its watershed.
During a hearing on the adequacy of the FEIS, one member of the commission asked
why the spill analysis did not include a location in the Lake Superior watershed. A
representative for DOC-EERA explained that the sites were chosen for their environmental
diversity, and identified a site that would provide the closest comparison to a spill in the
Lake Superior watershed. The representative asserted that modeling in the Lake Superior
watershed would not be particularly helpful, in light of multiple existing pipelines and the
fact that all route alternatives would cross through the area. And the representative asserted
that a spill at a potent ial modeling site within the watershed would be unlikely to reach
Lake Superior. There would be little point in compiling an FSDD if the requirements of
the document —that the identified potential impacts be evaluated and analyzed in the
FEIS—could be igno red and replaced by cursory oral assertions during the adequacy
hearing before the commission. The determination of whether the FEIS is adequate

23
necessarily focuses on the contents of the FEIS itself. See Minn. Stat. § 116D.04, subd.
2b(3); Minn. R. 4410 .2800, subp. 4. Thus, even had DOC -EERA presented more
substantiated analysis at the adequacy hearing, it would not have cured deficiency of the
FEIS itself.
Notwithstanding its expressed concerns about the lack of analysis in the FEIS of the
impact of an oil spill on Lake Superior and its watershed, the commission determined that
the FEIS was adequate . We agree with HTE that the commission’s decision is, in this
regard, arbitrary and capricious and unsupported by substantial evidence. As we note
above, an RGU shall determine an EIS adequate if it addresses the potentially significant
issues raised in scoping and responds to substantive comments received on the D EIS.
Minn. R. 4410.2800, subp. 4. With respect to Lake Superior and its wat ershed, this FEIS
does neither.
In determining the FEIS adequate, the commission acted in a manner arbitrary and
capricious because it failed to consider a critical aspect of the analysis, as directed in the
FSDD, and it acted contrary to the substantial evidence because the record reflects that
neither the FEIS , nor the responses to comments , addressed the impact of an oil spill on
the Lake Superior watershed. See CARD, 713 N.W.2d at 833. Even considering the
deferential standard of review, the failure to specif ically address the potential impacts to
the Lake Superior watershed renders the finding of adequacy arbitrary and capricious and
unsupported by substantial evidence. Because HTE has met its burden to demonstrate
agency error in this regard, we reverse the commission’s adequacy decision and remand
for further proceedings consistent with this decision.

24
B. Sufficiency of oil-spill analysis at modeled sites
FOH argues that, even with respect to the seven sites chosen for modeling, the FEIS
is inadequate because it does not analyze the specific impacts that would result from an oil
spill originating from any particular location. As the FEIS explains, however, the impact
of any particular spill will depend on multiple variables, many of which are subject to
chance. Rather than attempting to predict the consequences of an oil spill from a particular
location, the FEIS focuses on analyzing the potential resource impacts of a spill at all
locations along the APR and alternatives. See Minn. Stat. § 116D.04, subd. 2a(a) (“The
environmental impact statement shall be an analytical rather than an encyclopedic
document . . . .”); Minn. R. 4410.2300(H) (providing that “ the RGU shall consider the
relationship between the cost of data and analyses and the relevance and importance of the
information in determining the level of detail of information to be prepared for the EIS”) .
We conclude that FOH has not met its burden to demonstrate the commission acted
unreasonably in this regard.9
C. Potential impacts on climate through greenhouse-gas emissions

FOH argues that the FEIS fails to adequately analyze potential impacts to upstream
and downstream greenhouse -gas (GHG) emissions. Recent federal decisions have held

9 Our conclusion that the commission reasonably selected a methodology to analyze
potential impacts from oil spills does not contradict our conclusion that the FEIS must
analyze the potential impacts from a spill into the Lake Superior watershed. As we note
above, the issue of potential impacts to Lake Superior and its watershed was raised both in
scoping and public comments on the DEIS. Under these circumstances, the commission
erred by determining adequate an FEIS that does not discuss those potential impacts. See
Minn. R. 4410.2800, subp. 4.

25
that an EIS must address impacts of GHG emissio ns, including indirect impacts from
upstream and downstream emissions. See Sierra Club v. Fed. Energy Regulatory Comm’n,
867 F.3d 1357, 1374 (D.C. Cir. 2017) (Sierra Club v. FERC ); San Juan Citizens All. v.
U.S. Bureau of Land Mgmt. , 326 F. Supp. 3d 1227, 1244 (D.N.M. 2018) ; see also Mid
States Coal. for Progress v. Surface Transp. Bd. , 345 F.3d 520, 549 -50 (8th Cir. 2003).
And federal courts addressing GHG issues generally have rejected arguments that the
impact of a single project on GHG emissions need not be analyzed because climate change
is a global problem with many causes. See WildEarth Guardians v. U.S. Bureau of Land
Mgmt., 870 F.3d 1222, 122 2 (10th Cir. 2017) (holding arbitrary and capricious agency’s
assumption “that there was no real world difference between approving . . . leases . . . and
declining to issue them because third party sources of coal would perfectly substitute for
any volume lost on open market should [the agency] decline to issue leases”); Sierra Club
v. FERC, 867 F.3d at 1372-73 (rejecting argument that downstream GHG emissions need
not be forecasted because permit would not be legally relevant cause of emissions). But
see Sierra Club v. Clinton, 689 F. Supp. 2d 1123, 1134 (D. Minn. 2010) (holding that EIS
for pipeline project was not required to analyze impacts cause d by increased exploitation
of Canadian tar sands, because tar sands would continue to be developed regardless of
whether pipeline is built).
In this case, the FEIS addresses the impact of the project on GHG e missions,
including upstream emissions (from oil extraction) and downstream emissions (from oil
consumption). The FEIS summarizes market forecasts, which seem to suggest that demand
for petroleum products has plateaued in the United States, “with some variance depending

