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.

Legacy Of Weakened Federal Environmental Protections 

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 Refuses To Supply Quebec With An Environmental Impact Study of Energy East 

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. 

Image Credit: David Heurtel via Twitter

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Natural Resources Minister Jim Carr has reiterated the federal government’s pledge to overhaul the National Energy Board in order to restore public confidence in Canada’s pipeline review process. But the promised legislative changes will not come quickly.

"You don't rush your way into decisions that affect not only today, but generationally in Canada in the new world of sustainably moving resources to market," Carr said Monday while attending the federal cabinet’s retreat in New Brunswick.

Over the last month, the Union of B.C. Indian Chiefs and Burnaby Mayor Derek Corrigan requested Carr and Prime Minister Justin Trudeau suspend the review of Kinder Morgan’s Trans Mountain pipeline to avoid a decision being pushed through a process they claim is “deeply flawed.” Trans Mountain’s final hearings began as scheduled on January 19 in Burnaby, British Columbia.

"The minister is correct, we shouldn’t rush the creation of a new process,” Andrea Harden-Donahue, energy and climate justice campaigner with the Council of Canadians, said. “But continuing with the flawed Kinder Morgan and Energy East reviews is entirely inconsistent with Liberal promises. How can a 'transition strategy' rectify the failings around public participation and Indigenous consultation for these projects. I don't see how this can happen."

“We are not saying pipeline companies have to go back to square one,” Harden-Donahue told DeSmog Canada. “All evidence submitted goes on hold and this can be supplemented with additional evidence after the changes are made.”

Trudeau’s government has been clear on several occasions pipeline projects currently under National Energy Board review will not be forced to go back to “square one,” that is, begin their application process completely from scratch.

The legislative changes during the Harper government’s 2012 omnibus bill frenzy severely weakened key pieces of environmental protection legislative like the Navigable Waters Protection Act and the Species At Risk Act. The National Energy Board Act and the Canadian Environmental Assessment Act were also altered to ensure proposed pipelines made it through the regulatory process within 15-months, no matter how complex those projects may be.

“Some pipeline reviews may fall into that time limit. On the other hand, large projects with clear risks like Energy East or Kinder Morgan may not and this is problematic,” Harden-Donahue told DeSmog Canada.

There is little doubt the massive surge of public participation in the Northern Gateway pipeline hearings in B.C. served as the impetus for the Harper government to slap time limits on project reviews. With the exception of the Mackenzie Gas Project, the Board took less than 15 months to make its decisions on project applications between 2004 and 2012.

The controversial Northern Gateway proposal to pipe oilsands (also called tar sands) bitumen to B.C.’s northern coast drew records numbers of public participants for regulatory hearings and took four years to complete. The Board approved the project, albeit with over 200 conditions, in 2014.

By allowing pipeline reviews to proceed under the previous federal government’s rules, the Liberal government may be condemning projects to go back to ‘square one’ regardless. First Nations, and environmental organizations over the last four years have not been hesitant to take pipeline reviews to court over violations of ‘aboriginal’ rights or the freedom of expression.

In some cases, pipeline opponents are winning these legal battles, particularly those launched by First Nations.

Last week, the B.C. Supreme Court ruled in favour of coastal First Nations who argued in their case against Northern Gateway that the B.C. government fail to consult them about the pipeline proposal. The provincial government is now required to meaningfully consult coastal First Nations on the project, which many believe to be dead already.

Similar scenarios could play out for other pipeline projects.

The Board’s review of Trans Mountain faces a legal challenge by Tsleil-Waututh First Nation. Energy East has not come up against a legal case yet, but Treaty 3 First Nations in Ontario have vowed not to allow the pipeline to go through their territory without their free, prior and informed consent.

Line 9 pipeline, one of the first pipelines to be approved by the Board in the post-2012 omnibus bill era, is also being challenge by Deshkaan Ziibing (Chippewas of the Thames). The Ontario First Nation plans on taking their case all the way to the Supreme Court of Canada.

Image Credit: Shannon Ramos via Flickr

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Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right –  Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

The motion Ecojustice lawyers filed on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, asks the Board to order Kinder Morgan to fully respond to our clients’ first round of information requests about the Trans Mountain Expansion Project.

