Purchases, permits and route hearings may stall Trans Mountain pipeline for years, say legal experts

VANCOUVER—The Trans Mountain pipeline expansion may run into more obstacles that could cause serious delays, according to analysis by environmental law organizations.

Experts say the timeline for the pipeline’s completion could be pushed back by as much two years, with over 1,000 permits unresolved, no determined basic route and as many as 25 hearings yet to be conducted.

The collaborative analytical document is set for release on Monday.

Community representatives and legal experts are concerned that the federal government — which announced last month that it will buy the Trans Mountain pipeline from Kinder Morgan for $4.5 billion — may bypass the process and impose a route. They are calling on Ottawa to uphold its commitment to the National Energy Board (NEB) process to ensure the project’s safety.

Chilliwack resident Ian Stephen, who participated in NEB hearings in his community, said the current proposed route cuts through the city’s lone supply of drinking water, enters two of the region’s most significant salmon habitats and moves across an elementary school while creeping as close as eight metres to homes.

“Prime Minister (Justin) Trudeau has repeatedly said he wouldn’t have approved the pipeline if it wasn’t safe and that communities grant permission,” Stephen said. “It will be interesting to see if our own government opposes community efforts to move the pipeline to a safer route or imposes a route that has not been deemed safe.”

Chilliwack route hearings aren’t scheduled to end until October.

As of April, nearly 66 per cent of the detailed route was approved by the NEB, according to its website, which states that prior to beginning construction, the builders must satisfy all applicable conditions.

Meanwhile, there are other significant delays.

In Burnaby, a hearing to move an old pipe into a tunnel must be completed by Sept. 21 before the NEB can deliberate and make a decision.

And there’s the Coldwater Indian Band request for an alternative route that would steer clear of an aquifer for drinking water, which is awaiting a decision from the NEB, according to the release. The National Observer recently reported that the First Nation has alleged that Kinder Morgan submitted evidence that was tampered with to avoid the costly route change. A resolution is expected in early July.

The allegation comes on the heels of admissions from both Trans Mountain and the federal Department of Fisheries and Oceans (DFO) that the company repeatedly violated environmental laws during recent construction work in Burnaby.

Read more:

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There are serious concerns about resolving that issue, said Eugene Kung, an environmental lawyer who questioned how or if the DFO would prosecute the federal government in such instances.

“Canada bought a project under a regulatory review process. The idea that construction can start in full immediately is just not the reality on the ground,” Kung said Sunday, noting there are currently 14 legal challenges before the Federal Court of Appeal.

But the NEB process was “incredibly flawed,” and although it was inherited by Trudeau’s government, it was “not fixed in a meaningful way,” Kung said.

Much remains unknown about the federal government’s next steps once it’s taken ownership of the project, expected in August.

For instance, cabinet could issue directives to the NEB to add conditions or make changes, Kung said. The argument that delays in the project make it far less economically lucrative is a concern, he continued, questioning the underlying business case.

“That’s public money and that risk is being transferred to the public,” he said.

Bypassing the federal regulatory process, in place for nearly five years, would place the government above the rule of law, Kung continued.

“The idea that the government is excusing itself from these already relatively weak conditions concerns people in terms of due process and built-in checks and balances,” he said. “It would start to look more and more like a petro state.”

Melanie Green is a Vancouver-based reporter covering food culture and policy. Follow her on Twitter: @mdgmedia