BC ‘policy consultations’ for pipeline, tanker heavy oil spills part of strategy to make Trudeau pay dearly for Kinder Morgan pipeline

BC Premier John Horgan, right, Environment Minister George Heyman.

Trudeau may fulfill his promise to get Trans Mountain Expansion built, but it will likely cost him dearly in BC

“Fill yer boots as long as you don’t tread on federal jurisdiction,” was basically Alberta Premier Rachel Notley’s message to her ole buddy John Horgan when on Jan. 30 he announced public consultations around five new regulations aimed at heavy oil spills on land and water. Thursday, BC released a “policy intentions paper” for those regs that makes very clear the BC NDP government’s intention to federal resolve over the Trans Mountain Expansion pipeline project.

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Alberta Premier Rachel Notley. Source: CBC.

Thus far, no response from Notley on the paper, which addresses only four spill issues since BC decided to refer infamous Point 5 – that shipment of diluted bitumen be restricted until Victoria could better under the science of how it behaves in a marine environment after a spill – to the Federal Court of Appeal.

Both she and Jim Carr, federal natural resources minister, have said they will wait for the next move until the regulations are passed by BC. If they appear unconstitutional – i.e. threaten the viability of Kinder Morgan’s 525,000 b/d Trans Mountain Expansion pipeline project between Edmonton and Burnaby on the West Coast – then further political and legal fireworks can be expected.

It will be interesting to see how BC finesses the jurisdiction question.

“We will put effective spills prevention, response and recovery in place, while making sure that those responsible for spills are also made responsible for fixing the environmental damage they’ve caused,” said BC Environment Minister George Heyman in a press release.

The former executive director of the BC Sierra Club noted that public feedback will be included in a report, along with final recommendations, that is expected to be available in late 2018 or early 2019.

Very clever, that timing.

Kinder Morgan has already pushed back start of construction by a year (until Sept. 2018) to sort out permitting disputes with the City of Burnaby. BC says it will also submit an application to the Federal Court of Appeal to challenge “federal over-reach” by the National Energy Board over the Burnaby spat.

Let’s not forget the interested parties are still waiting for the Federal Court of Appeal to rule on a judicial review requested by First Nations and environmental groups.

The legal and regulatory delays are piling up.

This will soon become very important because the company has hinted that more unreasonable delay may cause its investors to reconsider their support.

BC’s strategy has become crystal clear: hound, harrass, and nip at the heels of Kinder Morgan until the Texas-based pipeline giant finally throws up its hands in frustration and cancels the project.

Which brings us to the remaining prospective regulations in BC’s policy intentions paper’s four points: spill response times, geographic response plans, addressing loss of public use from spills (including economic, cultural, and recreational impacts), and maximizing the marine application of environmental emergency regulatory powers.

The Canadian Energy Pipelines Association opted for diplomacy in its response: “CEPA is encouraged that the government of B.C. has included a commitment to avoiding regulatory duplication in its policy intentions paper on phase two enhancements to spill management. Transmission pipeline companies already comply with robust federal and provincial regulations with respect to emergency preparedness and response…Any new regulations that are put in place in BC should recognize that our industry is already heavily regulated and well-positioned to respond in an
effective and efficient manner in the unlikely event of a spill.”

Spills from the pipeline itself aren’t likely to draw the most attention from the Province.

Over the past five years or so, CEPA members have done a good job beefing up integrity programs and adopting new technologies that help them prevent leaks. The original Trans Mountain hasn’t had a reportable leak (spills over 1.5 barrels) in three years and Alberta reports that pipeline failure rate dropped by half between 2007 and 2016.

Pipeline spill performance isn’t the most important target of the policy consutlations. The real battle will be fought over marine spills and the behaviour of diluted bitumen in water.

The Horgan Government says it will appoint an advisory committee to help it sort through the science, which is becoming more robust all the time as various government scientists conduct ongoing research.

But do scientists know enough for the Western Canada Marine Response Corporation – the federally mandated and industry-funded organization tasked with spill containment and clean up – to design effective spill response plans? And to carry them out so as to minimize damage to sensitive West Coast marine ecosystems?

Trans Mountain Expansion opponents will say, not a chance.

Supporters will point out the science has improved significantly in just a few years, is more than adequate as it stands today, and will continue to grow in the foreseeable future.

They will add that there will never be enough science to satisfy critics.

Expect marine spills to be the primary battleground for BC’s legal and political clash with the Canadian government.

The policy consultations are meant to attack Prime Minister Justin Trudeau (who has said unequivocally that Trans Mountain Expansion will be built), Carr, and Notley where they are weakest – “protection” of the West Coast from increased oil tanker traffic and the damage to the marine ecosystem caused by a spill.

The feds are being maneuvered into a corner, where the only option they will be left with is to use the power of the state – read, the RCMP and maybe even the military – to ram through pipeline construction.

The Kinder Morgan pipeline will almost certainly be built, but the Horgan government plans to make Trudeau and the federal government pay dearly for that outcome.

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