Kinder Morgan received more than 10,000 questions from intervenors. As we wrote last month, the company asked for an extension of the time limit to respond, but got only 14 of the 23 days they asked for. Our clients supported the request, in the interest of allowing Kinder Morgan time to provide as much information as possible.

Kinder Morgan's slippery responses

But now that the responses are in, we wonder whether the extra nine days would have made a difference. Responses from the company have ranged from vague to incomplete to non-existent. In short The information provided by Kinder Morgan is not nearly good enough. Of the 253 responses our clients received from the company, at least 77 – approximately 30 per cent – were inadequate. 

In 20 responses, Kinder Morgan refused to answer the question in whole or in part, by:

• Claiming it was “not relevant” to the review (including the record of leaks and ruptures on Kinder Morgan’s other pipeline systems, and the make and model of clean-up equipment); or
• Stating that it did not have the information (including air monitoring information), because the data do not exist, because the answer was not in the documents they relied on in the application, or because they had not done the necessary work to answer.

In five responses, Kinder Morgan gave a response which only partially answered the question or provided an answer but not the supporting data requested.

In the remainder of the responses, Kinder Morgan simply didn’t answer the questions it was asked. Here’s a snapshot of the ways the company answered questions with non-answers:

• Cited a large document or report rather than provide an clear answer;
• Referred to a document that did not contain any answer to the question; 
• Said it would file an answer later; or
• Cited a legal standard rather than address facts. 

As we mentioned above, when our clients asked if there was evidence from cold water oil spills, beyond evidence from the Exxon Valdez oil spill, of marine fish communities or habitat being impacted for more than two years after a spill, this was Kinder Morgan’s response: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.” 

In support of that mystifying non-answer, Kinder Morgan cited a 264-page report from Enbridge’s reply evidence in the Northern Gateway pipeline hearings. 

We’ve written about how, in the wake of the 2012 omnibus budget bill, reviews of major pipeline projects have been scaled back dramatically, sacrificing good science and process for “efficiency." The Kinder Morgan Trans Mountain Expansion Project hearing, with its 15-month time limit and lack of oral cross-examination, is a prime example of how this shift is deeply problematic. 

We are now halfway through the two rounds of intervenor information requests, which are intervenors’ only chance to ask Kinder Morgan questions about its 15,000-page application. Our clients are increasingly worried that they will be unable to meaningfully challenge Kinder Morgan’s evidence, particularly given its evasive approach to our information requests. 

But as for the fish, according to Kinder Morgan, they will be just fine.

– See more at: http://www.ecojustice.ca/blog/the-fish-are-fine-kinder-morgan-says#sthash.r1Uyl1mI.dpuf

Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right –  Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

The motion Ecojustice lawyers filed on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, asks the Board to order Kinder Morgan to fully respond to our clients’ first round of information requests about the Trans Mountain Expansion Project.

Kinder Morgan received more than 10,000 questions from intervenors. As we wrote last month, the company asked for an extension of the time limit to respond, but got only 14 of the 23 days they asked for. Our clients supported the request, in the interest of allowing Kinder Morgan time to provide as much information as possible.

Kinder Morgan's slippery responses

But now that the responses are in, we wonder whether the extra nine days would have made a difference. Responses from the company have ranged from vague to incomplete to non-existent. In short The information provided by Kinder Morgan is not nearly good enough. Of the 253 responses our clients received from the company, at least 77 – approximately 30 per cent – were inadequate. 

In 20 responses, Kinder Morgan refused to answer the question in whole or in part, by:

• Claiming it was “not relevant” to the review (including the record of leaks and ruptures on Kinder Morgan’s other pipeline systems, and the make and model of clean-up equipment); or
• Stating that it did not have the information (including air monitoring information), because the data do not exist, because the answer was not in the documents they relied on in the application, or because they had not done the necessary work to answer.

In five responses, Kinder Morgan gave a response which only partially answered the question or provided an answer but not the supporting data requested.

In the remainder of the responses, Kinder Morgan simply didn’t answer the questions it was asked. Here’s a snapshot of the ways the company answered questions with non-answers:

• Cited a large document or report rather than provide an clear answer;
• Referred to a document that did not contain any answer to the question; 
• Said it would file an answer later; or
• Cited a legal standard rather than address facts. 

