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B.C.’s Action on Bitumen Spills ‘Finds Kinder Morgan’s Achilles’ Heel’

Mark Klotz/Wikimedia Commons

The frenzy around British Columbia’s opposition to Kinder Morgan’s Trans Mountain pipeline expansion went up by several notches last week, with Alberta threatening a retaliatory trade war, town hall participants jeering Prime Minister Justin Trudeau in Edmonton and Nanaimo, and one commentator urging Ottawa to send in the RCMP or the military to enforce its approval of the intensely controversial project.

The latest chapter in the Kinder Morgan saga began last week, when B.C. Environment Minister George Heyman announced [1] an independent scientific advisory panel “to determine whether diluted bitumen can be effectively cleaned up [2] after being spilled in water,” the Globe and Mail reported at the time. “Until that committee reports, the government will impose a regulation prohibiting any expansion, either by pipeline or rail, of heavy oil sands crude.”

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If the scientists find there is no plausible way to clean up diluted bitumen once it has leaked into waterways, the paper added, “the province would likely move to make the regulation permanent.”

That prospect “elicited howls of outrage from the oil patch, probably because they recognize that the B.C. government has found the Achilles’ heel of the federal approval: our inability to clean up bitumen spills,” writes [4] Keith Stewart, head of Greenpeace Canada’s climate and energy campaign. Alberta rallied behind the fossil industry, Saskatchewan rallied behind Alberta, and industry columnist Markham Hislop said [5] Ottawa should let the RCMP or even the military sort out the dispute. All of the reaction was grounded in the federal government’s constitutional authority over interprovincial pipeline—once Kinder Morgan had federal approval, so the story goes, provinces had no authority to fight the project.

But the project’s ardent supporters may actually be running headlong into a morass of legal uncertainty.

As long as the oil stays in the pipeline, they’ve got a strong case. But once oil spills from a pipeline, then it enters provincial jurisdiction,” Stewart writes. “In terms of constitutional law, it’s a grey area [6], and it may ultimately be decided in court. In the meantime, B.C. will consult on their proposed regulation (likely to take a year or so to finalize) and the science panel will undertake its review (likely to take two years).”

He cites Heyman’s statement that “we wouldn’t be proceeding if we didn’t believe we had the right and the responsibility under the Environmental Management Act to protect B.C.’s coast and our environment against real threats.”

The constitutional uncertainty means Ottawa and Kinder Morgan could win or lose a protracted court fight. But time is not on the Houston-based pipeliner’s side: the company has claimed [7] that every month of delays costs it $5.6 million in expenses and $88 million in future revenue foregone, and was already considering self-financing the C$7.4-billion project as commercial investors lost interest.

Hislop argues that Kinder “hasn’t helped itself” by admitting to its own vulnerabilities.

“In a December 4, 2017 press release, the company announced that if [Trans Mountain] continues to be ‘faced with unreasonable regulatory risks due to a lack of clear processes to secure necessary permits…it may become untenable for Trans Mountain’s shareholders…to proceed,’” he writes. “Talk about waving a red flag in front of Horgan and Burnaby Mayor Derek Corrigan, an implacable foe of the pipeline. The company virtually guaranteed that there would be an endless parade of ‘frustrations to the federal purpose,’ as the NEB so quaintly describes it.”

Burnaby, meanwhile, has been detailing the local impact [8] of Kinder Morgan’s plans and objecting to the company’s inability or unwillingness to comply with the most basic of municipal ordinances.

None of which deterred Notley from calling an emergency cabinet meeting Wednesday to discuss Alberta’s options for retaliating against Heyman’s announcement. “The government of Alberta will not—we cannot—let this unconstitutional attack on jobs and working people stand,” she said [9] before the meeting began.

As the week unfolded, Alberta suspended negotiations [10] on a $500-million-per-year electricity purchase from B.C., with Notley stating [11] that “this is just a first step. We are prepared to do what it takes to get this pipeline built. Whatever it takes.”

