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

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

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

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

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

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

Raincoast Conservation Foundation Applying to Supreme Court For Review of Interpretation

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

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

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

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

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

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

— DeSmog Canada (@DeSmogCanada) October 14, 2016

Kinder Morgan Already Referenced Precedent in Attempts to Dismiss Challenges

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

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

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

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

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

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

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

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

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

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

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Montreal Mayor Denise Coderre announced Thursday the city's formal opposition to TransCanada’s proposed Energy East pipeline. The 4,600-kilometer west-to-east oil pipeline project would see 1,600 kilometres of new pipe built along the St. Lawrence River in Quebec and in New Brunswick.

"We are against it because it still represents significant environmental threats and too few economic benefits for greater Montreal," Coderre said in a press conference.

Groups opposed to the 1.1 million barrels-a-day project, which is significantly larger than TransCanada's Keystone XL pipeline, welcomed the announcement.

“Today, 82 municipal counsellors, representing 3.9 million citizens in the greater Montreal region, have issued a resounding ‘no’ to the Energy East project and to TransCanada Corporation,” Steven Guilbeault, Senior Director at Équiterre, said in a media release.

Coderre’s announcement came after 82 municipalities comprising the Communauté Municipale de Montréal (Montreal Metropolitan Community) voted this morning on whether to approve or oppose the project. Energy East’s proposed route would go through the northern municipalities of the greater Montreal-area.

“We’re really happy,” Audrey Yank, spokesperson for Montreal-based citizens-group Coalition Vigilance Oleoducs told DeSmog Canada. “It feels like a another small victory to give us hope.”

“TransCanada is asking us to bear all the risks of Energy East in exchange for very small benefits,” Yank said.

Energy East has faced stiff opposition in Quebec for over a year now. TransCanada’s plan to build an export tanker terminal in Quebec near the calving waters of endangered beluga whales was met by public outcry. Even Quebec Premier Philippe Couillard, who is not an Energy East opponent, suggested publicly TransCanada should look some place else for its terminal.

In the face of growing Quebec public opposition to the pipeline, TransCanada scrapped plans for building a terminal anywhere in Quebec last November.

But by canceling plans to build a terminal in Quebec, selling the project to Quebecers on the basis of economic benefits has become difficult. The Montreal Metropolitan Community conducted public consultations on Energy East last fall and the majority of those who participated were against the project.

In a 2015 poll, 57 percent of Quebecers expressed their opposition to Energy East.

Montreal is the first major city to come out against the project to transport oilsands (also called tar sands) bitumen across the country from Alberta to Saint John, New Brunswick. Winnipeg and Ottawa also sit along Energy East’s purposed route, but neither has shown the same degree of opposition as Montreal as of yet.

Ottawa-resident Mike Fletcher is hoping this will change soon.

“Ottawa has more risk and potentially less benefit than Montreal from this horrible proposal. The pipe through Ottawa is used, as opposed to proposed new pipe in Montreal,” Fletcher told DeSmog Canada.

“But so far Ottawa's reaction has been mixed. We are glad that the City will produce a letter of comment to the National Energy Board, but most of our municipal elected officials need to square up against Energy East,” Fletcher said. The 3,000 kilometres of the proposed pipeline situated west of Quebec is an existing natural gas line TransCanada plans on converting to oil.

Fletcher has played a key role in local group Ecology Ottawa’s campaign against the Energy East pipeline over the last two years. Ecology Ottawa was one of several environmental organizations targeted by a botched TransCanada PR campaign to undermine pipeline opponents in 2014.

Provincial governments in Alberta, Saskatchewan and New Brunswick support the project. Ontario, Quebec and Manitoba have all been guarded in their statements about Energy East, neither denouncing nor fully endorsing their provinces acting as a thoroughfare for the pipeline.

Ontario’s energy regulator examined TransCanada’s application for Energy East and concluded the project was not in the best interest of Canada’s most populous province.

Audrey Yank from Coalition Vigilance Oleoducs is concerned that Montreal’s analysis of the Energy East project does not cover the potential impacts the pipeline could have on climate change. 

“It appears the analysis does not address green house gas emissions. Climate change should be part of the analysis, especially after the Paris climate talks,” Yank said.

“We can’t build fossil fuels infrastructure that lasts 40 or 50 years if we need to get to a zero-carbon economy by 2050,” Yank told DeSmog Canada.

Montreal’s announcement comes amongst a flurry of protests and calls for Prime Minister Justin Trudeau to keep his election promise to initiate new regulatory reviews of Energy East and Kinder Morgan Trans Mountain pipeline in B.C. that will include climate impacts, and stronger recognition of First Nations’ concerns.

Image Credit: Ville de Montréal via Flickr

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