Does a 1,000-mile, international pipeline need a permit?

Canadian pipeline company Enbridge plans to spend nearly $7 billion building more than 1,000 miles of pipeline from Alberta to Wisconsin — all without a new presidential permit.

Under a 1968 executive order, the U.S. Secretary of State has the authority to issue permits for pipelines, bridges, tunnels and other infrastructure spanning the country’s international borders.

But Enbridge officials insist that despite the massive scale of the work it doesn’t need a new permit or amendments to an existing one, since it already has a pipeline in the area. “There’s no modification needed to the presidential permit,” said Stephen Wuori, strategic advisor to the office of the president and CEO, said in an interview.

The company says it’s relying on an existing presidential permit that’s more than 40 years old to cover the work.

The company’s plan is to replace its existing pipeline — know as Line 3 — with a parallel pipeline that will come online in 2017, Wuori said. While the company needs some basic approval from the Federal Energy Regulatory Commission and the typical environmental permits that come with a big infrastructure project, it doesn’t need a presidential permit, he insisted.

Enbridge wants to replace the existing 34-inch pipeline with 36-inch pipeline along nearly all of the 1,000 miles. Company officials say an existing presidential permit allows Line 3 to move 760,000 barrels per day, but due to safety reasons, over the years they’ve reduced the amount of liquids running through to 390,000 barrels. The replacement with wider pipes will allow Enbridge to move back up to the higher capacity.

But, crucially, the company isn’t expanding the size of the pipeline at the border.

“All we’re doing is restoring (the pipeline) to its original condition,” Wuori said. “The existing presidential permit has been in place for many, many years, and it both and allows and requires maintenance of the section at the border. So we’re changing nothing at the border except new pipe and maintaining it.”

And that’s why some critics have accused the company of essentially using a loophole to bypass the permit process.

Eddie Scher, a Sierra Club spokesman, argues that Enbridge is trying to avoid a State Department review on a technicality. He says the strategy doesn’t pass the “laugh test.”

“If you fundamentally change what you’re doing,” Scher said, “you don’t have permission to do it.”

He may be on to something. Despite Enbridge’s adamant insistence that it doesn’t need a presidential permit for Line 3, the administration isn’t yet fully convinced. “Enbridge brought this matter to our attention, and the information provided is under review,” a State Department official told FuelFix.

Enbridge officials say the Line 3 replacement will make the pipeline safer and more reliable. They also say it will ease the burden on landowners, who won’t have to deal with company officials making frequent external inspections of the pipe once the newer infrastructure is installed.

The company has been meeting with individual landowners and communities in the pipeline’s path. “That’s something we’ve always done,” Wuori said. “We’re certainly doing it now. We want to make sure they’re informed … before we even start work.”

The company’s hopes of avoiding the need for a new permit comes at a time when the country’s most well-known pipeline, TransCanada’s Keystone XL, has been held up for years as it awaits similar approval.

Meanwhile, Enbridge said earlier this year that the feds are taking longer than expected to approve modifications to another presidential permit for a separate project. The company is hoping to increase capacity of its Alberta Pipeline from 450,000 barrels per day to 800,000 barrels. Wuori said the company had expected to get that approval by July 2014, but now, “that doesn’t look like it’s going to happen.” He said the company thinks July 2015 is more realistic.