Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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The latest in a series of moves clearing the way for major tar sands expansion, the federal government has announced certain projects will no longer require a federal environmental impact assessment before approval. Notably absent from the list of projects requiring assessment is in situ mining, the fastest growing extraction method in the tar sands.

While the more commonly used open-pit mining requires digging up bitumen and sand from beneath the boreal forest, in situ mining pumps steam deep into the ground to melt and pump out the oil in place. The process typically occurs 200 metres or more below ground.

As shallow deposits of bitumen are exploited using open-pit mining, tar sands producers are using increasing amounts of in situ technology to develop deeper deposits. According to the Canadian Association of Petroleum Producers, 80 per cent of all tar sands oil will be developed using in situ technology.

The ongoing tar sands spill on Canadian Natural Resources Ltd's (CNRL) operations occurred on a project using high pressure cyclic steam stimulation, or CSS, an in situ method of recovery. 

In addition to in situ mining, several other types of projects have also been excluded from federal environmental assessment:

• Groundwater extraction facilities.
• Heavy oil and oil sands processing facilities, pipelines (other than offshore pipelines) and electrical transmission lines that are not regulated by the National Energy Board.
• Potash mines and other industrial mineral mines (salt, graphite, gypsum, magnesite, limestone, clay, asbestos).
• Industrial facilities (pulp mills, pulp and paper mills, steel mills, metal smelters, leather tanneries, textile mills and facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particle board, plywood, chemical explosives, lead-acid batteries and respirable mineral fibres)

There are also a handful of projects that weren’t previously required to undergo an environmental assessment that will require one going forward:

• Diamond mines.
• Apatite mines.
• Railway yards; international and interprovincial bridges and tunnels.
• Bridges that cross the St. Lawrence Seaway.
• Offshore exploratory wells.
• Oil sands mine expansions.

Before the change, whenever a federal authority planned to be involved in a new project, one of three levels of assesment was triggered. The lowest level screening required proponents to document the potential environmental impact of the project. The next level required a comprehensive study, and projects considered to carry the highest level of risk were subject a full panel review. In situ projects typically fell in the mid range.

After last year’s omnibus bill cancelled nearly 3,000 environmental assessments, the removal of the trigger mechanism will leave a significant gap in the assessment process.

The Canadian Environmental Assessment Agency, the body responsible for evaluating the potential impact of new projects on areas that fall under federal jurisdiction, such as waterways and greenhouse gas emissions, consulted stakeholders in the oil and gas industry as well as environmental groups. Last Thursday’s news release from the Ministry of Environment said the changes were made “to ensure that federal environmental assessments are focused on those major projects with the greatest potential for significant adverse environmental impacts to matters of federal jurisdiction.”

Greenpeace climate and energy campaigner Keith Stewart said the change is just another way for the federal government to ignore climate change. “I think it shows that the government simply doesn’t want to the information. It’s kind of a ‘see no evil, hear no evil’ type approach.”

You can’t regulate something you don’t know about, he added.

He said the push for a list-based approach to assessment came from the industry, which also lobbied against having in situ projects included on that list.

“What this means here is a whole lot of projects that don’t get any kind of federal review.”

This announcement comes on the heels of a report released last week that reveals the current government's efforts to rein in greenhouse gas emissions are falling well short of the mark. In spite of new regulations for the oil and gas industry, Canada is still likely to exceed its 2020 greenhouse gas emissions reduction target by as much as 122 megatonnes. The goal is 612 megatonnes, and the report predicts Canada will hit 734 in the next seven years.

The report also projects that by 2020 in situ projects will be producing more greenhouse gases than the Maritime provinces combined at today's levels.      According to the Copenhagen Accord, signed in 2009, Canada agreed to reduce carbon emissions to 17 percent below 2005 levels, or 612 megatonnes. The report credits action taken by consumers, businesses and governments with keeping levels from rising to more than 800 megatonnes.

Hannah McKinnon, program manager at Environmental Defence Canada, says the government’s failure to meet reduction targets comes as no surprise.

“It’s a pretty bleak picture, but the writing was on the wall. We currently haven’t seen any ambition from [the government] to indicate that they were serious at all about meeting their targets.”

While the report highlights the uncertainty of the projection, saying that a lot can change depending how regulations change, McKinnon says none of the options currently under discussion will come close to closing the gap.

“There’s still space to meet the target,” she says. "It just would require a level of ambition we don’t have a lot of reason to believe this government is going to show.”

McKinnon says the Harper government’s strong presence in Washington, DC, drawing connections between American and Canadian GHG targets, only serves to further illustrate Canada’s hypocrisy.

“The US has a plan to meet that. What this report clearly shows is that our government doesn’t have a plan to reach that target.”

Image Credit: Suncor Energy via Flickr

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