For years environmental organizations have called on the federal government to do something about the leakage of  billions of litres of toxic chemicals from Alberta’s oilsands tailings ponds into the Athabasca River every year.

And for years they’ve been ignored — until now.

NAFTA’s Commission for Environmental Cooperation (CEC) is reviewing a submission by Environmental Defence, the Natural Resources Defense Council and Daniel T’seleie. Now, Canada must provide a response to the arguments made in the submission.

Here’s a primer on why this process matters.

So what’s going on with leaky tailings ponds?

Tailings ponds now cover more than 220 square kilometres of previously boreal forest around Fort McMurray, Alberta.

It’s been suspected for ages that these ponds have been seeping chemicals into nearby water systems — chemicals such as benzene, ammonia, cyanide and arsenic.

In 2013, investigative reporter Mike De Souza revealed via an access to information request that then-natural resource minister Joe Oliver had received a memo citing studies that “detected potentially harmful, mining-related organic acid contaminants in the groundwater outside a long-established out-of-pit tailings pond.”

Only a year later, another federal study confirmed that toxic chemicals were reaching the Athabasca River.

In their submission to the Commission for Environmental Cooperation the three parties cite documented cases of contaminated tailings waste reaching (or projected to reach) waters in Jackpine Creek (from Shell), Beaver Creek (from Syncrude), McLean Creek (from Suncor) and the Athabasca River (from Suncor).

Such toxins can have calamitous effects on fish populations, which many local Indigenous peoples rely on for sustenance.

What’s the specific claim being made by the submission?

That Canada has failed to enforce subsection 36(3) of the federal Fisheries Act.

Specifically, that subsection reads (take a deep breath) that: “no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.”

The case that’s being made is that ignoring leaking tailings waste is violating that subsection.

Interestingly, the submission notes that case law has emphasized that the water itself does not need to be made “deleterious” to fish, with the question being whether or not the substance itself is a “deleterious substance.” It might sound like a silly debate, but it could make or break a case.

“It’s pretty clear there’s been a lack of enforcement action both by Alberta and the Canadian government, which is outlined in our complaint to the CEC,” Tim Gray, executive director of Environmental Defence, told DeSmog Canada.

“We felt this was a way of compelling the Canadian government to respond to someone, and this would shine the light of day on this issue with how the Canadian response comes back.”

What You Need to Know About NAFTA’s Investigation into #Oilsands Tailings Leaks https://t.co/StUCzhybGO #environment #NAFTA #cdnpoli pic.twitter.com/XyHSb2LsLT

— DeSmog Canada (@DeSmogCanada) August 23, 2017

Alright, so how does NAFTA have anything to do with this? Isn’t it a trade deal?

Indeed, it is: introduced in 1994, NAFTA was a groundbreaking regional trade agreement between Canada, the U.S. and Mexico.

It was also very controversial.

Aaron Cosbey, senior associate at the International Institute for Sustainable Development and expert on environmental issues pertaining to international trade, said in an interview with DeSmog Canada that there was a great deal of opposition to the deal at the time of signing, especially from the environmental community.

Much of the concern related to the expectation that a lot of low-wage work would be relocated to Mexico, with laxer environmental laws and regulations.

“Canadian NGOs were making the same argument: you can’t put in place this free trade agreement, which pits us against a country where the environmental law is not enforced,” Cosbey said.

“It’s not free trade if you do that.”

In response, the North American Agreement on Environmental Cooperation was created as a separate treaty, signed at the same time as NAFTA. One of its key roles has been to serve as a tribunal of sorts for submitted infractions of environmental laws, with the worst “punishment” being the issuing of a non-binding “factual report” which serves as a “name and shame” document.

“It has no legal force beyond bringing a little welcome sunshine to the dark corners of non-enforcement,” Cosbey said.

In short, it was designed as a way for the three countries to have a common mechanism in place to file complaints about environmental practices. The submission about tailings leakage was the very first step in this process. The determination that the submission met the criteria for review on August 16 was the next. Now, Canada has to respond to the allegations.

So does this mean that Canada will be reprimanded?

Nope.

All that’s happened at this point is that the secretariat acknowledged the submission is valid. Canada has until Sept. 28 to officially respond, although it could request a 30-day extension for “exceptional circumstances.” The secretariat then figures out whether or not to proceed with the “factual record.” It can either decide that it’s satisfied with the response and won’t proceed further, or recommend the preparation of the “factual record.”

But here’s the thing.

