For more than a week, the West Coast — and the world — have watched as a Southern Resident killer whale mother carries her dead calf in what experts describe as a display of grief.

The calf was born on July 24 and lived for only half an hour — not long enough to be named under the system researchers use to identify each individual member of this endangered population.

Since then, its mother, J35, has carried it — usually on her head, sometimes carefully in her mouth and with a deep dive to recover it every time she takes a moment’s break. She has been doing this without interruption for so long that researchers are concerned about the consequences for her own health.

Scientists say orcas aren’t the only animals that mourn their dead. Other whales and dolphins have also been known to “keep vigils” for deceased podmates.

But the depth of J35’s display of grief has been particularly striking.

“What is beyond grief?” Deborah Giles, a research scientist for the University of Washington Center for Conservation Biologist is quoted as saying in the Seattle Times. “I don’t know what the word for that is, but that is where (the mother) is.”

The loss also highlights the critical circumstances the Southern Residents face.

As of today, the endangered Southern Resident killer whale population numbers only 75. In addition to watching J35, researchers are anxiously monitoring a four-year-old female, J50, who is dangerously emaciated and may not survive.

These salmon-eating resident killer whales, whose critical habitat is located in the transboundary waters of the Salish Sea off British Columbia and Washington State, have not produced a surviving calf since 2015. Recent research shows that 69 per cent of pregnancies are failing, likely due to poor nutrition.

The federal government acknowledged in May that this killer whale population faces “imminent threats to its survival.” The main threats are the lack of availability of Chinook salmon prey, underwater noise that interferes with basic life functions and communication, and environmental contamination.

Now that they’ve found that there are imminent threats to survival, the Ministers of Fisheries and Oceans and Environment and Climate Change are legally obligated to recommend that Cabinet issue an emergency order to protect the Southern Residents, unless there are already equivalent legal measures in place.

Ecojustice petitioned the ministers to do this in January, on behalf of the David Suzuki Foundation, Georgia Strait Alliance, Natural Resources Defense Council, Raincoast Conservation Foundation and World Wildlife Fund. The petition identified specific measures that an emergency order should include, including the creation of feeding refuges closed to fishing and whale-watching, and measures to address underwater noise from shipping.

Rather than recommend an emergency order to ensure urgent the suite of protections needed, the ministers have taken limited steps on some issues by implementing fishery closures in some of the whales’ foraging areas and by clarifying, in long-overdue amendments to federal regulations, that commercial and recreational whale watchers must stay 200 metres away from killer whales. The other actions announced are voluntary, research-oriented, yet to begin,and/or lacking timelines. More is needed, and urgently.

Meanwhile, the federal government is contradicting its partial measures to protect the whales by pushing forward with the Trans Mountain pipeline, which would add 816 oil tanker trips per year — a sevenfold increase — through the whales’ critical habitat.

The National Energy Board found that the marine shipping aspect of the project would have “significant adverse effects” on the species and that an oil spill would be “potentially catastrophic.” The lack of any measures to address those effects in the board’s report and in the government’s approval of the project is the subject of ongoing litigation by Ecojustice on behalf of Raincoast Conservation Foundation and Living Oceans Society.

J35 is unwittingly putting on a prolonged, public display of the devastating consequences of inaction on these issues. We will see this sad scene repeated again and again unless meaningful action is taken.

If this week’s heart-wrenching images don’t inspire action, what will?

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.

The Alberta government and an unlikely crew of allies — including Greenpeace, an oil lobbying firm, Ecojustice and attorneys general of four different provinces — are squaring off with ATB Financial in a Supreme Court case that could let polluters off the hook when they go bankrupt.

The question being tried is whether creditors, like banks, can pick and choose the best assets an oil company owns when it goes bust, or whether governments can use a company’s good assets to pay to clean up its messes before the banks get paid.

At the granular level, the specific case at issue began when Redwater Energy went under in 2015. Its bank, ATB Financial, turned its nose up at nearly 80 per cent of its assets instead of taking the lot.

“Of the 97 or so properties owned by Redwater energy, [ATB] purported to accept only 20 wells — the profitable wells — and leave behind the unprofitable wells and a pipeline,” says Ecojustice lawyer Kurt Stillwell.

“The Alberta Energy Regulator ordered the trustee to properly abandon the wells. It refused.”

That attempt to ditch the bad assets kicked off a series of court cases and appeals, the most recent of which was argued before the Supreme Court in mid-February. The verdict isn’t expected for several months.

In an odd twist of fate, the case has the Canadian Association of Petroleum Producers fighting on the same side as Ecojustice and Greenpeace.

“It’s unusual…we didn’t have necessarily the same arguments,” said Keith Stewart, climate and energy campaigner at Greenpeace. “They’re trying to make sure solvent companies shouldn’t have to pay for these costs; we’re trying to make sure the environment doesn’t bear the cost.”

Ramifications for Other Sectors

The Alberta Energy Regulator’s CEO Jim Ellis put out a statement emphasizing the potential scope of the case.

“We can’t emphasize this enough: this is not an Alberta problem,” Ellis wrote. “This is not an oil and gas problem. It can be applied to industrial sites left behind by companies in other industries, allowing receivers to take and sell for the benefit of creditors the good assets and walk away from the bad ones and the end-of-life obligations associated with them.”

