"The TMX (Trans Mountain Pipeline) project is not only a 'British Columbia project'," states Justice Mary Newbury in the B.C. Court of Appeal's written decision. "The project affects the country as a whole, and falls to be regulated taking into account the interests of the country as a whole."
With those words, and 66 pages of reasoning, the court struck down the B.C. government's case against the TMX by a unanimous vote. In their opinion, the regulatory framework put in place by the federal government through the National Energy Board (NEB) is sufficient to manage the pipeline.
Considering the NEB imposed 157 conditions prior to construction of the pipeline, which included further studies of the potential impact on aquatic life, there are many people rejoicing at the decision. Enough is enough, they are saying. The pipeline will meet the environmental standards set by the province.
Further, the federal government has been ordered to engage in further and more extensive consultations with the First Nations impacted by the pipeline prior to final approval. Consultations is always a tricky word because it can and does mean different things to different people. Is it simply enough to tell people what you plan to do and why? Or do you need to respond to every inquiry until all parties are satisfied? Is it possible to satisfy all parties?
All of that said, it would appear the Trans Mountain pipeline projects is a go. As Premier Jason Kenney of Alberta gloated "This is a huge victory for Alberta, for the rule of law, and a significant defeat for the forces of obstruction that are trying to land lock our energy."
Of course, no one was trying land lock our energy. I am not even sure what that means. Energy is an intangible commodity.
No. The B.C. provincial government would argue they are trying to protect the B.C. coast. Indeed, this is the point made by Attorney General David Eby. "Our government said from the outset that we would stand up for British Columbia's environment, our economy, and our coast."
As an interesting aside, it would appear no one is concerned about the potential for an inland spill and the release of diluted bitumen along the route. I suspect there are a number of reason for this approach, not the least of which is the existing pipeline has been moving product for close to 60 years. But inland pipeline spills can be just as damaging and can leave a pipeline out of commission for a significant length of time.
Eby went on to point to thousands of jobs and billions of dollars in economic activity at risk in the event of a marine oil spill. True. But jobs would be created and billions of dollars would flow into the local economy to clean up a spill. Addressing disasters is one of the ironic twists of GDP. The bigger the disaster, the more positive the impact on GDP!
At the core of the province's argument is the idea B.C. has direct ownership of the environment including the lands, waters, plants, and wildlife within its eminent domain. And as such, we have the legislative jurisdiction over the environment along with the responsibility to ensure it is not damaged by a spill of heavy oil. Tripling the capacity of the pipeline represents a significant increase in risk.
But at the same time, we already export heavy oil out of the Port of Vancouver. We already have tankers transiting the Strait of Juan de Fuca and sailing the Salish Sea. The movement of oil from the coast is a fact of life. Increasing the pipeline capacity is an incremental risk and not a new one.
The federal government's case hinges on the simple fact that this is an inter-provincial pipeline. It extends from Edmonton to Vancouver. And inter-provincial transport of goods falls squarely into the jurisdiction of the federal government. Indeed, it is one of the reasons we have a federal government in the first place.
Canada's position is it is a core responsibility of the federal government to ensure our natural resources can get to market. Imagine what would happen to the Canadian economy if one province could block the actions of all the others. Imagine if B.C. refused to ship wheat, barley, and other grains grown in the rest of Canada or refused to accept the import of automobiles.
If it seems like I am conflicted on this issue, it is because I am. I suspect this is the position of a great many people in British Columbia. Pipelines are necessary but at what costs? Protecting the environment is necessary but what are the trade-offs?
The decision of the B.C. Court of Appeal eliminates one option in the Premier's toolbox but I am fairly certain the battle is not over yet.