In order for the factual record to actually be prepared, the environment ministers of the three countries have to agree by a two-thirds majority to it. In other words, two of the three NAFTA environment ministers have to say “yes,” otherwise it won’t proceed further.

That’s a very real possibility. Cosbey said there have been at least five instances in the past decade in which the secretariat recommended the preparation of the factual record, and the council of environment ministers shot it down. In total, there have been 30 submissions made in the last 10 years, with only three resulting in the creation of a factual record.

In fact, almost this exact same submission was shot down at the council level, despite a recommendation from staff at the Commission for Environmental Cooperation.

Canada’s initial argument against it was that there was an ongoing court case (which would mean that a factual report couldn’t have been completed). As it turned out, the court case wasn’t proceeding at the time. At the time, CBC reported that assistant deputy minister for Environment Canada, Dan McDougall, then declared that the commission had no jurisdiction to investigate domestic law, which appears to contradict the entire point of the commission.

McDougall still works as assistant deputy minister for Environment and Climate Change Canada.

What are the chances that Canada will fight this?

It’s impossible to say.

The country does have a long track record of opposing the process, with Canada blocking two other investigations in 2014 with Mexico’s support.

But we’re now living under what Cosbey described as a “supposedly now-environmentally friendly Liberal government.”

As noted by Gray, the federal government is embarking on a series of modernization processes, including of the Canadian Environmental Assessment Act, Fisheries Act, Navigable Waters Act and National Energy Board.

“This is a clear example of where the tarsands industry has been violating the existing legislation, even in its poor form,” Gray said. “I would expect that once it becomes clear that the facts around this case are not really able to be argued with that they would take some action.”

It will be a big deal whether the submission gets quashed or allowed. After all, the council has never refused to make the factual record public, meaning that we would be given a fascinating window into the argument made by Canada for or against acting on tailings leakage.

Gray said the factual record would help embarrass the government for inaction and encourage them to actually comply with their own legislation. Furthermore, it could be used in a legal case against the government if it refuses to act.

The Trudeau government has already indicated on multiple files it’s willing to break its promises. So we’ll have to wait and see. Plus, the re-negotiation of NAFTA itself will provide an additional window into their thought process.

What about the re-negotiation of NAFTA?

Well, the three countries don’t exactly like what they created with the Commission for Environmental Cooperation. It’s effectively embarrassing and inconvenient to them.

That’s why Cosbey would “bet a lot of money” that the ongoing re-negotiation of NAFTA will involve shutting down the Commission for Environmental Cooperation, terminating the North American Agreement on Environmental Cooperation and putting all provisions within NAFTA itself.

“I can guarantee you we’re not going to see anything as strong as this,” he said. “Guaranteed. We’re taking steps backwards here.”

And as you might have gathered, the current system isn’t even particularly strong. Compare it to, say, the framework in the European Union, which results in binding directives from the European Court of Justice to fall in line with the rules.

Recent regional trade agreements like CETA and TPP have involved “token nods” to the system that NAFTA currently uses, but are much weaker provisions in practice.

So this may be one of the last opportunities that a concerned individual or organization has the chance to challenge the country in this manner.

“It’s possible,” Gray concluded. “I don’t know if anyone knows the timelines of the NAFTA renegotiations. But I’m hopeful the Canadian government would be looking to improve environmental protections, not erode them.”

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You know you’ve got the attention of the fossil fuel industry when the Financial Post’s Claudia Cattaneo pens a dismissive column about your efforts.

On Tuesday, Cattaneo — recently dubbed “everyone’s favorite oil and gas shill” by American Energy News — bestowed the honour on a new report about TransCanada’s proposed Energy East pipeline, published by the Natural Resources Defense Council and 13 other environmental organizations including 350.org, Greenpeace and the Sierra Club.

“Canadian [sic] are also right to wonder why a deep-pocketed U.S. group with an army of lawyers is meddling in an all-Canadian pipeline project,” she opined in her 820-word column, shortly after insinuating the Natural Resources Defense Council “needed to conquer and make money off a new dragon” following the presidential veto of the Keystone XL pipeline in 2015.

The idea that Energy East only concerns Canadians is a curious perspective. But it’s certainly not a unique one.

The Energy East project, requiring 1,500 kilometers of new pipeline and the conversion of 3,000 kilometers of existing natural gas infrastructure in order to transport up to 1.1 million barrels of dilbit per day, has been heralded by many as a quintessentially Canadian project, comparable to the Canadian Pacific Railway in scope and significance. Even Rick Mercer argued for its construction.

