Court challenges of Trans Mountain redo expected, ahead of NEB’s final report

FEB. 18, 2019

B.C. lawyer Eugene Kung says he would be ‘very surprised’ if the Trans Mountain reconsideration process isn’t challenged in court.

The National Energy Board will complete its reconsideration of the Trans Mountain pipeline expansion project this week, but critics say the redo has been a narrow and rushed rubber-stamp, destined to fuel further court challenges.

“I would be very surprised if the groups that have participated and the individuals who participated in this process will be satisfied that this was a process that genuinely examined the marine impacts,” said Green Party Leader Elizabeth May (Saanich-Gulf Islands, B.C.), who’s against the pipeline and is one of 118 interveners in the process.

“I think there will be serious—and not frivolous—court challenges to what we’ve seen unfold since they restarted the process.”

The Federal Court of Appeal unanimously ruled<https://decisia.lexum.com/fca-caf/decisions/en/item/343511/index.do?r=AAAAAQAMMjAxOCBmY2EgMTUzAQ> to “quash” the government’s November 2016 approval of the Trans Mountain pipeline expansion project in August 2018, instructing the feds to direct the National Energy Board (NEB) to redo its review to consider the impacts of project-related shipping and to redo its own consultations with Indigenous peoples. That same month, the government bought the pipeline for $4.4-billion. The expansion project, previously projected to cost $7.4-billion, is now estimated to be $9.3-billion.

Natural Resources Minister Amarjeet Sohi (Edmonton Mill Woods, Alta.) issued the NEB its marching orders last September, giving it 22 weeks to consider the impact of project-related shipping on the marine environment and species at risk, including on the endangered southern resident killer whale which calls the Salish Sea home. The NEB’s final report with conditions and recommendations focused on project-related marine impacts is due no later than Feb. 22.

But the reconsideration was beset by criticisms early on<https://www.hilltimes.com/2018/11/12/new-review-old-problems-feds-trans-mountain-redo-beleaguered-criticisms/175544>: over timelines to compile and submit evidence, over the scope of the review, and more.

Ms. May said her input and interaction with the NEB’s review this time around has been entirely through written submissions, “there’s no phone calls, there’s no opportunity to present, there’s just submitting to their website.” For example, she said she’s had no response to “substantial criticism” raised that NEB-accepted evidence on the increase in tanker traffic that would result from the project is wrong (arguing it would be a 17-fold increase, not a seven-fold one).

Eugene Kung, a lawyer with West Coast Environmental Law who’s worked with the Tsleil-Waututh Nation which successfully challenged the government’s original project approval, told The Hill Times he’s “not confident at all” in the reconsideration undertaken by the NEB: “I think it was worse than the original process that ended up getting sent back.”


“It was rushed, it was on very tight timelines. They made many of the same mistakes that landed them in court last time, including scoping their review as narrowly as possible,” he said, calling it an “incomplete picture.”

For example, Mr. Kung flagged the NEB’s decision to limit the review of marine impacts to 12 nautical miles from land, rather than the full 200 nautical miles that make up Canada’s exclusive economic zone, and to not allow evidence<https://vancouversun.com/news/local-news/trans-mountain-pipeline-work-destroyed-salmon-habitat-scientist-says>on the southern resident killer whale’s primary food source, the Chinook salmon. The scope of the review does not include streams and rivers, which support salmon.

“I’m certain that people are thinking about that [filing a new court challenge],” said Mr. Kung. “I would be very surprised if there wasn’t some.”

The NEB released a draft report<https://www.neb-one.gc.ca/bts/nws/whtnw/2019/2019-01-10-eng.html> on Jan. 10, ahead of the deadline to submit final written arguments to the board.

Conservative MP Shannon Stubbs (Lakeland, Alta.), who supports the pipeline, said based on the draft recommendations she thinks “it appears that they’ll recommend approval for the project.”

Asked whether she was confident the reconsideration process was meaningful, given criticisms, Ms. Stubbs said she was confident in the process in that, through it, Trans Mountain has indicated “that the issues that were being highlighted in this new reconsideration they are mitigating for and going to act on.”

But despite her expectations that the NEB will once again recommend approval, she said there’s still no “certainty for the future” of the project, and she too anticipates further court challenges, noting some groups, like the Wilderness Committee<https://globalnews.ca/news/4772659/trans-mountain-pipeline-legal-challenge-december-2018/>, have already signalled such plans.

A recent report<https://www.pbo-dpb.gc.ca/web/default/files/Documents/Reports/2019/Transmountain/Trans_Mountain_Report_EN_FINAL2_Jan_31_2019.pdf> from the Parliamentary Budget Officer (PBO) found that, based on estimates, the government’s pipeline purchase price was “at the higher end of PBO’s valuation range.” It also said a delay in construction completion by one year would reduce the pipeline’s value by $693-million.

Steps remain after NEB submits its final report and recommendation to the federal government. The feds’ redo of consultations with Indigenous peoples on the project—for which no deadline or timeline has been announced—still has to be completed; that effort is being led by former Supreme Court justice Frank Iacobucci. The result of both processes will then feed into the government’s deliberations before it issues a final decision on approval.

“Following the tabling of the NEB report, our government’s constitutionally required consultations with Indigenous communities affected by the pipeline will move into its next stage, informed by the recommendations of the report,” said Mr. Sohi’s press secretary, Vanessa Adams, in response to The Hill Times. No description of this next stage was provided when asked.

Ms. Adams said Indigenous consultations have “been ongoing for the past several months,” with consultation teams of 60 people having already met with more than 70 communities to date.

“We are doing the hard work necessary to move forward on this project in the right way through meaningful consultations, and that is exactly what Canadians expect from us,” said Ms. Adams.

