So far in the Alberta election, much of the conversation related to the environment has revolved around two political hot potatoes: the carbon tax and pipelines.

On the latter, all parties agree. “Build that pipeline!” is an oft-repeated refrain here in Alberta.

There is, of course, more to a well-rounded energy and environment platform than just these two policies.

“The conversation around climate and environment — and even energy — is almost entirely ideological,” Ian Hussey, research manager at the Parkland Institute at the University of Alberta, told The Narwhal.

Duncan Kenyon, Alberta regional director of the Pembina Institute, agrees.

“We’re falling back into these dogmatic tribal discussions,” he told The Narwhal. “We need to get back to having hard, honest discussions.”

Now that the parties’ platforms have been released — and the leaders’ debate is over —  Albertans may be left wondering where the two major parties stand on other issues related to energy and the environment.

So we took a closer look at what’s at stake for the environment in this election — and what the two major parties are planning to do about it.

1. Energy efficiency

United Conservative Party (UCP) leader Jason Kenney is not a fan of the province’s energy efficiency program, describing its services as, “sending bureaucrats into our homes to change showerheads and lightbulbs.”

Energy Efficiency Alberta was created in 2017 and uses revenues from the carbon tax to fund measures to reduce emissions — in homes and businesses.

The NDP’s platform boasts the program has saved Albertans $510 million in its first year of operations and the organization has said its programs mean three million tonnes of greenhouse gas emissions were avoided in the first nine months of its operations.

“There’s really strong merit to having an energy efficiency program,” Kenyon told The Narwhal. “It’s much more efficient to save a kilowatt of energy than to build a new power plant to meet growing demand.”

According to Kenyon, prior to the creation of Energy Efficiency Alberta, the province was the only jurisdiction in North America without an energy efficiency organization. “We haven’t exactly been leaders in this space,” he said.

As for the UCP’s plan to scrap the program? “Don’t throw the baby out with the bathwater,” Kenyon warned.

2. The oilsands emissions cap

In 2016, the Alberta government passed Bill 25, which sought to limit the total greenhouse gas emissions from oilsands development to 100 megatonnes. Oilsands emissions are currently around 70 megatonnes each year, according to government figures — and many worry they’re poised to increase.

The NDP’s platform is clear the cap isn’t going anywhere if the party stays in power, noting, “we will keep the firm cap on oil sands carbon emissions.”

Advocates for the cap say there’s still work to be done. “Alberta’s oilsands’s emissions cap is not operating in practice,” said Hussey, who notes that the “legislation is sitting on a shelf,” and regulations have not yet been put into place. (The NDP’s platform doesn’t mention implementing regulations.)

The UCP makes no explicit mention of the cap in their platform, but leader Jason Kenney has said he’ll lift the cap the first week he takes office, and during the debate said that he would “absolutely” take the cap off oilsands emissions.

Alberta oilsands release an estimated 70 megatonnes of emissions each year, according to government figures. Photo: Kris Krug

3. Environmental liabilities in the oil and gas sector

“We have a trillion litres of oilsands tailings ponds,” Hussey of Parkland told The Narwhal. “We have no plan to deal with that. How is that not an election issue?”

Liabilities don’t end with tailings ponds.

On Monday, the Alberta Liabilities Disclosure Project found Albertans are at risk of being on the hook for an oil well cleanup bill between $40 and $70 billion — two to 3.5 times more than the $18.5 billion publicly reported estimate — and those are just liabilities for wells. That doesn’t include the cleanup tab for pipelines, tailings ponds and all other oil and gas infrastructure peppering the landscape today.

Companies are able to move their liabilities around, in what The Globe and Mail dubbed a “brisk trade in junk assets.” In some cases, financially precarious companies are permitted to take on liabilities they can’t afford in the long run.

Some of those companies end up bankrupt. The Redwater decision sought to provide some clarity on this issue, but problems remain.

For its part, the NDP says it will “implement new corporate health measures on asset sales to prevent liability dumping as we continue to work with industry.”

The UCP makes no similar specific commitments, saying that it will “work jointly with the AER and industry to overhaul the liability management framework in Alberta, ensuring liabilities are covered without unduly discouraging new investment.”

This issue could become increasingly important, as the number of inactive wells is on the rise.

The Narwhal recently reported that internal documents obtained from the Alberta Energy Regulator showed that senior staff project that, without a change in policy, the number of inactive wells in the province could double by 2030.

There are currently hundreds of thousands of wells across the province.

4. Wilderness and parks

Neither party has made much mention of the Bighorn proposal in their platforms (save the UCP’s assertion that “the NDP government ignored Indigenous groups on the creation of Bighorn park.”)

The Bighorn proposal — to create a network of various levels of protected areas on the eastern slopes of the Rockies near Rocky Mountain House — was big news earlier this year as vocal opposition to the proposal made headlines.

Both parties’ platforms talk about increasing partnerships with outdoor recreation groups and park societies in their platforms.

Neither explicitly mentions plans for any new parks. Under what are known as the Aichi Targets, Canada has committed to protect 17 per cent of land and freshwater by 2020 — and that includes Alberta.

5. Reclamation

Reclamation is the last step in any extractive industrial life cycle here in Alberta — it occurs once the resource no longer has any productive value, or is used up. Companies are required by law to clean up after themselves, but there are concerns about enforcement of these obligations.

As The Narwhal reported last fall, the provincial government’s own pilot project found that the vast majority of sites studied didn’t meet standards for adequate reclamation.

Neither parties’ platform goes into much detail about reclamation, with the UCP highlighting its goal to “streamline” the process and to “reduce costs.”

On the issue of how and when to ensure companies clean up after themselves, the parties’ platforms differ.

The NDP’s platform says the party will implement timelines for reclamation of oil and gas sites, noting it will also, “require them to justify delays in reclaiming sites.”

The UCP’s platform proposes requesting tax incentives from the federal government, and also highlights that it will rapidly accelerate the approval of new drilling.

A flooded and inaccessible oil lease site in Wainwright, Alta. Photo: Amber Bracken / The Narwhal

6. Methane regulations

According to the Alberta government, the impact of methane as a greenhouse gas is, “25 times greater than carbon dioxide over a 100-year period.”

In 2014, Alberta’s oil and gas sector emitted 31.4 megatonnes of methane (measured in carbon dioxide equivalent).

Both Alberta and Canada released plans for new regulations to deal with methane emissions last year, but there have been vocal critics of Alberta’s methane regulations to date.

According to the Pembina Institute, “Alberta’s methane regulations will allow oil and gas companies to release far greater volumes of harmful methane pollution than if they followed the federal methane regulations enacted . . . by Environment and Climate Change Canada.”

The NDP claims it has “invested over $200 million to reduce methane gas emissions,” and pledges in its platform that the province under an NDP government would “achieve a 45 per cent reduction in methane emissions by 2025.”

The UCP platform does not mention methane.

7. Okay, so about that carbon tax (and lawsuits and the question of Alberta’s self-determination)

The UCP’s position on the carbon tax is well known: scrap it.

The party’s platform makes it clear: “Bill 1 of a United Conservative government will be the Carbon Tax Repeal Act,” while claiming the carbon tax “currently costs Alberta’s families and employers about $1.4 billion per year.”

The UCP proposes to replace the carbon tax with what it calls a Technology Innovation and Emissions Reductions (TIER) fund. This plan would target large industrial emitters, requiring them to reduce their emissions intensity — notably, this is different from their total emissions, as it is dependent on economic output — compared to their own recent annual averages.

On the flip side, the NDP plans to continue its current carbon-pricing system.

Advocates for carbon pricing say it’s a realistic and business-friendly approach to reduce emissions. And, they point out, Alberta isn’t really in a position to eliminate a carbon tax altogether.

“In a state of the world where the UCP wins and eliminates the Alberta carbon tax, we’d maybe have a few months of no carbon pricing,” Jennifer Winter, assistant professor of economics at the University of Calgary, told The Narwhal.

That, she said, wouldn’t last long. “Then the federal system is put in place.”

For Winter, a made-in-Alberta policy means the policy can be tailored to suit the province’s needs.

“It’s about whether we think Alberta should have control of our policy and revenues.”

