Trans Mountain opponents get boost from feds | by Briony Penn

How the National Energy Board found itself under attack by everyone in January.

(This story was first published in Focus Magazine in February, 2016.)

JANUARY 2016 WAS A MONTH FULL OF NEWS around Kinder Morgan’s Trans Mountain pipeline. As dozens of intervenors gave their final arguments in the closing days of the National Energy Board’s hearings, the federal government made moves towards living up to their pre-election promises.

The NEB hearings on the risks and benefits of the 987-kilometre pipeline will be wrapped up on February 5. During ten days of hearings in Burnaby, a flurry of intervenors delivered varied condemnations of both the project and its approval process, deeming the NEB process flawed and reliant on inadequate data. Of particular concern to coastal British Columbians is the quadrupling of tankers shipping dilbit off our shores. On January 25, Victoria Mayor Lisa Helps and Councillor Ben Isitt joined the chorus, expressing grave concern about the effects of an oil spill on Victoria’s environment and economy.

Earlier, on January 11, the BC Liberals rejected the project in their final argument in front of the NEB on the basis of inadequate details of spill-response plans, noting these plans fall short of a “world-leading standard.”

BC Green Party leader, scientist and MLA Andrew Weaver delivered his final argument January 20, concluding the application is incomplete with inadequate data on the behaviour of bitumen.

Federal Green leader and Saanich Gulf-Islands MP Elizabeth May was also an intervenor and gave a scorching testimony, citing serious issues with evidence, First Nations rights, and process, particularly the exclusion of the public from hearing rooms and the lack of oral cross-examination. “In essence, none of the witnesses were available to answer any question—whether orally or in writing,” she said.

 (Neither federal nor provincial NDP representatives appeared as intervenors, though the party has stated the NEB process is a failure.)

The BC Civil Liberties Association also appeared as an intervenor and, like Elizabeth May, condemned the hearings as potentially unlawful by not allowing the public to attend.

First Nations from all over BC, as well as US indigenous groups, appeared in late January, too, expressing concerns about the impact of all that coastal oil tanker traffic on their fishing rights and cultural heritage. The additional 350 tankers a year mean “all risk and no reward,” said a lawyer for the US tribes. 

Among environmental intervenors were Raincoast Conservation Foundation’s Misty Macduffee and Karen Wristen of Living Oceans, both veteran researchers. Along with lawyers at Ecojustice they helped prepare a joint final argument based on the behaviour of spilled diluted bitumen in the marine environment. Their particular concern is its impact  on marine and Fraser River fish species and the southern resident killer whales. They also looked at air quality and other human health impacts, as well as economic considerations. They argued that the NEB doesn’t have enough information before it about the project’s environmental effects and how they will be mitigated; that the project will have significant environmental impacts that are not justified by any benefits of the project; and, relatedly, that the project is not in the public interest.

The rules, however, are such that they were not allowed to present what they believe is critical new evidence from the US independent non-profit National Academy of Sciences (NAS). Coming out just one week before Kinder Morgan’s final written evidence in December, the NAS report provides evidence that diluted bitumen doesn’t behave like Kinder Morgan says it behaves.

With the new principles and longer timeframe announced by the federal government on January 27, there’s now a good possibility that the NAS information will factor into the government’s final decision, but meanwhile the NEB has indicated it is too late for their process.

What the NAS concluded in their 126-page report is this: “In comparison to other commonly transported crude oils, many of the chemical and physical properties of diluted bitumen, especially those relevant to environmental impacts, are found to differ substantially from those of the other crude oils. The key differences are in the exceptionally high density, viscosity, and adhesion properties of the bitumen component of the diluted bitumen that dictate environmental behaviour as the crude oil is subjected to weathering…For this reason spills of diluted bitumen pose particular challenges when they reach water bodies. In some cases, the residues can submerge or sink to the bottom body. Importantly, the density of the residual oil does not need to reach or exceed the density of the surrounding water for this to occur.” (italics theirs)

This is a hugely important finding from a highly authoritative source. It means that within hours of an ocean spill, dilbit separates into its original components. The hydrocarbons evaporate and the air around the spill becomes explosive, while the bitumen sinks. Normal spill response technologies like skimmers and dispersants, the NAS found, are inadequate because the time window for their effectiveness is very small. Once bitumen has sunk, there really is no way to clean it up.

According to the NAS report, the “weathered” bitumen components that form within days of a spill mean that “spills of diluted bitumen should elicit unique, immediate actions in response.”

