British Columbia is bringing its feud with Trans Mountain to the Supreme Court Thursday, arguing it needs more authority over the pipeline and its proposed expansion to reduce the chances of heavy oil spills that would devastate the province’s sensitive ecosystems and harm residents’ health.
B.C. says it is within its jurisdiction to require Trans Mountain, a federal Crown corporation, to take precautions to minimize the risk of a spill, develop a thorough emergency response plan and compensate victims.
The Supreme Court will get the final word after the B.C. Court of Appeal ruled last May that it would be unconstitutional for the province to set conditions that could restrict the flow of oil through its borders.
The province maintains the proposed protections are indeed within its power because an oil spill disaster would pose risks to its residents, land, water and wildlife and require “considerable” resources to clean up from provincial, local and First Nation governments. B.C. is backed by interveners including the environmental law charity Ecojustice, the Attorney General of Quebec, the City of Vancouver and the Assembly of First Nations.
University of Calgary environmental law Prof. Martin Olszynski told HuffPost Canada that B.C.’s proposal overlaps substantially with “comprehensive” federal regulations.
“In the unlikely event the Supreme Court sided with B.C., it would mean TMX would have to apply for new permits and if it sought that approval in good faith, B.C. would have to deliver them,”Olszynski said. “B.C. wants the autonomy to make that call.”
Meanwhile, Ecojustice counsel Kegan Pepper-Smith acknowledged some overlap but said the province’s requirements would act as a “stronger safety net” to further protect communities and the environment.
Unlike under the federal legislation, First Nations and local governments would be able to claim costs for restoration, economic loss and ecological recovery when a spill happens, according to Ecojustice. The province’s legislation would empower B.C.’s environment director to require Trans Mountain to provide information about the risks a heavy oil spill would pose to human health and the environment and how much dealing with those outcomes could cost.
“Certainly the legislation would give B.C. more power, in the very least to ensure there is sufficient information on where the TMX proponents stand on the possibility of cleaning up a heavy oil spill and ensuring there’s efficient compensation available,” said Pepper-Smith.
The province notes that diluted bitumen, the thick, heavy petroleum product that would flow through the new Trans Mountain pipeline, is particularly difficult to clean up. Rather than float like other oils, it may sink, forcing crews to painstakingly dredge it off the bottom of rivers and lakes.
Despite its density, it could still spread quickly through river currents, contaminating drinking water, smothering marine life and poisoning fish. Even on land, mammals such as bears, badgers and caribou that end up ingesting heavy oil can suffer digestive tract bleeding, organ and nerve damage and behavioural abnormalities.
If the province wins this case, Trans Mountain would need to receive provincial approval before it can increase the volume of oil transported from 300,000 to 890,000 barrels per day from the Edmonton area to B.C.’s coast near Vancouver. It started construction late last year on the expansion and will add 980 kilometres of new pipe by 2022.
“If the legislation is properly applied, it will have the effect of protecting the B.C. environment from harmful substances and ensuring that the costs of responding to pollution are borne by the polluter,” the provincial government’s factum states.
This is not the only court case involving the Trans Mountain expansion — several First Nations allege the federal government failed to properly consult their communities.
Watch: First Nation leaders explain why they’re challenging TMX in court. Story continues below.
The Attorney General of Canada opposes B.C.’s claim, arguing it is the province’s latest attempt to stall a project that’s already cleared 3.5 years worth of exhaustive reviews in Ottawa focused on environmental impacts. Federal legislation already requires companies to have an emergency plan in place for oil spills.
And because the pipeline will stretch across provinces and affect all of Canada, the attorney general says, it falls squarely within the federal government’s authority.
“The proposed legislation is not an environmental law ... but rather a regime whose intent and sole effect is to set conditions for, and if necessary prohibit, increased volumes of heavy oil in B.C.,” says the federal government in its court submissions.
It also points to the NDP government’s 2017 provincial election promise to stop the Trans Mountain expansion at all costs. Environment Minister George Heyman said at a news conference in August of that year that the new government was “committed to use every tool to defend B.C.’s coast (from the) threat of tanker traffic.” The expansion is expected to bring about a seven-fold increase in tanker traffic.
The federal government’s position is supported by interveners including the Attorney Generals of Alberta and Saskatchewan, the Canadian Association of Petroleum Producers and certain oil companies.