26
on price developments.” But the FEIS nevertheless analyzes the “life -cycle GHG
emissions that could result if upstream or downstream change s did occur.” The FEIS
provides average life -cycle GHG emissions for the various crude types that are expected
to be transported by the project, and provides life-cycle emissions estimates that “bookend
the possible outcomes from full displa cement to zero displacement.” And the project
estimates a 30-year social cost of carbon for the life -cycle GHG emissions of up to $120
billion.
FOH relies on a recent federal district court decision to assert that the commission
was required to conduct a market analysis to more specifically determine the ups tream
impact on GHG emissions. See Indigenous Envtl. Network, 347 F. Supp. 3d 561. In that
case, however, the government had relied on outdated market forecasts to conclude that
there would be no upstream impact. See id. at 576-77. The court held that more recent
market information required the government to prepare a supplemental EIS. Id. at 576.
In this case, the FEIS similarly concludes that demand for crude oil is likely to
remain flat, but relies on recent (2017) information from the U.S. Energy Information
Administration. And, notwithstanding its conclusions about the market, the FEIS goes on
to estimate the range of impact s to upstream GHG emissions that the project could have.
Thus, this case is distinguishable from the federal caselaw on which FOH relies, and FOH
has not demonstrated that the commission acted unreasonably in determining the FEIS
adequate in this regard. See Sierra Club v. FERC, 867 F.3d at 1371 (concluding that “at a
minimum, FERC should have estimated the amount of power -plant carbon emissions that
the pipelines will make possible”).

27
D. Potential impacts on historic and cultural resources

The Bands assert that the FEIS fails to adequately address potential impacts to
historic and cultural resources . T he EQB rules define “environment” to encompass
“artifacts or natural featu res of historic, geologic, or aesthetic significance,” Minn. R.
4410.0200, subp. 23, and it is generally understood that an EIS must include a discussion
of cultural and historic resources, including impacts to t ribal properties and culture.
However, neither MEPA nor the EQB rules prescribe particular procedures that must be
employed to investigate the scope and nature of impacts on tribal property and culture.
The Bands assert that the commission erred by determining the FEIS adequate
before completion of a survey of traditional cultural properties (TCP) under the National
Historic Preservation Act (NHPA), 16 U.S.C. §§ 470-470x-6. “The NHPA is a procedural
statute designed to ensure that, as part of the planning process for properties under the
jurisdiction of a federal agency, the agency takes into account any adverse effects on
historical places from actions concerning that property .” Friends of the Atglen -
Susquehanna Trail, Inc. v. Surface Transp. Bd. , 252 F.3d 246, 252 (3d Cir. 2001). To
comply with th e NHPA , federal agencies must engage in consultation with interested
parties through a process referred to a s “Section 106 consultation” to determine whether
historic properties or TCPs exist in the area of the planned activity. Id.; San Juan Citizens
All. v. Norton, 586 F. Supp. 2d 1270, 1280 (D.N.M. 2008). A Section 106 consultation
was undertaken for the Line 3 project, but was not complete at the time that the commission
determined the FEIS adequate.

28
Relying on federal caselaw, the Bands assert that the FEIS could not be considered
adequate until the Section 106 consultation was complete for the APR and all alternative
routes considered by the FEIS. But the NHPA does not govern a decision determining the
FEIS adequate under MEPA. And, as we note above, MEPA does not require any
particular approach to analyzing potential impacts to historic and cultural impacts.
Accordingly, we conclude that an EIS may be determined adequate before a federal Section
106 TCP survey is complete if the discussio n of potential impacts to historic and cultural
impacts is otherwise sufficient.
The FEIS addresses historic and cultural resources in several chapters. Chapter 5
discusses the comparative effects of the project and alternatives on resources , including
historic and cultural resources. And Chapters 6 and 7 discuss the comparative effects of
route alternatives and route -segment alternatives on resources , including historic and
cultural resources. Chapters 5 and 6 cross-reference Chapter 9, which is devot ed to “an
alternative, qualitative measure of the impacts of Enbridge’s proposed Line 3
Project . . . on American Indian Tribes.”
The FEIS describes the efforts undertaken to determine impacts to hi storic and
cultural resources of the APR and alternatives, which included obtaining existing data on
historic places from the Minnesota Historical Society and reviewing ce metery data from
available Geographic Information Systems data. The FEIS also considers archaeological
surveys completed by Enbridge for the APR. The FEIS acknowledges the limitations of
available data with respect to TCPs, particularly with respect to sacred tribal places, and
notes that, although no specific studies of TCPs were complete, “information gathered from

29
the consultation with American Indian tribes with an interest within the [region of interest]
have indicated that TCPs are present.” The FEIS discusses historic and cultural resources,
based on available information, with respect to the APR and each of the project, route, and
route-segment alternatives.10
In Chapter 9, the FEIS summarizes the tribal consultation undertaken by DOC -
EERA in connection with preparing the FEIS, which included community meetings and
interviews with tribal elders and historians, through which “Commerce Department Staff
collected information about traditionally important cultural and spiritual sites across
Northern Minnesota.” The FEIS also discusses the spiritual nature of the tribes’
relationship with the land, which extends to both reservation land owned by or held in trust
for the tribes, and to territory ceded by the tribes pursuant to treaties.
Chapter 9 expresses the challenge presented by any attempt to comparatively
analyze the potential impacts to the tribes of the APR and alternatives. The FEIS notes
that “ [a]ll of the proposed routes and route alternatives cross ceded lands” and that
“[p]otential impacts to tribal resources associated with the CN alternatives would be similar
for those areas that cross reservation or ceded lands.” On the issue of impacts, Chapter 9
states:
The CN alternatives would have varying levels of quantifiable
impacts to tribal resources dependent on their geographic
proximity and the construction activities necessary for