As we mentioned above, when our clients asked if there was evidence from cold water oil spills, beyond evidence from the Exxon Valdez oil spill, of marine fish communities or habitat being impacted for more than two years after a spill, this was Kinder Morgan’s response: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.” 

In support of that mystifying non-answer, Kinder Morgan cited a 264-page report from Enbridge’s reply evidence in the Northern Gateway pipeline hearings. 

We’ve written about how, in the wake of the 2012 omnibus budget bill, reviews of major pipeline projects have been scaled back dramatically, sacrificing good science and process for “efficiency." The Kinder Morgan Trans Mountain Expansion Project hearing, with its 15-month time limit and lack of oral cross-examination, is a prime example of how this shift is deeply problematic. 

We are now halfway through the two rounds of intervenor information requests, which are intervenors’ only chance to ask Kinder Morgan questions about its 15,000-page application. Our clients are increasingly worried that they will be unable to meaningfully challenge Kinder Morgan’s evidence, particularly given its evasive approach to our information requests. 

But as for the fish, according to Kinder Morgan, they will be just fine.

– See more at: http://www.ecojustice.ca/blog/the-fish-are-fine-kinder-morgan-says#sthash.r1Uyl1mI.dpuf

This is a guest post by Ecojustice staff lawyer Dyna Tuytel.

Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right — Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

The motion Ecojustice lawyers filed on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, asks the Board to order Kinder Morgan to fully respond to our clients’ first round of information requests about the Trans Mountain Expansion Project.

Kinder Morgan received more than 10,000 questions from intervenors. As we wrote last month, the company asked for an extension of the time limit to respond, but got only 14 of the 23 days they asked for. Our clients supported the request, in the interest of allowing Kinder Morgan time to provide as much information as possible.

Kinder Morgan's slippery responses

But now that the responses are in, we wonder whether the extra nine days would have made a difference. Responses from the company have ranged from vague to incomplete to non-existent. In short, the information provided by Kinder Morgan is not nearly good enough. Of the 253 responses our clients received from the company, at least 77 — approximately 30 per cent — were inadequate. 

In 20 responses, Kinder Morgan refused to answer the question in whole or in part, by:

• Claiming it was “not relevant” to the review (including the record of leaks and ruptures on Kinder Morgan’s other pipeline systems, and the make and model of clean-up equipment); or
• Stating that it did not have the information (including air monitoring information), because the data do not exist, because the answer was not in the documents they relied on in the application, or because they had not done the necessary work to answer.

In five responses, Kinder Morgan gave a response which only partially answered the question or provided an answer but not the supporting data requested.

In the remainder of the responses, Kinder Morgan simply didn’t answer the questions it was asked. Here’s a snapshot of the ways the company answered questions with non-answers:

• Cited a large document or report rather than provide an clear answer;
• Referred to a document that did not contain any answer to the question; 
• Said it would file an answer later; or
• Cited a legal standard rather than address facts. 

As we mentioned above, when our clients asked if there was evidence from cold water oil spills, beyond evidence from the Exxon Valdez oil spill, of marine fish communities or habitat being impacted for more than two years after a spill, this was Kinder Morgan’s response: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.” 

In support of that mystifying non-answer, Kinder Morgan cited a 264-page report from Enbridge’s reply evidence in the Northern Gateway pipeline hearings. 

We’ve written about how, in the wake of the 2012 omnibus budget bill, reviews of major pipeline projects have been scaled back dramatically, sacrificing good science and process for “efficiency." The Kinder Morgan Trans Mountain Expansion Project hearing, with its 15-month time limit and lack of oral cross-examination, is a prime example of how this shift is deeply problematic. 

We are now halfway through the two rounds of intervenor information requests, which are intervenors’ only chance to ask Kinder Morgan questions about its 15,000-page application. Our clients are increasingly worried that they will be unable to meaningfully challenge Kinder Morgan’s evidence, particularly given its evasive approach to our information requests. 

But as for the fish, according to Kinder Morgan, they will be just fine.

Image: Courtesy of Pacific Northwest National Laboratory.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.