Unlike the Kinder Morgan’s proposed Trans-Mountain Expansion, however, there’s been a fair bit of obfuscation about what the desired market is for the transported product.

That’s a key problem for a big picture defence of the project.

Some have contended that Energy East will transport products for consumption in Eastern Canada, helping to foster energy security by breaking a reliance on imports from the Middle East. Such a reality would indeed seem like an “all-Canadian pipeline project” and justify Cattaneo’s confusion about why U.S. organizations are getting involved in the battle.

But as the Natural Resources Defense Council’s new 24-page report (ominously titled “Tar Sands in the Atlantic Ocean“) sketches out, the U.S. has many, many reasons for concern: threats to marine mammals, vulnerable ecosystems and progress on climate change, for starters.

“From the U.S. perspective, [Energy East] is a huge project that right now feels as if it’s being snuck in,” says Josh Axelrod, a Washington, D.C.- based policy analyst at the Natural Resources Defense Council and co-author of the report in an interview.

”We’re worried if it remains on the down-low that our regulators will basically find out about dilbit tankers the day something goes wrong and will not be prepared for it. We would like to, at the very least, have them prepared, if not express their disapproval of the idea.”

Sinking Tarballs, Whale Collisions: Potential Impacts of #EnergyEast on the U.S. Coast Detailed in New Report https://t.co/wCTtKXg8bG

— DeSmog Canada (@DeSmogCanada) July 28, 2016

Tankers Could Move 328 Million Barrels of Oil Per Year in U.S. Water

Axelrod’s quick to point out there’s “no compelling case” for the suggestion that Energy East is planned to transport oil for Canadians to use.

In TransCanada’s May 2016 consolidated application to Canada’s National Energy Board, the company estimated it would ship up to 281 tankers every year.

Axelrod says the proposed tanker configuration amounts to 900,000 barrels a day.

By the report’s estimates, tankers could move up to 328 million barrels of oil to refineries in New Jersey, Delaware, Louisiana and Texas: the U.S. Gulf Coast sports 25 refineries, 17 of which have a history of processing heavy oilsands crude.

Meanwhile, New Brunswick’s Irving refinery doesn’t have the capacity or even necessarily the desire to process dilbit (Axelrod adds the reversal of Enbridge’s Line 9B in September makes Energy East less useful to the Montreal refineries).

This matters a great deal. If TransCanada was intending to transport and sell dilbit to Canadian refineries for Canadian usage, it would indeed be odd for a report to call for a moratorium on tankers; Cattaneo strangely suggested in her column that the proposed ban is “a bit surprising given that oilsands tankers would be leaving from a Canadian port, making it harder to block by the U.S. administration.”

For at this point, the facts seem clear: tankers will be leaving a Canadian port and travelling through American waters with potentially catastrophic impacts in the case of a spill or accident.

Dilbit Spills Notoriously Difficult to Clean Up

The report points to two major incidents that have occurred in the past few years — the 2010 Enbridge spill in Michigan’s Kalamazoo River, and the 2013 ExxonMobil spill in Arkansas — as examples of the difficulties of containing and cleaning up a dilbit spill.

A 2016 report by the National Academy of Sciences emphasized that dilbit sinks in water and doesn’t biodegrade easily, making a spill far more disastrous than its conventional counterpart.

And that’s not even to speak of issues like ship strikes (when ships hit whales or other marine mammals), noise pollution or the accidental transportation of invasive species.

These are all issues that one would hope regulators would consider in their review of projects. But Axelrod says the National Energy Board (NEB) has “really flubbed this,” using a process that fails to consider cumulative impacts or acknowledge difficulties with cleaning up other dilbit spills.

“The NEB likes to make it seem like their processes are straightforward but they’ve really made it into a disaster,” he says. “There’s pro forma discussion of some of the impacts but a very limited scope.”

Energy East Exempted From Environmental Assessment Overhaul

There is still lots of time to correct such problems: the NEB’s consultation process will be continuing until 2018, while the very earliest Energy East could start transporting dilbit would be 2021.

But companies including TransCanada and Kinder Morgan have already been told by the federal government that “no project proponent will be asked to return to the starting line,” with the exception of the evaluation of their upstream greenhouse gas emissions.

“I hope it’s being used as a way to look at a project’s impacts on provincial and national climate goals and international commitments, and if that’s the case it could be a useful tool,” Axelrod says. “But it really misses a lot of the project’s climate impacts.”

