Troubling precedent in Enbridge Northern Gateway case stopped pipeline, but may shut door to legal challenges of other projects, groups say.

CALGARY – Environmental groups are asking Canada’s highest court to overturn a legal precedent that restricts the public’s ability to challenge flawed environmental assessments.

In June, the Federal Court of Appeal quashed the federal government’s approval of Enbridge’s Northern Gateway Pipeline, which would ship diluted bitumen from Alberta’s tar sands through the Great Bear Rainforest to the British Columbia’s rugged northern coast. While the ruling was feted as a major success, particularly for First Nations communities who fought long and hard to oppose this project, it failed to address fundamental concerns about Canada’s environmental assessment process.

“The Court held that reviewing the legality of environmental assessment reports is outside its jurisdiction,” said Barry Robinson, Ecojustice lawyer.  “However, we know all too well that environmental assessment panels make mistakes.  The Court has put a legal decision into the hands of the politicians.”

Ecojustice lawyers file for leave to Supreme Court of Canada

Ecojustice lawyers, acting on behalf of Raincoast Conservation Foundation, have filed an application to bring this matter before the Supreme Court of Canada.

The courts — not cabinet — have a crucial role in determining whether an environmental assessment report meets its legal requirements, Robinson said.

“Environmental assessment panels are required, by law, to conduct a meaningful review of the long-term social, cultural, and environmental health impacts of major pipeline projects,” Robinson said. “When they fail to do so, as was the case in Enbridge and the Kinder Morgan project, those panel reports must be reviewable by the courts.”

In the Enbridge decision, the Federal Court of Appeal abruptly dismissed all arguments based on the Canadian Environmental Assessment Act, 2012, and declined to rule on whether the review panel had considered the project’s environmental impacts on humpback whales and other at-risk species; whether it had appropriately balanced the project’s benefits and impacts; and whether the panel ignored evidence that spilled bitumen would sink in the marine environment.

Days after the Enbridge decision was released, Kinder Morgan brought a motion to dismiss a lawsuit Ecojustice lawyers filed on behalf of its clients over the National Energy Board’s flawed final report on the Trans Mountain pipeline project.  And earlier this month, the Federal Court of Appeal relied on the Northern Gateway decision to deny an application by the Tsleil-Waututh Nation challenging certain decisions of the NEB with respect to the Trans Mountain project.

“With its decision, the Federal Court of Appeal has made it that much harder for concerned citizens and public interest groups to defend our communities from projects that put entire ecosystems and cultures at risk,” said Chris Genovali, Executive Director of Raincoast Conservation Foundation.  “When a review panel makes a bad call, which often seems to be the case, where else but the courts are we to turn to ensure those wrongs are made right?”

Ecojustice lawyers represented Raincoast during the Enbridge Northern Gateway pipeline review process, and during the consolidated judicial review of the project last fall.