NEB rules that Trans Mountain pipeline is in public interest, despite marine dangers and ignoring climate impacts

NEB reconsideration reportIn headline news on February 22,  Canada’s National Energy Board released the Report of its Reconsideration process (here in French), and for the second time, approved construction of the Trans Mountain Pipeline.  The NEB states: “…Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern resident killer whale and on Indigenous cultural use associated with the Southern resident killer whale. The NEB also found that greenhouse gas emissions from Project-related marine vessels would likely be significant. While a credible worst-case spill from the Project or a Project-related marine vessel is not likely, if it were to occur the environmental effects would be significant. While these effects weighed heavily in the NEB’s consideration of Project-related marine shipping, the NEB recommends that the Government of Canada find that they can be justified in the circumstances, in light of the considerable benefits of the Project and measures to minimize the effects.”

The decision was expected, and reaction was immediate:  From The Energy MixNEB Sidesteps ‘Significant’ Impacts, Recommends Trans Mountain Pipeline Approval”  , which summarizes reaction;  from the National Observer in  “For a second time, NEB recommends approval of Trans Mountain pipeline expansion” (Feb. 22)  and  “NEB ruling sparks new vows to stop the Trans Mountain pipeline”.  An Opinion piece by Andrew Nikoforuk in The Tyee  is titled, “NEB ‘Reconsideration Report’ a New Low for Failing Agency” and from the Council of Canadians, “The fight to #StopTMX Continues as feds approve their own pipeline” .  From British Columbia, where the government has appeared as an intervenor against the pipeline , the Sierra Club reaction is here ; the Dogwood Institute pledged opposition (including a rally against the decision in Vancouver)  and pledged to  make the Trans Mountain project a major part of the federal election scheduled for Fall 2019;  and West Coast Environmental Law press release   also pledged continued opposition.  Albertans see it differently, with Premier Rachel Notley releasing a statement which sees the decision as progress, but not enough to be a victory, and states: “We believe these recommendations and conditions are sound, achievable, and will improve marine safety for all shipping, not just for the one additional tanker a day that results from Trans-Mountain.” It is important to note that not all Albertans are pro-pipeline: Climate Justice Edmonton is protesting with a  “People on the Path” installation along the route, and Extinction Rebellion Edmonton  actively protests fossil fuel development.

Meaningful Indigenous consultation still needed :  The NEB Reconsideration process was triggered by an August 2018 decision of the Federal Court of Appeal, which ordered the NEB to re-examine especially the potential impacts of marine shipping on marine life, and the potential damages of an oil spill. The Reconsideration report has resulted in 16 new recommendations on those issues, along with the existing 156 conditions.   Although the final decision on the project rests with Cabinet, the issue of meaningful Indigenous consultation is still outstanding from the order of the Court of Appeal.  According to the CBC, “Ottawa has met already with three-quarters of Indigenous communities during Trans Mountain consultation reboot” as of Feb. 20, but also according to the CBC, the Union of B.C. Indian Chiefs says “We still say no to the project. tiny house warriorsEven if one nation, one community says no, that project is not happening”  . And the Tiny House Warriors  continue to occupy buildings along the pipeline path, to assert their authority over the land.

Canada ignores GHG impacts while Australia rules against a coal mine on GHG grounds….  A motion was brought by the environmental group Stand.earth, demanding that the NEB reconsideration of Trans Mountain include consideration of its upstream and downstream greenhouse gas emissions, as had been done in the Energy East consultation. Stand.earth stated: “The board 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 to substantially reduce GHG emissions.” An article in the National Observer,   “IPCC authors urge NEB to consider climate impacts of Trans Mountain pipeline expansion” summarizes the situation and quotes Tzeporah Berman, international program director at Stand.earth, as well as Marc Jaccard and Kirsten Zickfeld, two professors from Simon Fraser University.  On February 19, the National Energy Board ruled on the Stand.earth motion, refusing to expand the scope of their reconsideration. Council of Canadians reacted with  “NEB climate denial another Trudeau broken promise”  .

It is doubly disappointing that Canada’s National Energy Board declined to include climate change impacts in its assessment, in the same month that the Land & Environment Court of New South Wales, Australia upheld the government’s previous denial of a permit for an open cut coal mine.   According to a report in The Guardian,     the decision explicitly cited the project’s potential impact on climate change, writing that an open-cut coalmine in the Gloucester Valley “would be in the wrong place at the wrong time.… Wrong time because the GHG [greenhouse gas] emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.”  The decision was also covered in: “Court rules out Hunter Valley coal mine on climate change grounds” (Feb. 8) in the Sydney Morning Herald, and from the  Law Blog of Columbia University: “Big Climate Win Down Under: Australian Court Blocks Coal Mine Citing Negative Impacts of Greenhouse Gas Emissions”.

