British Columbia won’t allow any increase in shipments of diluted bitumen through the province until the results of a scientific inquiry into the risks of oil spills in marine environments is completed, according to an announcement from the B.C. government on Tuesday.  

“We are proposing we restrict the transport of diluted bitumen until we hear back from the B.C. scientific community about the impacts of a spill and what we would need to mitigate that,” B.C. Environment Minister George Heyman told DeSmog Canada.

Diluted bitumen is a mixture of bitumen — the unrefined, thickest form of petroleum extracted from Alberta’s oilsands —  and natural gas condensate — the same substance the Iranian tanker Sanchi was carrying when it collided with another ship in the East China Sea. Condensate is added to allow the viscous substance to flow through pipelines.

The announcement has major implications for the Kinder Morgan Trans Mountain pipeline.

Jessica Clogg, executive director and senior counsel of West Coast Environmental Law, celebrated the manoeuvre as “courageous.”

“Effectively the province has said if the science doesn’t show that you can clean up a dilbit spill safely and effectively then Kinder Morgan may never be able to turn the taps on, even if they can get the pipeline built,” Clogg told DeSmog Canada.

The announcement comes alongside a suite of new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

Heyman said the move is a part of the government’s promise to employ every tool in the toolbox to protect British Columbia from a diluted bitumen, or dilbit, spill.

“Effectively the province has said if the science doesn’t show that you can clean up a dilbit spill safely and effectively then Kinder Morgan may never be able to turn the taps on, even if they can get the pipeline built.” – Jessica Clogg, @WCELaw https://t.co/fZdnnmT8sD

— DeSmog Canada (@DeSmogCanada) January 30, 2018

“Clearly as a province B.C. is not responsible for regulating vessel traffic but we do have authority to look at the impact of a spill if it lands on the coastline or a spill if it lands in local waterways,” Heyman said.

“What I’m determined to do is show British Columbians that what they expect from us is going to be delivered. We are going to do everything in our power to protect our coastline.”

The existing Trans Mountain oil pipeline runs from Hardisty, Alta., to Burnaby, B.C. Kinder Morgan’s proposal to build a new pipeline on a similar route would boost capacity from 300,000 barrels per day to 890,000 barrels per day, increasing the number of oil tankers in B.C.’s waters seven-fold from around 60 to 400 each year.

The project received federal approval — with 157 requirements — in November 2016, but faces strong opposition from First Nations and municipalities along the proposed pipeline route.

B.C. to address knowledge gaps in dilbit spills

In 2015 the Royal Society of Canada released a study that identified seven major knowledge gaps when it comes to the risk of a diluted bitumen spill in water.

“We want the advisory panel to look at the Royal Society of Canada information gaps and do it very specifically in a way that addresses conditions in British Columbia, with B.C. interests in mind and considering the different forms that heavy oil could be transported through B.C. via, rail, truck and pipeline,” Heyman said.

Christianne Wilhelmson, executive director of Georgia Strait Alliance, said today’s announcement is proof B.C. acknowledges “diluted bitumen behaves differently than conventional oil.”

“The best available science says it can sink or be suspended in water,” Wilhelmson said. “Currently, there is no effective technology that exists to clean it up, making prevention the only safe approach to protect our local waters, communities, economies and ecosystems.”

The behaviour of dilbit in water has become a touchstone issue in the debate about building new oilsands pipelines. While a 2012 Enbridge study found dilbit did not sink in a laboratory environment, a 2014 report released by the federal government found dilbit sinks when mixed with sediment.

In 2010 an Enbridge pipeline ruptured, spilling nearly three million litres of dilbit into a tributary of the Kalamazoo river where it mixed with sediment on the river’s bottom, triggering one of the most expensive onshore oil spill cleanup efforts in U.S. history.

“A pipeline rupture over salmon-bearing streams would be extremely detrimental to some already weak and declining salmon stocks,” Wilhelmson said, “regardless of whether the polluter is required to pay significant restitution costs.”

B.C. Green Party leader Andrew Weaver welcomed the plan to do further scientific research.

“I look forward to the new panel providing complete, robust and accurate information on this matter to the minister that reinforces that which we already know — that there is no way currently to adequately respond to a spill of diluted bitumen.”

“We simply to not know enough to properly assess the risk and potential damages associated with a diluted bitumen spill in the Salish Sea,” Weaver said in a statement.

