09/22/2011 12:12 EDT | Updated 11/22/2011 05:12 EST

Oil Sands Controversy: U.S. Groups Use Obscure Trade Law To Push For Sanctions Against Canada


Conservationists on both sides of the border are using an obscure American trade law normally used against whalers to pressure Canada over its management of the entire industry.

The push comes as protesters continue to fight a pipeline that would bring more oilsands crude from Alberta into the United States.

A coalition of American and Canadian environmental groups has filed an application under what's known as the Pelly amendment, which empowers the U.S. president to impose trade sanctions against any country weakening international efforts to conserve endangered species — in this case woodland caribou, whooping cranes and dozens of other species of migratory birds.

"(A) weak regulatory environment, lack of enforcement of existing laws, and the overwhelming influence of the oil and gas industry in Canada have allowed the tarsands industry to expand at breakneck pace without regard for the devastating impacts on migratory birds, woodland caribou and the ecosystems on which they rely," the petition reads.

"Canada has been unwilling to put mechanisms in place that would prevent or mitigate such harms and thus contributes to the diminishment of the effectiveness of domestic and international efforts to protect these species."

The petition is intended to force a dialogue between the two countries, said Sarah Burt of Earthjustice, the California-based environmental law agency that filed the papers.

"There's a very rational conversation that can go on between the U.S. and Canada that goes something along the lines of, 'Hey, Canada, we really want to import this stuff, but we're getting a lot of pushback from our constituents who are concerned about the environmental impacts. It would make it a lot easier on us if you could improve some of the environmental management.'

"This petition is designed to open up some of those conversations."

Last week, a Pelly amendment finding against Iceland caused President Barack Obama to suggest that co-operation with that country on Arctic issues should be linked to changes in Iceland's whaling policy.

Rudy Husny, spokesman for International Trade Minister Ed Fast, said Canada will fight the amendment.

"We will continue to oppose measures that unfairly target Canadian oil. Our government will continue to promote Canada, and the oilsands, as a stable, secure, and ethical source of energy for the world."

The environmental coalition has presented its case to U.S. Secretary of the Interior Ken Salazar, who must determine whether Canada's actions are harming conservation efforts. Salazar will then make a recommendation to Obama, who is authorized to impose a variety of actions, including trade sanctions.

In its brief, the coalition points to studies from both the Canadian and Alberta governments that acknowledge woodland caribou are disappearing in the province, largely due to habitat loss from industrial development. It points out that the species is listed under the Western Hemisphere Convention, signed by the United States and Canada in 1942.

The brief also highlights the whooping crane, one of North America's most endangered birds and a species covered under the Migratory Bird Convention, which dates from 1916.

Reduced to a mere 22 individuals in 1941, careful conservation efforts have restored whooper populations to about 300. The U.S. Fish and Wildlife Service continues to spend about US$6.5 million every year on those efforts.

But the birds migrate twice a year through the oilsands region. U.S. and Canadian studies have found some cranes pause there.

In 2006, an American biologist spotted several cranes with what appeared to be oil stains. The brief quotes him saying "although there is no proof, it seems possible to me that the oiling may have occurred in the tarsand operations in Canada."

The brief also lists dozens of other bird species, all covered under the same treaty, that migrate over the oilsands.

The Alberta government has proposed several conservation areas for the oilsands region. But an analysis released Thursday by Global Forest Watch found that only 18 per cent of the whooping crane migration zone and nine per cent of caribou population hotspots would be within those areas. As well, it found oilsands leases cover two-thirds of the whooping crane and caribou habitat.

It's the second oilsands decision placed in front of the Obama administration.

The State Department is currently considering whether to approve the Keystone XL pipeline, which would increase the amount of oilsands product that flows south. Environmentalists fear leaks from the line could damage land and groundwater, as well as tie the U.S. to a high-carbon fuel source for years to come.

Hundreds of pipeline protesters have been arrested in front of the White House. Personalities as varied as the Dalai Lama and Canadian Dave Thomas, one-time TV hoser on the SCTV comedy show, have spoken out against it.

Studies have shown Pelly to be a successful pressure tactic at least some of the time.

One academic found the measure resulted in changes in the target country's approach 58 per cent of the time between 1971 and 1994. In 1986, Norway suspended its commercial whaling season one month after being certified under the amendment.

However, a finding against Canada in 1996 over the harvest of two bowhead whales by Inuit hunters didn't result in sanctions or changes to Canadian regulations.

Japan is currently under three different Pelly certifications.

Note to readers: This is a corrected story. An earlier version said Rudy Husny was a spokesman for John Baird.