Review of Alberta’s Climate Leadership Plan and carbon levy; updates on renewables and methane regulations

env defence carbon-pricing-alberta-fbEnvironmental Defence released a report in December 2018, Carbon Pricing in Alberta: A review of its success and impacts  . According to the report, Alberta’s carbon levy, introduced in 2017 as part of the broader Climate Leadership Plan, has had no detrimental effect on the economy, and in fact, all key economic indicators (weekly consumer spending, consumer price index,and gross domestic product) improved in 2017. The report also documents how the carbon levy revenues have been invested: for example, over $1 billion used to fund consumer rebates and popular energy efficiency initiatives in 2017; support for Indigenous communities, including employment programs; a 500% growth in solar installations; funding for an expansion of light rail transit systems in Calgary and Edmonton; and prevention of an estimated 20,000 tonnes of greenhouse gas (GHG) pollution. The conclusion: the Climate Leadership Plan and its carbon levy is off to a good start, but improvement is needed on promised methane reduction regulations , and the regulations to enforce the legislated cap on oil sands emissions need to be released.

Methane Regulations:    The Alberta Environmental Law Centre published a report in 2017 evaluating the province’s methane emissions regulations. On December 13, the government released new, final regulations governing methane. On December 19, the Alberta Environmental Law Centre published a summary of the new Regulations here  

Since the Environmental Defence study, on December 17, the government announced  agreement on five new wind projects funded by Carbon Leadership revenues, through the  Renewable Electricity Program. Three of the five projects are private-sector partnerships with First Nations, and include a minimum 25 per cent Indigenous equity component to stimulate jobs, skills training and other  economic benefits. The government claims that all five projects will generate 1000 jobs.

On  December 19 the government also  announced   new funding of  $50 million from Alberta’s Climate Leadership Plan for the existing  Sector-specific Industrial Energy Efficiency Program , to support technology improvements in the  trade-exposed industries of pulp and paper, chemical, fertilizer, minerals and metals facilities.

Balanced against this, a December 31 government press release summarized how its “Made in Alberta ” policies have supported the oil and gas industry: including doubling of support for petrochemical upgrading to $2.1 billion; creation of a Liquefied Natural Gas (LNG) investment team to work directly with industry to expedite fossil fuel projects; political fights for new pipelines (claiming that “Premier Notley’s advocacy was instrumental in the federal government’s decision to purchase the Trans Mountain Pipeline”), and the ubiquitous Keep Canada Working  advertisements promoting the keepcanada workingbenefits of the Trans Mountain pipeline . The press release also references the November announcement that the province will buy rail cars  to ship oil in the medium term,  and the December 11 press release announcing that the province is  exploring  private-sector interest in building a new oil refinery .

Updated: Agreement reached between RCMP and Wet’suwet’en First Nation protesters after arrests in B.C.

witsewen protestDespite the high praise for British Columbia’s new Clean B.C. strategy released  on December 5,  B.C. has a problem – supporting the $40 billion LNG Canada facility makes it almost impossible for the province to reach its GHG reduction targets. (Marc Lee his most recent critique in “BC’s shiny new climate plan: A look under the hood”.)  And on January 7, the headlines began screaming about another problem related to LNG Canada, as the RCMP began to enforce an injunction granted by B.C.’s Supreme Court, arresting fourteen members of the Wet’suwet’en First Nation.

The Wet’suwet’en  built a fortified barrier on a remote forest service road near Houston, B.C., about 300 kilometres west of Prince George, to prevent construction workers from TC Energy (formerly TransCanada Corp.) and their pipeline subsidiary Coastal GasLink. The company maintains that they have signed agreements with all First Nations along the pipeline route, but those agreements have been made with elected chiefs and councils of the five Wet’suwet’en bands. The hereditary chiefs maintain that the agreements do not apply to traditional lands.  The Vancouver Sun provides good local coverage atFourteen people arrested after RCMP break down anti-pipeline checkpoint“;   The Tyee explains the background and issues in “Nine Things You Need to Know about the Unist’ot’en Blockade” ; The Energy Mix  writes “Negotiations Seek ‘Peaceful Solution’ At Unist’ot’en After RCMP Arrest 14 Blocking Coastal Gaslink Pipeline” (Jan. 9) .