She points out that shifting to the federal system would result in a “shift in who’s affected by the carbon prices.”

Alberta’s system, she said, is “means tested,” meaning that rebates are based on income. In the federal system, she added, “everyone who files taxes receives a rebate.”

She also notes that Alberta has negotiated a temporary exemption for some aspects of conventional oil and gas production from having to pay carbon taxes. That sector, she said, represents “a substantial amount of Alberta’s emissions.”

Moving to the federal carbon tax means the end of that temporary exemption, and could actually increase the amount those producers pay.

Kenney’s response to the imposition of a federal carbon tax if he scraps Alberta’s plan? “We will sue.”

8. Emissions trends

According to the NDP’s platform, Alberta’s greenhouse gas emissions have dropped 16 per cent since the party implemented its climate leadership plan — a plan the party plans to continue to implement.

The UCP’s platform says it is “committed to responsible energy development and that includes action to mitigate greenhouse emissions and reduce their contribution to climate change.”

Either party will face a momentous challenge, with recent reports indicating Canada is warming twice as fast as the rest of the world, the earth’s glaciers are shrinking faster than previously thought, the Arctic is entering an “unprecedented state,” and more climate-related extreme weather events are happening in Alberta.

And that’s just the beginning.

“The Alberta NDP have done a lot relative to previous governments,” Hussey noted of the party’s environmental track record, “but way less than is scientifically necessary to address the size of the climate crisis.”

“On the other hand, for their main competitor — the UCP — their plan is to undo everything the NDP has done.”

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There’s little doubt Alberta is chock-full of oil and gas wells. There’s a well for every 1.5 square kilometres in this province — wells in the middle of farmers’ crops, wells submerged in ponds, wells in the prairies, wells buried under sheds in people’s backyards, wells in forests and even wells smack dab in the middle of playgrounds.

What’s less certain is when all these wells are going to be cleaned up.

According to the Government of Alberta, there are an estimated 343,000 wells in this province. Half of those — roughly 50 per cent — are no longer active.

The government estimates 77,000 wells have been plugged — known in the industry as “abandoning” — and another 90,000 are sitting inactive. Those inactive wells are not yet plugged, and neither category has been reclaimed.

The vast majority of these are wells that still have a rightful owner who is supposed to pay for their clean up.

But in Alberta, there’s currently no requirement as to when they do that — in theory, a company could leave a well unreclaimed, indefinitely.

As for the hope that inactive wells are just temporarily idle, and might one day be put back into production, a paper from the University of Calgary predicts that “most inactive wells will likely never produce oil or gas again.”

With estimates published last year that put the total price tag on cleaning up Alberta’s wells at $100 billion, the issue is on the minds of many Albertans — as well as politicians — as Albertans get ready to head to the polls on April 16.

We took a look at what Alberta’s two major parties have to say about the province’s well-liability issues.

NDP promises timelines, UCP acceleration of drilling approvals

The NDP’s platform, released on Sunday, promises to implement timelines for reclamation of oil and gas sites, saying it “will implement clear timelines for when companies need to clean up their abandoned oil and gas wells and require them to justify delays in reclaiming sites.”

States like Texas, North Dakota, Alabama and Nevada have timelines in place to ensure oil and gas companies clean up their sites in a set amount of time. According to a report by Lucija Muehlenbachs, an associate professor of economics at the University of Calgary, “in the U.S., the time limit on suspension ranges from six to 300 months.”

The UCP platform, on the other hand, makes no mention of timelines, other than to note that it will speed up the approval of new well sites.

On Tuesday, Kenney stood in front of a pumpjack and a herd of cattle in Turner Valley and told reporters there would be a “rapid acceleration of approvals,” noting the UCP would “establish legislated benchmarks for approval times” on new wells, but did not specify if timelines would be imposed on cleanup of the hundreds of thousands of old ones.

The party’s platform does note that a UCP government would “increase the rate at which wells that will not be used again are officially ‘abandoned,’ ” though it remains unclear what this might entail.

Alberta’s current system relies on a cost-benefit analysis for the company. The company is required to pay rent to landowners when a site sits unreclaimed on their land. Once the company obtains a reclamation certificate, that obligation is over.

The trouble is, many companies have simply stopped paying rent to landowners, forcing the government to step in and pay it for them. The Narwhal reported earlier this year that government payments to landowners on behalf of delinquent companies are up 840 per cent since 2010.

In the meantime, inactive wells languish on the landscape, posing risks for soil and water contamination, release of greenhouse gases, air pollution or explosions.

Inactive oil and gas wells in Alberta. Map: Fuzeium

UCP: Encouraging reclamation by asking for federal tax incentives

The UCP has two specific ideas for incentivizing reclamation, though they both come in the form of requests to the federal government.

First, the party says it will ask the federal government to provide tax incentives and “financial support,” including what they call “green flow-through shares.” A flow-through share would apparently allow an investor to purchase shares that would pay for reclamation, then claim the cost as a federal tax deduction.

The UCP also plans to “urge the federal government to establish alternative financial vehicles that focus on environmental reclamation in the oil and gas industry, such as adapting Qualifying Environmental Trusts (QET) to include well decommissioning costs.” Essentially, this would allow companies to claim a federal tax deduction for any money set aside for future reclamation.

The NDP does not specify any tax incentives it would propose the federal government make for this purpose.

An end to sloughing off liabilities?

The National Observer reported last fall that the Alberta Energy Regulator had privately estimated the cleanup costs of oil and gas wells in the province to be $100 billion.

Many of those liabilities are traded around like sports cards, in what The Globe and Mail described as a “brisk trade in junk assets.”

There have long been concerns with the way companies are able to sloughing off their liabilities to financially precarious companies, who then may in turn go bankrupt and leave taxpayers with the bill.

The NDP is proposing a new way to evaluate a company’s viability prior to approving transfer of assets (and liabilities). It says it will “implement new corporate health measures on asset sales to prevent liability dumping as we continue to work with industry.”

Currently, the regulator relies on what’s called a liability management rating system. In this system, a company’s assets (essentially an estimate of the money it makes from oil and gas production) are measured against its liabilities (the cost to seal and clean up all its infrastructure) to establish a ratio. If the company’s ratio of assets to liabilities is less than one, it must pay a deposit on cleanup. As The Narwhal reported last year, this system has been found to be dramatically exaggerating assets and underestimating liabilities.

A corporate health tool would, in theory, take into account more parameters than the current system.

The UCP makes no mention of a corporate health tool, saying only that  it will “work jointly with the AER and industry to overhaul the liability management framework in Alberta, ensuring liabilities are covered without unduly discouraging new investment.”

Implications for the long-term

Everyone agrees — Alberta has too many inactive and unreclaimed wells, and there’s a potential for disaster if something isn’t done, and soon.

Much has been made of the importance of getting more wells through the reclamation phase. Once a well is certified as reclaimed, it removes the liability from a company’s balance books. At least on paper, it looks like the problem has been solved.

However, concerns have been raised about whether the rush to issue reclamation certificates has been leading to subpar work — and whether that has long-term implications for the Alberta landscape.

Under Alberta regulations, companies have a responsibility to restore sites to something known as “equivalent land capability” — which means the land should be just as productive, ecologically or agriculturally, after reclamation as it was before the well was drilled.

The Narwhal reported last fall that a Government of Alberta pilot project found that the vast majority of certified reclaimed sites studied were not meeting the government’s own criteria — noting that certified reclaimed wells were, in general, in poorer condition than nearby references sites.

Farmers and landowners have told The Narwhal that they have long noticed that many sites are more likely to host invasive species and less productive crops.

On reclamation, the UCP says it will “streamline the process for well and facility abandonment and environmental reclamation to reduce costs.”

As The Narwhal reported last week, previous streamlining efforts have led to a regulatory system in which an inspector visits less than three per cent of sites that receive reclamation certificates, which has led some to refer to the Alberta Energy Regulator as a “bingo-dauber agency.”

On Tuesday, Kenney announced he would commit to a review of the Alberta Energy Regulator within 180 days of taking office, to “identify efficiencies.” It’s no secret that the UCP is committed to cutting red tape.

Albertans are left to wonder how the red-tape reductions would impact the landscape itself.

