B.C. NDP out of tools to stop Trans Mountain pipeline expansion
Credit to Author: Nick Eagland| Date: Fri, 17 Jan 2020 01:51:12 +0000
During the 2017 election, NDP Leader John Horgan pledged his government would “use every tool in the tool box” to stop the Trans Mountain pipeline expansion. On Thursday, the B.C. premier was left defeated and disappointed with no more tools.
The Supreme Court of Canada swiftly shut down B.C.’s fight to regulate what can flow through an expanded Trans Mountain pipeline from Alberta. The country’s top court unanimously agreed with a B.C. Court of Appeal ruling last May which said the province couldn’t impose restrictions on the pipeline’s contents.
“We are all of the view to dismiss the appeal for the unanimous reasons of the Court of Appeal for British Columbia,” Chief Justice Richard Wagner said after several hours of hearings Thursday in Ottawa. Usually the court reserves its decisions for consideration.
The decision removed one of the remaining obstacles for the Trans Mountain expansion, which would twin an existing pipeline running between Edmonton and Burnaby.
“Clearly, we are disappointed by the decision, but this does not reduce our concerns regarding the potential of a catastrophic oil spill on our coast,” Horgan said in a statement Thursday. “When it comes to protecting our coast, our environment and our economy, we will continue do all we can within our jurisdiction.”
Federal lawyers argued B.C.’s attempt to require provincial permits for heavy oil to flow through pipelines was a clear imposition on the constitutional authority given to Ottawa over interprovincial pipelines.
Several of the judges on the Supreme Court agreed in their statements and questions throughout Thursday’s hearings, before issuing their quick dismissal.
B.C. Attorney General David Eby also called their decision “disappointing” and echoed Horgan’s pledge to fight to protect the environment.
“It’s important to remember this was one of a suite of regulations the province put in place around toxic substances that can be brought into our province by train or pipeline or truck,” Eby said. “Of that suite, there was one regulation in particular the province of Alberta was concerned about so we referred that to the court.”
Shahin Dashtgard, a professor in the department of earth sciences at Simon Fraser University, said Horgan has run out of options.
Pipes at a Trans Mountain facility in Hope, B.C.
“I think it was a political decision that he went with, an attempt to satisfy the Green party, something that he promised them from the get-go,” said Dashtgard, referring to the NDP and Greens’ confidence and supply agreement, in which the three Green MLAs promised to support the NDP minority government.
“I don’t think there was really a leg to stand on from the beginning,” Dashtgard said. “It’s an interprovincial thing that’s always been under federal jurisdiction and now that he’s taken it all the way to the Supreme Court, that’s the end of it, I think.”
Although construction has begun, there remain other barriers to the expansion’s completion, including a legal challenge by Indigenous communities affected by the construction. They argue they were not properly consulted by Ottawa.
Eby said the province is not participating in those cases and “we don’t anticipate at this stage participating in those.”
George Heyman, the B.C. environment minister, said in a statement that the province is reviewing conditions attached to a provincial environmental certificate for the project as directed by last year’s B.C. Court of Appeal decision. “Today’s decision provides some further context for that work,” Heyman said.
B.C. Liberal Leader Andrew Wilkinson on Thursday called for the NDP government to now throw its support behind the pipeline project.
“John Horgan knew the federal government held clear jurisdiction over the pipeline but he spent millions of dollars just in political posturing,” Wilkinson said in a statement. “When will the NDP stop the political games and let British Columbians get to work on a project supported by a majority of people in our province?”
Wilkinson called the government’s work to stop against the project a “total waste of B.C. taxpayer money” and demanded that Eby explain how much was spent. External legal fees alone had reached nearly $1 million by last March 31, Wilkinson said.
Eby said the government hasn’t yet determined the final cost.
“But I can tell you in terms of costs versus a catastrophic oil spill, bitumen spill or another toxic substance that’s brought into the province this has been a fraction of that kind of cost and our efforts to protect our environment,” Eby said.
The federal Liberals argue the pipeline is needed to get more Canadian oil to foreign markets beyond the United States and bought the existing pipeline with a view to completing the expansion once the legal and political challenges were out of the way.
It intends to sell it back to the private sector after the expansion is complete.
Alberta Premier Jason Kenney took immediately to Twitter to express gratitude for the court decision Thursday.
“Today, the Supreme Court of Canada dismissed B.C.’s attempt to regulate the heavy oil content in a pipeline,” he wrote. “We are very pleased with this outcome and look forward to construction continuing on the Trans Mountain Pipeline.”
Canada’s Natural Resources Minister Seamus O’Regan said he welcomed the ruling.
“It is a core responsibility of the federal government to help get Canada’s resources to market and support good, middle-class jobs,” he said in a statement Thursday.
“We know this is only possible when we earn public trust and work to address environmental, Indigenous peoples’ and local concerns, which we are doing every step of the way on TMX.”
While the B.C. NDP government was elected in 2017 partly on a promise to oppose the expansion, it had limited options because of the Constitution.
Still, B.C. argued it has jurisdiction to protect the environment in its borders and since that province would bear the brunt of any damage from a spill if the pipeline ruptured, it should get a say in what can flow through it.
In April 2018, it filed a reference case with the B.C. Court of Appeal asking it to rule on whether the province could change its environment laws so that it could require permits for any heavy oil that was to flow through pipelines.
The B.C. Court of Appeal ruled in May 2019 that it could not, noting that would overstep the constitutional authority given to Ottawa. The court also noted while B.C. was trying to portray the legislation as a general change to its environment laws, it was clearly targeting the Trans Mountain expansion, since that was the only project to which the changes would apply.
The case was the catalyst that led to the federal government’s decision to buy the existing pipeline in May 2018 for $4.5 billion. Kinder Morgan Canada said the political risk that the project would never get built was too much to bear and was planning to halt the expansion.
—With files from Rob Shaw and The Canadian Press