Ms. Stubbs said the Liberals owe Canadians “a concrete plan of next steps to show when the Trans Mountain expansion is going to get built, especially now that they’ve made Canadians the owners of that pipeline.”

She said the government should have not only appealed the Federal Court’s decision, but also should have enacted “emergency retroactive legislation” to say that the NEB’s original review and recommendation for approval was “sufficient,” noting that Transport Canada had submitted its own review on tanker traffic as part of that.

Instead, Ms. Stubbs said the Liberal government’s decision to purchase the pipeline has given fuel and an “argument to the energy activists and opponents of the project.”

It’s a conflict of interests the Indigenous caucus of the Indigenous Advisory and Monitoring Committee<http://iamc-tmx.com/wp-content/uploads/2017/12/IAMC-TMX-TOR-Final-July-12.pdf> also flagged in the written argument-in-chief it submitted to the NEB.

“The need for Indigenous oversight of the project has been heightened by the federal government’s purchase of the project and the existing infrastructure, through which it has become the proponent, in addition to its existing role as regulator,” reads the submission.

“The need for monitoring and oversight is clear and pressing: Indigenous Nations do not and cannot trust the government to regulate itself.”

In turn, the caucus suggested, among other things, an “enhanced oversight role” for the committee to address “Indigenous distrust in the regulation of the project.”

Mr. Kung said the federal government’s multiple hats—as the pipeline’s owner, ultimate regulator (and enforcer of laws like the Fisheries Act or Navigable Waters Act), and as an intervener in the review (through federal departments) with fiduciary obligations to First Nations—present “a lot of challenges.”

“All these different hats that are being worn … their motivations, or their outcomes, are in tension with each other,” he said.

“Having the government as the owner just complicates things so much that rushing through processes is only going to backfire and make matters worse, because this is going to end up tied up in the courts.”

Adding to concerns that the government’s reconsideration has been disingenuous are repeated statements by Prime Minister Justin Trudeau (Papineau, Que.) and his cabinet that the project is in the national interest and that the government’s goal is to get it built, said Mr. Kung.

“That to me suggests the fix is in, that the decision is already made. And I don’t know how you defend that in the case of a possible future court challenge … in terms of the bias,” he said.

Mr. Kung noted that in the Federal Court of Appeal’s 2016 review<https://www.scribd.com/document/317155295/Court-ruling-on-Northern-Gateway-Pipeline> of the proposed Enbridge Northern Gateway project—which ultimately overturned that project’s approval, citing failure to properly consult First Nations—a single statement made by then-natural resources minister Joe Oliver in 2011 that the project was in the “national interest” was raised as evidence the government didn’t consult in good faith. Ultimately, while the court said the comment was “insufficient to establish bias,” it called it concerning.

Ms. May said the government’s purchase of the pipeline “does change, certainly, the question of conflict of interest.”

“The government of Canada owns this pipeline, wants to build this pipeline—makes no bones about the fact it wants to build this pipeline—is it really going to pay attention to the issue of, for instance, destruction of salmon habitat in order to get pipeline built fast? There’s going to be a lot of reasons that Independent monitoring is going to be important,” she said, adding though that she’s “still determined that the pipeline will not be built.”

lryckewaert@hilltimes.com<mailto:lryckewaert@hilltimes.com>
The Hill Times

Further note:

Late-stage push to widen the NEB’s review

On Jan. 21, North American environmental group Stand.earth filed an application calling for the NEB to expand its review to consider all upstream and downstream impacts on greenhouse has emission and climate change that would result from the pipeline’s expansion. The organization previously urged similar consideration back in 2014, during the NEB’s initial review of the project.

Citing the UN Intergovernmental Panel on Climate Change’s December 2018 report, Global Warming of 1.5 C<https://www.ipcc.ch/sr15/>, which found that to stay at or below 1.5 C warming requires GHG emissions to be cut 45 per cent below 2010 levels by 2030, the group says, “there has been a material change in circumstances that justify a reconsideration.”

Flagging the federal government’s Paris commitments to reduce GHG emissions by 30 per cent below 2005 levels by 2030, the motion argues the NEB “cannot possibly fulfill its mandate of determining whether the project is in the public interest without considering whether the project is reconcilable with Canada’s international obligations.” Moreover, it argues that, given the NEB’s orders to reconsider evidence with a view to the project-related marine shipping, and with it, the impact on the marine environment, it “cannot meaningfully” do so without assessing the impact of ocean acidification.

The motion also notes that the NEB considered such climate change impacts in its review of the proposed Energy East pipeline. Plans for that pipeline were ultimately canned by TransCanada in October 2017.

Based on online filings, Stand.earth’s motion has received support from 20 interveners, including: Ms. May, NDP MP Peter Julian (New Westminster-Burnaby, B.C.), the City of Vancouver, B.C. Nature and Nature Canada, the Georgia Strait Alliance, the Nooaitch Indian Band, the Shxw’ōwhámel First Nation, the Barkley Sound Stewardship Alliance, the Tsleil-Waututh Nation, Adams Lake Indian Band, Heiltsuk First Nations, the Concerned Professional Engineers Society, the Malahat First Nation, and others.

The Government of Alberta, along with Trans Mountain, the Canadian Association of Petroleum Producers, the Resource Works Society, and Total E&P Canada, have urged the NEB to dismiss the application. In its response, the Alberta government criticized the late-stage application from Stand.earth and said it’s “critically important that the board complete its review within the specified timeline.”

“The very public and deliberate manner in which Stand.earth filed its application suggests it was calculated to delay and disrupt the reconsideration as much as possible,” reads the Alberta government’s response, adding the group’s request would “exceed the scope” of the court-ordered reconsideration and that it’s done “no more than re-argue facts and arguments” previously considered.

In response to The Hill Times last week, the NEB indicated Stand.earth’s motion was “under consideration.”