Both parties are eager to win the favour of a populace that is often portrayed as “defined by the health of our oil and gas industry.”

It remains to be seen how either party would ultimately deal with what’s been referred to as a “brewing disaster” here in Alberta.

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“If it requires a subsidy, we won’t do it.”

The leader of Alberta’s United Conservative Party, Jason Kenney, has vowed that no government money will go to support the province’s renewable energy industry if he is elected when voters go to the polls this spring.

“Part of the Alberta advantage must be competitive and affordable power prices. We will not replicate the disaster of Ontario Liberal power policies that the NDP is trying to copy in Alberta,” he told reporters last week.

Kenney’s comments raise two questions: would he keep contracts already signed by Rachel Notley’s NDP government? And does Kenney recognize that renewable energy contracts look much different in Alberta than they did in Ontario?

The difference between Ontario and Alberta

After Ontario Premier Doug Ford was elected last summer, he scrapped 758 long-term contracts with renewable energy companies and set out to eliminate the province’s Green Energy Act.

The province’s feed-in tariff models had generated controversy because they gave renewable electricity producers a guaranteed rate far above the average price for electricity. The public was outraged by rates ranging from 8.5 cents per kilowatt-hour to 80 cents per kilowatt-hour for small solar photovoltaic projects.

But Ontario’s program was drastically different from Alberta’s renewable electricity program.

“The mechanism that was used in Ontario was probably not ideal,” said Andrew Leach, University of Alberta associate professor of environmental and energy economics.

Leach chaired Alberta’s climate leadership panel, which proposed policies to the NDP government when it came to power four years ago. The renewables industry subsequently became a vital part of the plan to phase out coal power by 2030.

“One of the things that changed in Alberta was going to competitive procurement. So let the market compete for who can do it most cheaply,” Leach told The Narwhal.

In the Alberta model, renewable energy companies go through a competitive bid process. The lowest viable bid price proposed wins the contract.

So far, under this model, Alberta has given the green light to 1.3 gigawatts worth of wind power.

Capital Power, an Edmonton-based company, recently won a contract for the first phase of the Whitla wind project near Medicine Hat, Alta., with a bid of 3.9 cents per kilowatt-hour.

The average pool price of electricity last year in Alberta was 5 cents per kWh. If electricity prices rise, the renewable energy generator rebates the excess to the government. If the pool price is lower than the guaranteed bid amount, the province tops up the company’s return, as per the diagram below.

Image: Alberta Electric System Operator

Recent advancements in technology have seen global renewable energy costs plummet, and Alberta is no exception. Last week, the province’s NDP government announced it was signing a 20-year contract with Ontario-based Canadian Solar Solutions Inc. to bring 100 megwatts of power online in southern Alberta, at a cost of 4.8 cents per kilowatt-hour.

To put that in context, the average cost in the province of natural gas electricity using the lowest-cost technology — before a carbon tax is factored in — is 5.4 cents per kilowatt-hour, according to the Canadian Energy Research Institute. The same data says the average cost of wind power generation in Alberta has fallen to 5.2 cents per kilowatt-hour.

Could Alberta see cancelled contracts too?

With multi-decade contracts in place, it is unclear where Kenney stands on the cancellation of contracts. He said in last week’s press conference that he would not cancel what he called “good-faith contracts.” However, his bottom line was that he would not subsidize renewables. So would he uphold contracts with a minimum-price guarantee?

When the United Conservative Party media representatives were asked for comment they said the rest of the party’s platform would be revealed in due course.

“The challenge in renewables in Alberta has been the lack of availability of long-term power purchase agreements,” said Dan Balaban, the CEO and president of Calgary-based Greengate Power. “And that’s really what the Notley government implemented through its renewable electricity program.”

Balaban says he is confident the industry will remain viable regardless of who wins the upcoming election, but he hopes the industry’s policies aren’t politicized.

Renewables ‘lowest cost source of power’

Leach speculates that Ontario’s feed-in tariff program has led to a “massive influence” over the perception of renewables in Alberta.

“I think in some ways Mr. Kenney’s comments are reflective of the impression that people have about renewables in Canada, in Alberta, in Ontario — that they’re more expensive and the only way you get them in the market at all is through large subsidies paying above-market prices for electricity.”

Balaban pointed out that growth in renewables used to be driven by environmental considerations and the need to address climate change. “But now that renewables are the lowest cost source of power generation that we have available to us, it also makes economic sense.”

Kenney did leave the door open to the growth of the renewables industry, saying “if more wind and solar can come onto the grid by competing on a market basis with other forms of power production, we’ll absolutely embrace that.”

“A lot of this stuff is right now being subsidized by the carbon tax, which we’re scrapping on Day One of the legislature. So no carbon tax [and] no subsidies for power sources and power that are higher than the market rate.”

Even without cost guarantees, Leach said it’s not likely renewables will disappear. But he said eliminating cost guarantees would make financing the initial capital investment for wind or solar farms much more challenging.

“That doesn’t mean that the project wouldn’t make money in the long term. It just means that it’s harder to finance.”

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With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.

Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.

“[B.C.] can enact constitutionally valid legislation when it comes to protecting the environment, as long as it’s not specifically targeted at a federal project like the Kinder Morgan pipeline,” Stacey told DeSmog Canada.

“A court’s going to have to take a look at that to make sure that that legislation is actually with respect to the environment, not in relation to a federal undertaking,” Stacey said.

“The question that arises after that is: well what happens if that provincial legislation, even if valid, conflicts or would impair the pipeline?”

This is the question the courts will try to answer with B.C.’s reference case.

“The court needs to have the actual content of those regulations so that it can discern whether those regulations are valid and then, assuming they’re in relation to the environment, being able to assess whether or not they would impair the pipeline project,” Stacey said.

The specifics of the regulations are not yet available, but in January B.C. announced a proposal to restrict the transport of diluted bitumen until a scientific inquiry into the impacts of a spill could be completed alongside a proposed new proposed regulations under B.C.’s Environmental Management Act to improve oil spill response and recovery.

‘The constitution at work’

Stacey echoed comments made to DeSmog Canada last week by Jack Woodward, who drafted Section 35 of the constitution on aboriginal rights.

“They’re not getting how the constitution works,” Woodward said in response to statements by Alberta Premier Rachel Notley and Prime Minister Justin Trudeau implying B.C.’s actions are illegal or unconstitutional.

“It’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

Stacey called the debates over the pipeline “the constitution at work.”

“Every major development project is subject to both federal and provincial legislation, as well as local bylaws and in some cases Indigenous law as well,” she said.  

Most things regulated by multiple levels of government

Most things in Canadians’ daily lives are regulated by multiple levels of government and pipelines like Kinder Morgan Trans Mountain are no different.

Stacey points to pesticide use as an example of something that is regulated by all three levels of government in a compatible way.

“The most restrictive level of regulation in many cases is at the local level, where many municipalities have bylaws that prohibit the use of cosmetic pesticides,” Stacey said. “And because that doesn’t conflict with any higher level of government, all three levels of regulation are still allowed to exist and operate harmoniously.”

But what happens when different levels of governments are feeling less harmonious?

The billion-dollar question now is: what kind of regulations can B.C. come up with that don’t cross the line into “impairment” of the pipeline?

One example would be implementing additional permitting requirements.

“So in order to increase the transport of bitumen, any prospective transporter would have to submit certain documentation and fulfill certain reporting requirements about emergency response for example before the province would grant an approval,” Stacey said.

That type of legislation would build on the B.C. Supreme Court’s decision in the Coastal First Nations case against the Enbridge Northern Gateway pipeline, where the court recognized that the pipeline disproportionately affected B.C.’s interests.

In that case, the province of British Columbia and Enbridge Northern Gateway were ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations. The B.C. Supreme Court found the province erred when it signed an agreement that granted environmental decision-making authority for the pipeline to the federal government.

The concern over bitumen spills was also addressed in the National Energy Board’s conditions for the approval of Trans Mountain.

“One of the conditions … that Kinder Morgan has to comply with under the NEB approval is it has to satisfy the NEB that it can and is prepared to clean up a bitumen spill in any environment under any conditions before the pipeline is allowed to start operation,” Stacey noted.