Greenpeace echoes the energy regulator; Stewart says the result could affect the way a whole swath of resource extraction companies are regulated.

“This case is really important because it’s not just oil and gas,” Stewart says. “The precedent it’s setting could apply to mines or forestry companies — boom and bust industries.”

The case could also determine how other sectors — like forestry or mining — manage their own environmental cleanup https://t.co/hjwmehsQHn

— DeSmog Canada (@DeSmogCanada) February 23, 2018

Spike in Orphan Wells

Ellis blames the original ruling (in favour of the bank) for causing a jump in the number of oil wells that have been “disclaimed” or not remediated (“abandoned,” in industry-speak, is actually a good thing, meaning the well has been capped and is ready for remediation).

For the oil industry, this means an extra financial burden for the companies that haven’t gone bankrupt — and in a financial downturn, that is usually smaller players, not the Exxons and BPs of the world — via the Orphan Well Association, an industry-funded organization that manages wells that haven’t been properly abandoned and reclaimed. The number of wells on the Orphan Well Association’s books has shot up more than threefold since the Redwater ruling, from 1,200 to 3,700.

Since funding is collected from well owners depending on their estimated liabilities, a crash in oil prices, like in 2014, and a series of bankruptcies like that of Redwater Energy, can mean provincial taxpayers are left holding the bag for cleanups.

Tony Bruder has experienced that firsthand on his own land. Two inactive sour gas wells on his property were left idle for decades before the Alberta Energy Regulator ordered its owners to clean up the mess, and when the company failed to comply, the regulator did the job itself.

“There’s no doubt in my mind that the companies have to be held responsible,” says Bruder. “And in order for that to happen properly, the Alberta government, which gave those companies the right to drill…they have to be willing to stand behind the decisions they’ve made, and hold those companies accountable.”

But the Redwater case could mean the provincial government loses its authority to hold companies responsible. The deciding factor will be whether the government’s jurisdiction over environmental regulation means it can overrule federal bankruptcy laws.

The case is being anxiously watched by all sides. In an emailed statement, ATB Financial said the ruling will provide certainty to a law that has been on the books for over 25 years.

“Whatever the decision of the Supreme Court, the clarity and certainty it will provide is important to all parties in the oil and gas sector and financial institutions who lend to those companies,” it said.

“We, and all the other creditors to the industry, are interested observers in the outcome.”

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.

Time is running out for the remaining 76 orcas that make up B.C.’s Southern Resident killer whale population and the federal government should take action to intervene, say a coalition of environmental groups petitioning Ottawa for an emergency order under the Species At Risk Act.

The groups say the petition is coming now because they believe the endangered population is at a critical juncture.

“There isn’t time to wait around,” said Dyna Tuytel, a lawyer for Ecojustice, which filed the petition on behalf of the David Suzuki Foundation, World Wildlife Fund, Georgia Strait Alliance, Raincoast Conservation Foundation and the U.S.-based Natural Resources Defense Council.

The Southern Resident population lives around southern Vancouver Island and down into Washington’s Puget Sound. The three pods comprising the population haven’t produced a calf that’s survived since 2015.

Overall, the population is at its lowest point since before a ban on live-capture for aquariums took effect in 1975.

According to Raincoast biologist Misty MacDuffee, the population is suffering from a lack of food, stress from disturbance and the cumulative effects of pollution in their environment.

“It’s gotten to the point where we’re losing healthy reproductive animals,” MacDuffee told DeSmog Canada. She says a loss like that can affect the health of the entire population.

The petition asks the Minister of Environment and Climate Change Catherine McKenna, as well as the Fisheries Minister Dominic LeBlanc, to intervene.

The groups want more protected habitat, measures to help Chinook salmon recover, protection from whale watching boats and speed limits and noise reduction for vessels in the area, among other measures.

The ministers have been asked to impose the emergency orders by March 1.

Pressure from ships, fisheries, pollution

Chinook salmon are the preferred meal of the Southern Resident orcas. But the fish in the whales’ range have been suffering in recent decades, with 11 of the 15 populations the Department of Fisheries and Oceans adequately studied (there are 35 total) found to be in the “red zone,” indicating an unhealthy population.

Fifty-five thousand recreational fishing trips take place in the Southern Residents’ range each year, both removing fish and disturbing the whales while they forage.

Meanwhile, hunting has become increasingly difficult for the whales as noise from passing ships and boats hampers their communication and scrambles their echolocation, the primary tool the whales use to find their prey.

Finally, accumulation of pollutants such as PCBs in the environment, which mimics hormones in mammals, could be affecting the whales’ ability to reproduce.

“These things act synergistically,” says MacDuffee.

But the groups say there’s an even bigger threat.

Government dragging heels on endangered species responsibilities

“The biggest problem this species faces is a lethargy on behalf of the government, and an inability to take decisive action,” says Christianne Wilhelmson, executive director of the Georgia Strait Alliance.

“I’m at a loss for saying why this government won’t act, except a lack of courage, and a lack of will .… Choosing not to decide is still making a choice.”

The Species At Risk Act fully took effect in 2004, and lays out the government’s responsibility to protect endangered species, such as the Southern Resident killer whales.