The province will release an intentions paper in February to solicit feedback on the restriction of dilbit transportation as well as new regulations related to spill response times, localized response plans for B.C.’s unique geographic regions and compensation.

Proposed regulations a boon to protect Indigenous rights, at risk species

The province’s move could provoke legal backlash from Kinder Morgan, Clogg said, but “by standing up for British Columbians, B.C. is reducing other types of risks.”

The new regulations could ease pressure in ongoing and potential legal battles to protect Indigenous rights and species at risk.

“It’s not aimed at Kinder Morgan in any way,” Clogg said. “It’s a regulation that applies across the board, to rail, pipelines —  it’s very much focused on provincial jurisdiction.”

“The Environmental Management Act is directed at protecting the environment, species as well as people and human communities from toxic substances, that is what this is about,” Clogg said.

ICYMI: How Canada is Driving Its Endangered Species to the Brink of Extinction

By asserting jurisdictional authority, B.C. may be setting the stage for better protections for species at risk, especially the remaining 76 members of the endangered southern killer whale population, which is not expected to survive the increase in tanker traffic from Trans Mountain.

The federal government’s decision to approve the pipeline is a violation of the Species at Risk Act, according to project opponents currently fighting its approval in the courts.

Canada’s Species at Risk Act is meant to protect the critical habitat of endangered species, regardless of plans for industrial projects. . But Canada’s track record on protecting species at risk is poor and, so far, rules haven’t been strong enough to prevent proposed projects from moving forward, despite impacts to endangered species.

This winter the independent scientific panel responsible for monitoring species at risk recommended the federal government add B.C.’s struggling sockeye salmon populations to the federal Species at Risk registry. The Trans Mountain pipeline has been identified as a significant risk to sockeye salmon.

ICYMI: We Exposed Sockeye Salmon to Diluted Bitumen. Here’s What We Found.

“The way I see it legally, B.C. has the right and responsibility to look after things within its jurisdiction,” Clogg said.

“We live in an era of collaborative federalism and really when the review and federal go-ahead was given it was with a number of conditions, which included the Kinder Morgan project having to follow provincial and federal laws and permitting processes,” she said.

“All B.C. can do is act according to its responsibilities, which it’s clearly done here.”

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The prospect of a new provincial government in B.C. has sparked fresh political debate about Kinder Morgan’s Trans Mountain pipeline, which is opposed by B.C.’s NDP and Green Party, despite already receiving provincial and federal approval.

“There are no tools available for a province to overturn or otherwise block a federal government decision,” stated Alberta Premier Rachel Notley this week.

But is that really the case?

The short answer is no.

“There’s no question that B.C. has tools in its toolbox, which it has not yet used and that it should use,” says Jessica Clogg, executive director and senior counsel at West Coast Environmental Law.

That very prospect has drawn incendiary commentary, including claims by the Canada West Foundation that a reversal of the approval “strikes at our very democracy.”

On the contrary, B.C. Green Party Leader Andrew Weaver argued in the Globe and Mail that reconsidering Trans Mountain, which would increase the number of oil tankers plying B.C.’s waters seven-fold, would be a “triumph of democracy.”

“If we care about the integrity of democracy, we are honour-bound to reconsider the Trans Mountain decision,” he wrote. “Federalism doesn’t mean that one province gets to tread on the rights and threaten the environment of another.”

Indeed, many of the seats the B.C. Liberals lost were in Lower Mainland ridings, such as Burnaby, that would be most affected by the new pipeline.

Industry analysts are already sounding the alarm before Kinder Morgan’s proposed $1.3 billion IPO for its Canadian unit.

“The really close B.C. election vote puts pressure on the Kinder Morgan IPO,” Colin Cieszynski, chief market strategist at CMC Markets, told Reuters. “You run the danger of the whole thing getting stalled for years or going into limbo.”

With that in mind, here are three ways a new B.C. government could stop — or at least delay — the Trans Mountain pipeline.

1) B.C. Government Could Order Its Own Environmental Assessment

Revisiting a provincial environmental assessment is one of the most obvious means by which the B.C. government could “overturn or otherwise block” the construction of the Trans Mountain Pipeline, says Chris Tollefson, executive director for the Pacific Centre for Environmental Law and Litigation.