First Nations viewpoint appears in a series of posts at APTN News, including: “An act of war’: Gidimt’en clan prepares for police raid on Wet’suwet’en Territory” (Jan. 5);  “Researchers say RCMP action against Wet’suwet’en would place corporate interests over Indigenous rights” (Jan. 6) ; and “RCMP set up ‘exclusion zones’ for public and media as raid on B.C. camps start (Jan. 7) . According to those reports, “The Gidmit’en Clan, whose members are at the second check point, have called any RCMP raid an “act of war.”

haisla-nation logoNot all First Nations oppose the LNG Canada project.  In a summary of a Canada 2020 conference in Ottawa on December 13 , First Nations speakers  included Larry Villeneueve, Aboriginal Liaison with Local 92 of LiUNA, (involved in four training sites in western Canada for a skilled Indigenous workforce); Phil Fontaine, former National Chief of the Assembly of First Nations, now Co-Chair of Indigenous Affairs Committee at LiUNA; and Crystal Smith, Chief Councillor of the Haisla Nation.  In An open letter to opponents and critics of LNG development   on the Haisla Nation website, Crystal Smith writes: “We urge you to think strongly about how your opposition to LNG developments is causing harm to our people and our wellbeing. Opposition does nothing towards empowering our Nation, but rather dismisses our Rights and Title and works towards separating our people from real benefits.” As this issue has heated up, on January 8 she posted “Investing in ourselves is not selling out” .

Rallies in solidarity with the Wet’suwet’en resistance have been coordinated through a Facebook campaign, International Solidarity with Wet’suwet’en , and reports indicate turnout across Canada, including Parliament Hill in Ottawa, Toronto, Vancouver, Winnipeg, Halifax, Montreal, New Brunswick, Whitehorse, and Calgary.  The APTNews  (Jan. 9) includes photos and video;  Regional CBC outlets have also covered the story:  “Protesters across Canada support Wet’suwet’en anti-pipeline camps  (Jan. 8);  “Protesters, counter protesters gather in downtown Calgary after B.C. pipeline arrests” ; “Protests in Regina, Saskatoon show solidarity with B.C. First Nation fighting pipelines”  (Jan. 8).  The National Observer reports that the Prime Minister was forced by protesters to change the time and venue of his address to First Nations leaders in Ottawa on January 8th. Prime Minister Trudeau is visiting Kamloops on January 9 but has declined to visit the protest camp.

UPDATES: On January 9, the National Observer reported on a press conference with B.C. Premier Horgan, at which he asserted that “his government believed it had met its obligations to consult with Indigenous nations in approving TransCanada’s Coastal Gaslink project by receiving the “free, prior, and informed” consent that is referenced in United Nations declarations on indigenous rights.”  He sees sees “no quick fix” to the issue and did not set out any path forward.

An “uneasy peace” was reached between the RCMP and the Wet’suwet’en protesters on January 9, allowing workers access to the  Coastal GasLink pipeline construction site in order to avoid a second RCMP raid on the protest camp. According to  “‘Peaceful Resolution’ to Unist’ot’en Blockade Allows Access, Not Construction, Chiefs Say” in The Energy Mix (Jan. 11)  and a related CBC report, “it’s a temporary solution to de-escalate things while everyone figures out their next moves.”

What comes next? Construction of the Coastal Gas Link pipeline is certainly not settled, not only because of the issue of  Wet’suwet’en permission to build on heriditary lands  (that issue explained here ).  There is also dispute over whether or not the pipeline falls under provincial or federal jurisdiction – an issue to be addressed by the National Energy Board in April. Read Andrew Nikoforuk in “Is Coastal GasLink an Illegal Pipeline?” in The Tyee (Jan. 11) or  “Coastal GasLink pipeline permitted through illegal process, lawsuit contends” in The Narwhal .

An analysis in The Energy Mix, “Pipeline Investment ‘Goes Palliative’ in Wake of Unist’ot’en Blockade”  (Jan. 13) compiles responses to the blockade from several media outlets, and sketches out two themes. The first, Canada has provided yet another example of how unattractive and uncertain it is to energy investors; the second: First Nations concerns are represented by  both hereditary and elected leaders. “As long as they [the government]  are willing to resort to force instead of diplomacy, we haven’t even begun to engage in meaningful reconciliation.”

