Quebec Environment Minister David Heurtel announced Tuesday the province is filing a legal injunction against TransCanada’s proposed Energy East oil pipeline with Quebec’s Superior Court.
"Today's motion is very simple and very clear. It signifies that whoever seeks to build a project in Quebec must comply with all Quebec laws and regulations," Heurtel said at a press conference.
"This is not only a matter of respect, but equally a question of fairness towards all companies that wish to do business in Quebec."
The announcement left oil-patch politicians like Saskatchewan Premier Brad Wall once again bitter with Quebec for not fully supporting the west-to-east pipeline project.
"I'm very disappointed," Wall said in response to the province's push for an injunction. "It seems of late that we seem to be forgetting what's best about Canada."
“The Minister himself was quite clear in pointing out it is not a position for or against the pipeline,” Karine Peloffy, executive director of Centre Québécois du Droit de l’Environnement (Quebec Environmental Law Center), said. “It is more an issue of insisting on the proper application of the law.”
Under Quebec’s Environment Quality Act, any pipeline longer than two kilometers must undergo a provincial environmental assessment and review prior to shovels going into the ground. If approved, 1,600 kilometres of the 4,600-kilometre Energy East pipeline will be built in Quebec and New Brunswick.
“We have laws quite specific to Quebec that take into account environmental risks and local health issues and concerns not necessarily considered at the federal level,” Peloffy told DeSmog Canada.
Peloffy points to the province’s adherence to legal concepts like protecting water as a collective resource and the fundamental right to live in a healthy environment as areas where Quebec’s environmental law differs from its federal equivalent.
Much of Canada's federal environmental legislation related to the protection of at risk species, fish and water protection was weakened or eliminated under the previous federal government, leaving some to wonder if provincial law is the last best defence for the environment.
The the Species At Risk Act, the Navigable Waters Protection Act and the Canadian Environmental Assessment Act were significantly altered through two omnibus bills in 2012. In the wake of the legislative changes, hundreds of environmental assessments of energy projects were cancelled outright, eroding public trust in the ability of the National Energy Board, Canada's pipeline regulator, to adequately assess the environmental risk of new major pipeline projects.
“In 2012, the Harper government set out to scale back federal environmental legislation to the minimum amount required to satisfy its jurisdiction,” Ecojustice staff lawyer Charles Hatt told DeSmog Canada.
“Provincial environmental assessment legislation can sometimes fill gaps left by this narrow view the previous federal government took of environmental assessment,” Hatt said.
Prime Minister Justin Trudeau's government promised to review the national pipeline assessment process but indicated pipeline review processes already underway — for both the Kinder Morgan Trans Mountain pipeline expanstion and Energy East — will continue on under the current regime.
Quebec to Avoid Same Legal Ruling as British Columbia
Comments made by Quebec Premier Philippe Couillard earlier this week indicate the province is trying to avoid legal obstacles faced by British Columbia in the construction of the Enbridge Northern Gateway pipeline.
The B.C. Supreme Court found last January that the provincial government failed to fulfill its legal duty to consult with First Nations about Northern Gateway when it handed over its responsibility to conduct an environmental assessment of the project to the National Energy Board.
“Essentially the courts ruled the B.C. government acted illegally by abdicating its responsibility to review Northern Gateway to the National Energy Board,” Peloffy said.
"I want to point out that this [injunction] should not be interpreted as us being for or against the project," Environment Minister Hurtel said Tuesday. "Rather, as in other provinces, it is an attempt to have our laws and regulations respected."
TransCanada may have also played a role in provoking the Quebec injunction.
“I clearly informed TransCanada Pipelines that it needed to table a project notice for Energy East," Environment Minister Heurtel stated in a media release. "In the face of its inaction, the government has taken action. This is not only a matter of respect, but equally a question of fairness towards all companies that wish to do business in Quebec."
Under normal circumstances in Quebec, when a company wishes to undertake a major project it must submit a notice with the ministry of environment. This in turn triggers a review by a provincial agency called the Bureau d’audiences publiques sur l’environnement or BAPE and leads to the issuance of a governmental authorization of and conditions for the project.
The province asked TransCanada in 2014 to provide an environmental impact study of the Quebec portion of Energy East for purposes of conducting a provincial review and the Calgary-based pipeline company has yet to respond.
Despite TransCanada not following proper Quebec procedure, the province decided to go ahead with a review of Energy East regardless. The review is scheduled to begin next week.
Quebec environmental organizations have concerns about the provincial review in its current form.
“A big issue with the current review is the minister has been able to carve out pieces of the mandate they didn’t want to be studied,” Peloffy said. “Normally in a provincial review all aspects of the environment are looked at, including economic aspects and Indigenous rights. The Minister decided both are outside the purview of the review.”
TransCanada’s non-compliance with Quebec law has given Heurtel the legal leeway to cater the review of Energy East to a more limited set of criteria than is standard in the province. The review’s findings will only serve to inform Quebec’s position during National Energy Board hearings and not result a provincial government decision on Energy East.
Quebec Environmental Law Centre, Equiterre, Nature Quebec and Fondation Coule pas chez nous are calling on the Quebec government to suspend its Energy East review until the province’s Superior Court delivers a ruling on whether TransCanada has breached Quebec law. All four organizations filed a joint motion with the Superior Court against the Energy East project on February 18th.
If built, the $15.7 billion dollar Energy East pipeline will transport 1.1 million barrels of western Canadian oil and oilsands crude 4,600 kilometres to New Brunswick every day. To date, TransCanada has submitted over 30,000-pages of documents as part of its Energy East application to the National Energy Board. The Board has not determined if the application is complete.
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