“This isn’t something that B.C. is coming up with out of thin air. This is actually a problem that’s been recognized by the NEB and has been agreed to by Trans Mountain in moving forward with this project.”

Which leads us to the next billion-dollar question: can Kinder Morgan prove it can clean up a bitumen spill, given the lack of basic research on the issue?

“Even if B.C. can’t impair the operation of the pipeline, it might be that by moving forward with some conditions, it can access information that it doesn’t otherwise have access to that would allow B.C. to better prepare for a spill response.”

During the National Energy Board review, Kinder Morgan refused to provide its oil spill response plan to the B.C. government, citing security concerns.

“It goes back to a dissatisfaction with the NEB’s process in evaluating the pipeline and I think a concern that the NEB is not going to be a regulator that sufficiently protects B.C.’s environmental interests,” Stacey said.

“B.C. likely wants to have a little bit more control and insight over pipeline operation.”

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In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.

“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”

In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.

In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.

So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.

“The government of Alberta will not — we cannot — let this unconstitutional attack on jobs and working people stand,” Alberta Premier Rachel Notley said after the B.C. government announced its intention to limit the transport of diluted bitumen through the province in January.

“She’s completely wrong about that,” Woodward told DeSmog Canada. “And if she was right, she could go to court. But she knows she’s not right, so that’s why she’s using that word as if it is a political tool rather than a legal tool … That’s a superficial and incorrect view of how the Canadian constitution works.”

Woodward says Notley is referring to pre-1982 classic constitutional questions about the divisions of powers between federal and provincial governments.

“But since 1982, you also have the additional complexity of constitutional protection of aboriginal rights, which in some cases override either federal or provincial powers,” Woodward said.

Indigenous rights are not a footnote in the ongoing constitutional saga over the the Kinder Morgan Trans Mountain pipeline — they’re at the centre of it. And yet, they’re virtually absent in media coverage of Canada’s pipeline pandemonium.

Beyond Indigenous rights, landmark rulings such as the Tsilhqot’in decision have emphasized something called “co-operative federalism.”

“The modern trend of federalism is that nobody has the upper hand — and everyone has to work it out,” Woodward said.

Prime Minister Justin Trudeau’s statements on the Trans Mountain pipeline also seem ignorant of that reality.

“Look, we’re in a federation,” Trudeau has said. “We’re going to get that pipeline built.”

But Canada’s constitution governs by the principle that you err on the side of allowing two different laws to exist if at all possible, Woodward says.

“So it’s true that Canada could authorize a pipeline, but it’s also true that B.C. could probably  govern safety aspects of that pipeline within B.C. including regulation of hazardous products, such as diluted bitumen,” Woodward said.

United Conservative Party Jason Kenney may opine that the inability of a Texas-based company to build a pipeline means “Canada is broken,” but in reality, this is exactly the way federation was designed to work.

“It’s simply not credible that all aspects of provincial constitutional jurisdictions can be crushed by a federal pipeline law,” Woodward said. “Some of them must prevail.”

A law clearly directed at protecting the health and safety of the residents of Burnaby and Vancouver would be a strong law within provincial jurisdiction, Woodward said.

“Just because the federal government has jurisdiction over pipelines doesn’t mean that they can sterilize the provincial jurisdiction over health and safety.

“Similarly, protection of the land and marine environment, that’s pretty potent. The protection of habitat for fish, even preventing oil spills because of the devastating impact it would have on tourism — that’s valid provincial legislation.”

Woodward said instead of throwing the constitution around as if it’s a “political slogan,” everyone is better off to let the courts do their job.

“Horgan is right to have this calm and patient attitude because what’s the point of jumping up and down and screaming ‘I’m right, you’re wrong’? It’s going to be decided by a judge.”

On Thursday a summit between Notley, Trudeau and B.C. Premier John Horgan was announced for this Sunday. Horgan vowed not to back down on preparing a court reference.

“We are in a court of law, which is what civilized people do,” Horgan said. “I don’t feel there is any need for sabre-rattling or provocation or threats. I will defend to the end the rights of British Columbia to defend our coast.”

What about Notley and Trudeau, who don’t seem to want to wait for a court ruling?

“Short of going to court, politicians can get legal advice and their legal advice will be the same as what I’ve said to you, which is there’s no black and white here. This is a grey area. It’s a series of grey areas, where the different aspects of federal and provincial jurisdiction and aboriginal rights collide.”

It’s unreasonable to expect these conflicting rights to be resolved by the end of May.

“When I hear Kinder Morgan having a little hissy fit and saying they want a decision by the end of May, I just laugh,” Woodward said. “You can’t decide all of these things by May. This is an irreversible decision, so it should take some time.”

As for the oft-repeated belief that what B.C. is doing is illegal or unconstitutional, Woodward says “if that’s the prevailing wisdom, they’re all wrong. They’re not getting how the constitution works.”

“Everything in Canada is moderated. You don’t have absolute rights,” he added.

What’s more, Woodward said the federal government’s jurisdiction over interprovincial pipelines needs to be seen in the context of the times.

“When that power was given to the federal government, it was not contemplated that there would be such enormous environmental consequences. They didn’t even think about climate change, for example. They didn’t think about catastrophic oil spills and tanker traffic. They were just trying to clear up regulatory clutter, so that one jurisdiction could create a uniform regulatory system. It was never intended that the federal jurisdiction over interprovincial pipelines would utterly trounce the underlying provincial jurisdictions over health and safety and property rights and the environment.”

As for the notion that Canada is in a constitutional crisis, Woodward disagrees.

“We have one of the oldest written constitutions in the world. It has survived far worse crises than this and it will survive into the future. Our constitution has embedded into it flexibility, ability to change, a fundamental ability to grow with the times,” he said. “There’ve been far worse constitutional crises.”

Woodward pointed to the time in the 1930s when the entire banking legislation of Alberta was struck down by the Supreme Court of Canada as an example.

“Now that’s a constitutional crisis much worse than this,” he said. “This pipeline already exists and we’re talking about expanding it. Alberta has taken a matter of degree and decided to characterize it as a fundamental point of principle or point of departure and they’re simply wrong about that. It’s not a constitutional crisis.”

The bottom line is that this pipeline punch-up will ultimately get resolved in typical Canadian fashion, according to Woodward.

“It’s all going to be worked out through the standard Canadian process of compromise.”

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Kinder Morgan’s decision to suspend work on its controversial $7.4-billion Trans Mountain pipeline looks like a another corporate attempt to blackmail Canadian governments.

On Sunday the Texas-based company, which emerged from the ashes of scandal-ridden Enron, abruptly announced it was suspending all “non-essential” work on the export pipeline.

Steve Kean, CEO of Kinder Morgan Canada, blamed the B.C. government for the suspension — even though the National Energy Board has not approved construction for any portion of the project but the Westridge marine terminal in Burnaby.

Even Kinder Morgan has repeatedly acknowledged the reality of setbacks in presentations to investors, citing “a potential unmitigated project delay to December 2020” as recently as last month.

Still, Kean blamed B.C. “What we have is a government that is openly in opposition and has reaffirmed that opposition very recently,” he said.

But aren’t democracies supposed to challenge projects that impose unprecedented economic and environment risks on their citizens?

Wouldn’t a tanker spill of diluted bitumen in the Salish Sea, where one-third of western Canada’s population lives, be an economic and environmental catastrophe, devastating tourism, property values and marine life?

Wouldn’t the doubling of tolls on the expanded pipeline, as approved by the National Energy Board, raise gas prices for British Columbian motorists by $100 million a year? The pipeline now supplies southern B.C. with most of its petroleum.

Won’t Alberta, by exporting diluted bitumen to Asian refineries, repeat the original Canadian sin of failing to add value to resources at home, giving up thousands of jobs and billions in revenue?

How can exporting one of the world’s most carbon intensive fuels help fight climate change?

And can’t corporations with viable projects accommodate citizens, courts, First Nations and economists who think such costs and liabilities should be properly accounted for?

But Kinder Morgan prefers bluster and blackmail instead of the reality that the project was never a sound venture because it was about privatizing gains and socializing costs.

Economist Robyn Allan has repeatedly argued that Kinder Morgan is no ordinary company and the Trans Mountain expansion project has been uneconomic since day one.