Amid wider industry [12] pushback [13], Petroleum Services Association of Canada CEO Mark Salkeld claimed that B.C. “wouldn’t last a week without oil and gas,” and noted that the province is happy to promote fossil development when it wants to. “They support the LNG industry [14], so they are all for fossil fuels in their own backyard,” he said. “But they are going to mess around with Alberta and hold us back from developing our natural resources because they have access to tidewater and we don’t.”

One Fort McMurray eatery responded [15] by refusing to stock B.C. wines.

During his Edmonton town hall, and on a radio talk show Thursday, Trudeau defended federal approval of the Trans Mountain expansion. “That pipeline is going to get built,” he said [16]. “The Kinder Morgan pipeline is not a danger to the B.C. coast.”

He added that “one of the reasons we have a national government to oversee national interests is to step up for the interests of all Canadians, and that’s exactly what I am going to do.”

In Nanaimo, Trudeau faced [17] a chorus of boos—with what CBC describes as “slightly louder cheers of welcome”—at a town hall meeting where he tried to defend federal approval of the Kinder Morgan line.

“We wanted a national carbon reduction plan, a national emissions plan that is going to allow us to reach our climate goals, to reach our Paris commitments,” he said.

“But in order to do that, part of moving forward is approving the Kinder Morgan pipeline,” he added. “It is something many people feel very strongly about on either side, but that is the nature of the compromise we had to make in the best interests of Canada.”

Later, in an interview with CBC On the Island host Gregor Craigie, Trudeau said [18] carbon cuts, ocean protection, and pipeline development are a package deal. “The only way we can get any of those things is if we do all three of those things together,” he said. “As I’ve said for a long time, we need to make sure we’re both protecting the environment and growing the economy at the same time.”

While news headlines from the Nanaimo meeting talked about a “raucous” and “rowdy” crowd, participant Torrance Coste had a different take.

What was expressed, from the silent dignity of hereditary Indigenous leaders from up the coast, to those of us with our chants and banners, to the folks that shouted at the Prime Minister until he had police drag them out (a process he kind of seemed to enjoy, which was concerning), was a fury and heartbreak that only comes from being systematically ignored by those who are supposed to look out for you.”

With Trudeau claiming that pipeline opponents “were not listening, not being respectful,” Coste adds, “the tragic irony here is simply staggering. His government is forcing the Kinder Morgan pipeline through the territories of Indigenous nations who don’t want it, going completely against what climate science is telling us we must do, and threatening one the most incredible places on this planet.”

That action, he writes, “is the policy equivalent of shouting at us so that we can’t be heard, so that our voices are pushed aside, our power is taken away, and all that we love is nationally categorized as expendable. The difference is, no one comes to drag him out.”

While Globe and Mail reporter Gary Mason largely writes off [19] the B.C. action and widespread reaction as a political play in all directions, Toronto Star National Affairs Columnist Thomas Walkom sees [20] the last week as “more than a constitutional tussle. It is also a reminder of the unresolved contradictions within Prime Minister Justin Trudeau’s climate change policy.”

It’s “a reminder that the core of that policy—the assertion that carbon emissions can be adequately reduced without significant economic cost—is simply not true.

Kinder Morgan was actually “supposed to embody the great climate change bargain that Trudeau promoted,” Walkom writes. “Pipelines could be built, but only if their builders had social licence to do so. That social licence would include a commitment to reduce carbon emissions in order to fight climate change.

But “the bargain didn’t work. In part, this was because opposition to Kinder Morgan was based on more than climate change. But in part it was because the premise behind the bargain was false.” While the cost of ignoring climate change is far higher than the cost of confronting it, “it is naïve to think that the transition away from a high-carbon world will be painless.”

The contradictions show up in the federal government’s half measures on climate—its embrace of a Harper-era emissions target that it once mocked as inadequate, and of a floor price on carbon that will be “far too low to get the job done”, Walkom states.

“The government’s caution is understandable. Fighting climate change carries a political as well as an economic cost,” he concludes. “But if climate change is as dangerous as scientists say, then boldness is required. Compromises, like the one behind the ongoing Kinder Morgan political soap opera, just don’t cut it.”