10 The Bands fault a table included in the executive summary as representing that there are
zero cultural resources in the area of interest for the APR, not withstanding the
acknowledgment in the FEIS that TCPs are present along this route. But the FEIS also
cautions that the quantitative tables should be read in conjunction with more detailed
information in the text of the FEIS.

30
operation (see Chapters 5 and 10 for a discussion of potential
impacts to CN alternatives and those related to releases). The
qualitative discussion of impacts to tribal resources, however,
would be similar to that presented within Chapter 9 regardless
of the CN alternative.

In summarizing overall impacts, Chapter 9 states:
For American Indians, cultural resources cannot be separated
from natural resources; therefore, the conclusion is that any
pipeline route would affect cultural and natural resources. The
degree to which these resources are affected would vary; if
quantitative values are assigned, the impacts are direct and
localized. If a holistic tribal perspective is used to determine
impacts, any pipeline would have direct and permanent effects.

In support of this reasoning, the FEIS recounts an interview with one elder, who, when
informed that DOC-EERA was trying to analyze the impacts of each route, “responded that
it could not be done, and the impact could not be isolated or measured —any impact is
harmful and equally concerning.”
The Bands assert that the FEIS is inadequate because it fails to sufficiently analyze
the comparative impacts to tribal properties and resources, as required by MEPA. In
support of this argument, the Bands rely on a federal district court decision addressing the
State Department’s issuance of a presidential permit for the Keystone pipeline despite an
acknowledgement in the SEIS that 1,038 acres of the pipeline route had not yet been
surveyed for cultural resources. Indigenous Envtl. Network, 347 F. Supp. 3d at 581. The
court held that the State Department “jumped the gun when it . . . acted on incomplete
information regarding potential cultural resources along the 1,038 acres of unsurveyed
route.” Id. That decision arises under federal law, which requires a Section 106
consultation under the NHPA before a federal undertaking, including issuance of a permit.

31
As is noted above, under MEPA, there is no requirement for any particular type of level of
analysis of cultural resources.
The Bands also rely on two other cases, neither of which is helpful to our analysis.
See Pit River Tribe v. U .S. Forest Serv. , 469 F.3d 768 (9th Cir. 2006) (reversing lease
extensions granted without any environmental review or NHPA consultation) ; Diné
Citizens Against Ruining Our Env’t v. Klein , 747 F . Supp. 2d 1234 (D. Colo. 2010)
(reversing permit decision based on finding of no significant impact (FONSI), holding that
government erred by relying on perfunctory description of mitigation measures to conclude
that cultural impacts did not require EIS).
In determining the FEIS adequate, the commission concluded:
Although the FEIS does not contain the resu lts of the still -
underway traditional cultural properties survey, it does contain
extensive analysis of the potential impacts to traditional
cultural properties and other cultural resources in compliance
with MEPA, including a summary of all known cultural
resources located in each of the route alternatives.

Based on our careful review of the record, we conclude that the Bands have not met their
burden to demonstrate that the commission’s decision is unreasonable in this regard.
E. Relative impacts of alternative routes
“[T]he EIS shall compare the potentially significant impacts of the proposal with
those of other reasonable alternatives to the proposed project.” Minn. R. 4410.2300(G)
(emphasis added). The Bands argue that the analysis of alternatives is inadequate because
it fails to account for existing conditions in the analysis of the impacts of each alternative.
In particular, the Bands assert that a table in the executive summary of the FEIS

32
inaccurately represents the risk of exposure of reso urces along the APR and alternative
routes because it does not reflect the extent to which the routes are co-located with existing
pipelines—such that there is already some oil-spill risk.
This argument by the Bands formed the basis for one of the modifi cations directed
by the commission in its order determining the FEIS inadequate as originally submitted.
The commission ordered that the FEIS “need[ed] to clearly identify the extent to which
resource impacts of route alternatives in the existing Line 3 c orridor are or are not
additive—i.e., the extent to which that route alternative would introduce new or additional
impacts beyond the impacts of the existing pipelines in that corridor.”
In response to the commission’s order, Chapters 5 and 6 were amended to include
additional information on co -location of the various routes and to clarify that impacts
discussed were incremental. In addition, footnotes were added to tables summarizing
comparative impacts, stating that: “Impacts reported in this EIS are the incremental impacts
of the [specified route]” and that “[w]here the fact that [that route] is in an existing corridor
influences the extent of the incremental impacts, relevant discussion is included in the text
of the impacts assessment.”
Chapter 10 of the EIS was amended to explain that, because the proposed project
“includes both the construction of a new pipeline and the abandonment of an old one,” the
“extent and type of resources at risk due to an accidental release could change in the old
corridor as well as in the new corridor, depending on the route alternative select ed.” The
FEIS further explains that, regardless of the route selected, construction of a new pipeline
would cause an incremental decrease in risk based on existing Line 3 being removed from