She told The Tyee that “Kinder Morgan is looking for an exit strategy, but it likely includes a need to demonize Ottawa in order to set the stage for a suit under NAFTA.”

The drama begins with the biased workings of the National Energy Board, which refused to look at downstream and upstream climate impacts of the project and even failed to scrutinize its commercial viability during public hearings.

The best evidence from experts shows that Kinder Morgan, the Canadian government and Notley have misrepresented the pipeline’s illusory benefits.

A pipeline to the coast will not raise bitumen prices, because all global markets discount junk crude due to its poor quality.

The ill-conceived project will export refining jobs and great clouds of climate-changing emissions to China. In addition tanker traffic place southern resident orcas at risk.

The Houston-based firm that Prime Minister Justin Trudeau and Alberta Premier Rachel Notley now salute as a defender of Canada’s national interest is the spawn of Enron, found guilty of accounting fraud and corruption. The energy trader’s collapse cost shareholders $74 billion and killed 20,000 jobs.

Kinder Morgan, a dirty and unsexy mover of gas and oil, began as Enron Liquids Pipeline in 1997. Enron alumni continue to populate the senior ranks of Kinder Morgan.

They include Richard Kinder, a Texas billionaire and Kinder Morgan’s chair. He worked at Enron for 16 years. Jordan Mintz, the chief tax officer, served as the vice-president of Enron’s tax division from 1996-2000.

Kean, the man now baiting Canadian governments, worked as Enron’s senior vice-president of government affairs. And so on.

These Enron alumni probably think Canadian politicians are the ultimate pushovers and dimwits.

During the 2014 NEB Trans Mountain hearings the U.S. parent firm vowed to provide 100 per cent of the debt and equity for the pipeline.

But after a Wall Street analyst suggested the third largest energy company in North America wasn’t spending enough to maintain its pipelines or returning value to investors, the company’s share price fell. Kinder Morgan’s stock value plummeted in 2015 and continues to languish. Lower oil prices and rising debt put its largest capital project on shaky ground.

Allan says investors recognized a year ago that the Trans Mountain project didn’t make commercial sense. As investor interest waned, Allan said, Kinder Morgan couldn’t raise debt or equity in the U.S. markets or find a joint-venture partner.

The job of raising money for the project then fell to Kinder Morgan Canada. But $1.6 billion it raised in 2017 went to pay off debts of its parent company.

Richard Kinder explained the move in a conference call with investors: “So we were able to strengthen KMI’S balance sheet using the IPO proceeds to pay down debt… ”

Kinder Morgan Canada has arranged $5.5 billion in construction facility loans from Canadian banks — but only if Kinder Morgan raises $2 billion in equity for the project.

“And now we learn from Premier Notley and Kinder Morgan Canada CEO Steven Kean that conversations with Alberta for financial support have taken place,” says Allan.

Rachel Notley, Canada’s leading petro politician, apparently can’t wait to pour taxpayers’ money into a project that the market views as high risk and that British Columbians regard as a threat to their best interests.

“Alberta is prepared to do whatever it takes to get this pipeline built — including taking a public position in the pipeline,” Notley said Sunday.

So corporate blackmail works like a charm in Canada.

Allan says Kinder Morgan is looking for a way out.

“The project is not commercially viable and, even before it’s built, Kinder Morgan is looking for a bailout,” she said. “If Kinder Morgan’s long-term contracts for moving 700,000 barrels of bitumen and oil on a controversial pipeline were solid, would Kinder Morgan now be blaming the government of B.C. for its problems?”

In a normal world governments concerned about fiscal prudence and the public interest would let Kinder Morgan abandon a non-viable project. (Some analysts have already said cancelling the project would be a “significant blow,” but not “the end of the world for Kinder Morgan.”)

In a moral world Canadian governments would admit that pipelines and tankers export refinery jobs and greenhouse gas emissions on a disastrous scale.

In a just world Alberta would have to admit it has allowed industry to overproduce bitumen due to low royalties and bad governance. The province has no strategic plan for bitumen other than screaming for pipelines.

But Canada, like its southern neighbour, is having trouble behaving normally, morally or justly these days.

But Trudeau and Notley think it’s OK to embrace a debt-ridden U.S. company so it can export, via tankers, unrefined bitumen to Chinese refineries where the upgraded resource can enrich the authoritarian Communist party.

Canadians should be more than ashamed.

They should be alarmed.

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As the national conversation about the Kinder Morgan Trans Mountain pipeline goes thoroughly bananas, one thing is becoming crystal clear: this conflict is likely to get worse before it gets better.

Thankfully, there are people out there who specialize in resolving conflicts like this — people like Canadian Adam Kahane who has been credited with helping to end Colombia’s civil war.

For Kahane — the author of the book Collaborating with the Enemy: How to Work with People You Don’t Agree With or Like or Trust — the most striking thing about the pipeline debate is that the rules are not clear.

“The question of who gets to decide on what in Canada between the provincial and federal governments on one hand and Indigenous rights holders on the other hand is not settled,” he told DeSmog Canada in an interview.

While many statements by politicians pretend there’s one right answer and agreement about what’s in the “national interest,” that too is up for debate.

“To say ‘this is what’s needed for the good of the nation’ gives an overly simplistic answer to a very difficult question, which is: whose good is being talked about here?” Kahane said.

And then there’s the question of whether the hysterical political statements are part of a negotiation strategy we’re not aware of.

“People say all sorts of things to try to shift the terrain to their advantage,” Kahane said.

We asked Kahane to shed some light on the dynamics at play in the pipeline debate, based on his experience mediating conflicts around the world.

What do you think about the heated rhetoric that’s happening with our political leaders right now?

I was very surprised at the rhetoric, especially when Trudeau and Notley both said … within the last few days ‘this is going to happen.’ That surprised me because it’s not the sort of thing politicians normally say.

I would have expected them to say ‘we’re going to try to find a way forward’ and ‘this is complicated, but no doubt we can work it out.’ But when you say ‘this is going to happen’ for me it means two things: first of all, that there’s only one correct answer to this. It has to be this way. And mostly when there are disputes like this, actually the way to move forward is to make some sort of compromise or new idea. The way things end up is not the way things are at the beginning.

That’s an unusual thing to say about a complicated and contentious situation.

The second thing is when someone in authority says ‘it is going to happen,’ it implies that if necessary they will impose it … Usually you impose things only when finding a mutually agreeable solution has proven to be impossible or where the other actor is illegitimate. So it’s an unusual thing to say about a public policy issue.

Have you seen situations before in different contexts where a government has started to say ‘this will happen’ when there’s a contentious situation? Does it bring up any parallels for you?

Yes, absolutely. Governments and other people with power often say ‘it’s going to be like this.’

What’s interesting to me about all the people who are saying ‘it’s going to be like this’ is: what is their power to impose the solution they want?

Does the federal government have the power — constitutional, regulatory, financial or, in an extreme situation, with security forces? Does the government of Alberta have the power, including through the trade sanctions that have been discussed? But similarly do the opponents of the pipeline have the power — legal or political or through their willingness to protest and be arrested? Does anybody have the power to impose the solution they want regardless of the others? And if not, then who is going to negotiate?

Normally when there’s a situation where different people want different things, there’s a lot of fuss and eventually some kind of agreement is come to. In the end, it’s not a unilateral solution. It’s a negotiation or collaboration or whatever you call it.

What I can’t tell is: to what extent are the statements … really meant as a declaration of unilateralism … or is it part of a negotiation? That’s not clear to me. Are the people making these statements on all sides announcing their intention to force … or are they simply being vocal about their positions as part of a negotiation or collaboration?

For me, what makes this very complicated and unusual is the question: who has power over what is not clear because there are many constitutional questions here including, I think, questions about the power and authority — political, constitutional, moral authority — of different First Nations groups. It’s not as though there’s this one rule here, everybody knows what the rule is and the question is who’s following the rule or not following the rule. No, the rules about who gets to decide about what, especially about land use in unceded territory, is not settled in Canada.

It seems like in much of the news coverage and political statements on this, there isn’t much addressing of the real differences that are at play. There’s a lot of posturing, but there’s almost a logic schism. People aren’t discussing the same thing. Is that something that you come across often in your work?