“I think that avenue is quite plausible given the fact that process wasn’t robust and raised serious questions — and continues to raise serious questions — about consultation with First Nations,” he says.

A January 2016 verdict by the B.C. Supreme Court in favour of Coastal First Nations (CFN) and Gitga’at First Nation stated that the province has to make a clear decision about its environmental assessment process (rather than simply continue to accept the federal assessment as its own through an “equivalency agreement” with the National Energy Board).

That presented a chance for B.C. to do its own environmental assessment to fill the holes of the National Energy Board review — holes the B.C. government itself had pointed out.

But instead of doing that, B.C. quietly confirmed in March 2016 that it had accepted the heavily criticized National Energy Board report as its own.

A new government could examine what the province’s Environmental Assessment Office (EAO) decided, conclude that it wasn’t adequate and order a proper environmental assessment.

Tollefson says it would be “perfectly within the rights of British Columbia to do that” given the well-documented flaws in the National Energy Board review of the Kinder Morgan project, which restricted public participation, ignored impacts on marine mammals and ecosystems, excluded cross-examination of evidence and failed to assess potential upstream emissions.

Some would make arguments that a government can’t change its mind after the fact, he says. But Tollefson suggests that governments change their mind all the time, and it’s a “function of democratic politics: that you elect government that make course corrections.”

“If the previous government — and in this case, the EAO — made a poor decision, British Columbia should be allowed to fix it,” he says. “That doesn’t mean that B.C. can kill the project, or delay it indefinitely. It just means that British Columbia finally will take a proper look at and make a proper assessment of this project.”

2) New Legislation

Another option for a new B.C. government would be to introduce a piece of legislation that directly pertains to the pipeline. For example, Clogg suggests an act that orders a health and safety assessment for the project, or requires the conducting of further studies.

This would lead to better information and a broader understanding of the risks of the project, as well as help to ensure that indigenous peoples are fully included in the process.

Clogg says such a process could technically result in the federal government choosing to challenge it under constitutional law, potentially going all the way up to the Supreme Court of Canada and delaying the process for many more years.

But she suggests it would be “extremely politically risky” for the federal government.

“Just because you could legally challenge a B.C. ‘no’ and after years and years in court you might win, think about the political risks in them doing that,” she says.

“B.C. definitely has the ability to act to protect things that are within its constitutional jurisdiction, it has independent obligation to do right by indigenous peoples — and many of them are very opposed to the project — and it would be nothing but a good thing to do that work, to enable it legislatively, and see where the cards fall,” she said.

“I wouldn’t want to be the federal government who made that choice to try stand down British Columbians.”

3) Wait for Legal Challenges to Play Out

Tollefson adds that there are a series of legal challenges pending that are brought by indigenous nations, conservation organizations and municipalities. Those will take time to be dealt with by the courts, he says.

“I don’t anticipate this project will be able to move forward until those challenges are dealt with,” he says.

The Alberta government was granted intervener status in the upcoming judicial review about the Trans Mountain pipeline, which is anticipated to take place in the fall.

Only time will tell what happens on that front.

But both Clogg and Tollefson emphasize the same thing: so long as it’s under the rule of law, the next B.C. government will have a wide range of options available to it to ensure the Trans Mountain Pipeline benefits its citizenry.

“Their main regulatory obligation in relation to this project relate to the environmental assessment that they should have done and never did, and their duty to ensure that projects such as this do not proceed until they’ve fully discharged their duty to consult First Nations,” Tollefson concludes.

“I think on both of those fronts, a new government may well conclude that there’s more work to do.”

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Fish-bearing waters are less protected from pollution after regulations passed by the federal government give Fisheries and Environmental Ministers the ability to grant blanket-authorizations to pollute if the polluting activity is related to fish-farming, research, or falls under other federal or provincial regulations or guidelines, which are not legally binding.

“Deregulating pollution in fish-bearing waters is short-sighted and irresponsible. They represent yet another attempt by the federal government to abdicate its responsibility to Canadians to protect fish and fish habitat,” Jessica Clogg, executive director and senior counsel at the West Coast Environmental Law Association said.

Dumping pollutants, such as drugs, aquatic pesticides and biochemical oxygen-demanding matter, into fish-bearing waters is prohibited in Section 36(3) of the Fisheries Act, except with a permit. The new regulations bypass permits and exempt pollution in a wide-range of circumstances, including aquaculture.

