Trans Mountain 2.0: Challenging the federal government’s project approval

In 2019, Ecojustice took the fight to protect endangered killer whales all the way to the Supreme Court of Canada (SCC). On behalf of Raincoast Conservation Foundation and Living Oceans Society, Ecojustice lawyers asked the country’s highest court to hear our challenge of the federal government’s decision to re-approve the risky pipeline expansion.

Unfortunately, in a decision issued in March 2020, the SCC declined to hear our arguments.

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

The federal government first approved the pipeline expansion in 2016. Ecojustice challenged this decision in court the following year — and won. The 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 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.

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.

Why did Ecojustice get involved?

The Trans Mountain 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 expansion.

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