Yes, and I would go further than that. I think there is not an acknowledgement that there are real differences, that there are multiple conflicting objectives. Many statements are pretending that actually there is one right answer, but something that makes it even more difficult is that there is not acknowledgement that when we talk about the good of the whole, that there’s not one whole. There are many wholes here. So when many people say ‘the good of the nation,’ what is that? Canada? Alberta? B.C.? Burnaby? The different First Nations that are affected by the pipeline?

To say ‘this is what’s needed for the good of the nation’ gives an overly simplistic answer to a very difficult question, which is: whose good is being talked about here?

When B.C. people say, ‘this might be good for Alberta, but it’s not good for those of us along the coastline of B.C.,’ not only are there real differences that are not being discussed, there are different wholes that are being ignored. The fact that there is not one superior whole in Canada — the fact that it’s a confederation of multiple wholes where the rules about some of the wholes, especially the Indigenous wholes — makes it difficult to assert that this is the one correct answer.

And yet that is something that we see. Is that common in political rhetoric that you see around the world, this assertion of one correct answer when it’s quite obvious to anyone who’s paying close attention that there isn’t one correct answer?

It’s very common that politicians or chief executives or community leaders, it’s very common that authorities say ‘it’s like this. This is what matters. This is the good of the whole. This is the correct answer.’ They try that and sometimes it works and sometimes they simply don’t have the capacity to impose their answer.

That’s what’s really not clear to me about this situation is when Prime Minister Trudeau says ‘it’s going to be like this’ does he actually have the constitutional and political and moral authority to make it like this? It doesn’t look that simple to me.

People do this all the time, all around the world and in every sphere of life … That’s called forcing and sometimes it works, but the problem with forcing, as everybody knows is I try to make it the way I want it to be, you don’t like it and you push back and we either ping pong back and forth or we get stuck. That’s the problem with forcing.

Have you seen situations like this play out in Canada before, where there’s been these statements that a leader will impose their desired solution upon a certain jurisdiction?

I don’t think it’s an analogy, but it’s another interesting example of this. I was talking to somebody today about: what are different ways that different actors have tried to impose an answer to the question of Quebec separatism?

The FLQ tried to impose an answer through, amongst other things, kidnappings and bombings in the October crisis. Then Prime Minister Trudeau tried to impose an answer first through the use of the military and then through a constitutional settlement, then the PQ government tried to create an answer through the referenda. And actually, in each of these cases, people were trying to say ‘it’s going to be like this, we’re going to make it like this’ and it actually didn’t turn out like this. The story keeps going and keeps unfolding in unexpected and unpredictable ways.

With respect to the current situation, that the people who are saying ‘it has to be like this’ — whether it’s the Alberta government or the B.C. government or the federal government or the protesters — I’m not confident that any of those people have the way to make it the way they want it to be. And furthermore, I’m not confident that if they do succeed that it will last. That’s the problem with forcing is it tends to be temporary. Eventually the people who were on the losing side of it find a way to get back in the game.

I’m interested in such situations in how is it possible to find a way forward collaboratively, through negotiation. This is what I’m not seeing in this current situation. Maybe it’s taking place behind the scenes, but I don’t see it.

The dialogue is very heated and quite polarizing. At the same time, when I think about the situation, sitting down and trying to collaborate, on some issues maybe there isn’t a middle road. What if there isn’t a collaborative solution in the sense that B.C. simply doesn’t want a new oil pipeline and Alberta absolutely does want a new oil pipeline?

I don’t believe that there’s only two answers — that either there is a pipeline as currently proposed or there isn’t. I don’t know what they are, but I’m confident that there’s more than two options. Options about safety, options about governance, options about economics, options about control, options about volume, options about all kinds of things.

Nelson Mandela once said that one of the features of the complex is the way things end up can’t be seen from the beginning. The exact quote is: “One effect of sustained conflict is to narrow our vision of what is possible. Time and again, conflicts are resolved through shifts that were unimaginable at the start.”

One of the features of these conflicts is polarization. There are lots of different ways to do things and I don’t know whether a solution that works for more of the wholes can be arrived at, but stating that it either has to be my way or no way doesn’t move us forward much.

I don’t believe the statement that it’s either like it is now or it’s the opposite. This is not plausible to me.

You raise this interesting tension that there’s likely this negotiation or collaboration happening behind closed doors and there are also these public statements that are potentially playing some role in that larger negotiation game.

Probably. Maybe all of this is just part of the negotiation. That would be a normal thing. People say all sorts of things to try to shift the terrain to their advantage … I suppose in a constitutional democracy if you really litigate everything to the Supreme Court, there’ll be a right answer and a wrong answer, but that’s a long road. Maybe that’s how the answer will be arrived at.

That’s why some things in Canada have to be settled in the court.

This interview has been lightly edited for clarity and brevity.

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No, it wasn’t a weird dream, Alberta actually announced a boycott of B.C. wine on Tuesday.

The announcement by Premier Rachel Notley is just the latest move in an inter-provincial spat over the Kinder Morgan Trans Mountain pipeline, which would carry oil from Alberta to B.C.

It started with last week’s proposal by the B.C. government to guard against a potential oil spill. The province announced it will set up an independent scientific advisory panel to look at how diluted bitumen can be safely transported and cleaned up, if spilled.

Until the “behaviour of spilled bitumen can be better understood” B.C. will restrict increases in transportation of the substance through the province. Diluted bitumen is a mixture of thick unrefined oil from the oilsands and natural gas condensate, which acts as a thinner (and is also extremely explosive as recently witnessed in the Sanchi tanker explosion.)

Notley retaliated almost immediately, saying she was ending electricity trade negotiations with British Columbia. But yesterday the Globe and Mail revealed electricity talks had actually broken down last year.

What happened next is one of the more bizarre twists in Canadian politics in recent memory. Instead of reaching for a glass of wine, Notley came up with a real threat this time and announced the Alberta Gaming and Liquor Commission will immediately halt the import of all wines from its western neighbour. Apparently Albertans drank more than 17 million bottles of B.C. wine last year (for those who are counting, that’s nearly four bottles of wine for every man, woman and child in Alberta).

You could be excused for being a bit confused by how we got to this point. How did a discussion about oil spill risk and pipelines so quickly degenerate into one about non-existent electricity negotiations and alcohol? What is this really about? What’s fact and what’s fiction?

Let’s start with the oil spill risk, since that’s where all this fun began.

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

As of right now, it’s not clear whether the substance will sink or be suspended in water if spilled.

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.

Despite that, a 2012 Enbridge study found dilbit did not sink in a laboratory environment. Then in 2014, a report released by the federal government found dilbit sinks when mixed with sediment.

Didn’t someone already consider all this before approving the pipeline?

Kinda. The National Energy Board (NEB) review of the Trans Mountain project discussed the possibility of a marine oil spill and determined that the risks “are acceptable.”

But it also clearly signalled that it was making no recommendations about anything relating to shipping. Take this statement from page 18 of its recommendation report: “The Board conducted an environmental assessment of the Project (as stated above, the Board does not regulate marine shipping and the increased Project-related marine shipping is not part of the Project).”

This is how the board got around considering impacts on endangered marine species, such as the southern resident orcas.

The National Energy Board also didn’t consider the upstream greenhouse gas emissions related to producing the oil to fill the pipeline. A ministerial panel set up after Prime Minister Justin Trudeau took office attempted to address gaps in the original review and issued a report that posed six key questions, including: “Can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?”

There is no clear understanding of how that report factored into cabinet’s decision to approve the pipeline.

All of which is to say: when Prime Minister Justin Trudeau says his government made a “science based” decision, you’ve got to take it with a grain of salt.

But isn’t B.C. already transporting diluted bitumen?

Yes, it is, but to understand the current controversy, you need to rewind to 1953, when the original Kinder Morgan Trans Mountain pipeline started operation.

There was no oilsands development at that time, so the pipeline was transporting conventional oil. Decades later, when the pipeline began transporting diluted bitumen, there was no formal consideration given to the fact a new substance was being shipped through the pipe — hence the current controversy.

The new Trans Mountain pipeline would increase the system’s capacity from 300,000 barrels a day to 890,000 barrels a day.