According to Macduffee this is the most comprehensive review on dilbit yet produced and renders Kinder Morgan’s final submission inadequate since all its modelling of environmental impacts and oil spills is predicated on earlier assumptions that spilled dilbit performed like any other crude oil and didn’t sink. Kinder Morgan stated in their submission to the NEB that “Dilbits…[and other Group 3 hydrocarbons] have been transported throughout the world and the general behaviour of these oils are quite comparable with respect to fate and weathering, and spill countermeasures.” (italics added) Kinder Morgan also stated that dilbit proved “no different than what might be expected of other conventional heavy crudes when exposed to similar conditions.”
The NAS report, commissioned by the US Congress to consider that country’s own spill response preparedness, first became available in its pre-publication form online in early December. Raincoast and Living Oceans immediately filed a motion to have its evidence included because of its significance. The NEB, however, accepted Kinder Morgan’s argument that it was “procedurally unfair to permit the filing of new evidence, prepared by third parties, on the eve of argument. Kinder Morgan said fairness requires that participants have a sufficient opportunity to test new evidence by asking questions to those who prepared it, and there is not enough time to do so in this case.”

 Raincoast and Living Oceans argued back that most evidence is from third party research, and that doesn’t provide a basis for dismissal—just an argument for bringing back oral cross examination which Stephen Harper got rid of in his last fiddle with the NEB. Kinder Morgan also argued that it was a pre-publication report and “it was difficult to ascertain which part of the Report contained errors.” According to Macduffee, the NEB could have gone back to the federal government to ask for an extension to provide time for the company to review this critical evidence, but didn’t.

Now, with the federal government giving itself more time to make a decision, and promising its decision will be based on science (as well as traditional indigenous knowledge and other relevant evidence), the NAS’ findings do stand a chance, ultimately, of being weighed in the final decision on the project.

At a press conference on January 27, Natural Resources Minister Jim Carr and Environment Minister Catherine McKenna introduced five new principles that will guide its decision-making on major natural resource projects while the government undertakes a broader review of environmental assessment processes (which is expected to take two years). For the Trans Mountain Expansion project, the government promised to “undertake deeper consultations with Indigenous peoples and provide funding to support participation in these consultations; assess the upstream greenhouse gas emissions associated with the project; and appoint a Ministerial Representative to engage communities, including Indigenous communities potentially affected by the project, to seek their views and report back to the Minister of Natural Resources.”

 While the NEB deadline for its recommendations on Trans Mountain remains May 2016, the government has given itself until December 2016 (it had been set for August 2016) to consider the NEB’s recommendation and carry out the extra consultations and assessments before making a decision on the pipeline.

Elizabeth May spoke at a press conference after the announcement and expressed her approval, given the situation. She said the Conservatives, through Bill C-38, had “wrecked” the environmental assessment process, allowing the Energy Board to leave climate change out of their review. “Energy regulators should never be asked to do environmental reviews,” May said. Explaining that Canada would be mired in litigation if the government interfered at this stage in the NEB process, she felt these new measures offered a “reasonable approach” and “provide more confidence” until a complete overhaul could be done.

Andrew Weaver said he was thrilled with the federal government’s announcement: “As a climate scientist, I see including upstream emissions on energy projects as a major step forward for Canada.” He is still opposed to the Trans Mountain pipeline going ahead: “This announcement does nothing to alleviate my concerns on spill response and spill preparedness. For British Columbians the central issue is about the potential for a catastrophic accident and not as much about the climate impacts of the project. On these grounds the project should still be rejected.”

Not everyone was happy with the fed’s interim measures. Besides condemnation from Conservatives, regional First Nations chiefs from Quebec, Manitoba and BC issued a strong joint statement slamming “artificial timelines, the sidelining of critics, a lack of oral cross-examination of the companies’ evidence, and the exclusion of key elements of evidence such as the behaviour of sinking dilbit,” as well as the NEB itself—“a politicized and industry-captured ‘rubber stamper’ that pays only lip service to the respect for the positions and rights of First Nations.” UBCIC President Grand Chief Stewart Phillip said, “What needs to be demonstrated is the federal government’s willingness to take NO for an answer from First Nations like Tsleil-Waututh Nation who are exercising their sovereign decision-making power.”

The chiefs and others also complained that the new review guidelines omit reference to the downstream greenhouse gas emissions of tarsands bitumen, which comprise most of the total emissions (climate economist Mark Jaccard’s analysis estimates 90 percent).

In that same last week of January, the NEB itself was reprimanded by the federal Commissioner of the Environment and Sustainable Development Julie Gelfand who came out with the results of an audit of the NEB. In her statement, she said, “Our audit concluded that the Board did not adequately track companies’ implementation of pipeline approval conditions, and that it was not consistently following up on company deficiencies. We found that the Board’s tracking systems were outdated and inefficient.” In both types of cases that were audited, about half were lacking in proper oversight, which means the NEB was not meeting its regulatory mandate. The NEB has agreed with the auditor’s conclusions and stated it will, among other things, “clarify the consequences for companies that do not undertake corrective action.”

Lack of faith in the NEB, combined with Minister Carr’s stated determination to move oil resources to tidewater, mean pipeline opponents are, at most, cautiously optimistic about the new government’s direction.

 Briony Penn PhD is the author of the new book, The Real Thing: The Natural History of Ian McTaggart Cowan.