Enbridge would reimburse local law enforcement for services tied to its controversial Line 5 reroute in northern Wisconsin under agreements being taken up by the Bayfield County board Tuesday.
Enbridge approached the Wisconsin Counties Association, or WCA, about paying several northern Wisconsin counties for public safety services through a WCA-managed account as the project is anticipated to draw protests. The move comes as work is underway on Enbridge’s $450 million plan to reroute the oil and gas pipeline around the Bad River tribe’s reservation.
Two counties have already signed deals, but Bayfield County previously rejected it. On Tuesday, they will consider amended proposals.
Some legal advocates argue the deals can violate constitutional rights to due process, but supporters dispute that and say they provide a way for counties to avoid burdening taxpayers with added public safety costs tied to pipeline protests.
Bayfield County Administrator Mark Abeles-Allison said the board will review an amended agreement with the Wisconsin Counties Association, as well as a direct agreement with Enbridge. They will also consider two ordinances that would seek a more neutral approach to recovering unexpected public safety costs.
“The county board is taking this very seriously,” Abeles-Allison said. “They’re considering this topic from multiple angles and perspectives, county finances, support for county law enforcement, support for residents’ constitutional rights.”
In Minnesota, authorities made hundreds of arrests tied to protests of Enbridge’s Line 3 replacement project during 2021. Prosecutors there filed more than 900 criminal cases, and Enbridge reimbursed authorities for $8.6 million under a state-managed account, according to Grist.
Ashland and Iron counties have already signed deals with WCA where authorities could get reimbursed for patrolling Enbridge’s project site and aiding with crowd control. But the Bayfield County board rejected the deal amid concerns from residents about a conflict of interest and lack of transparency.
Enbridge has said local authorities will decide what action is warranted. Paul Eberth, Midwest region operations director for Enbridge, said the company wouldn’t be directly funding law enforcement under the WCA agreement.
“It again would only go to an escrow account whereby someone else would make a determination as to whether or not they could seek reimbursement,” Eberth said.
Bayfield County District Attorney Kim Lawton noted a 2019 law made it a felony for people to trespass on an energy provider’s property that includes oil and gas pipelines, though exemptions exist for people lawfully exercising their rights to assemble and free speech.
“The people that are out there deciding whether this is an appropriate First Amendment exercise of rights or assembly are the same people that (are reimbursed) by the company that’s being protested against, so it creates an inherent conflict of interest,” Lawton said.
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Legal advocates say deals distort policing, violate due process rights
Legal advocates argue such arrangements create a significant possibility that the constitutional rights of protesters will be violated, said Mara Verheyden-Hilliard, executive director of the Washington D.C.-based nonprofit Partnership for Civil Justice Fund. The progressive legal group defended Line 3 protesters.
“These types of deals can violate the due process clause and thus be unconstitutional because it creates a distortion of public policing and an improper incentivization that also works to suppress dissent,” Verheyden-Hilliard said.
Mark O’Connell, president and CEO of WCA, disputed concerns about the constitutionality of the agreements and likened the arrangement to reimbursement that agencies receive when presidential candidates make stops on the campaign trail.
“If those arguments were to hold true, then local law enforcement would not be able to get reimbursed for extra law enforcement or overtime or additional expenses incurred for those kinds of visits,” he said.
Legal advocates argued the difference between those events is that police don’t have an incentive to act in the private interests of a foreign corporation rather than the public they’re sworn to serve. Bernard Harcourt is a law professor at Columbia Law School, who also defended Line 3 protesters.
“What Enbridge would be doing by reimbursing costs or paying effectively for government policing would be funneling a lot of people into the criminal justice system by arrests,” Harcourt said.
Bayfield County Sheriff Tony Williams said it’s disheartening that some suggest their law enforcement decisions would be influenced by reimbursement considerations.
“We respond based on public safety needs, the law, and the duty to keep both the public and our personnel safe. Any suggestion that this office would alter its enforcement approach for financial reasons does not reflect how we operate,” Williams said in an email.
The county board will also vote on a resolution to purchase around $111,000 of protective gear in preparation for protests and decide whether to seek reimbursement from Enbridge or pay for equipment out of county reserves. Williams said their preparations aren’t about increasing arrests, but protecting deputies as they protect the public.
Concerns raised over a lack of transparency with WCA agreements
If requests are submitted for reimbursement, the Bayfield County DA expressed concerns that information may be shielded from public view because the agreement states all communications related to services are “highly confidential.” Lawton noted the Wisconsin Counties Association is not subject to the state’s open records law.
O’Connell said the only reason for confidentiality is to protect law enforcement activities or tactics from falling into the wrong hands.
Lawton sought guidance from the Wisconsin Department of Justice on her concerns. A DOJ spokesperson said it doesn’t disclose or comment on any legal advice it may provide.
Bayfield County officials said amended agreements make clear the county is required to follow open records law and that they’re not intended to suppress individuals’ lawful exercise of constitutional freedoms. Without the agreements, Abeles-Allison said the county may have to rely on contingency funds to pay for public safety costs tied to the project.
Andy Phillips, an attorney for the Wisconsin Counties Association, told a Bayfield County committee that the group considered various concerns and challenges that may arise from the agreements, saying reasonable minds can disagree on interpretation of the law. He highlighted limited resources and restrictions that counties face on raising funds through property taxes.
“We don’t want counties finding themselves in a very, very difficult financial position as a result of this project,” Phillips said.
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