Kinder Morgan’s TransMountain Expansion Proposal Public Hearings
Living Oceans was granted intervenor status in the all-new approval process created by the Harper government’s first omnibus bill. The changes made in 2012 stripped the NEB of its decision-making authority but added responsibility for environmental review of energy projects. Under the new regime, in other words, the NEB only makes recommendations; the federal Cabinet is the decision-maker; and the role of the Canadian Environmental Assessment Agency is eliminated. In addition, legislative amendments imposed tight new timelines on the review which proved impossible to meet.
The new process did not, in our view, meet the test of an effective public hearing. Participation was limited and the ability to test evidence through cross-examination was removed. A paper question-and-answer process that was substituted for cross-examination proved frustrating, time-consuming and largely ineffective, as Kinder Morgan obfuscated and misdirected with its answers.
Several high-profile intervenors withdrew from the process, calling it a sham. While we agreed that the process is deeply flawed, we elected to remain in it, as both watchdog and participant. We ensured that the public record contained evidence sufficient to conclude that this pipeline is neither environmentally sound nor in the public interest. This was important for two reasons: it supported our subsequent court challenge; and it has been influential in the court of public opinion. The final decision on this pipeline fell to the incoming Liberal government of Justin Trudeau, whose campaign had been sharply critical of the NEB process for this pipeline and promised to fix it.
The "fix" turned out to be a special Ministerial Panel charged with making a new report to Cabinet, rather than the re-hearing we had expected. The Panel report was thoughtful and thorough, concluding with all of the hard questions that needed to be answered before a decision on the pipeline was made. Those questions remained unanswered when, less than 30 days later, Prime Minister Trudeau announced the approval of the contraversial project.
Living Oceans took to the courts again with our colleagues Raincoast Conservation Foundation, retaining Ecojustice counsel to file judicial review applications. The decision was also challenged by over a dozen First Nations and the cities of Vancouver and Burnaby, among others. The Federal Court of Appeal rendered its decision in August, 2018, allowing all challenges and setting aside the decision to approve. The federal government responded by concluding a purchase of the pipeline and tanker project the next day, at a cost to Canadian taxpayers that may top $15 billion if the expansion project is ever built.
By this time, the political tension among the federal, Alberta and British Columbia governments had reached an all-time high. The federal government quickly directed the NEB to conduct a reconsideration hearing, curing the defects identified by the Federal Court of Appeal: namely, the complete failure to address the marine impacts of the project's tanker traffic, including those on the 125 species listed under provincial or federal legislation as 'at risk' in the Salish Sea; and the failure to conduct meaningful consultation with First Nations. The decision-maker at the end of this hearing, the federal government, is the owner of the project under consideration.
The reconsideration was ordered in September, 2018 and required to be completed by February, 2019. This set up timelines for the production of evidence that were quite impossible to meet, particularly in view of the lack of any proper risk assessment of marine impacts. The hearing is proceeding nonetheless at the date of this publication and we continue to participate.
Below, you can read our hearing evidence, which has covered a broad range of marine impacts and financial considerations. Our colleagues at Raincoast provided the evidence dealing with Southern Resident Killer Whales, perhaps the most challenged of all the endangered species in the Salish Sea.
Fate and Effect of Oil Spills from the TransMountain Expansion Project in Burrard Inlet and the Fraser River Estuary
Dr. Jeffrey Short provides answers to some of the key questions raised by the application: Dilbit—does it sink or float? What will be impacted in the case of a spill? What problems does spilled dilbit create for marine life and for people who harvest fish and shellfish? Dr. Short has consulted on many of the world’s most devastating oil spills, including the ExxonValdez and DeepWater Horizon. He concludes that dilbit spilled in the relatively fresh waters of Burrard Inlet and the Fraser River estuary will likely float only for a matter of hours, during which time (as is evidenced by the recent Marathassa spill) it can reach and foul most of the shorelines around Burrard Inlet, English Bay and West Vancouver beaches. After as little as 24 hours, dilbit will begin to submerge or sink, becoming invisible to tracking planes and vessels. Once that happens, the oil can spread fouling more shorelines and the ocean’s floor. Hundreds of thousands of seabirds, as well as endangered whales and other marine mammals will be at risk of death or illness as a result.