33
service, and an incremental in crease in risk based on the new pipeline. If built in the
existing Line 3 corridor, the increased incremental risk “would not cause any notable
change in the existing type, number, or geographic distribution of resources exposed, [but]
it would perpetuate the existing exposure of th ese resources .” If built in a different
corridor, it would change “the type, number, [and/or] geographic distribution of resources
exposed.”
In its order determining the FEIS adequate, the commission found the added
language regarding incremental effects fulfilled the commission’s directive for
clarification of whether impacts were additive.
On appeal, the Bands asser t that the commission acted arbitrarily and capriciously
by reversing its position and failing to respond to comments from other agencies regarding
the revisions to the initial FEIS. We find both arguments unpersuasive. As to the first
argument, the comm ission does not appear to have changed its position. It sought
clarification on whether impacts being assessed were additive, and it subsequently was
satisfied that it had received that clarification. As to the second argument, it ultimately was
the commission’s responsibility to determine whether the revised FEIS was adequate. The
MPCA and DNR expressed reservations about whether the revisions were sufficient to
fulfill the commission’s directive in requiring supplementation. The commission —which
issued the directive—determined that the revisions were sufficient. Accordingly, this case
is distinguishable from those in which an agency has acted arbitrarily by failing to consider
the opinions of sister agencies. See, e.g., Trout Unlimited, Inc. v. Minn . Dep’t of Agric.,
528 N.W.2d 903, 908 (Minn. App. 1995) (holding that commissioner of agriculture acted

34
arbitrarily by determining that water -appropriate permit would not have cumulative
potential effects in light of letters from the MPCA, DNR and M innesota Department of
Health indicating to the contrary), review denied (Minn. Apr. 27, 1995).
F. Cumulative potential effects
In an EIS, “ for the proposed project and each major alternative there shall be a
thorough but succinct discussion of potentially significant adverse or beneficial effects
generated, be they direct, indirect, or cumulative.” Minn. R. 4410.2300(H) (emphasis
added). The EQB rules define “cumulative potential effect” to mean the “effect on the
environment that results from the incremental effects of a project in addition to other
projects in the environmentally relevant area that might reasonably be expected to affect
the same environmental resources, including future projects actually planned or for which
a basis of expectation has been laid .” Minn. R. 4410.0200, subp. 11a .11 “In determining
if a basis of expectation has been laid for a project, an RGU must determine wh ether a
project is reasonably likely to occur and, if so, whether sufficiently detailed information is

11 Prior to 2009, the EQB rules did not define cumulative potential effects, and the supreme
court, in its CARD decision, declined to equate them with “cumulative impacts,” which
were defined under the rules. 713 N.W.2d at 823. CARD held that “a cumulative potential
effects analysis is limited geographically to projects in the surrounding area that might
reasonably be expected to affect the same natural resources—for instance, a nearby lake—
as the proposed project.” Id. at 830. In 2009, the EQB amended th e rules to incorporate
the above definition of “cumulative potential effects,” which is consistent with the CARD
decision, although the new rule uses the phrase “environmentally-relevant area” rather than
“surrounding area.” See EQB, Guide to Minn . Envtl. Review Rules 17 (May 2010) ,
https://www.eqb.state.mn.us/sites/default/files/documents/Guide%20to%20MN%20ER%
20Rules-May%202010.pdf.

35
available about the project to contribute to the understanding of cumulative potential
effects.” Id. Further, under the EQB rules:
In making these dete rminations, the RGU must consider:
whether any applications for permits have been filed with any
units of government; whether detailed plans and specifications
have been prepared for the project; whether future
development is indicated by adopted comprehen sive plans or
zoning or other ordinances; whether future development is
indicated by historic or forecasted trends; and any other factors
determined to be relevant by the RGU.

Id.
Chapter 12 of the FEIS considers cumulative potential effects. The FEIS identifies
as reasonably foreseeable actions affecting the environmentally relevant area multiple
pipeline projects by Enbridge and others, multiple high-voltage transmission-line projects,
and the Fargo-Moorhead flood management project. The FEIS also identifies an additional
pipeline in the same corridor as the APR as a potential cumulative effect,
“acknowledge[ing] that if a new pipeline corridor is permitted for this Project outside of
the existing Enbridge Mainline, the new corridor creates an opportunity for future corridor
sharing that could ultimately result in accumulation of multiple pipelines with in the
corridor chosen f or the Line 3 project.” The FEIS then considers potential cumulative
impacts to each of the resources identified in Chapters 5 and 6 of the FEIS for each of the
APR, project alternatives, and route and route-segment alternatives.
HTE asserts that the FEIS is inadequate because it does not consider as a cumulative
potential effect operation of the new Line 3 at its full flow capacity of 915,000 barrels per
day (bpd) rather than the 760,000 bpd proposed for the project by Enbridge. But HTE cites

36
only ambiguous slides from Enbridge investor presentations to support its assertion that
this expans ion in capacity is likely to occur. FOH argues that the FEIS is inadequate
because it does not consider the cumulative potential effects of other pipelines that FOH
asserts are likely to be built in Minnesota and Wisconsin. But FOH concedes that Enbridge
denies having plans to build such pipelines, and FOH offers nothing beyond its own
assertion that the pipelines are likely to be built.
The commission was required to analyze only those projects “actually planned or
for which a basis of expectation has been laid.” Minn. R. 4410.0200, subp. 11a. Because
there is no basis, beyond speculation, for either of the scenarios posited, neither HTE nor
FOH has met its burden to demonstrate the commission erred by determining the FEIS
adequate with respect to its analysis of cumulative potential effects. See White v. Minn.
Dep’t of Nat. Res., 567 N.W.2d 724, 732 (Minn. App. 1997) (holding that DNR did not err
by excluding from cumulative -effects analysis future trails when no future projects were
anticipated: “Because there were no specific plans . . . any effects they may have . . . are
speculative, and any consideration of these effects is equally speculative.”), review denied
(Minn. Oct. 31, 1997).
III. The alleged “danger signals” do not indicate that the commission failed to take
a “hard look” at the adequacy of the FEIS.