And given the NEB will almost certainly approve the project — since 2012, the body has had to conduct environmental assessments and consultations, tasks that are far outside of its original mandate — that’s a problem the federal cabinet will have to confront.

Kinder Morgan’s Trans-Mountain pipeline expansion will be decided upon before Energy East. But that’s a far more complicated project due to dozens of unresolved First Nations land claims. The Alberta NDP also appears to have put more long-term hope in Energy East due to such factors.

But if Canada does end up approving Energy East — and, of course, depending on who’s elected as president of the United States — it may end up seeing a similar conclusion to what happened with the Keystone XL pipeline: pushed for by Canada and rejected by America due to potential impacts on environments and wildlife.

Maybe, by then, it will have all started to make sense for Cattaneo and her pals.

Image: NRDC

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With U.S. President Barack Obama expected to deny a permit to the Keystone XL pipeline this fall, Canada’s oil industry is looking for someone to blame.

The National Post’s Claudia Cattaneo wrote last week that “many Canadians … would see Obama’s fatal stab as a betrayal by a close friend and ally” and that others “would see it as the product of failure by Stephen Harper’s Conservative government to come up with a climate change plan.”

The latter is the more logical conclusion. Obama has made his decision-making criteria clear: he won’t approve the pipeline if it exacerbates the problem of carbon pollution.

Even the U.S. State Department’s very conservative analysis states the Keystone XL pipeline would “substantially increase oilsands expansion and related emissions.” The Environmental Protection Agency has agreed.

While Canada’s energy reviews take into account “upstream benefits” — such as jobs created in the oilsands sector as a result of pipelines — they don’t even consider the upstream environmental impacts created by the expansion of the oilsands.

For all the bluster and finger-pointing, there’s no covering up the fact that Canada’s record on climate change is one of broken promises.

Oil and Gas Regulations Promised Since 2006

Prime Minister Stephen Harper has promised since 2006 that he’ll regulate oil and gas emissions. Those regulations still haven’t materialized nearly a decade later —and there’s only one person to blame for that.

In recent years, Harper has taken the approach that Canada can’t regulate its oil and gas sector unless the U.S. does too. This argument is fundamentally flawed.

First, it presumes that Canada should outsource its climate policy to another country. On issues from health care to acid rain, Canada has moved independently from the U.S. and prospered as a result.

Secondly, copying U.S. climate policy has never really made sense from a greenhouse gas perspective because the countries have very different emissions profiles.

Chiefly, the oil and gas sector only accounts for about three per cent of U.S. emissions, so it isn’t a top priority for the country to regulate. Instead, the U.S. is focused on reducing emissions from power plants — including coal and natural gas-fired electricity — which account for one-third of emissions.

In Canada, the oil and gas sector accounts for nearly 25 per cent of Canada’s emissions, hence the need for a focus on that sector when addressing emissions.

What’s more, while coal-fired power plant emissions in the U.S. are already dropping, oilsands emissions are projected to more than double from 2010 to 2020, making them Canada’s fastest growing source of greenhouse gas pollution.

Canada and the Copenhagen Accord: More Broken Promises

Let’s not forget: when Canada has aligned itself with the U.S. on climate commitments, it has broken those promises.

As part of the 2009 Copenhagen agreement, both countries agreed to reduce their carbon emissions by 17 per cent by 2020.

The U.S. has implemented a plan to meet those commitments by aggressively tackling its biggest source of emissions (coal-fired power plants), along with a range of other actions, including taking on methane emissions, which account for the majority of emissions from its oil and gas sector.  

Meantime, Canada is on track to substantially miss its Copenhagen commitments, due in large part to its unchecked support of oilsands expansion.

Instead of actually addressing growing emissions from the oilsands sector, the Canadian government has focused on PR — spending millions to lobby internationally for approval of new pipelines and undermining clean energy policies in Canada, the U.S. and the European Union. More than that, the federal government has eliminated environmental protections and undermined public review processes.

Harper would have better served the interests of all Canadians (including the oil industry) by investing that time and energy into writing climate regulations, instead of sticking his head in the sand.

Harper Treats Climate Change as Race to Bottom

All in all, it’s little wonder that Obama is expected to refuse the Keystone XL pipeline when Harper has treated Obama’s chief concern, climate change, as a race to the bottom by employing the faulty logic that because we can’t solve the whole problem, we should do nothing.

If our leaders had employed that same logic in the 1940s, Canada would never have sent troops to the Second World War, where Canadians accounted for just two per cent of the Allied effort.