Fate and Effect of Oil Spills from the TransMountain Expansion Project in the Gulf Islands, Strait of Juan de Fuca and the Fraser River, British Columbia
Dr. Jeffrey Short expands on his analysis to include the Salish Sea, Strait of Juan de Fuca and West Coast Vancouver Island. Areas are identified where oils might persist for decades, as it has following the Exxon Valdez spill. Dr. Short draws on the experience of the Nestucca barge spill in Washington State to conclude that submerged oil entrained in the Davidson Current could well travel the B.C. coast and end up stranding on shores as distant as Alaska. In this report, he also observes that chemical dispersants, suggested by Kinder Morgan as a response measure, are virtually useless against the thick goo that forms as dilbit weathers and should never be considered for responding to a spill where marine life would be put at risk.
A Review of Countermeasures Technologies for Viscous Oils that Submerge
Lauri Solsberg is a chemical engineer who has been testing and evaluating oil spill response technology since 1975, working with several Canadian government agencies and since 1986, as a private consultant. His review of technology for removing spilled, submerged oil from the ocean concludes that there is a need to improve countermeasures. It notes that locating, containing and removing submerged oil remain daunting tasks, and that if spilled oil becomes suspended between the water’s surface and the bottom, it is unlikely that any commercially available response technologies can be successfully applied to control the spill.
Review of Kinder Morgan Trans Mountain Pipeline Expansion Project Facilities Expansion Application: Focus on Air Quality
Dr. Isobel J. Simpson, University of California, has worked in the Nobel Prize winning Rowland/Black group in the department of chemistry for the last 18 years. Her expertise focuses on the world’s major atmospheric environments. This report reviews the application with reference to air quality. Dr. Simpson found that most of the material presented in the application was inadequate to draw clear conclusions about overall air quality. In addition, she found that background or baseline concentrations of air contaminants used in the report frequently were unrealistically high--for instance, for toluene and sulphur dioxide, the background concentrations were comparable to cities like Hong Kong and Mexico City. This makes the contribution of project emissions appear relatively smaller compared to background than it actually is. Benzene concentrations, she found, are a concern: they exceed air quality guidelines and have the potential to cause severe human health impacts.
Review of Kinder Morgan Pipeline Expansion Project Application Human Health Impact Assessment Expert Report
Dr. Stuart Batterman, University of Michigan, is an expert in environmental health science. He reviewed the Human Health Risk Assessment and concluded that it, as well, was so fundamentally flawed as to leave us incapable of predicting impacts on human health. The failure of the report to identify such critical factors as the location of places where people could be exposed to emissions from the project would leave regulators unable to plan for emergency response such as evacuation or ‘shelter in place’ orders; health care facilities unable to plan for emergencies and the NEB unable to conclude that the project could be completed and operated without risk to human health.
Public Interest Evaluation of the Trans Mountain Expansion Project
A team of researchers at Simon Fraser University, led by Dr. Tom Gunton, assessed whether or not the TMEP could be considered to be in the public interest. They concluded that the project would cost Canadians between $4 and $9.1 billion, mostly represented by excess capacity to transport oil—which is to say, this pipeline is not even needed by the oil patch. Further, the project would be subsidized by preferential industrial electricity rates, costing B.C. Hydro about $27 million per year. The 342 direct jobs to be created according to the application may not even represent additional employment, as most labour-market studies show that there is a shortage of appropriately skilled labour available in Canada. Updates to this report were prepared for Tsleil-Waututh Nation in and
Re-Evaluating the Need for the Trans Mountain Expansion Project
Dr. Gunton's team re-evaluates the need for the Trans Mountain project in the light of the U.S. President's approval of Keystone XL and current market conditions. The report finds that the Alberta oil industry does not require more pipeline capacity and that the "oil to tidewater" argument doesn't hold water: prices for Canadian bitumen will be much the same whether it's sold in Asia or the U.S. Updates to this report were prepared for Tsleil-Waututh Nation in 2018 and 2019.
Financial Liability for Kinder Morgan
Living Oceans published an assessment of the international and national oil spill compensation funds available to respond to claims of damages in the event of an oil spill. The funds available (approximately $1.4 billion) represent only a tiny fraction of the estimated cost of oil spill response and damages claims, which could amount to more than $10 billion. Worse yet, it is entirely uncertain what kinds of claims would be honoured by the funds: unlike the US, Canada has no law explicitly requiring oil transporters to pay for the environmental damage their spills create. Claims for economic loss and property damage caused by the spill may take many years to resolve. In the case of the Exxon Valdez spill, residents of Cordova, Alaska who lost their livelihoods to spill damage were still fighting for compensation 20 years later.