This court may intervene on agency action when “there is a combination of danger
signals which suggest the agency has not taken a ‘hard look’ at the salient problems and
has not genuinely en gaged in reasoned decision -making.” Reserve Mining Co., 256
N.W.2d at 825 (quotation omitted). FOH argues that the following “danger signals” in this

37
case warrant intervention: (1) failure to assign the EIS to the DNR or MPCA; (2) limiting
the time to complete the EIS; and (3) assigning the adequacy review to the ALJ who had
presided in previous, related proceedings.12
With respect to the failure to assign the EIS to the DNR or MPCA, the EQB
regulations expressly designate the commission as the RGU, and “[t]he RGU may request
that another governmental unit help in the completion of the EIS.” Minn. R. 4410.2200,
.4400, subp. 24. Here the commission sought assistance from DOC-EERA to complete the
EIS, and DOC -EERA designat ed the DNR and MPCA as assisting agencies. As the
commission notes, the department of commerce is statutorily obligated to provide technical
expertise and other assistance to the com mission in relation to pipeline -routing matters.
See Minn. Stat. § 216E.03, subd. 11 (2018). Accordingly, we reject the assertion that the
assignment of DOC-EERA to complete the EIS was a “danger signal.”
With respect to the limitation on time to complete the EIS, MEPA expressly
provides a 280-day deadline for completion of an EIS and determination of its adequacy,
unless the time is extended by the commission with consent of the parties, or by the
governor. Minn. Stat. § 116D.04, subd. 2a(j). FOH argues that this deadline is directory
rather than mandatory because the sta tute provides no consequence for noncompliance.
This directory -mandatory analysis goes to whether a decision -maker is divested of
jurisdiction when it fails to comply with a deadline ; it does not authorize the disregard of

12 FOH also labels as “danger signals” the commission’s commencement of the CN and
RP proceedings before the final FEIS adequacy decision and treatment of the FEIS as
“peripheral.” But FOH does not explain how actions in the CN and RP proceedings
impugn the adequacy determination.

38
an express statutory requirement. See Sawh v. City of Lino Lakes , 823 N.W.2d 627 , 638
n.3 (Minn. 2012) (explaining that “ mandatory-directory dichotomy is irrelevant here
because this case does not involve a question about the consequences of an entity’s failure
to comply with the duties imposed upon it ”). Moreover, the commission did extend the
deadline, as permitted by the statute with Enbridge’s consent, to allow development of a
record on adequacy by an ALJ and more deliberate consideration by the commission.
Accordingly, we reject the assertion that the commission’s failure to further extend the
statutory deadline was a “danger signal.”
With respect to the assignment of the ALJ, the record demonstrates that OAH, not
the commission, assigned the ALJ. See also Minn. R. 1400.5400 (2017) (providing that
chief ALJ assigns ALJ to hear matter upon agency request for contested-case proceedings).
Moreover, neither familiarity with a case nor prior adverse rulings demonstrate bias
requiring recusal of a judge. See United States v. Beneke , 449 F.2d 1259, 1261 (8th Cir.
1971) (holding insufficient to require removal “[a] mere showing of prior judicial exposure
to the present parties or questions” (quotation omitted)); Olson v. Olson, 392 N.W.2d 338,
341 (Minn. App. 1986) (“ Prior adverse rul ings, however, clearly cannot constitute bias
. . . .”). Accordingly, we reject the assertion that the assignment of the same ALJ was a
“danger signal.”
D E C I S I O N
The FEIS properly defined the purpose of the project, sufficiently identified
alternatives, including a “no action” alternative, and utilized an appropriate methodology
to analyze potential impacts from oil spills. The FEIS adequately analyzed potential

39
impacts to GHG emissions, potential impacts on historic and cultural resources, the relative
impacts of alternative routes, and cumulative potential effects. However, the commission
acted in a manner unsupported by substantial evidence and arbitrary and ca pricious when
it determined the FEIS adequate despite its failure to address the issue —raised during
scoping and in public comments on the DEIS—of how an oil spill from Enbridge’s Line 3
project would impact Lake Superior and its watershed. Accordingly, w e reverse the
commission’s adequacy decision and remand for further proceedings consistent with this
decision.
Reversed and remanded.

D-1
CONNOLLY, Judge (dissenting)
I respectfully dissent. I do not believe that the decision of respondent Minnesota
Public Utilities Commission (commission) was arbitrary and capricious or unsupported by
substantial evidence. Relator Honor the Earth (HTE) contends that the final
environmental-impact statement (FEIS) failed to consider the effect of oil spills on the
Lake Superior watershed. HTE is wrong. It did.
We review the commission’s decision under the Minnesota Administrative
Procedure Act (MAPA) to determine whether
the substantial rights of the [relators] may have been prejudiced
because the administrative finding, inferences, conclusion, or
decisions are:

(a) in violation of constitutional provisions; or
(b) in excess of the statutory authority or jurisdiction of
the agency; or
(c) made upon unlawful procedure; or
(d) affected by other error of law; or
(e) unsupported by substantial evidence in view of the
entire record as submitted; or
(f) arbitrary or capricious.

