Ecojustice Case – Nature Case Status: Victory

Trans Mountain pipeline expansion: How we challenged it and won

Dyna TuytelLawyer
Margot VentonLawyer
Photo: © Zack Embree

Ecojustice lawyers represented Raincoast Conservation Foundation and Living Oceans Society in a successful challenge against the Trans Mountain pipeline expansion that ended in a critical win for communities, the climate and the coast.

If built, the Trans Mountain project would increase the amount of oil transported from Edmonton to Burnaby’s Westbridge Terminal from 300,000 barrels per day to 890,000 barrels per day, and increase tanker traffic through part of the Southern Resident killer whales’ critical habitat in the Salish Sea by nearly seven times, resulting in a total of 408 tankers per year.

Towards the end of January 2016, Ecojustice lawyers appeared on behalf of Living Oceans Society and Raincoast Conservation Foundation to present their arguments to the National Energy Board (NEB). Living Oceans Society and Raincoast Conservation Foundation provided evidence on the Southern Residents and their critical habitat, addressed project-related contamination (including from a catastrophic oil spill), impacts on prey availability, and impacts from vessel noise.

The “population viability analysis” commissioned by Raincoast for the NEB’s review showed that if the pipeline were to proceed, the Southern Residents would have a 50-50 chance of becoming effectively extinct this century.

The NEB’s report, released in May 2016, found that the project’s benefits (all economic) outweighed the burdens (mostly environmental). The board recommended federal cabinet approve the project.

In June 2016, Ecojustice lawyers filed lawsuit challenging the lawfulness of the NEB’s report.

Then, in November 2016, federal Cabinet approved the Trans Mountain pipeline project. Less than a month later, Ecojustice lawyers, on behalf of their clients, applied to the court for leave for a judicial review of the approval. The groups argue that cabinet broke the law when it relied on the NEB’s report that used an overly narrow interpretation of the law to avoid addressing harm to endangered Southern Resident killer whales and their critical habitat.

Trans Mountain pipeline expansion challenged in court

Ecojustice lawyers, on behalf of Raincoast Conservation Foundation and Living Oceans Society, appeared in court in October, 2017, to argue against the project as part of a landmark, two-week hearing at the Federal Court of Appeal.

The court heard multiple cases at the time, including those from the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, Upper Nicola Band, Stk’emlupsemc Te Secwepemc Nation, Sto:lo applicants. The City of Burnaby and City of Vancouver also challenged the project in court, and the government of British Columbia intervened in the hearing.

Despite strong scientific evidence on impacts on the Southern Residents, widespread public opposition and multiple legal challenges, the Canadian government announced the following May that it would purchase the existing pipeline and planned expansion from Texas-based company Kinder Morgan for $4.5 billion.

Then, on Aug. 30, 2018, the Federal Court of Appeal issued its ruling:

The court found that the government’s approval of the project was void because it did not comply with Canadian law, including the responsibility to protect endangered Southern Resident killer whales, and that the government had failed to properly consult with Indigenous peoples.

On Oct. 3, 2018, the Canadian government announced that it would not appeal the decision.

Why did Ecojustice get involved?

The NEB’s review of the Trans Mountain project failed to identify or require mitigation for the harm from the increased tanker traffic noise to Southern Resident killer whales, and also failed to adequately address  other oil tanker impacts that could affect the whales’ critical habitat and prey availability, such as oil spills, routine pollution and accidents.

We went to court to make sure that one of Canada’s most iconic species at risk is benefits from the full protection of the law.

What does this victory mean?

Our victory against the Trans Mountain pipeline project set an important precedent by establishing that cabinet cannot legally base approval for a project on an flawed environmental assessment – in this case an assessment that ignored the  marine shipping impacts.

Practically speaking, this meant that the government was forced to order the NEB to launch a new review on marine shipping impacts and how those would affect the Southern Resident killer whales.

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