 

B.C. LNG project approved despite emissions, fracking

lngcanadakitimat1_160204Described as one of the largest infrastructure projects ever in Canada, a $40-billion liquefied natural gas project in northern British Columbia was approved on October 1, and the five investors – Royal Dutch Shell, Mitsubishi Corp., Malaysian-owned Petronas, PetroChina Co. and Korean Gas Corp. –  have stated that construction on the pipeline and a processing plant will begin immediately. According to the CBC report , the project is expected to employ as many as 10,000 people in its construction and up to 950 in full-time jobs. The processing plant will be located in Kitimat, which is within the traditional territory of the Haisla First Nation, and which is in favour of the project, as are the elected councils of 25 First Nations communities along the pipeline route.  The B.C. Federation of Labour also supports the project, as stated in its press release: “The Federation and a number of other unions have been part of the LNG process since 2013….As a part of the former Premier’s LNG Working Group, and the new government’s Workforce Development Advisory Group with First Nations and LNG Canada, labour pushed for many of the work force provisions that are reflected in today’s final investment decision”.

That leaves environmental activists in opposition. Although B.C.’s Premier announced the project with as “B.C.’s new LNG Framework to deliver record investment, world’s cleanest LNG facility”  , the project’s emissions will represent more than one-quarter of B.C.’s legislated targets for carbon pollution in 2050.  Both the Pembina Institute and Clean Energy Canada   note how difficult it will be to reach B.C.’s targets for clean growth (currently under a consultation process), and Pembina warns of the dangers of fracking and of methane emissions associated with natural gas.  Reflecting years of opposition, the Canadian Centre for Policy Alternatives wrote   “LNG is incompatible with B.C.’s climate obligations” (July 11). As far back as 2015, CCPA B.C. published  A Clear Look at B.C. LNG: Energy Security, Environmental Implications, and Economic Potential ,  by David Hughes.   An October 2  Maclean’s published an Opinion  piece, “Will LNG Canada increase greenhouse-gas emissions? It’s complicated.”  which considers (and rejects) the idea that B.C. LNG  might have a global benefit if it displaces coal use in China .

And finally, the issue of fossil fuel subsidies, which Canada and other G20 countries have promised to phase out.  In  “LNG Canada project called a ‘tax giveaway’ as B.C. approves massive subsidies” in The Narwhal,  author Sarah Cox reports that a senior B.C. government official “pegged the province’s total financial incentives for the project at $5.35 billion”, including break on the carbon tax, cheaper electricity rates, a provincial sales tax exemption during the project’s five-year construction period, and a natural gas tax credit.

The B.C. Green party, which has to date supported the current minority NDP government through a Confidence and Supply Agreement , maintains an online petition called  LNG is not worth it  . Green Party Leader Andrew Weaver issued this statement on October 1, expressing disappointment and stating:

“The government does not have our votes to implement this regime…..Despite our profound disappointment on this issue, we have been working closely in good faith with the government to develop a Clean Growth Strategy to aggressively reduce emissions and electrify our economy. The B.C. NDP campaigned to implement a plan to meet our targets and reaffirmed that promise in our Confidence and Supply Agreement. We will hold them to account on this. We will have more to say once that plan becomes public later this year.”

Federal Court of Appeal stops Trans Mountain pipeline in its tracks

killer whales rainforestAn August 30 decision by the Federal Court of Appeal  has quashed the approval of the Trans Mountain oil pipeline expansion, directing that the the consultation with First Nations be re-done before the approval can again be considered.  The Court’s decision was based on two grounds: 1). Failure to adequately consult with First Nations –  characterizing the interaction as more “note-taking” than consultation – and 2) the National Energy Board  did not consider  the environmental impacts of  oil tanker traffic, especially its effect on the Southern Resident Orca Whales .  The Court stated:  “The unjustified exclusion of project-related marine shipping from the definition of the project rendered the board’s report impermissibly flawed”.  The National Observer has summarized the decision thoroughly  here , and maintains an ongoing series on “Kinder Morgan” here .  CBC News produced several stories, including a broad overview, including reactions, in “After Federal Court quashes Trans Mountain, Rachel Notley pulls out of national climate plan” .  A straightforward, briefer summary appeared in the Calgary Herald, “Five things to know about today’s Trans Mountain Pipeline Court Ruling” .

