We Still Don’t Know What the State Department Thinks About the Transit Pipelines Treaty


An Enbridge pipeline” by Marcus Johnstone

is licensed under CC BY-NC 2.0

In Bad River Band v. Enbridge Energy Co., the District Court for the Western District of Wisconsin (Judge William M. Conley) found that a pipeline owned by a Canadian company, Enbridge Energy, trespasses on the reservation of the Bad River Band of Chippewa Indians. He ordered the pipeline to shut down by June 16, 2026. Enbridge appealed, arguing that the order violates the Transit Pipelines Treaty between Canada and the United States. Last December, the Seventh Circuit asked the United States to file an amicus brief addressing the effect of the treaty “and any other issues that the United States believes to be material.” By the time of oral argument in February, as I noted in an earlier post, the United States had still not spoken.

On April 8, 2024, the United States filed an amicus brief with the Seventh Circuit. The brief says a lot about “other issues that the United States believes to be material” but almost nothing about the State Department’s interpretation of the Transit Pipelines Treaty. The brief asks the Court of Appeals to remand the case for the district court to reconsider the equities, noting “the possibility that an arbitral tribunal could find that [the district court’s] order is inconsistent with the United States’ international obligations” (p. 28). But it is hard to see how the district court can do this without knowing what the United States thinks of the arguments that Enbridge and Canada have made concerning the treaty.

What the Brief Does Say

Perhaps it is best to begin with what the U.S. brief does say about the issues in the Bad River Band case. First, the brief supports the district court’s conclusion that Enbridge is trespassing on reservation land. Enbridge’s right-of-way expired in 2013, and it has not been renewed by the Interior Department. The brief flatly rejects Enbridge’s arguments that its old right-of-way remains in effect while its application is pending and that a 1992 agreement in which the tribe agreed to an easement across other parcels of reservation land somehow gives Enbridge rights with respect to the parcels at issue in this case. The Interior Department grants rights-of-way on Indian land. Enbridge’s application for renewal was incomplete because it did not include the tribe’s consent, and the 1992 agreement (no matter how it is interpreted) cannot bind the Department, which is not a party to the agreement.

Second, the brief argues that the district court ordered Enbridge to pay far too little in restitution for its trespass. The district court’s restitution order was based on both net profits and avoided costs. The court calculated that Enbridge made more than $1.1 billion from the pipeline between 2013 and 2022. The pipeline trespassed on 2.33 miles of the Band’s lands, which the court divided by the pipeline’s total length of 642 miles to reach a discount factor of 0.36, resulting in an award of $4.41 million with respect to net profits. But the district court erred, the brief argues, in applying the same discount factor to the costs Enbridge avoided in delaying the reroute of the pipeline (resulting in an additional award of just $740,699). “Unlike net profits,” the brief notes, “the costs avoided by delaying relocation are not distributed across the entire line” (pp. 43-44). Under the court’s restitution order “Enbridge is required to pay $5 million for its nearly ten-year trespass, while in the same period it reaped $1.1 billion net profit from [the pipeline] including $296 million in avoided costs” (p. 46).

Third, the brief argues that the district court should not have considered the Band’s federal common law nuisance claim because that claim is preempted by the Pipeline Safety Act. The act gives the Transportation Department authority to address pipeline safety issues, including, according to the brief, environmental hazards of the sort at issue in the Band’s case.

What the Brief Doesn’t Say

Part II of the amicus brief addresses the district court’s order to shut down the pipeline, arguing that the Seventh Circuit should remand the case so that the district court can reweigh the equities. In particular, the brief argues that the district court “fail[ed] to consider the possibility that an arbitral tribunal could find that [the district court’s] order is inconsistent with the United States’ international obligations” (p. 28). The brief summarizes Canada’s arguments concerning the Transit Pipelines Treaty and notes that “the United States could be subject to arbitration in which it could have exposure for significant damages if the arbitration panel found the United States liable for breaching its treaty obligations” (p. 29). “There is also a public interest,” the brief continues, “in avoiding a dispute with Canada” and in “the broader diplomatic and trade relationship with Canada” (p. 30). “In crafting the appropriate remedy, the district court should fully consider those important public interests” (p. 30).

The brief, however, says almost nothing about how the State Department interprets the pipelines treaty. As I noted in my earlier post, there are strong arguments that an order shutting down the treaty to prevent a trespass does not violate the treaty. I expect the United States will make those arguments if Canada ultimately brings a claim for treaty violation to arbitration. But, in the meantime, how is the district court supposed to assess the possibility that the United States could be found liable for breaching its treaty obligations without knowing what the State Department thinks about the strength of those arguments? The brief also says nothing about how likely Canada is to bring a claim for breach of the treaty or how the dispute might affect the broader relationship with Canada. I realize that the State Department cannot be certain about any of these questions, but it clearly knows more than the district court does. Asking the court to “fully consider” these interests while withholding all relevant information about them is an odd request.

On the other side of the scale, the brief notes that “[p]rotecting the Band’s sovereign land rights is itself a public interest of great importance” (p. 31). “In most cases of trespass on Indian lands,” the brief continues, “the consideration of equitable factors should … result in immediate ejectment as the appropriate remedy” (p. 35). “But in an extraordinary case such as this, where a transboundary pipeline governed by a treaty with a foreign government and the United States’ relationship with that government are at issue, equitable considerations can and should inform a court’s determination about whether certain injunctive relief should be deferred for reasons of public interest” (p. 36). At the risk of repeating myself, it is again hard to see how the district court can decide whether to postpone immediate ejectment—the proper remedy “in most cases”—without a fuller picture of the arguments about treaty interpretation and the U.S. relationship with Canada.

In the end, the brief forswears any “suggest[ion] that the district court’s order should countenance Enbridge’s original trespass on the Band’s lands or excuse its continuance. That would compromise the public interest in protecting the Band’s sovereignty, tip the balance of hardships strongly against the Band, and be in substantial tension with federal law” (p. 37). After noting Enbridge’s responsibility for causing this dispute in the first place, the brief notes that “[t]he district court possesses broad discretion to compel Enbridge to remedy the injuries it has caused at the soonest possible date, consistent with the public interest” (p. 38). The brief hopefully suggests that the district court “can order Enbridge to assess and submit possible alternatives to Enbridge’s current proposal that are consistent with the public interest and that might result in quicker termination of Enbridge’s trespass” (p. 39). The wheels of justice, however, turn slowly. It should be obvious that the time needed for the Seventh Circuit to decide this case, for the district court to reconsider its order on remand, and for Enbridge to submit alternative plans (if ordered to do so) are likely to push the pipeline’s shutdown significantly beyond the June 2026 date in the current order.


The United States has many interests in this case. It has a trust relationship and a treaty with the tribe, a treaty with Canada, responsibility for pipeline safety under a federal statute, and “an interest in the adequacy and reliability of the Nation’s energy supply” (p. 3). These interests are in tension in this case. This cannot have been an easy brief to write.

The brief makes a number of important points, which will no doubt be helpful to the Seventh Circuit. But, as I have noted, it leaves one central question unanswered—the State Department’s interpretation of the Transit Pipelines Treaty.

It is unclear how much difference the brief will make with respect to the order to shut down the pipeline. Had the United States expressed a view about the interpretation of the Transit Pipelines Treaty, its interpretation would be given “great weight.” When the question is whether to uphold an injunction, however, it is the district court’s decision that is entitled to deference.