But so far, the groups say planning and bureaucracy have dominated while tangible action, such as protecting critical habitat, has been lacking. That criticism have also been levelled at the government with regard to other species, such as woodland caribou.

In 2012, the government lost a lawsuit to Ecojustice, which said Canada had failed to protect critical habitat for Northern and Southern Resident orcas within the 180-day window mandated by the Species At Risk Act.

“The government has produced a recovery strategy and it’s produced an action plan, but so far these documents are just plans to make plans,” says Tuytel of Ecojustice. “What’s needed is to actually implement what we’ve learned about the species and what needs to be done.”

Jeffery Young, senior science and policy analyst at the David Suzuki Foundation, agrees.

“It’s been over a decade that the government has known that these species are endangered,” says Young. “The process under the Species At Risk Act requires them to make certain steps toward recovery; however, they’ve found places within that process where they can delay. And they’ve constantly delayed.”

Since the courts found the federal government had failed to follow its own laws to protect critical habitat for the whales, the feds have approved the Kinder Morgan Trans Mountain oil pipeline and tanker project, which will create a seven-fold increase in the number of oil tankers travelling through critical habitat for endangered orca.  

Fisheries and Oceans Minister Dominic LeBlanc declined to comment for this story. Catherine McKenna’s office did not respond to a request for comment from DeSmog Canada.

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.

When a Canadian federal-provincial environmental review panel ruled in 2007 that a proposed quarry would go against community core values and would threaten right whales and other marine life in the Bay of Fundy, groups that had fought against the project believed that was the end of the story.

But, that is not how the system works under the North American Free Trade Agreement (NAFTA), which has dispute settlement provisions allowing corporations to sue governments for compensation when they feel the local environmental approvals process has interfered with expected profits.

Instead of abandoning efforts to build a quarry and marine terminal on Digby Neck, Delaware-based Bilcon headed for the NAFTA Investor-State Dispute Settlement tribunal and, in 2015, the three-person panel ruled two-to-one that the environmental assessment panel had violated Canadian law by using the criterion of core community values.

Bilcon has claimed $300-$500 million in damages.

Bilcon project included shipping path in endangered whale nursery

The Bilcon NAFTA ruling was inexplicable to Nova Scotia residents as the company planned to blast within 50 metres of the Bay of Fundy and build a 600 foot pier with nearly 50 45,000 tonne vessels a year carrying quarried basalt to the U.S. through waters that serves as a nursery for severely endangered right whales.

ICYMI: 3% of the World’s Endangered Right Whales Died This Summer, Mostly in Canada’s Unprotected Waters

This week, the federal government and environmental organizations are in federal court arguing the NAFTA arbitration panel overstepped its bounds and, with NAFTA renegotiations underway, the case is being watched closely.

Ecojustice, working with Sierra Club Canada Foundation and East Coast Environmental Law, is arguing that Bilcon had the opportunity to ask a Canadian court to rule on the alleged breach of federal law, but, instead, went through NAFTA, which is supposed to decide only on questions of NAFTA law, meaning the tribunal stepped outside its legal expertise.

“If this decision stands it will send a chilling message that even when the Canadian government makes good decisions to protect our environment, there’s a chance that a NAFTA tribunal could swoop in, decide our environmental laws are unfair and force Canada to cough up hundreds of millions of dollars — leaving Canadian taxpayers on the hook,” Ecojustice said in a news release.

“We can’t let that happen.”

A local battle to protect a community and its environment “has turned into a broader fight to ensure international trade agreements do not supersede Canada’s environmental laws,” the release said.

The Bilcon case is under the legal microscope, but it is not the only case where Canada has been financially dinged after losing a NAFTA investor-state dispute.

The company is seeking $300 to $500 million in damages. https://t.co/8O8bRjNi4s

— DeSmog Canada (@DeSmogCanada) January 30, 2018

Canada dinged $220 million in NAFTA losses, faces half a billion more

A report by the Canadian Centre for Policy Alternatives found that, as of January 1, 2018, Canada has paid out nearly $220 million in NAFTA losses and settlements — all to U.S. investors.

Those claims often targeted legitimate, non-discriminatory environmental protection, public health and resource management decisions made by Canadian governments, according to the report.

Canada currently faces eight claims with investors demanding about half a billion dollars, including Omnitrax’s claim relating to its broken rail line to Churchill, Manitoba and Lone Pine’s challenge to Quebec’s fracking moratorium, the report found.

In addition, the federal government has spent more than $95 million in legal fees defending the ballooning number of investor-state lawsuits.

The information was compiled by CCPA senior research fellow Scott Sinclair, through access to information requests, and Sinclair would like to see the federal government grasping the opportunity to remove the process from NAFTA — something suggested by the U.S.  

But, instead, Canada’s position is to retain the dispute process as it helps Canadian resource companies investing in developing countries.

Canada is the most-sued country under NAFTA’s Chapter 11 which gives companies the right to sue governments.

Since 2010, Canada has been sued twice as many times as Mexico and the U.S. combined, which is a worrying trend, Sinclair said.