After a summer of unprecedented wildfires and drought across North America, it’s never been more apparent that climate change is already costing us all.

Citibank just released a new report showing that taking action now against the growing threat of climate change would save $1.8 trillion by 2040. And yes, that report takes into account the potential lost revenue from leaving resources in the ground — including 80 per cent of coal reserves, half of the world’s gas reserves, and a third of global oil reserves — and still concludes that the global economy would see a net gain.

While the fossil fuel industry continues to pay off pseudo scientists and unethical PR firms to create confusion about climate change, the science is clear. And the time to act is now.

The federal government’s utter failure on climate change has given rise to fruitless, polarized pipeline debates, such as the prolonged one over TransCanada’s Keystone XL. The only person who can be blamed for that is Harper himself.

Main image: A 2009 Greenpeace billboard calls on world leaders to secure a fair, ambitious and binding deal at the Copenhagen Cimate Summit. Via Flickr.

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The White House confirmed today that President Obama will veto Congressional legislation designed to greenlight construction of the Keystone XL pipeline, the contentious project first proposed six years ago to carry more than 800,000 barrels per day of Canadian oilsands crude from Alberta to refineries and export facilities along the Gulf of Mexico.

Despite strong indications of support in Congress, the Obama Administration has already indicated it will veto the bill to expedite approval of the $8 billion project if approved. A similar bill was blocked by Democrats in the Senate in November.

“If this bill passes this Congress the president won’t sign it either,” Josh Earnest, White House press secretary, said. Obama rejected TransCanada's application to build the pipeline in 2012, suggesting congressional Republicans had set a "rushed and arbitrary deadline" for the project's approval.

The bill, proposed by Republican Senator John Hoeven from North Dakota and Democratic Senator Joe Manchin from West Virginia, will be debated in a Senate Energy and Natural Resources Committee hearing Wednesday with the panel set to vote on the project Thursday.

“For us to continue to produce more energy and compete in the global market we need more pipelines to move crude at the lowest cost and in the safest, most environmentally friendly way,” Hoeven said in a recent press conference. “That means that pipelines like the Keystone XL are in the vital national interest of our country.”

According to Danielle Droitsch, director of the Canada Project at the Natural Resources Defense Council, Obama “made the right call.”

“What’s needed now is for him to kill the dirty tar sands pipeline outright,” she said in a statement.

Droitsch said the president is clearly focused on the question of national interest.

“On principle, the president is right to put the national interest first. It’s not the role of Congress to short-circuit the legitimate process of presidential review designed to ensure the best outcome for the country."

She added Keystone XL “would pipe some of the dirtiest oil on the planet through the breadbasket of America so most of it could be shipped overseas. It’s not a plan to help our country. It’s about big profits for big oil – and big pollution for the rest of us.”

The president indicated he will stick to the official pipeline review process and noted an ongoing challenge to the pipeline’s route through Nebraska has yet to be resolved.

In addition to massive public opposition to the pipeline, plummeting oil prices are calling into question both the short and long-term viability of North American oil projects.

As Canadian economist Jeff Rubin recently put it in a Globe and Mail op-ed, the political economy of oil is rapidly changing our relationship with fuel transport infrastructure:

“The first thing Canadians should recognize about the new world order for oil prices is that – contrary to what we’re being told by our federal government – the economy is no longer in dire need of any new pipelines. For that matter, it can live without the new rail terminals being built to move oil as well. Yesterday’s transportation bottlenecks aren’t relevant in today’s marketplace.

At current prices there won’t be any massive expansion of oil sands production because those projects, which would produce some of the world’s most expensive crude, no longer make economic sense.”

Bill co-sponsor Joe Manchin – one of the few Democrats to support the pipeline – said he is encouraged by the fact that the Keystone XL bill is one of the first pieces of legislation this year.

“We have everything to gain by building this pipeline, especially since it would help create thousands of jobs right here at home and limit our dependence on foreign oil,” he said.

Yet to the White House, the move is symbolic of potential discord with the Republican-led Congress.

"Congressional Republicans are well aware of the position of this administration, which is that we believe clearly that this administrative process is the one that should determine the viability of this project and that is a long held view," White House press secretary Earnest said.

"So it may raise questions about the willingness of Republicans to actually cooperate with this administration when you consider that the very first bill that is introduced in U.S. Senate is one that Republicans know the president opposes," he added.

According to The Hill, Hoeven and Manchin already have a plan to push passage of the pipeline legislation later in the year, despite Obama’s veto.