Minn. Stat. § 14.69 (2018); see Minn. Stat. § 116D.04, subd. 10 (2018) (directing review
under MAPA). We “accord substantial deference to the agency’s decision.” Citizens
Advocating Responsible Dev. v. Kandiyohi Cty. Bd. of Comm’rs , 713 N.W.2d 817, 832
(Minn. 2006). We “adhere to the fundamental concept that decisions of administrative
agencies enjoy a presumption of correctness, and deference should be shown by courts to
the agencies’ expertise and their special knowledge in the field of their technical training,

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education, and experience.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 824 (Minn.
1977) (emphasis added).
The “hard look” analysis relating to environmental review is borrowed from federal
cases reviewing agency decisions. See id. at 825 (adopting language from Greater Boston
Tel. Corp. v. F.C.C., 444 F.2d 841, 851 -53 (D.C. Cir. 1970)). In reviewing the adequacy
of an EIS, federal courts have applied a “rule of reason.” See No Power Line, Inc. v. Minn.
Envtl. Quality Council , 262 N.W.2d 312, 327 (Minn. 1977) (collectin g federal cases).
Describing that standard, one federal court has stated:
This does not mean that the courts are to “fly speck”
environmental impact statements. The preparation of such a
statement necessarily calls for judgment, and that judgment is
the agency’s. But the courts can, and should, require full, fair,
bona fide compliance with [the National Environmental Policy
Act].
Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir. 1974), quoted with approval in No Power
Line, 262 N.W.2d at 327.
An environmental-impact statement (EIS) is an “ analytical rather than an
encyclopedic document which describes the proposed action in detail, analyzes its
significant environmental impacts, discusses appropriate alternatives to the proposed
action and their i mpacts, and explores methods by which adverse environmental impacts
of an action could be mitigated.” Minn. Stat. § 116D.04, subd. 2a (2018) (emphasis added).
As respondent Enbridge Energy Limited Partnership (Enbridge) argues,
The FEIS is not required to exhaustively review every
conceivable permutation of the Project and every possible
alternative and theoretical effect. Instead, the [Minnesota
Public Utilities Commission] “shall” find the FEIS is adequate

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if it satisfies the standards for adequacy set forth in Minnesota
Rules 4410.2800, subpart 4. The FEIS far exceeds the
standards for adequacy.

This argument has merit.

“It is of course always possible to explore a subject more deeply and to discuss it
more thoroughly. The line-drawing decisions necessitated by this fact of life are vested in
the agencies, not the courts.” Coal. on Sensible Transp., Inc. v. Dole, 826 F.2d 60, 66 (D.C.
Cir. 1987). The FEIS was thoughtfully prepared by the Minnesota Department of
Commerce’s Energy Environmental Review and Analysis division (DOC -EERA) with
assistance from other responsible agencies. It consists of 13 chapters, 21 appendices, and
thousands of pages that address the potentially significant issues and alternatives raised in
scoping. It was subjecte d to extensive public hearings and comments. It was thoroughly
reviewed and determined adequate both by an experienced administrative-law judge (ALJ)
and a unanimous commission.
The majority appears to opine that the FEIS is inadequate because it did not conduct
a specific analysis of the Lake Superior watershed or include it as one of the seven modeling
sites. The final scoping decision document (FSDD) committed the FEIS to
consider potential impacts to the Lake Superior watershed
including potential i mpacts of oil spills along the proposed
Project. Potential impacts to the Great Lakes from incidents
involving transportation of crude oil by ship, rail, or other
pipelines are existing potential effects and not changed by the
construction or operation of the proposed pipeline.

See Minn. R. 4410.2800, subp. 4 (2017) (“The final EIS shall be determined adequate if it:
(A) addresses the potentially significant issues and alternatives raised in scoping so that

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all significant issues for which information can be reasonably obtained have been analyzed
in conformance with part 4410.2300, items G and H; [and] (B) provides responses to the
substantive comments received during the draft EIS review concerning issues raised in
scoping[.]” (emphasis added)). While I agree that the FEIS needed to address the concerns
raised in scoping, which committed it to “consider potential impacts to Lake Superior
watershed,” I would nonetheless conclude that the representative-modeling approach
sufficiently considered the effect of oil spills on the Lake Superior watershed.
I start my analysis by reviewing a case in which this court unanimously found that
an administrative agency acted in an arbitrary and capricious manner. In Builders Ass’n of
Twin Cities v. Minn. Dep’t of Labor & Indus., a challenge was raised to an amendment to
the Minnesota Residential Code (MRC) promulgated by the Minnesota Department of
Labor and Industry, which “required sprinkler systems in all newly constructed townhouses
and one- and two-family dwellings, with an exception for one-family dwellings with a floor
area under 4,500 square feet ( Sprinkler Rule).” 872 N.W.2d 263, 266 -67 (Minn. App.
2015). Under the arbitrary -and-capricious standard, we reviewed the record and queried
the parties for an explana tion of how the 4,500 -square-foot threshold was reached. Id. at
268-70. We found that the record reflected “no reasoned determination of how respondent
arrived at the indefinite 4,500 -square-foot exception.” Id. at 270 (emphasis added). We
concluded that the Sprinkler Rule’s exception for new one -family dwellings under 4,500
square feet was arbitrary because it was unsupported by the record. Id. at 274.
Distinguishable from Builders Ass’n of Twin Cities , the record here reflects a
reasoned determinat ion of why the representative -modeling approach was selected to