“The Trudeau government has more than enough reasons to remove the undemocratic investor-state dispute settlement process from NAFTA during the current renegotiations, as proposed recently by the U.S. administration,” he said in a news release.

Canada could gain leverage by withdrawing its opposition to allowing countries to opt out of the process, Sinclair said.

“This could help negotiators advance other key Canadian interests, such as safeguarding affordable access to medicines or securing meaningful continental labour standards.”

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.

When it comes to developed nations Canada is a laggard on the environmental rights front. Legally speaking, Canadians don’t enjoy the right to a healthy environment like the citizens of 93 per cent of UN member countries do.

But that could all change in light of a new set of recommendations delivered to Ottawa by a standing committee tasked with reviewing the federal Canadian Environmental Protection Act.

Among those recommendations were instituting legal minimums for air and water quality standards, annual reporting on the state of Canada’s environment, new rules around disclosure of toxic substances in consumer goods and the creation of special protections for Canada’s vulnerable populations including children, the elderly, First Nations and poor communities most likely to be affected by poor environmental health.

“We’re celebrating this as a first step,” Kaitlyn Mitchell, Ecojustice lawyer, told DeSmog Canada.

Ecojustice and the David Suzuki Foundation have been fighting for the right to a healthy environment in Canada since the launch of the Blue Dot campaign in 2014.

“Although it’s a new concept in Canada, what we’ve seen around the world is the right to healthy environment has spread faster than any other human right in last 50 years,” Mitchell said.

“What a right to a healthy environment means practically speaking is not a right to a pristine environment that’s free from all pollution, but it does mean a right to environmental quality that is conducive to health and wellbeing.”

The committee also recommended empowering citizens to bring legal action against government found negligent or in violation of the Canadian Environmental Protection Act.

“It means the government can’t act in a way that will pollute your environment so much that it will put your health at risk,” Mitchell said.

Peter Wood, environmental rights campaigner with the David Suzuki Foundation, said the language in the committee’s report could be a “game changer” for Canadians.

“Even though the individual acronyms sound boring, this is about protecting vulnerable populations, First Nations, children and the elderly in particular.”

Enshrining a fundamental right to a healthy environment means having protections that are enforceable, Wood said.

“Think about a time prior to the Charter of Rights and Freedoms,” Wood said. “There are some things we take right now for granted, gender equity and racial non-discrimination. Could you imagine if those were left to some sort of consultation? Or were less than absolute? That’s what we’re talking about here with air and water quality standards."

The right to a healthy environment could make a big difference for pollution hot spots in Canada, such as Ontario’s chemical valley in Sarnia.

An analysis performed by Ecojustice found the right to a healthy environment has helped similar hot spots in countries like Brazil, but are not available to Canadian cities like Sarnia.

“Canada is very far behind other countries,” Mitchell said. “Ultimately what we want to see is a standalone law that all can have the right to a healthy environment.”

“That would apply across the board, to communities living near major industrial facilities like mines, and small First Nations communities living near Sarnia’s chemical valley.”

Wood added the recommendations are far from law.

“There is some political sausage-making left, “ Wood said. “It’s not a done deal.”

The recommendations will go from the standing committee to Cabinet before heading for a legal review with the Justice Department. The recommendations will then be debated in Parliament.  

“We know the last time this sort of strong protection for environmental rights was proposed, the chemical industry, powerful lobby groups, pushed back. Government will be under pressure to weaken it.”

“We know we have to get the public interested in it to make sure this sees the light of day.”

Image: Crystal Water Guest Ranch trail ride in B.C.'s Cariboo, Chilcoltin region. Photo: Ranch Seeker via Flickr

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.

By Barry Robinson, Ecojustice.

The Alberta Energy Regulator (AER) is Alberta’s one-stop regulatory body for the oil and gas industry. When it was created in 2013 by the merging of the former Energy Resources Conservation Board and parts of Alberta Environment and Parks, the AER made bold claims about transparency, enforcement and becoming a “world-class” regulator.

Unfortunately, the AER has failed to live up to its promises. The AER has shown over and over again that it is either unable or unwilling to enforce its own laws, directives and orders. The AER has become a toothless regulator.

As a public interest lawyer I see first-hand how the AER’s failures affect Albertans.

Take for example two of Ecojustice’s clients. Tony and Lorraine Bruder operate a cattle ranch near Pincher Creek. A preliminary environmental site assessment conducted at an abandoned sour gas well site on their property showed that the site was potentially contaminated with drilling waste, salts, metals, and hydrocarbons, including polycyclic aromatic hydrocarbons — all nasty things that you do not want on your property.

In September 2015, as a first step towards cleaning up this mess, the AER ordered Nomad Exploration Ltd., the licensee of the well site, to complete a more detailed environmental study by the end of November 2015.

Nomad ignored that order. Over the next few months, we repeatedly asked the AER what it was going to do about Nomad’s failure, but the AER took no action.

Finally, in May 2016, the AER ordered Nomad to prepare a plan by the end of June 2016 to complete the more detailed environmental study — that is, to prepare a plan to do the very thing the AER had already ordered Nomad to do six months earlier.

Most competent regulators escalate enforcement when an operator does not follow its orders — when you do not follow the rules, the consequences get more severe. In this case, the AER de-escalated enforcement. The penalty for not completing the detailed environmental study was just an order to “try again.”