Notley doesn’t think B.C. should have a say over what goes in the pipeline.

“They have every right to talk about protecting their environment and to work on protecting their environment and come up with best practices for marine safety and otherwise, but they don’t have the right to tell Alberta what does or does not go into that pipeline,” she told CBC.

The pipeline, Notley argues, is key to protecting Alberta’s economy from the stifling effects of a lack of export options. But while Alberta is worried about its economy, B.C. is worried about its own.

“The potential for a diluted bitumen spill already poses significant risk to our inland and coastal environment and the thousands of existing tourism and marine harvesting jobs,” B.C.’s Minister of Environment George Heyman said last week. “British Columbians rightfully expect their government to defend B.C.’s coastline and our inland waterways, and the economic and environmental interests that are so important to the people in our province.”

Here’s What Alberta’s Wine Boycott is Really About https://t.co/TlBrVp4tD6 #oilsands #bcpoli #ableg #wineboycott #climate pic.twitter.com/T1NT83urTI

— DeSmog Canada (@DeSmogCanada) February 7, 2018

But, here’s the thing: the pipeline has become about much more than the oil that runs through it.

Let’s start with Indigenous rights.

Several B.C. First Nations have been steadfastly opposed to the construction of another oil pipeline through their territory. While Notley was dominating the headlines on Tuesday, the Tsleil-Waututh First Nation — which is also challenging Trans Mountain in court — was launching a call for mass demonstration to protest the pipeline.

The federal and provincial governments has committed to respecting the United Nations Declaration on the Rights of Indigenous Peoples, which includes the principle that First Nations be afforded the right to free, prior and informed consent over projects that impact their traditional territory.

At a town hall event in Nanaimo last week, Trudeau said: “It is in the national interest to move forward with the Kinder Morgan pipeline and we will be moving forward with the Kinder Morgan pipeline.”

Pipeline battles have become a proxy for the larger climate change debate.

Repeat after me: It’s an export pipeline. It’s an export pipeline. It’s an export pipeline.

Any argument that starts with “that B.C. wine was shipped in a truck using Alberta oil” or “how do you think all you West Coast hippies are going to get to work?” is fundamentally flawed.

Things Canada has control over: its own demand for oil. Its supply of oil to the world.

On the demand side, Canada’s consumption of heavy crude oil is pretty steady, according to the National Energy Board’s energy supply and demand projections to 2040.

NEB Supply and Demand Balance to 2040. The green line is exports, the red line is domestic use.

The crux of the climate debate over Trans Mountain is about the supply side: at a time in history when we know we need to leave 80 per cent of known fossil fuels in the ground to stand a chance of limiting catastrophic climate change, should we be expanding extraction and building new infrastructure to export that oil?

How you answer that question likely factors into how you feel about this pipeline brouhaha — especially if you don’t live on the coast, where an oil spill is the primary concern.

But if we don’t provide the world the oil, won’t someone else?

Some people argue this type of “supply side environmentalism” (fighting fossil fuels at their source) is flawed and that if Canada doesn’t provide the world with oil, someone else will.

Other people say this type of strategy is the only thing that created the space for any meaningful conversation to happen around oilsands and climate policy.

“Climate change is inherently difficult to organize around; it’s big, abstract, and incremental. By the same token, broad, economy-wide policies to address it are also big, abstract, and incremental,” David Roberts wrote for Vox in an excellent piece about backlash to Keystone XL climate activism.

Indeed, if you rewind just a few years, the Alberta government had very little interest in reducing the environmental impacts of the oilsands — from the liability of the toxic tailings lakes to the carbon emissions.

But now that Notley’s NDP government has made some progress on the climate file — implementing a carbon tax, putting a cap on oilsands emissions — some people think the opposition to pipelines should stop and environmentalists should move on to other strategies. That overlooks the inherent challenges of campaigning on climate change.

“If …  they can get hundreds of thousands of people in the street for a revenue-neutral carbon tax, they are welcome to try,” Roberts wrote.

Given what we know about fossil fuels and climate change “there have got to be some decisions made somewhere not to dig it up, not to build distribution infrastructure for it — to leave it in the ground,” Roberts writes.

Should that place be Alberta? Well, that depends on whether you’re an Alberta premier up for re-election in a year or if you’re a B.C. premier with a coastal economy at risk.

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The stand-off between Alberta and British Columbia over the Kinder Morgan Trans Mountain pipeline seems to grow in intensity by the minute.

On Tuesday the B.C. NDP announced a proposal to restrict the flow of diluted bitumen from the oilsands through the province until further scientific study is conducted on its behaviour in water.

Alberta Premier Rachel Notley fired back on Twitter, arguing B.C. “does not have the right to re-write our constitution & assume powers for itself that it does not have.”

Since then, Alberta has suspended talks over $500 million in annual electricity imports from B.C. and Prime Minister Justin Trudeau has hopped into the ring suggesting that national carbon pricing and ocean protection plan may not go ahead without the pipeline getting built.

Oh, and let’s not forget an Italian restaurant in Fort McMurray is no longer serving wine from B.C. in retaliation. It looks like a trade war is brewing between the provinces.

Amongst all of the politicking, it’s easy for the substance of the debate to be lost. The B.C. government is responding to a very real concern about the risk of a spill of diluted bitumen in water. In 2015 the Royal Society of Canada identified seven major knowledge gaps when it comes to the risk of a diluted bitumen spill in water. And B.C. has the responsibility to regulate hazardous substances under the B.C. Environmental Management Act.

It’s worth recalling that the National Energy Board review of the Trans Mountain project never even considered the impacts of oil tankers on the marine environment, so when Trudeau says his government made a “science based” decision, you’ve got to take it with a mega grain of salt.

At the same time, Notley also has very real concerns about the pipeline not going ahead, with the cost differential for Alberta’s oil widening, an industry that’s been hurting from the crash in the price of oil and an election around the corner.

DeSmog Canada chatted with David Moscrop — a political theorist, postdoctoral fellow at Simon Fraser University and regular contributor to Maclean’s magazine — about the unfolding situation.

“It’s really hard to say. Nobody wins from a trade war. Somebody might lose more than someone else. But nobody wins.” https://t.co/sAsdn5HzfL

— DeSmog Canada (@DeSmogCanada) February 2, 2018

The B.C. government seems to have been framed as being somewhat unreasonable in their approach to Trans Mountain. What do you make of that?

It depends on which lens you use.

If your lens is that John Horgan needs this in order to win the next election, or to continue to be propped up by Andrew Weaver because the Green Party’s demanding that he opposes the pipeline, then I think it’s fair enough to say that he’s playing chicken with the federation because you want to win — although any of them would do the same damn thing.

Everyone’s a hypocrite, everyone’s full of shit. Everyone’s playing politics.

But on the actual substantive side of it, there are a number of people in the province and party who see pipelines as an existential threat insofar as they contribute to climate change. They look and say “we want an aggressive, radical agenda for addressing the greatest threat to humankind in at least the last 10,000 years.” Is that being unreasonable? They’re interested in the survival of the species. I would say in some sense, in the long run the folks who are being unreasonable are those who refuse to commit to an aggressive climate change agenda.

What do you make of Premier Rachel Notley’s response, bringing up how this is an attack on Confederation and all the rest?

Oh my god, are you kidding me? It’s all so stupid. Crack open any Canadian politics textbook, even the bad ones, and it’s a history of the federation fighting from even before day one. This is what we do.

I wrote about this a little while ago for Maclean’s. We’re always smacking each other and always fighting with each other and with the federal government. We’re always playing one another off this province or that province or the feds. It’s hyperbole.

She’s in a tough spot. I don’t begrudge her the politics of it. She’s in the same spot in some ways that Horgan is in British Columbia. They want to win the next election. That’s politically reasonable, it’s just the nature of having a federation. But that doesn’t mean that the New Democrats in British Columbia shouldn’t be fighting this tooth and nail for both political and substantive reasons.

Were you surprised to see Alberta announce that it’s suspending discussions about electricity purchases over this?