Image Credit: Susan Melkisethian via Flickr

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In the ongoing battle to win approval of the Keystone XL pipeline, Canada has repeatedly justified its climate inaction by pointing to the fact that it shares similar emission reductions targets to the U.S. In August of last year, Prime Minister Stephen Harper even wrote a letter to President Barack Obama inviting “joint action to reduce greenhouse gas emissions in the oil and gas sector” if such efforts would help green-light the Keystone XL.

But this week’s announcement that Obama will use his executive authority to introduce a nationwide emissions reduction plan that targets more than 1,000 of the country’s most highly polluting power plants might leave Canada squarely in the dust.

Obama’s new plan — already being called the “most ambitious anti-global warming initiative of any U.S. president" — will introduce new standards by 2015 to decrease the greenhouse gas (GHG) emissions of power plants (responsible for 40 per cent of the country’s carbon pollution) by 30 per cent from their 2005 levels by 2030.

Cutting emissions and climate confusion

The new plan is expected to tackle emissions as well as contentious climate politics in the U.S. where political positioning on emissions standards and carbon tax schemes is often drawn along sharp lines.

“We see this as the pivotal battle on climate change,” Natural Resources Defense Council (NRDC) director of government affairs David Goldston said at a briefing last week. “For the first time, climate is going to be front and centre as the national issue. And what that means, we think, is that when this battle is over and the power plant standards are in effect, climate will have turned into an ordinary environmental issue.”

The NRDC has been pivotal in the creation of the new emissions standards and is leading a massive campaign this month to "demystify" climate change issues.

Oilsands trouble Canada’s emissions future

Such determination south of the border is bringing Canada’s stalled climate politics into sharper relief as the Harper government continues to hold GHG emissions regulations for the oil and gas sector at bay.

The federal government has promised to deliver strengthened emissions standards for several years but has consistently failed, especially to rein in emissions from the Alberta oilsands, Canada’s fastest growing source of GHGs.

Under the Copenhagen Accord, Canada committed to reducing GHG emissions 17 per cent below 2005 levels by 2020. But according to Environment Canada’s latest emissions report, Canada will fail to meet its own reduction targets using current measures.

Environment Canada data also shows emissions from the oilsands increased around 267 per cent between 1990 and 2011 despite a per barrel emissions decrease of a reported 26 per cent. The projected increase of oil production in the oilsands has emissions from the sector set to steadily increase for several decades.

“The EPA’s climate rules send a strong signal that the United States is serious about addressing its largest source of greenhouse gas pollution,” Simon Dyer, senior spokesman for the Pembina Institute, said in a statement. “In contrast, the Canadian government continues to resist action on addressing its major emissions growth problem — the rapidly increasing greenhouse gas pollution from oilsands production.”

“While Canada has the same 2020 emissions target as the U.S., our federal government has failed to produce a plan to meet its goal,” he said.

Tim Gray, executive director of Environmental Defence, echoed those sentiments, saying climate action in the U.S. demonstrates Canada’s need to rein in emission from the oilsands sector.

“It’s time for Canada to follow suit,” he said in a statement released Monday. “We should all celebrate this U.S. action taken for the sake of our shared climate…It’s high time for Canada to step up, do what is right, and stop the soaring pollution of the tar sands.”

“Canada,” Gray said, “can either lead or be dragged along in this global shift towards a safer, cleaner, low carbon economy.”

Canada lacks leadership

A study released by Globe International, which surveyed nearly 500 pieces of climate legislation in 66 countries, found Canada lacked any “flagship legislation” for climate despite being in the world’s top 20 emitters.

Political support for strong climate standards in Canada has dwindled under the Harper government, which withdrew from the international Kyoto Accord in 2011.

According to federal Green party leader Elizabeth May, Canada has a history of following the “bad behaviour” of the U.S. when it comes to climate policies.

“When Barack Obama came up with the 17 per cent below 2005 levels by 2020, Canada said ‘okay, we’ll take that target’ because it weakened our target [under Kyoto] even more,” she said in an interview last May.

A new international climate change regime is expected from the upcoming UNFCCC COP 21 meeting that will take place in Paris in 2015. Canada has been accused of acting as an "obstructionist" at international climate conferences for the last several years.

“Many Canadians,” May said, “don’t realize that the worst thing that Harper has done on climate, as bad as his domestic performance has been, has been undermining global negotiations.”

She added the most recent Environment Canada figures “make is absolutely crystal clear that there is no intention on the part of Stephen Harper for reaching the Copenhagen target either.”