This time, the AER said that Nomad must include in the plan a schedule to complete the detailed environmental study by the end of August 2016. After an extension of time and a couple of failed attempts, Nomad never did provide the AER with a schedule to complete the study. The AER then ordered Nomad to complete the study regardless by January 3, 2017, but then at Nomad’s request extended that date to February 15, 2017.

And guess what — Nomad again failed to meet that deadline.

Three Ways to Improve Alberta’s Toothless Energy Regulator #abpoli #abandonedwells @ecojustice_ca https://t.co/Zi2xiTuCrq

— DeSmog Canada (@DeSmogCanada) April 7, 2017

When we recently asked the AER what they were going to do about this continued non-compliance by Nomad, the AER’s response was “the AER is continuing to gather and assess the relevant facts and information in order to determine the most appropriate response moving forward.”

In other words, 18 months after ordering Nomad to complete the detailed environmental study, the AER still does not have a plan on how to enforce that order.

The Bruders’ case is only one example of a much broader and systemic problem of lack of enforcement by the AER. 

In July 2014, the AER announced that approximately 37,000 wells out of 80,000 inactive wells were not in compliance with the requirements for inactive wells. How does a regulator, that bills itself as “world class,” allow almost half of all inactive wells in the province to be out of compliance?

More recently, we have seen situations where the AER issued numerous warnings and orders to companies with no effect, with the end result that the only option was to transfer hundreds of wells to the Orphan Well Association, leaving financial responsibility for these sites to be borne by other industry members, the Canadian taxpayer, and eventually the Alberta public. The AER has numerous enforcement tools at its disposal but it simply refuses to use these tools to ensure compliance.

Which leads me to my response to the question, “How do you solve a problem like the AER?”  In a recent letter to Shannon Phillips, the Alberta Minister of the Environment and Parks, and Margaret McCuaig-Boyd, the Minister of Energy, we made three recommendations.

First, before drilling a well, the operator should have to deposit sufficient funds with the AER to pay for the clean-up. Then, when an operator refuses to carry out the clean-up work, or goes bankrupt, the AER would hold the necessary funds to complete the work.

Second, in 2014, the Responsible Energy Development Act stripped the Minister of Environment and Parks of her power to enforce environmental orders against energy companies and gave those powers to the AER. Given that the AER appears unwilling to use those tools, we think that those powers should be given back to the Minister.

Third, we think that it is time to consider whether the AER should continue to exist. If the AER is unwilling to enforce Alberta’s laws and its own directives and orders, perhaps the AER’s role should be transferred to the Departments of Energy and Environment and Parks.

In a recent publication, Jim Ellis, the President and CEO of the AER, said that regulators like the AER “hold a moral and ethical obligation to initiate bold and courageous action to improve the human condition.”

Perhaps before the AER embarks on the lofty goal of changing the world, they should get the simple stuff right — like enforcing the law.

Image: Pumpjack in rural Alberta. Photo: Kris Krug/DeSmog Canada

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.

On January 9, the National Energy Board (NEB) finally announced the new panel members that will review TransCanada’s proposed Energy East pipeline, replacing the trio that recused themselves in September 2016 after revelations that panel members had secretly met with a TransCanada consultant.

But within hours of news breaking about the new panel members, a notice of motion was filed by the environmental law firm Ecojustice on behalf of Transition Initiative Kenora, calling for the complete cancellation of the entire Energy East review based on an unresolved “reasonable apprehension of bias.”

“The original panel presided over the review for years,” says Charles Hatt, one of the two Ecojustice lawyers representing Transition Initiative Kenora, in an interview with DeSmog Canada.

“All of those important decisions that they made along the way occurred after the conduct that gave rise to the reasonable apprehension of bias, after those meetings with the interested stakeholders.”

Hatt says it is clear the entire proceeding had been tainted by the reasonable apprehension of bias.

“There’d be no way for this new panel to look back and try to determine which of those many decisions were tainted and which were not.”

For Hatt and representatives from Transition Initiative Kenora, it simply isn’t enough for the former panel members to recuse themselves. The original panel’s work is tainted by a the apprehension of bias which Hatt describes as “the idea that there’s been some conduct that in the eyes of a ‘reasonable person’ gives rise to the perception of bias.”

These lingering concerns have led the petitioners to request the National Energy Board void the entire proceedings, leaving TransCanada with the option of starting from scratch.

‘Tainted’ Panel Made Dozens of Preliminary Rulings and Requests

The original Energy East review panel was announced in December 2014.

Only the following month, the two review panel members and NEB chair/CEO Peter Watson met privately with former Quebec premier Jean Charest, who was then working as a consultant for TransCanada.

While the NEB denied it at first, the meeting did in fact include specific discussions about Energy East including suggestions of “using the ‘Lac Megantic example’ to show that pipelines are safer than rail.”

Other private meetings took place that Watson and the panel members didn’t publicly disclose.

At least a year-and-a-half of preliminary work was completed by the panel prior to the beginning of the formal review in June 2016. This work was completed without any acknowledgment that members of the review panel had secretly communicated with the project proponent.