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consider the potential impacts to the Lake Superior watershed, as opposed to a site-specific
approach. As the FEIS explains, the impact of any particular spill will depend on many
variables, including “weather, time of year, water levels, human error, and even what type
of wildlife is present.” Considering these unpredictable factors, the FEIS does not present
an encyclopedic report on the impact of every conceivable oil spill that could occu r.
Instead, it “provides a general assessment of the probability of a spill occurring, a general
evaluation of the behavior of crude oil in the environment, a general evaluation of how
spilled oil affects the environment, and an assessment of the type and quantity of resources
that are exposed along each alternative.” (Emphasis omitted.)
During oral argument, when asked how the FEIS was inadequate in addressing the
Lake Superior watershed, relator Friends of the Headwaters (FOH) responded that there
was no information projecting the quantity of oil that could reach Lake Superior or the
specific impact on the natural resources. The fact remains that it is impossible to model
every possible impact.
As the DOC-EERA explained:
The specific impacts of large oil releases are highly
dependent on incident -specific factors that are impossible to
predict with certainty. For example, as the commenter notes,
the largest ever inland spill in Grand Rapids did not produce
the damages a model may have suggested from a spill of its
magnitude because incident -specific conditions happened to
include ice cover on the Prairie River.

One purpose of the EIS is to provide decision makers
with relevant information for their decision. Detailed
modeling of site/situation specific environmental damages is
so incident-specific, it does not provide decision maker s with

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particularly actionable information about which alternative is
environmentally preferable.

In fact, this sort of impact modeling is likely to provide
a false level of precision that is counterproductive. The
modeling approach used in the EIS is intended to provide
information relevant to a reasoned choice among the
alternatives by focusing on several components of spill risk
that can be considered to develop a broader understanding of
the risks and tradeoffs of different routes.

Forecasting im pacts at any particular location would require the FEIS to predict
each of these unpredictable variables, or to analyze all of the potential permutations. I
would conclude, and the record supports, that the FEIS reasonably took another approach.
See Minn. Stat. § 116D.04, subd. 2a(a) (“The environmental impact statement shall be an
analytical rather than an encyclopedic document . . . .”); Minn. R. 4410.2300(H) (2017)
(providing that the responsible government unit “shall consider the relationship between
the cost of data and analyses and the relevance and importance of the information in
determining the level of detail of information to be prepared for the EIS”).
During the administrative proceedings, HTE and FOH both challenged the
representative-modeling approach arguing that additional or different sites should have
been modeled. The ALJ stated,
Enbridge commissioned a modeling analysis of
hypothetical crude oil releases on behalf of, and with input
from, DOC-EERA, DNR, and MPCA. The analysis model ed
the impacts following seven different hypothetical crude oil
releases. The computer modeling involved “simulating the
chemical and physical behavior of hypothetical oil spills in the
selected environments under specified conditions, including
weathering processes.”1

1 This specific finding was modified by the commission. The modified finding states:

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. . . The oil spill scenarios were set at different locations
along the Applicant’s Preferred Route and route alternatives.
This study later informed both agency and independent
analyses of the behavior of crude oil after a release and the
assessment of likely impacts following a release. All of these
items are detailed in the FEIS.

. . . Further the DOC-EERA commissioned a study from
a private consulting firm, Ecology and Environment, Inc., to
conduct an analysis of previous oil spills. In an effort to
“quantify the incremental risk for the Line 3 Project,” the
report provided “an overview of pipeline spill rates and trends
in the inland [United States] as a whole, as well as an analysis
of historical data for existing crude oil pipelines in Minnesota.”

. . . Drawing upon these materials, and other items, the
FEIS analyzed the relationship between the volume of oil that
would be transported by the project in relation to the risk of
later spills and still broader “cumulative potential effects.”

. . . Among the findings made in the FEIS were:

(a) The average volume of pipeline
spills has decreased significantly since the late
1960s, and particularly in the last dozen years.
The average spill volume (all oil types) is now
less than 50 percent of the average volume 10
years ago, and 12 percent of the volume in the
late 1960s.
(b) Overall, half of the pipeline spills
that do occur would be expected to involve 1
barrel of oil or less. About 90 percent would

Enbridge commissioned a modeling analysis of
hypothetical crude oil releases on behalf of, and with input
from state and federal agency staff, including DOC-EERA,
Minnesota Department of Health, and the DNR and MPCA.
Staff from the U.S. Army Corps of Engineers were also
involved. The analysis modeled the impacts following seven
different hypothetical crude oil releases. The computer
modeling i nvolved “simulating the chemical and physical
behavior of hypothetical oil spills in the selected environments
under specified conditions, including weathering processes.”

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involve 100 barrels or less. Only 5 percent
would be expected to be 400 barrels or more, and
only 1 percent would be expected to be 2,500
barrels or more.
(c) The rate of spillage in Minnesota
has been lower than that in the U.S. as a whole,
accounting f or pipeline mileage and amount
transmitted.
(d) DOC-EERA estimated that the
volumes of spillage in the seven hypothetical
Line 3 spill scenarios —ranging from 8,625
barrels to 16,239 barrels —might be expected
once in 26 to 99 years somewhere in the state o f
Minnesota.

. . . [FOH] maintains that the FEIS is inadequate
because the spill analyses did not include an assessment of a
hypothetical discharge of oil into the headwaters of the
Mississippi, or other [High Consequence Areas] in Itasca and
Hubbard counties. It argues:

Before approving or rejecting this pipeline
proposal, the public and the [commission]
reasonably want to know what would happen if
a Kalamazoo -type spill occurred near the
Mississippi headwaters, in the wetlands and wild
rice habitat no rth of Itasca State Park, in the
central sands area with its vulnerable aquifers
and already -compromised drinking water
supplies, into the Straight River, a nationally
recognized trout stream, and in other sensitive
areas along the route.