Reaction from environmentalists and First Nations is understandably overjoyed. EcoJustice, one of the main legal players in this consolidated case issued a press release  jointly  with the Raincoast Conservation Foundation and  Living Oceans Society, emphasizing the conservation aspects of the decision. It states: “The past six years have been a hard-fought battle against a project that has come to symbolize some of the defining issues Canadians face at this moment in time: Navigating the ongoing process of reconciliation, mitigating climate change, and protecting the land and water for future generations.”   Climate Action Network states that “This decision from the Federal Court of Appeal affirms the primacy of Indigenous rights and community consent. “  The David Suzuki Foundation press release touches on both aspects of the decision, saying “What is clear is that today’s decision sets a new high-water mark in terms of what it means to achieve true reconciliation, with Indigenous Peoples and nature.”  From The Narwhal,  “The death of Trans Mountain pipeline signals future of Indigenous rights: Chiefs” is a good compilation of First Nations response, to be read along with the Vancouver Sun‘s “B.C. First Nations Divided on Kinder Morgan Ruling”.

Another environmentalist reaction: “‘This pipeline is dead’: Stand.earth applauds federal court decision on Trans Mountain Pipeline”  which states: “Today’s victory is a vindication for everyone who worked to stop the Trans Mountain pipeline and tanker project — the hundreds of Water Protectors who were arrested in acts of peaceful civil disobedience, the tens of thousands of climate activists who marched against this pipeline, and the millions of Canadians who used their votes to elect candidates committed to creating a better future for Canada and the world.”

What does this mean for Canadian climate policy?  Professor David Tindall of University of British Columbia wrote an Opinion piece which appeared  in The Conversation on August 30, “Trans Mountain ruling: Victory for environmentalists, but a setback for action on climate change”.  He states: “While environmentalists can claim a victory in delaying the construction of a pipeline that would ship a further 500,000 barrels of oil each day to the Pacific Coast, the court ruling also threatens Canada’s plan to deal adequately with its greenhouse gas emissions. ”   A fuller discussion of this dilemma appears in “Trans Mountain pipeline ruling shakes central pillar of Trudeau agenda” (Aug. 31)  in the National Observer, and features in the many arguments for “Why Ottawa should step away from the Trans Mountain pipeline” , in Policy Options in August.  (A follow-up to an August 29 Open Letter to Prime Minister Trudeau on the topic, from 189 Canadian academics).  Finally, “The Global Rightward Shift on Climate Change”  in The Atlantic    (Aug. 28) examines Trudeau’s contradictory policies even before the Court decision,  in light of the recent ouster of Australia’s Prime Minister, partly over energy policies.

The threat to federal climate change policy comes because Alberta’s Premier Rachel Notley, in reaction to the Court’s decision,  pulled the province out of the Pan Canadian Framework on Clean Growth and Climate Change, blaming the federal government for “the mess we find ourselves in”.  The Premier’s press release issues an ultimatum, stating: “…Alberta, and indeed Canada, can’t transition to a lower carbon economy, …if we can’t provide the jobs and prosperity that comes from getting fair value for our resources….So the time for Canadian niceties is over… First, the federal government must immediately launch an appeal to the Supreme Court of Canada. Even more importantly, Ottawa must immediately recall an emergency session of Parliament to assert its authority and fix the NEB process as it relates to this project to make it clear that marine matters have been and will be dealt in a different forum.  Then Ottawa needs to roll up its sleeves and continue its work to protect our coast and improve consultation and accommodation relating to Indigenous peoples in the way they deserve.”

The political context is behind Notley’s response is  reported in “‘Notley’s in a lot of trouble’: Massive political fallout from Trans Mountain court decision” in the Calgary Herald and in the Edmonton Journal (Aug. 31) :  “’It is a crisis’: Alberta premier withdraws support for federal climate plan after Trans Mountain approval quashed” . Other Western politicians are quoted in  “ ‘A hideously expensive white elephant’: Essential quotes on the quashing of the Trans Mountain pipeline approval”  in the Calgary HeraldReaction from British Columbia’s  Premier  was brief, and focused on First Nations rights;  the mayors of Burnaby and Vancouver B.C.  were more enthusiastic (having been part of the applicant group of the case) .

What’s Next?  The Prime Minister reiterated federal resolve to build the pipeline in an interview on August 31, after the decision.  Construction has been stopped indefinitely, but a CBC analysis cautions, “Don’t dig Trans Mountain’s grave just yet” , and UBC Professor George Hoberg has predicted that it will take another 18 months at least for the issue to reach, and be decided, in the Supreme Court of Canada.  And in the meantime, in Canada, the September 8 RISE Global Day of Climate Action will be a day of celebration .