The new notice of motion by Transition Initiative Kenora, submitted to the NEB on Jan. 10, reports that the previous panel decided “dozens of procedural and substantive matters that have shaped the Board’s review of Energy East,” including 27 rulings, six procedural directions and nine information requests to TransCanada.

It notes the original panel also determined when TransCanada’s project application was complete and decided who could or could not participate as intervenors in the National Energy Board’s review of Energy East.

“It’s a continuation of work that we had started earlier,” says Teika Newton, executive director of Transition Initiative Kenora.

“We filed the notice of motion back in August that resulted in the original review panel recusing themselves in September. This is a natural progression on that.”

NEB Has to Respond to Notice of Motion or Refer It to Federal Court

Newton’s organization has specific concerns about the proposed construction of Energy East, especially the impacts of a potential oil spill on water sources, wetlands and marshes.

But she emphasizes the notice of motion is something that should concern any participating group given the need to ensure a fair regulatory process and review: “I don’t think we’re any different or have any unique concerns just because of who we are or where we are.”

“I think it’s an issue that applies universally to all participants,” she says.

Transition Initiative Kenora must now wait for the new panel to formally issue a response to the motion.

Hatt says the NEB will have to hear from all interested parties, which will include TransCanada and many intervenors. It could take weeks or longer to hear from all parties, after which the panel will have to make a decision.

The National Energy Board can refer the matter to the Federal Court of Appeal or could refuse to grant relief.

Hatt says “if and when that happens we will advise our client about challenging that decision in court.”

He adds that the motion provides the federal government with the opportunity to restart the process under a renewed National Energy Board Act and Canadian Environmental Assessment Act, both of which are currently under federal review.

Strengthened environmental laws could result in “a totally different type of review of these important pipeline projects,” Hatt says.

“They’ve put bandaids on the existing legislation but it’s still the legislation that was reformed by the previous government.”

It was also announced on Jan. 9 that Ginoogaming and Aroland First Nations had filed a lawsuit and injunction against TransCanada to ensure proper consultation for pipeline maintenance and prevent “integrity digs” that some fear are actually preliminary work connected to Energy East.

Environmental Defence has also called for the NEB to “pull the plug on the Energy East review and restart it only when an overhauled review process with a credible climate test is in place.”

Newton says her group is “content to just see what happens next in this ongoing saga.”

Image: Environmental Defence poster outlining risks of TransCanada's Energy East pipeline. Photo: Environmental Defence via Flickr (CC BY-NC 2.0)

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.

On June 23, the Federal Court of Appeal struck down the Harper government’s approval of the proposed Enbridge Northern Gateway pipeline on account of failing to properly consult with adversely affected First Nations.

Many environmental and Indigenous groups cited the ruling as a win, but buried in the decision is a legal interpretation that upholds former Primer Minister Stephen Harper’s changes to environmental assessment law in the country.

Some argue this interpretation of the new Canadian Environmental Assessment Act (CEAA) will undermine the ability for the public to challenge the legality of environmental assessment reports for future projects, such as Kinder Morgan’s Trans Mountain pipeline and TransCanada’s Energy East pipeline.

The precedent established through that June 23 ruling means it’s now exclusively up to the federal cabinet — rather than the courts — to determine whether an environmental assessment report was properly conducted, meaning that the public can no longer challenge reports on the grounds of perceived incompleteness or negligence.

As a result, federal cabinet may be missing key perspectives while making decisions on major resource projects.

“That cabinet is empowered to make these decisions with the public being denied any kind of role or option is, at the very least, anti-democratic and at its worst you could even look at it as creating a kind of despotic situation around these issues,” says Chris Genovali, executive director of the Raincoast Conservation Foundation.

Raincoast Conservation Foundation Applying to Supreme Court For Review of Interpretation

On September 21, Ecojustice applied on behalf of Raincoast to the Supreme Court of Canada for leave to appeal.

If leave to appeal is granted — which fewer than 10 per cent of applicants receive — the country’s highest court will proceed to determine whether the Federal Court of Appeals erred in its interpretation of Sections 29 to 31 of the new CEAA.

Barry Robinson, lawyer and national program director for Ecojustice, says that since the former CEAA was introduced in 1992, the public could challenge reports on the grounds that there were perceived errors or omissions.

In the case of the Northern Gateway, such alleged errors included the review panel not considering the impacts of the project on humpback whales and other at-risk species, as well as evidence that diluted bitumen would sink in water and seriously complicate clean-up efforts.

“Most of the cases said that what you need is a legally prepared report before you make any decision based on that report,” Robinson says. “Just in this Gateway case was the first time the court said ‘well, actually, only the governor in council [or federal cabinet] can decide whether the report was legally prepared.’ We just kind of went ‘that doesn’t sound consistent with past case law.’ ”

How Harper’s Changes to Environmental Laws Are Being Leveraged by #Pipeline Companies https://t.co/sJcCDAu7rf @james_m_wilt #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) October 14, 2016

Kinder Morgan Already Referenced Precedent in Attempts to Dismiss Challenges

Robinson notes that in a bit of an odd twist, the courts spent a significant chunk of time interpreting Sections 29 to 31 of the new CEAA but ended up not actually applying it to Northern Gateway as there were other transitional provisions that applied.

