A Bayfield County judge has issued a partial stay against the permits allowing Enbridge to construct its reroute of the Line 5 pipeline across northern Wisconsin. The stay only applies to construction at four waterway crossings. 

The Bad River Band of Lake Superior Chippewa Indians, along with a group of environmental and civic organizations, filed the lawsuit in Iron County Circuit Court against Enbridge’s construction permit in February after an administrative law judge had previously upheld the Department of Natural Resource’s decision to grant the permits. 

Enbridge is being forced to reroute the pipeline, which has crossed the state for decades, after a federal judge ruled in 2022 that it illegally crossed Bad River tribal land. The tribe and allied groups have opposed the reroute, arguing it still poses a threat to local waterways and Lake Superior while infringing on the tribe’s treaty rights to access public land. 

In his ruling, issued Friday, Judge John Anderson wrote that the tribe must clear a high legal bar to be granted a stay because the administrative trial process already established the basic facts of the case. Comparing his role to that of an appellate court assessing a circuit court ruling, he wrote that he can’t give the petitioners an opportunity to a “fresh opportunity to relitigate those contested issues and facts” of the case. 

“Considering the deference the Court must give the ALJ regarding its factual findings, it is very difficult to issue a full stay of permits primarily because petitioners disagree with the ALJ’s findings,” he wrote. 

But he found that the administrative law judge had misinterpreted a previous case upon which Enbridge argued it had the right to conduct construction across waterways without permission from the person who owns the “riparian” area near those waterways. 

“These are highly sensitive areas, not only for Bad River, which relies on these waters, but also for all the citizens of this state,” he wrote. “The Bad River and its headwaters and tributaries are a unique and special place.  On this narrow legal issue, the irreparable harm near this waterway which cannot easily be rectified by other means or remedied at law is weighed against the need to show a strong likelihood of success.”

Anderson found that Enbridge will be required to obtain additional permits for its construction at the four waterways. 

After the ruling, John Petoskey, the tribe’s attorney, said the halt to construction will protect the tribe from immediate harm. 

“I’m relieved to have this partial construction freeze protecting the Band from further immediate harm,” said Earthjustice Senior Associate Attorney John Petoskey. “We trust the Court will agree that Wisconsin’s unlawful permitting decisions — which have ultimately put northern Wisconsin wetlands, waterways, and tribal nations at existential risk — deserve serious legal scrutiny.”

Enbridge spokesperson Juli Kellner said in a statement that the company is in the process of obtaining DNR permits to work on the relevant waterways, that the permits include conditions to mitigate environmental damage and that the ruling won’t delay construction. 

“State permits include 250 conditions and mitigation plans which avoid, minimize, monitor, and remedy environmental impacts,” she said. “Line 5 is critical energy infrastructure serving 10 refineries and propane production facilities — and continues to operate safely and reliably delivering critical, affordable energy to the Midwest and Great Lakes regions.”

Early last month, the Wisconsin Department of Natural Resources announced a deal to add 100 acres to  Devil’s Lake State Park, expanding recreational opportunities at one of the DNR’s most popular properties. The move also calls attention to the dwindling life of the Knowles-Nelson Stewardship grant program that made the acquisition possible. 

The nearly 40-year-old stewardship grant program has long been a bipartisan success story, allowing the purchase and protection of hundreds of thousands of acres of land across the state. 

Growing opposition to the program within a subset of the Republicans in control of both chambers of the state Legislature — stemming from a combination of antagonism toward land conservation and concerns about the property tax base of Northwoods communities — stymied multiple legislative efforts to re-authorize the program beyond its set expiration at the end of June. 

The Devil’s Lake purchase marks what could be one of the last major actions of the stewardship grant program, which has allocated more than $1.2 billion to conserve more than 700,000 acres of Wisconsin land over its lifetime. 

The program had about $5.5 million remaining as of early April, according to DNR spokesperson Molly Meister. That money is divided into a number of categories, with $2.9 million earmarked for acquiring general easements — agreements with landowners that conserve and protect the land without transferring ownership — and $1.3 million set aside for general land acquisitions. Another $666,667 is meant for acquiring easements specifically for the Ice Age Trail, plus $8,333 for Ice Age Trail land acquisitions. An additional $600,000 is set aside for acquiring land for county forests. 

Meister told the Wisconsin Examiner in an email that the money set aside for the DNR to acquire land itself is expected to be fully used by the time the program expires, while the money set aside for easements will largely be used, but the exact amount is dependent on the agency finding interested landowners. 

“We are currently negotiating with landowners who have expressed a willing interest in selling their land to the department and anticipate all Stewardship general fee acquisition funds to be encumbered before the end of June,” she said.  Easement acquisitions, Ice Age Trail (both fee and easement), and County Forest acquisition is a similar process, but as you have noted, depends on willing landowners looking to acquire an easement versus an outright purchase in the remaining months. We expect a significant amount, but not all, of these funds will be encumbered before the end of June.”