Image Credit: Scout Turfankijan for Obama for America via Flickr.

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As the public anxiously awaits the U.S. State Department’s final decision on the fate of the Keystone XL Pipeline, the discussion has largely ignored the elephant in the room: the North American Free Trade Agreement (NAFTA.)

Thanks to NAFTA, signed into law by President Bill Clinton in 1994, the State Department will likely be able to do little more than stall the pipeline’s construction. In its simplest form, NAFTA removes barriers for North American countries wishing to do business in or through other North American countries, including environmental barriers. The goal of the agreement was to promote intra-continental commerce and help the economies of all involved in the agreement.

Before diving into NAFTA, it's important to take a look at what the State Department and the media have done so far in regards to Keystone XL. Before she left office and was replaced by John Kerry, former Secretary of State Hillary Clinton’s ties to the project were almost too many to count. Most notable was the fact that many of her former staffers and associates were lobbyists for Keystone, and they had a direct line into both Clinton and President Obama.

It is likely a result of these connections that the State Department’s environmental assessments were strikingly flawed and inadequate.  As the NRDC pointed out, many of the so-called “standards” that the State Department put in place regarding the pipeline were simple “smoke and mirror” schemes to distract the public, and they failed to do their due diligence by considering alternative paths for the pipeline. Furthermore, climate impacts from operation and construction were almost completely ignored.

Compounding the problem of the State Department’s willingness to sign off on their own flawed environmental studies was the fact that the mainstream media was more than willing to host Keystone XL proponents to tout the many “benefits” that America would experience by constructing the pipeline.

Chief among those alleged “benefits” was the talking point regarding job creation. The media, as well as the public, bought into the industry’s talking points that 20,000 jobs would be created through construction of the pipeline. TransCanada eventually downgraded that number to 6,000 permanent jobs, but the media hardly paid attention. More recently, the fact that the pipeline would create only 35 permanent jobs in America was met by complete silence from the mainstream media, leaving the public woefully ignorant about the true “benefits” of the pipeline. 

The other major talking point used to sell the pipeline was that it would reduce America’s dependence on foreign oil, and reduce oil prices for Americans. This talking point, while widely accepted again by both the media and the public, was completely at odds with reality. The reason TransCanada wants a pipeline from Canada to the Gulf Coast is so that the oil can be refined and immediately loaded onto tankers to sell in overseas markets. This tar sands oil would not be staying in America, and therefore would not reduce our depedence on foreign oil.

Furthermore, the fact that the oil would be sold overseas means that prices in America would actually rise, rather than fall, by as much as 12 cents per gallon. 

All of this misinformation helped convince the public that the pipeline is a great idea, as no major media outlets bothered to follow up and report the facts.  Recent polls show that the majority of Americans, including majorities of Republicans and Independent voters, favor construction of the pipeline. 

With all of these factors working in TransCanada’s favor, an approval from the State Department would seem to be an absolute certainty. 

But if the State Department chooses to acknowledge the facts and prohibit the pipeline’s construction, TransCanada still has a fairly simply route to get it approved, and that’s where NAFTA comes into play.

When it comes to the energy sector, NAFTA has a lot to say, and most of it isn’t good. At the heart of it, NAFTA mandates that member countries cannot discriminate against foreign energy companies.

This means that a Canadian energy company is legally allowed the same opportunities as American companies operating in the U.S. Since we’ve allowed our oil companies to construct pipelines, it would be illegal, in most circumstances, to deny that same privilege to TransCanada.

Furthermore, NAFTA significantly weakens the host government’s ability to restrict a project, even if that project would violate the government’s own regulations and standards. For example, Exxon has been successful in bringing NAFTA challenges to drilling projects that the Canadian government had denied the oil giant. 

However, just as NAFTA could be used as the means by which Keystone XL is approved, it could just as easily be the tool by which it is stopped.

The glimmer of hope comes from a provision in NAFTA that created the Commission for Environmental Cooperation (CEC). The CEC is tasked with ensuring that environmental concerns are thoroughly examined when dealing with NAFTA. It lays out environmental issues as they would apply to the entire continent, not just the host government’s concerns. These broad terms could easily help make Keystone XL a distant memory, as the environmental consequences of a spill could span the continent. Specifically, a leak in the portion of the pipe that would still pass over the Ogallala aquifer could poison as much as 25% of America’s crops, which are exported throughout North America.

While environmental challenges to NAFTA projects have a poor success rate, it still gives hope that the project will be denied.

