Ecojustice Case – Nature Case Status: Closed

Challenging the Trans Mountain pipeline expansion

Dyna TuytelLawyer
Margot VentonLawyer
Photo: © Zack Embree

The Trans Mountain pipeline project and associated tanker traffic pose a significant threat to the future of endangered Southern Resident killer whales.

Despite this, Canada’s National Energy Board (NEB) concluded in May 2016 that the project’s benefits (all economic) outweighed the burdens (mostly environmental). One month later, Ecojustice lawyers filed litigation challenging the lawfulness of the NEB’s report.

Then, in November of that same year, cabinet officially approved the controversial pipeline project. In response, Ecojustice lawyers applied to the court for leave for a judicial review of the approval. The groups argued 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.

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 handed Ecojustice’s clients and the First Nations applicants’ a major victory. 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. It also found the government had failed to properly consult with Indigenous Peoples. (Tsleil-Wauthuth Nation et al. v. Attorney General of Canada, et al., 2018 FCA 153.)

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

Trans Mountain 2.0

Ecojustice’s 2018 Trans Mountain victory overturned the project approval, forced the National Energy Board to re-evaluate the project’s marine shipping impacts, and halted construction on the expansion.

Unfortunately, in June 2019, the government approved the Trans Mountain pipeline project for a second time.

For the sake of the Southern Residents — and upholding the law – Ecojustice went back to the Federal Court of Appeal to seek leave to challenge Cabinet’s decision to re-approve the project. (Raincoast Conservation Foundation et al. v. Attorney General of Canada et al., 2019 FCA 224.)

When the Federal Court of Appeal decided not to hear our case — or any other environmental law arguments against the government’s Trans Mountain re-approval — Ecojustice asked the Supreme Court to reverse this decision.

We knew from the outset that there was no guarantee the court would hear our case. The SCC receives a high number of leave applications every year and only grants leave in about 10 per cent of cases.

However, Ecojustice and its clients strongly believed it was important to bring this case as far as we could — both for the future of the Southern Resident killer whales and for endangered species law in Canada.

Unfortunately, in a decision issued in March 2020, the SCC declined to hear our arguments. (Raincoast Conservation Foundation et al. v. Attorney General of Canada et al., SCC No. 38892.)

The ruling brought years of legal efforts to protect Southern Resident killer whales from the Trans Mountain pipeline project to an end.

Why did Ecojustice get involved?

The Trans Mountain pipeline project threatens endangered Southern Resident killer whales, the climate, and coastal ecosystems and Canadians. The proposed expansion would carry 890,000 barrels of oil per day from Edmonton to the Westridge Terminal in Burnaby. The oil would then be shipped by tanker through the Salish Sea and on to American and overseas markets.

If built, the expansion would lead to seven times more tanker traffic crossing the Salish Sea, critical habitat for the Southern Residents. This raises the risk of tanker strikes, which could be deadly to whales, or a catastrophic oil spill.

Even if neither of those scenarios play out, the increase in tankers will mean more underwater noise when current levels already severely impact the whales’ ability to navigate, hunt and communicate with each other.

What does this outcome mean?

The federal government has a legal responsibility to help at-risk species, such as the Southern Resident killer whales, survive and recover. And Ecojustice is committed to continuing to use the power of the law to hold it to account.

While we have reached the end of the road in this particular case, Ecojustice and its allies continue to call on the government to introduce enforceable, legally-binding protections for the whales such as mandatory — instead of voluntary — vessel slow-downs and a measurable underwater noise reduction target.

If we want the Southern Resident killer whales to survive for generations to come, we have no choice but to continue pushing for better protections.

The Southern Residents already face imminent threats to their survival, including:

  • A lack of Chinook salmon, the whales’ preferred prey
  • Acoustic and physical disturbance from vessel traffic
  • And contamination of the ecosystems where they live

At this rate, the declining population cannot handle these existing threats — much less additional hazards posed by the Trans Mountain pipeline expansion.

Without immediate, decisive, and effective action, we risk losing Southern Resident killer whales altogether.

Build the case for a better earth

Thanks to the support of people like you, Ecojustice goes to court to protect what we value most — the air, land and water that sustains all life. Make your gift today and support bold litigation for a brighter environmental future.

Join our newsletter

Get updates on the most pressing environmental issues delivered straight to your inbox.