Ecojustice Blog – Climate change, Nature Posted on June 23, 2016 (updated: July 26, 2016)

FAQ: Why we’re going to court over Kinder Morgan

Dyna TuytelLawyer
Photo by Mike Charest
Photo by Mike Charest

We answer your questions on why we took this case on, and what makes it important

When the National Energy Board (NEB) released its report on the Kinder Morgan pipeline in May, we were disappointed but not at all surprised. Throughout the entire review process, the Kinder Morgan pipeline project has managed to avoid the axe at every corner, and the NEB’s recommendation to approve the project was no different.

That’s why we, along with our clients, decided that the fight couldn’t end with this report’s recommendation.

Last Friday, on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, we filed for a judicial review of the NEB’s report.

And we are not the only ones that have decided to press on in the fight to stop the Kinder Morgan pipeline — Squamish Nation, Tsleil-Waututh Nation, and the City of Vancouver have also filed appeals of the NEB’s report.

After filing the case last week, words of encouragement and great questions came pouring in from supporters like you. Below, we answer your most frequently asked questions about this case and how it fits into the bigger picture:

Why did we take on this case?

On behalf of our clients, we are challenging the NEB’s report because it has said that its environmental assessment under the Canadian Environmental Assessment Act (CEAA 2012) only considered the pipeline, and not oil tankers — as a result of excluding marine shipping from the environmental assessment of the Project, there was no “environmental assessment” conducted of the impacts of marine shipping on whales and no protection for Southern Resident killer whales considered.

Instead, the NEB says that it looked at the impacts of marine shipping, but only under the general “public interest” provision of the National Energy Board Act (NEB Act) (and not as part of the environmental assessment). According to the NEB, this means that it wasn’t required to follow the requirements of the Species at Risk Act (SARA) that are triggered by an environmental assessment with respect to marine species at risk.

While the NEB acknowledged the project’s seven-fold increase in oil tanker traffic in the Salish Sea would have significant adverse effects on the endangered Southern Resident killer whales, it didn’t apply SARA’s requirements to avoid or mitigate the effects, and it recommended in favour of the project anyway.

Not only is this is an important legal shortcoming of the NEB’s approach, it also has important practical implications.

The practical effect of the NEB’s approach is that no one is addressing the impacts on the whales. The NEB was the agency assigned to do an environmental assessment of the project and its effects — there is no separate review of marine impacts to follow. If the NEB does not take responsibility for assessing marine impacts of the project and complying with SARA, the impacts to whales will go unaddressed.

Ecojustice and its clients have worked for years to improve legal protections for the Southern Resident killer whales and their habitat. If the Kinder Morgan project proceeds and impacts from vessel noise, pollution and a shortage of prey are not addressed, it will have significant adverse effects on this already endangered species — including, according to our clients’ uncontroverted expert evidence, a more than 50 per cent chance of becoming effectively extinct this century.

The importance of this case goes beyond the Kinder Morgan pipeline, oil tankers and its effects on Southern Resident killer whales. If the NEB’s approach is allowed to stand, other projects with marine impacts, such as Energy East, could also avoid an environmental assessment of their marine impacts and avoid ensuring that the steps needed to protect marine species at risk are taken.

What do we hope this case will accomplish?

If the case is successful, there will be a clear precedent that regulators cannot avoid their legal responsibilities for protecting endangered species by taking an overly narrow approach to environmental assessments.

If it is not, and the Court says that the NEB does not have to consider SARA in spite of the effects of project-related tankers on endangered killer whales, it will be clear that there is an urgent need for reform of our environmental assessment law so that regulators can’t avoid protecting endangered species and upholding the purposes of SARA.

How does this case relate to other Kinder Morgan challenges being filed?

So far, Squamish Nation, Tsleil-Waututh Nation, and the City of Vancouver have also filed legal challenges of the NEB’s report. Together, the cases cover a wide range of issues related to the NEB’s review, alleging, among other things, failure to consult First Nations, a lack of procedural fairness during the review process, inadequate environmental assessment, and failure to properly and thoroughly consult local communities along the pipeline and tanker route.

What makes the case we filed a bit different is that it focuses specifically on the legal issue of the NEB defining the “project” narrowly to exclude project-related oil tankers and ignoring its responsibilities towards marine species under SARA.

Is Ecojustice opposed to every energy project?

Ecojustice is opposed to fossil fuel infrastructure projects that keep Canada on an unsustainable and reckless path of tar sands expansion and fossil fuel use and impede the transition to clean energy technologies.

To put it simply, fossil fuels need to be kept in the ground. To make that happen, action needs to be a taken on projects that threaten our environment and take us in the wrong direction on climate change, and the Kinder Morgan pipeline falls squarely within these lines. This is why we represented Raincoast Conservation Foundation and Living Oceans Society as interveners throughout the Kinder Morgan review.

Ecojustice is also opposed to projects that threaten the survival and recovery of endangered species — such as the Kinder Morgan project and its effect on the Southern Resident killer whales. And as a legal organization we think it is essential that any review of a major project follows the letter of the law. That is why we are now representing Raincoast Conservation Foundation and Living Oceans Society in their judicial review of the Board’s Report.

How can I support this case?

People like you are crucial in the fight against the Kinder Morgan pipeline. You can support this case by making a donation today or sharing our work with your family and friends. And, a generous donor has offered to match all gifts made online before July 1st, up to $25,000, meaning that your donation will have double the impact. Supporters like you have already donated over $15,000 in less than a week – thank you!

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.

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