American politicians are still pushing the President to unilaterally approve the Keystone XL pipeline, while opponents were able to gather more than 1 million public comments against the pipeline. 

Given the volatility of the issue, it wouldn’t be surprising if the President and State Department left the decision up to a NAFTA panel, rather than stepping up and doing the right thing for North America.

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.

This post is part of a series. For Part 2, click here. 

What do we know about dilbit? Since coming on the scene, the mixture of tar sands crude and a lighter substance such as natural gas condensate has been a matter of much speculation. How does it behave in pipelines? Does it float in water or sink?

Now, Canadian oil producers are saying that diluted bitumen (dilbit) has gotten a bad name. They are seeking clean up its image with an industry-funded report claiming that the tar sand mixture is no more dangerous to pipelines than some conventional crude oil.

The report, entitled “Dilbit Corrosivity,” was prepared by UK’s Penspen Group for the Canadian Energy Pipeline Association (CEPA). It seeks to debunk arguments like those made at the hearings on the Enbridge Northern Gateway Pipeline, that dilbit’s high viscosity, acidity, and level of sediments could cause corrosion that would leave the areas around pipelines more vulnerable to spills. It argues that, because dilbit is no more corrosive than other forms of heavy crude, no special plans need to be made to prevent spills.

“Some of the literature is ill-informed and wrong: both Dilbit and Synbit in a crude oil transmission pipeline environment is no more corrosive than comparable heavy sour crudes and in many cases may be less corrosive,” it reads.

“Consequently, there are no significant additional implications for corrosion control in a pipeline carrying Dilbit and Synbit as part of pipeline integrity management over and above what is already standard practice.”

Anthony Swift, an attorney with the National Resource Defense Council (NRDC) disagrees with this characterization. He argues that Penspen’s findings are not new and describes the CEPA report as a “rehash of a number of flawed government and industry studies intended to promote tar sands.”

He points to a 2011 NRDC report that states, “There are many indications that DilBit is significantly more corrosive to pipeline systems than conventional crude. For example, the Alberta pipeline system has had approximately sixteen times as many spills due to internal corrosion as the U.S. system. Yet, the safety and spill response standards used by the United States to regulate pipeline transport of bitumen are designed for conventional oil.”

Speaking over the phone from DC, Swift says the CEPA report’s first mistake is to compare dilbit to heavy crude. He believes it would be far more beneficial to compare dilbit to West Texas Intermediate, a lighter crude that is considered the benchmark for crudes in North America and “represents the types of crudes that have historically moved on the North American pipeline system.”

Swift also takes issue with CEPA’s claim that the typical temperature of a pipeline carrying dilbit is 17 to 40 °C and that the Keystone XL pipeline will operate at 26 to 48 °C. He says that public documents on TransCanada’s application for the Keystone 1 had a top range of 70 °C and those for the Keystone XL pipeline had an average operating temperature of 60 °C.

This is a crucial issue because dilbit tends to be more viscous than conventional crude oil and that viscosity can lead to higher pipeline temperatures. Those higher operating temperatures have been linked to rises in both internal and external pipeline corrosion of the kind the National Transportation Safety Board (NTSB) found after 2010 the Kalamazoo River spill.

It should be noted that CEPA is the group responsible for a 2011 letter to the Harper government outlining some of its preferred changes to environmental regulation, which Greenpeace obtained to last year via an Access to Information request.

Sandra Burns, CEPA’s manager of communications, later authored a blog post in the Huffington Post arguing that their lobbying strategies were well within reason and that bills C38 and C45, which included many of their suggested changes, would reduce the number of studies on “activities that were benign or whose effects were well understood and mitigated through standard practices.”

The new report seems to argue that CEPA considers transportation of dilbit through pipelines one of those benign practices.  It concludes that “corrosion mechanisms in pipelines are well understood and are the subject of continuous investigation both in the field and laboratory to fine tune that understanding.”

Should regulators take their word for it? Swift says absolutely not. He says that the NTSB, “have attributed several major pipeline accidents in the States to federal safety regulators delegating too much of their oversight to the pipeline operators they're supposed to be regulating.”

He believes that too often the trend is to seek an explanation for a spill after it has happened rather than preventing it through careful research.

“It's sort of the difference between a safety net and a coroner,” he explains. “More often than not we're seeing regulators diagnose the cause of death in a pipeline spill rather than engaging to ensure one doesn't happen to begin with.”

Image Credit: Dilbit spill in Kalamazoo River from Michigan Department of Environmental Quality.

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.