The Harper government quietly made way for a major expansion of fish-farming in British Columbia in January after opening the entire coast, excluding the Discovery Islands region, to aquaculture. Critics say the decision to scale up the fish-farming sector ignores the conclusions of the 2012 Cohen Commission report, the result of a three-year inquiry into the 2009 collapse of the Fraser River sockeye salmon fishery.

The Cohen Commission's final report made 75 recommendations which have yet to be implemented by the federal government. In February conservation groups filed petitions with the auditor general of Canada, requesting the Harper government report back to the public on the fate of the Cohen Commission’s recommendations.

Critics with the Watershed Watch Salmon Society fear the decision to expand fish farming on the B.C. coast is putting wild fish stocks at risk.

“The decision to expand destructive aquaculture practices anywhere along B.C.’s coast is a huge betrayal of the concerns raised in the Cohen inquiry,” Craig Orr with the society said.

The 2012 omnibus budget bills C-38 and C-45 eliminated several pieces of environmental legislation in Canada and revised both the Canadian Environmental Assessment Act and the Fisheries Act. As a result aquaculture projects, among many other kinds of projects, are no longer assessed for environmental impacts by the federal government. 

The Regulatory Impact Analysis Statement that accompanied the federal government’s new pollution regulations states the new rules will bring greater certainty to the industry.

According to the West Coast Environmental Law Association members of the public are concerned the new rules will limit oversight of potentially harmful pollution.

“What we really need is certainty that our rivers, lakes, and oceans are protected," Anna Johnston, staff counsel at the West Coast Environmental Law Association said.

“Requiring permits for pollution ensures that the regulators are aware of the pollution, allows site-specific considerations to be taken into account and allows for adjustments if any unwanted harms happen. What these regulations really enable is the government’s ability to turn a blind eye.”

Image Credit: lipseyhimsley via Flickr

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According to a recent poll commissioned by four environmental groups, nearly two-thirds (64 per cent) of residents in British Columbia oppose Enbridge's plan to transport crude oil through B.C. using the proposed Northern Gateway pipeline and oil tankers.

The hybrid telephone-online poll, conducted by Justason Market Intelligence, found that 50 per cent of B.C. residents strongly oppose the Enbridge proposal, compared to 12 per cent who strongly support it.

The poll was commissioned by Dogwood Initiative, ForestEthics Advocacy, Northwest Institute for Bioregional Research and West Coast Environmental Law. Six hundred adult British Columbians were surveyed from January 13 to January 19, 2014 through random telephone sampling and Justason's online panel.

"When British Columbians actually get the facts about oil tanker and pipeline proposals, their opposition is overwhelming," said Will Horter, executive director of Dogwood Initiative. "Other polls in the past few months have only talked about pipelines, with no mention of the crude oil supertankers that would inevitably come with them."

Image: Oil Tanker Traffic in B.C.: The B.C. Outlook Omnibus / Justason Market Intelligence

This is the first poll released about Enbridge's oil tanker and pipeline proposal since the National Review Board's controversial joint review panel (JRP) report recommended conditional approval of the project in December.

When asked whether they trust the review process, 51 per cent of B.C. residents said they distrust the process, 32 per cent said they trust it, and 17 per cent were unsure.

"These polling results bring home why the Enbridge tanker and pipeline proposal is going nowhere fast — despite the JRP recommendation," said Jessica Clogg of the West Coast Environmental Law Association. "Residents of B.C. continue to withhold 'social licence' for the project, while multiple First Nations lawsuits threaten to derail it and the government of B.C. formally opposed the Enbridge project."

According to the poll, a significant majority of British Columbians (79 per cent) feel that decisions about projects like the Enbridge Northern Gateway proposal should be made with public participation, while only 13 per cent feel that such decisions should be made solely by government.

"British Columbians simply do not accept closed door decision-making and know they deserve a say. Any politicians thinking of cutting a backroom deal do so at their peril," Horter said.

A March 2012 Justason Market Intelligence poll had nearly identical results with 66 per cent of B.C. residents opposing the Enbridge proposal, and 50 per cent strongly opposed.

"For all the millions of dollars Enbridge has spent in advertising over the past two years, opposition to this proposal hasn't budged," said Sven Biggs of ForestEthics Advocacy.

Image Credit: Travis Blanston / Flickr

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