“In fact, throughout the whole thing, the court was analyzing the wrong section,” he says.

But Genovali says that we’ve already started to see the fallout from the setting of the precedent.

Days after the Enbridge decision was announced, Kinder Morgan introduced a motion referencing the interpretation in order to dismiss a lawsuit also filed by Ecojustice on behalf of Raincoast over the National Energy Board’s allegedly flawed final report on its Trans Mountain pipeline (specifically on whether the Species at Risk Act was violated by the NEB’s actions with regards to southern resident killer whales, a critically endangered species).

Then, last month, the Federal Court of Appeal relied on the decision to deny an application by the Tsleil-Waututh First Nation over a similar issue in regards to Kinder Morgan.

“It immediately struck us as soon as this came down that this was something that had to be challenged and if we can’t get this reversed through this appeal I think the Canadian public needs to press upon the Trudeau government that they have to rectify this,” Genovali says.

“This is a vestige of the Harper era. I think if we take the prime minister and his government’s statements at face value then they need to do something about this because this would appear to contravene all of the values that he articulated during the campaign and continues to speak to.”

Robinson says that it usually takes between four to six months for the Supreme Court to decide whether to grant leave to appeal.

Given recent history, it seems likely that pipeline companies will continue to refer to the precedent until then. If the court decides not to grant leave to appeal, the precedent will be maintained and cabinet will continue to be the sole arbiters of whether an EA report was legally prepared or not.

Image: Kinder Morgan Trans Mountain pipeline construction. Photo: Transmountain.com

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.

Canadian conservation groups are celebrating the proposed creation of an Arctic marine conservation area in Lancaster Sound, a region long-threatened by the possibility of exploratory oil and gas drilling.

Shell Canada first applied for exploration rights in Lancaster Sound in 1971 and although the related permits were set to expire by 1979 and despite a moratorium on drilling in the region, they inexplicably remained listed on the public registry of active permits.

Those permits, which granted Shell offshore rights in the waters of Baffin Bay, frustrated a decades-long fight to protect the biodiversity rich Lancaster Sound, an area famous for its large populations of narwhal, beluga, walrus and polar bear.

In April Ecojustice on behalf of the World Wildlife Federation (WWF) filed a suit against Shell Canada and the federal government. Ecojustice maintained the expired permits, whose geographical boundaries overlapped proposed protected areas, should be struck down.

On the eve of World Oceans Day, Shell Canada announced it was voluntarily releasing the permits and granted the land to the federal government via the Nature Conservancy of Canada. The federal government in turn announced a five-year plan to establish more ocean protections including the creation of the Lancaster Sound Marine Conservation Area.

Canada is far behind other western nations when it comes to ocean protection. According to the Canadian Parks and Wilderness Society, only 0.11 per cent of Canada’s ocean area is protected from industrial activity. Canada recently announced a plan to raise that figure to 10 per cent, which would bring the country in line with conservation benchmarks achieved in the U.S. and the U.K.

Devon Page, executive director of Ecojustice, told DeSmog Canada he is very pleased with today’s announcement.

"With Shell giving up its permits, a major hurdle to the creation of the Lancaster Sound National Marine Conservation Area has been lifted," he said. 

"That said, the obvious next step would be to move forward with the finalization of the NMCA and making sure that the boundaries proposed by the Qikiqtani Inuit Association and supported by our client are adopted. The Arctic is an incredibly unique and biodiverse region and protecting Lancaster Sound, along with other important marine areas, is essential if Canada is to meet its commitments to protect coastal and marine areas."

The Qikiqtani Inuit Association's proposed boundaries for a marine conservation area based on traditional knowledge of the land. Over the years successive federal governments refused to draft marine conservation plans that aligned with local Inuit boundaries because of Shell’s permits in the proposed zone.

In a previous interview Page said the fact that climate change is opening up the Arctic to oil exploration is a “troubling irony.”

“We need to do whatever we can to stop full-scale exploration of the Arctic,” he said, adding that despite major international climate treaties like the Paris Agreement “you can see no change in behaviour from the oil industry.”

David Miller, president and CEO of WWF, said having a marine sanctuary in Lancaster Sound has been a goal of his organization for many years.

“Lancaster Sound is an incredibly ecologically rich area: it’s rich from the perspective of those who value nature as a critical part of our world that we need to support. It’s also rich from perspective of local people who get their sustenance and basic way of life from the same natural bounty that is there,” Miller told DeSmog Canada in an April interview.

“As the arctic warms quite rapidly we really need to preserve areas like Lancaster Sound and conserve them so ice-dependent species — which will have areas with less lengthy sea ice — will have chance of surviving.”

“There’s no question that climate change is opening up the Arctic to exploration that couldn’t have been dreamed of 15 years ago — not just oil and gas but any resource development on an industrial scale,” Miller said.

Shell gives Up 40-yr fight for expired #arctic permits, opening conservation area https://t.co/4AqMCsEgFZ #cdnpoli pic.twitter.com/4wDF8LZsZ2

— DeSmog Canada (@DeSmogCanada) June 9, 2016

“From an environmental perspective the existence of potentially active permits adjacent to or within boundaries to marine conservation area creates huge obstacle to the potential for creating marine conservation areas.”

