Pipeline poker: How the Trans Mountain expansion project could play out in B.C.

 

There has been plenty of rhetoric about the future of Kinder Morgan’s Trans Mountain oil pipeline expansion. The new B.C. NDP-Green alliance is vowing to block the project. Alberta Premier Rachel Notley declares it will be built. And Prime Minister Justin Trudeau says federal approval for the project won’t change, even if a new provincial government pushes for rejection.

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The expansion would twin an existing pipeline from the Edmonton area to a terminal in the Vancouver area, allowing more Alberta oil to be shipped by tanker to overseas buyers.

So what power, if any, would a new B.C. government have? “The province actually has considerable power,” said David Anderson, former Liberal MP and leader of the B.C. Liberal Party from 1972 to 1975. The federal government holds legal jurisdiction over large export pipelines. But there are still ways the province can intervene — or at least slow its progress.

“It’ll be a bit like a card game. One card will play, then another will come. It won’t all be determined at once,” Anderson said.

Here are three potential moves:

 

Withhold permits

 

Kinder Morgan needs dozens of provincial permits to build the pipeline — Anderson estimated 40 to 50 — in areas such as river crossings and road access. The province can delay or deny those.

“Water and land are provincial issues and crossing a river requires a permit. They would be required to issue the permit, because they are the agency with the greatest knowledge of it,” Anderson said.

The company would not reveal how many provincial permits it still needs. Asked how many had been obtained since the election, it said: “The permitting process is underway and ongoing.”

 

Environmental assessment

 

An NDP minority government with Green support could put new demands on Kinder Morgan to pass a provincial environmental assessment.

“[It] could say, we want to do our own due diligence, as the province of B.C., to do a set of hearings under the environmental-protection laws and regulations of the province,” said Michael Prince, Lansdowne professor of social policy at the University of Victoria.

When the federal government streamlined its environmental-approval process in 2012, it allowed provinces to sign “equivalency” agreements to avoid duplications. But there’s nothing stopping the province from conducting its own review, Prince said.

Additionally, when the B.C. Liberal government issued its environmental certificate to Trans Mountain, it added 37 conditions to the National Energy Board’s approval of the project.

They include requiring the company to buy carbon offsets for the greenhouse-gas emissions created during construction, as well as conducting research on the behaviour of heavy oil in fresh and saltwater conditions.

The province might find that those conditions haven’t been met.

 

Engage in lawsuits

 

The pipeline project and the bodies that approved it are already facing more than a dozen lawsuits.

The province could launch its own constitutional challenge on behalf of indigenous people under section 35 of the Constitution, which covers aboriginal treaty rights. Or it could join an existing suit as an intervenor. Intervenors have varying degrees of power — some submit briefs, while others speak in court.

“The government of B.C. would be a fairly significant intervenor,” Prince said.

Beyond whatever ruling might come from it, the strategy could bog the company down so much financially that the project isn’t worth pursuing.

Among the petitions already filed is one from three First Nations — the Coldwater, Tsleil-Waututh and Squamish — who are arguing there has been insufficient meaningful consultation.

The City of Vancouver is taking the ministries of environment and natural gas development to court to quash the province’s environmental-assessment certificate. Evironmental organizations Raincoast Conservation Foundation and Living Oceans Society filed for judicial review of the federal approval, claiming the increased tanker traffic will be the “death knell” for the southern resident killer whales, which are protected under Canada’s Species at Risk Act.

 

However ...

 

Whatever move the province makes, it won’t be the last word.

On Tuesday, the federal government once again threw its weight behind the project. The House of Commons passed a motion by Conservative MP Mark Strahl in a 252-51 vote, affirming that the project has social licence to proceed, is critical to the economy, is environmentally sound and should proceed as planned.

Prime Minister Justin Trudeau said, after the B.C. NDP and Green leaders teamed up to fight the pipeline, that the federal government made the decision to approve it “based on facts and evidence on what is in the best interests of Canadians and indeed, all of Canada.”

Anderson said the stage is set for a federal assertion of its jurisdiction, possibly through a cabinet motion or motion in the House of Commons — though he called it a “nuclear option” that would be politically risky.

“[Trudeau] prepared the ground for such a declaration, which would indeed give him the opportunity of overriding provincial power,” he said. “It’s going to have every other province saying: ‘Well we don’t care much about a pipeline, because we’re from P.E.I., but we do care about the federal government marching in.”

Ultimately, it might be up to the courts to decide who has the last word. “There’s still a larger question: Constitutionally, does the province have the ultimate veto on this?” Prince said.

“There will be the court of public opinion and the court of law.”

 

Kinder Morgan

 

Kinder Morgan says it has already jumped through the required hoops for the project to begin.

“Trans Mountain has followed every process and met every test put before us. Over many years, our project has been reviewed, analyzed, discussed and considered thoroughly,” Ian Anderson, president of Kinder Morgan Canada, said in a statement.

With approval from the National Energy Board, federal government and environmental certificate in hand from the province, it is moving forward. “With financing in place and a final investment decision, we are starting to award significant contracts and are moving ahead with the benefit agreements we have in place with aboriginal and local communities,” he said.

Construction is set to begin in September.

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