While the program is set to expire, there are ongoing Knowles-Nelson projects around the state that have already been funded through the grant program yet won’t be completed for a few years. Meister said that program staff will close out those active projects before moving to other jobs within the DNR. The rest of the agency has also faced significant cutbacks in recent decades, due to budget constraints and Republican opposition to environmental protection initiatives. 

“It will take several years to close out currently active projects. Staff will continue to work on finishing up these projects,” Meister said. “After these projects are closed out, DNR staff will continue working on other department priorities. Over the past 20 years, we have lost over 500 FTE positions, so there is always more work to do.”

David Grusznski, the Milwaukee programs director for The Conservation Fund, the land conservation non-profit that facilitated the DNR’s purchase of the Devil’s Lake property, told the Examiner that through the stewardship program, the DNR has often been able to function as the last piece of the funding puzzle for projects that conserve land and provide access to that land for the public. 

“It’s very rare that one pot of money funds an entire acquisition, so money is always being leveraged with other people’s money,” he said. “So without the state stewardship funding being able to bring in a portion of that money, we, a lot of partners, are going to be unable to leverage federal dollars, state, city or county dollars that may be available. And we’re going to have to really rely pretty heavily on private fundraising, which is going to be extremely difficult.”

Now, he said, non-profits and land trusts across the state are coming to terms with the pending loss — which will push planned projects years into the future while putting organizations across the state in direct competition over the same pot of private philanthropy money. 

“I think this is all really just starting to set in with a lot of people across the state,” Grusznski said, “as far as the money is not there — what do we do?”

The Wisconsin Department of Natural Resources held a public hearing Tuesday on a request from the AI data center company Vantage for an air quality permit to operate 45 diesel backup generators at the company’s proposed hyperscale data center in Port Washington.

The department has already granted a preliminary approval to the permit request. Members of the public complained at the virtual hearing that the DNR chose not to conduct a full environmental impact assessment — despite southeastern Wisconsin’s existing classification as a high air pollution region. 

Michael Greif, an attorney with Midwest Environmental Advocates, said that all 45 generators operating at once for one hour would emit the same amount of nitrogen oxides as more than 5 million cars driving over one mile of nearby Interstate 43 — or seven times the hourly nitrogen oxide emissions for all of Ozaukee County. Exposure to nitrogen oxides have been tied to respiratory issues such as asthma. 

“It is also one of the first hyper scale AI data centers proposed in Wisconsin,” Grief said. “So it raises new and unreserved questions about energy use, climate impacts, air pollution and public health, and for all those reasons and more, DNR is legally required to prepare an EIS for the Vantage data center.”

Residents of the area put it more simply, complaining about the air pollution they’re already dealing with every day. 

“Our lakeshore is at capacity,” Sheboygan resident Rebecca Clarke said. 

Many speakers also expressed frustration at their lack of a voice in the state’s surge in data center development and proposals. 

“This community has not been given a fair process,” Port Washington resident Carri Prom said. “We’ve been speaking about this process for months. We’ve largely been ignored, and yet, here we are.”

The air pollution permit is one of the DNR’s few chances to weigh in on a data center proposal that has drawn widespread opposition in Port Washington and across the state. The Public Service Commission, the agency that regulates utility companies in Wisconsin, has given the public little confidence it will do enough to prevent electric bills from increasing.

Local zoning boards and city councils, enticed by the promise of property tax revenue, have often signed off on data centers after agreeing to non-disclosure agreements to keep the details away from their constituents. 

“I think things are very backwards, and that we’re proceeding with all of these projects before we even have any idea of how to protect residents,” said Sarah Zarling, an environmental organizer who’s been involved in the data center fight. 

Over the past year, as the number of data centers operating, under construction or proposed has continued to increase, public opposition has grown. Multiple pieces of legislation for regulating data centers were proposed by lawmakers of both parties, yet none passed  before legislators adjourned for the year. Data centers have become a big issue in the Democratic primary for governor and a number of environmental groups have called for a moratorium on data center development until stricter regulations can be put into law. 

Brett Korte, a staff attorney at Clean Wisconsin, told the Wisconsin Examiner in a statement after Tuesday’s hearing that the disconnected government approval process only highlights Wisconsin’s lack of a coherent plan.

“One of the pressing issues related to the data center boom currently underway in Wisconsin is that there is no overarching plan to ensure they don’t harm communities in our state,” he said. “Nor is there even an effort to fully understand the harm they will cause. Local governments make zoning decisions, the PSC approves the construction of power plants and transmission lines, and the DNR implements water regulations and issues air permits.” Yet no state office is responsible for looking at all of the issues raised by data centers at once.

Korte added that a better process for planning future renewable energy sources, stronger carbon emission standards and a more concrete plan for achieving Gov. Tony Evers’ goal of powering the state with 100% clean energy by 2050 would help the state better manage data center growth. 

“No one is asking: Do the benefits of data centers outweigh their environmental harm?” he continued. “That is why Clean Wisconsin continues to call for a pause on data center construction until the state has a comprehensive plan to regulate their development.”