British Columbia has filed its reference case with the provincial Court of Appeal, asking whether it has the right to set tougher rules for companies shipping heavy oil through the province.
The reference, released Thursday, includes draft amendments to the provincial Environmental Protection Act that would require shippers to receive additional permits before increasing the flow of heavy oil—including diluted bitumen from the Alberta tar sands/oil sands—through B.C. The province is asking the court to rule on whether it has jurisdiction to enact the new rule, CBC reports.
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“In other words, can we do it?” asked Attorney General David Eby.
“The province has acknowledged that the federal government has jurisdiction over interprovincial pipelines, but is seeking to build a case that the province has the authority to regulate the environment—although it cannot be seen to impair the operation of the pipeline,” the Globe and Mail writes .
“Companies could also be required to show a spill response plan in advance,” CBC notes. “An independent director would grant the permits, making the decision based on the best scientific research available. The director would also consult with Indigenous groups and the broader public before making a choice.”
The scope of the legislation is limited to heavy oils, “which the province considers to be the highest risk in the event of a spill,” CBC adds.
Hours before Eby filed the reference case, the Globe and Mail reported that B.C. would “point to gaps in science to justify its quest to assert its authority over the environment when oil is moved by truck, rail, or pipeline.”
“We’re not sure—and neither is the Royal Society of Canada—that we know everything we need to know to make pipelines safer, particularly when they cross water bodies,” said Environment Minister George Heyman. The Royal Society’s 2015 expert panel on bitumen determined that “the environmental behaviour of unconventional oils and blended oils currently cannot be predicted with confidence, which affects spill response planning and decisions,” the Globe notes.
More recently, a consensus report from the U.S. National Academies of Science cited  “areas of uncertainty that hamper effective spill response planning and response to spills. These uncertainties span a range of issues, including diluted bitumen’s behaviour in the environment under different conditions, its detection when submerged or sunken, and the best response strategies for mitigating the impacts of submerged and sunken oil.”
After it approved the pipeline, the federal government “tacitly acknowledged the need for more research when it promised more than C$45 million in new science funding last December to study how oil spills behave, how best to clean and contain them, and how to best minimize their environmental impacts,” the Globe and Mail adds. Attorney Eugene Kung with West Coast Environmental Law said Ottawa should have addressed those questions before ruling on the project.
“There are huge gaps in our understanding of how diluted bitumen would behave in a spill, which I would hope would inform our spill responses before any approvals are granted,” he said.
Environment and Climate Minister Catherine McKenna wrote to B.C.  yesterday, inviting the province to form a joint scientific panel to study oil spills and response measures. “Such a panel would build on our science investments and results, [and] take stock of work on the fate, behaviour, and effects of various oil products in different spill conditions and under extreme Canadian climates, in order to inform further scientific work under the [federal ocean protection plan] and spill response modelling, preparedness and response measures,” she said.