. . . The Admini strative Law Judge does not agree that
the FEIS is inadequate without the specific modeling sought by
[FOH]. The regulatory guidance in this area suggests that if
the agency’s assessments are broadly representative of the spill
impacts likely to be encountered along the pipeline route those
evaluations are adequate; even if interested persons would
have preferred other, particular areas to have been studied by
the government. Measured by this standard, the pyramiding
analyses undertaken by the DOC-EERA and its consultants are

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adequate to inform the [c]ommission of the potential impacts
from an accidental discharge of crude oil.

(Emphasis added.)

Specifically, the FEIS devotes significant attention to analyzing the potential
resource impacts of a spill at locations along the Applicant’s Preferred Route (APR) and
alternatives. Section 10.3.4 explains:
The representative sites were selected to favor
circumstances that would tend to exacerbate potential impacts
and effects of the hypothetical spills along the Line 3 pipeline.
In all likelihood, a spill of equivalent volume as the
hypothetical scenarios that occurred at another location and
time would have an outcome that would be of lesser
consequences, or, at most similar consequences to one of the
representative scenarios.

Section 10.4.2 of the FEIS discusses resources subject to exposure for the APR and
alternatives. The FEIS states that, “For this analysis, ROIs [regions of interest] for potential
releases were identified . . . to reflect the potent ial extent of a large -volume incident that
could occur at any point along each route .” (Emphasis added.) Thus, although the FEIS
does not model the expected spread of a spill at all locations, it does assess the resources
that potentially would be impact ed by a spill along the entire APR and alternatives. This
discussion encompasses the Lake Superior watershed because the Superior terminal is the
endpoint for existing Line 3 and all but one of the alternatives.
Additionally, during the commission hearing, there was discussion about why Lake
Superior was not modeled. When asked by a c ommissioner why the modeling did not
include the Lake Superior watershed as one of the representative sites, a representative for
DOC-EERA, which drafted the FEIS, exp lained that the interagency team chose those

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seven sites to get a “full range of different kinds of conditions.” These seven sites were
selected to encompass “things like stream morphology and eco region and flow” so that
they could be “vignettes” for wha t a spill may look like at other locations including Lake
Superior. DOC-EERA also explained that conducting a model in Duluth would not provide
much information “in terms of informing a decision about what the commission can effect”
or how the decision wo uld “change the risk profile” because of the six pipelines that
currently cross there. Although this explanation did not appear in the FEIS, it is in the
record, which we must review in its entirety. See Minn. Stat. § 14.69(e) (requiring review
of “the entire record as submitted”); see also Reserve Mining Co., 256 N.W.2d at 824
(noting the function of an appellate court is “to make an independent examination of an
administrative agency’s record and decision”); Builders Ass’n of Twin Cities, 872 N.W.2d
at 268 (stating that under the arbitrary and capricious standard, “appellate courts make a
searching and careful inquiry of the record to ensure that the agency action has a rational
basis” (quotation omitted)).
Furthermore, the majority even concluded that the commission’s decision to
approve the representative -model approach employed in the FEIS —opposed to a site -
specific approach—was reasonable. Specifically, in section II.B., the majority concluded
that it was reasonable for the FEIS to focus “on analyzing the potential resource impacts
of a spill at all locations along the APR and alternatives ”, “[r]ather than attempting to
predict the consequences of an oil spill at a particular location” because “the impact of any
particular spill will depend on multiple variables, many of which are subject to chance.”
(Emphasis added.) Nevertheless, in section II.A., the majority still concluded that the FEIS

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needed to “address[] the impact of an oil spill on the Lake Superior watershed” because
the scoping document committed the EIS to “consider potential impacts to the Lake
Superior watershed.” (Emphasis added.) I am at a loss to understand this distinction.
But as the majority con cedes, the modeling approach used in the FEIS considered
the impact of a spill at all locations along the APR and alternatives, and the Lake Superior
watershed is a location along the APR. And yet still the majority holds it was arbitrary and
capricious for the commission to approve the FEIS because it does not specifically analyze
issues raised in scoping and does not respond to comments received. But Minn. R.
4410.2800 does not state that issues must be addressed “specifically” and the FEIS did
address the concerns about the Lake Superior watershed. The FEIS simply addressed it in
a manner different from how HTE wanted. But as an appellate court, we cannot substitute
our own judgment for the judgment of the DOC-EERA, DNR, MPCA, the experts tasked
with drafting the FEIS, and finally th e commission when that judgment is reasonable and
supported by the record. This is not was our standard of review dictates.
I also have concerns that our decision today will have the further unintended
consequence of delaying the replacement of Line 3, which could pose a serious threat to
our environment including Lake Superior. Existing Line 3 has been in operation since the
1960s, has suffered a high amount of corrosion and long -seam cracking, and must be
replaced under a consent decree between Enbrid ge and the Environmental Protection
Agency and Coast Guard.
In conclusion, by according substantial deference to the commission’s decision as
required by precedent, I would affirm the commission’s decision that the FEIS is adequate

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because the representative-modeling approach sufficiently considers “potential impacts to
the Lake Superior watershed” as required by the FSDD and the record reflects a reasoned
determination of why that approach was used. Therefore, the commission’s decision is not
arbitrary or capricious and is supported by the record. Consequently, I must dissent.