Ian Miron, staff counsel with Ecojustice said the legal challenge was “certainly not the first step in this process.”

The government failed for years to explain why the permits were being treated as valid, Miron told DeSmog Canada.

“These permits are under the jurisdiction of Indigenous and Northern Affairs Canada,” he said. “On their face the permits were scheduled to expire in 1979.”

Image: Lancaster sound. Photo: Christopher Debicki via Pew Charitable Trusts

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.

The Alberta government titled its 2016 budget “The Alberta Jobs Plan” but there’s one group in the province that’s disappointed it will not see its jobs proposal funded.   The reclamation and clean-up of abandoned oil sites was proposed as a potential job creator by the Petroleum Services Association of Canada (PSAC). With over 37,000 orphaned and inactive wells across the province and thousands of unemployed, highly-skilled workers, PSAC said the provincial government should dedicated funds to well clean-up and reclamation.   It’s a proposal similar to Saskatchewan Premier Brad Wall’s ask for federal funding to clean up his province’s orphaned oil wells. His request for $156 million went unanswered in the federal budget. Wall argued the funding would have put 1,200 people back to work.   Alberta’s economic downturn has seen 40,000 jobs lost in the energy sector. PSAC argued putting money into decommissioning oil sites could reclaim some oil and gas sector jobs and get companies back to work.    “We are losing tens of thousands of workers from the oil and gas services sector and, along with them, the intellectual capital and expertise we need when the economy turns around,” Mark Salkeld, president and CEO of PSAC, said.   PSAC has advocated for several months that $500 million in funds, whether from the province or federal government, be put into a decommissioning program for orphaned and inactive wells.   But on budget day in Alberta the only funding dedicated to this issue was a $30.5 million injection into the Orphan Well Association, a group funded predominantly by industry (they received a one-time boost of $30 million from Alberta a few years ago) that cleans up sites abandoned by bankrupted companies.   The cost of reclaiming a single well starts around $10,000 but can become millions in some cases. Since its inception just over two decades ago the Orphan Well Association has reclaimed over 650 wells. Over 540 wells have been abandoned in Alberta in the last 12 months, up four times from previous years as especially junior and intermediate companies have struggled with record-low oil prices. An estimated 700 orphaned wells are the result of bankruptcy.   Brad Herald, vice president of Western Canadian Operations with the Canadian Association of Petroleum Producers and director of the Orphan Well Association, said the group is on its way to reclaiming 160 abandonments a year, which is up from 40 to 50 per year previously.   “We’ve effectively quadrupled the wells we’re going to put to bed in just a couple years,” Herald said.   A lack of fresh funds to handle the growing number of abandoned sites means the Alberta government hopes sticking with a polluter-pays model will pan out in the long run.   “Many Albertans and Canadians alike don’t want their tax dollars going to cleaning up after someone else,” Alberta Energy Minister Marg McQuiag Boyd said in a statement to DeSmog Canada.   Don Bester, president of the Alberta Surface Rights Group, agrees. Tax-dollar subsidized reclamation creates the expectation government will simply pay for industry’s abandoned projects, which, according to Bester, removes any incentive for companies to carry out costly clean-up.   “Oil and gas companies that are not in trouble are going to just say ‘well, why not just leave them? Somewhere down the road the government will clean them up.’”   In the meantime, however, thousands of inactive wells dot the provincial landscape on at times valuable farmland, like environmental potholes left for future generations.

Barry Robinson, lawyer and National Program Director with Ecojustice, said if there was ever a time for government to step in with funds for orphaned wells, it would be now during the economic downturn when costs are low and people need jobs.   “The sooner you clean up the really old wells the less environmental risk you have,” he said.   Robinson said government investment could get clean up going in the short term while a longer-term repayment program could be put in place through royalties.   “Ultimately polluter-pays is the way to do it,” Robinson said. “We’d like to see companies post security for the abandonment and reclamation right at the time the well was drilled.”   It would avoid the current situation of companies going bankrupt and disappearing, leaving their wells to be handled by the province. For Robinson, it’s a long-term solution, which, when it comes to Alberta’s orphaned wells, have been in short supply.   Robinson says a big issue is the absence of timeline rules in oil and gas regulations. Without meaningful time limits regulators have nothing to enforce.   “Companies are not doing anything wrong or illegal by simply leaving wells inactive,” Robinson said, adding there are at times “good reasons for wells to be inactive.”     But he said there are orphaned wells dating back to the 50s and 60s that still have not been dealt with.   The longer a well sits abandoned, the higher the risk of accidental release or groundwater contamination.   For the landowners Bester works with, these legacy wells mean they’re stuck with inoperable and potentially hazardous land. 

During a major review of Alberta’s royalty structure last year, the Alberta Surface Rights Group recommended the government integrate clean up payments directly into the oil and gas regulatory structure.   Bester said he also recommended the government require companies to clean up old well before building new sites. Ultimately his group’s recommendations went nowhere.   Bester’s group has met with Environment Minister Shannon Phillips and Minister McQuiag-Boyd on the issue and is hopeful a regulatory change will come this spring during the legislative session.

Image: Chris & Lara Pawluk/Flickr.

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.

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

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.