No. The only thing that would have surprised me is if they got a posse together and marched across the border. That would a little bit surprising. I think we could take them. Anything short of that isn’t surprising to me because Premier Notley has to be seen as being tough on British Columbians by standing up for Alberta in the same way that Horgan has to be seen as being tough on Albertans and standing up for B.C. To give the Prime Minister some credit, he has to be seen as standing up for the federation. And he thinks that means he has to support the pipeline.

It’s one of those cases where it’s short-term gain, long-term pain. To oversimplify it, but here’s the essence of the problem: our political and economic cycles are too short. They’re thinking the next election, or the next 10 years — not the next 100 years.

How do you think Trudeau has responded?

He’s hitched to the Alberta wagon now, I think, like it or not … He can’t go back on it now. The political hit on going back on that would be devastating, especially given that people are still talking about electoral reform and he seems a bit of a duplicitous hypocrite.

He’s stuck with it. Alberta’s stuck with it. B.C.’s stuck with it. It’s a standoff, and I don’t think anybody knows how it’s going to end.

If I had to guess, I’d say it might end with Kinder Morgan saying “oh boy, this project isn’t viable anymore, we’re out.” I would imagine that’s the strategy of those who want to stop the pipeline: wait them out, make it become financially unviable or scare off investors. That would certainly be my strategy.

In some ways, all three political groups — the federal government, Alberta and B.C. — would politically win. That might be the political theodicy outcome, the best of all political worlds. If the construction pushes ahead and British Columbians are opposed to this — and boy, the ones who are opposed are really opposed — think they’re not being taken seriously or listened to, it’s going to get nasty very, very quickly.

I would imagine to the point where we’re going to see a kind of reaction that we haven’t seen seen since Montebello or Oka. We’ve already seen some of it on Burnaby Mountain.

Just a reminder that there’s two dimensions that I think people argue across without ever making explicit.

There’s a political dimension — which is to say an electoral dimension, who wins and who loses based on party support — and there’s the substantive policy dimension of it, like what’s good for the economy and what do you trade off against addressing climate change. There’s a legitimate debate to be had on both. But there’s a lot of bad faith activity on both sides, with people conflating those two things and the population is caught in the middle. That’s politics. That said, it’s the future of the country.

Politics is stupid.

You tweeted recently that politicians have done a bad job at addressing a lot of these causes of anger. What would it look like in your mind if politicians were actually addressing them?

These things need to be addressed structurally, and when I say that I mean that we need to find a way to make sure that cycles of boom and bust, continued environmental degradation, continuous growing unaffordability — features that are often common with liberal democracies and capitalist systems — are addressed in a way that’s at least semi-permanent if not permanent.

Part of that has to rely on bringing citizens into the decision-making process, making sure that not only are they listened to but they’re engaged in ways that are more meaningful than a town hall. You have citizen juries or citizen assemblies. You have regular meetings where people are given time and resources to sit down and take part in decision-making and be listened to. And then — and this is critical — you listen to them, follow-up and you do what they think you should do. There’s a lot of well-meaning chatter that never translates into action. We call it “democracy-washing.” You get cover because you went and did a town hall but then you go back and it’s life as usual.

What does that mean? It probably means we need to dedicate state funds to making sure that people can afford to live. We probably need to decriminalize drugs, especially in the case of the opioid epidemic. We need to end housing speculation. We need to decide whether we’re all in on climate change or not. A pipeline agenda is inconsistent with that. These are big things, and it takes a lot of political capital and a lot of guts to get it done. But we’re not doing any of them, really.

When do you guess this might be resolved?

It’s really hard to say. Nobody wins from a trade war. Somebody might lose more than someone else. But nobody wins.

I would imagine all the politicians involved will probably take a bit of punishment because people will get frustrated. If it does stretch out for too long, whomever is up for re-election will bear the brunt of it the most.

One hopes that at some point, everyone realizes that by escalating everyone loses. But I’m not convinced anymore that’s going to happen. This might actually get quite nasty. If they push on and continue to develop the project, at some point the government of British Columbia is going to run out of options. I’m sure the courts will be vigorously involved. At some point, it’s going to hit the ground.

And then it’ll be up to the citizens of British Columbia to react however they think is appropriate. That’s where I think it’ll get particularly nasty, because it will no longer become political in the sense of relations between the provinces and the federal government. It’ll be political in the streets. It will stretch on ’til it’s over, one way or the other — whether it gets built or not. It will never not be a political battle. The question is whether it’s a battle in the courts, in the legislatures, in the press or in the streets? We’ll just have to wait and see.

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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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With federal decisions on major oil pipeline and tanker projects in the headlines, many suggest our elected officials should lean more on science to make these kinds of decisions.

Those exhortations sound very reasonable. But they reveal an enormously important misunderstanding about the role of science in making decisions on major resource projects.

Take the case of Kinder Morgan’s Trans Mountain pipeline and tanker project on the West Coast.

On one side, you have staunch opposition from the Tsleil-Waututh Nation and other coastal and Fraser River First Nations, West Coast municipalities like Vancouver, Burnaby and Victoria, and a sizable percentage of B.C.’s voting public.

On the other side, you have staunch support from Alberta Premier Rachel Notley, the mayors of Calgary and Edmonton, and a sizable percentage of Alberta’s voting public.

Is one side simply too dumb to understand the science — or simply willing to flatly ignore it?

Of course not.

But suggestions like Calgary Mayor Naheed Nenshi’s that “science should have the trump” unhelpfully imply just that.

This wrenching debate has never been about who understands the science better.

Rather, it’s about what happens when you take two people or communities and present them with the exact same scientific information, and they come to equally legitimate but opposite conclusions.

What’s going on here?

A difference in values.

It’s not a question of science versus values, or facts versus emotion, it’s about what happens when the best available science has told you all it can.

This is where our traditional environmental review processes begin to unravel; an unraveling that was on full display during the Kinder Morgan review process and that has now tainted the federal cabinet’s approval of the project.

As long as our current review processes and some of our political leaders assume that decisions must solely be “evidence-based” (meaning scientific evidence only), we’ll continue to waste years in angry hearings, expensive court battles, and polarized, disrespectful debate.

When one person’s “significant risk” is another person’s “infinitesimal risk,” you know you’ve arrived in the realm of a wicked problem.

We Need to Admit the Limitations of Science When it Comes to Pipeline Decisions https://t.co/dtYn68kFIG #bcpoli #cdnpoli #KinderMorgan pic.twitter.com/Iyc4u0lKXi

— DeSmog Canada (@DeSmogCanada) February 23, 2017

At this crucial moment in the pipeline debate, our leaders must understand and acknowledge the nature of the wicked problem, which involves what some refer to as “systemic risk.”

Oil pipeline proposals are textbook examples of wicked problems and systemic risk.

• First, oil pipeline and taker operations are serious — if something goes badly wrong, there will be certain harm to the environment or people. Every new major oil spill reminds us of that.
• Second, they’re extremely complex, involving a staggering number of interactions between ecological, social and economic factors. In the case of West Coast pipelines, this complexity runs from prairies to coastal rainforests, and from remote First Nations communities to major cities.
• Third, they’re subject to a high degree of uncertainty arising from our limited understanding of, and the variability in, natural and human systems. No one can reliably predict when or where the next oil spill will happen, or how damaging it will be.
• Fourth, they’re subject to a great deal of ambiguity, which arises from different legitimate viewpoints regarding whether risks are acceptable or not.

The seriousness, complexity, uncertainty and ambiguity wrapped up in oil pipeline and tanker proposals put the lie to claims of purely science-based decision-making.

Guaranteeing that projects will only go ahead if science deems them safe is disingenuous. There’s no way to guarantee safety and the public get that.

Promises to only proceed if safety measures are “world-class” are similarly disingenuous, because they hide the very real and painful limits to what is actually possible.

If a tanker were to run aground on the West Coast during a storm, a world-class response could mean watching helplessly as the oil spill spreads (strong winds and waves often prevent response equipment from being deployed).

With further federal pipeline decisions pending for major pipelines like TransCanada’s Energy East, we need our political leaders to abandon rhetoric that invokes science and world-class measures, and instead speak honestly about the limitations of science and the role of values.

Doing so may not do much to lessen the sense of betrayal — either way — this time around but it would signal a more honest process going forward.

Image: Coastal First Salish paddle in the snow. Photo: Zack Embree

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