Since the 1950s the 1,150 kilometre Trans Mountain oilsands pipeline system has transported both crude oil and refined products from Edmonton, Alberta, to refineries and export terminals on the B.C. and Washington State coasts.
In 2013 Texas-based Kinder Morgan applied to expand the pipeline system from a capacity of 300,000 barrels per day to 890,000 barrels per day. The Kinder Morgan Trans Mountain expansion would include building a new pipeline, constructing 12 new pump stations, 19 new storage tanks and three new marine berths located at the Westridge Marine Terminal in the Burrard Inlet near Vancouver. In November 2016 the federal government approved Kinder Morgan's application, an approval the current NDP government in British Columbia has vowed to fight in the courts and through all available means.
The Trans Mountain pipeline expansion project would effectively triple the pipeline's capacity. Most of the pipeline's oil is destined for Westridge Marine Terminal in Burnaby, where it would be loaded onto oil tankers that would navigate past Vancouver, the Gulf Islands and through the Juan de Fuca Strait before reaching open ocean.
The expansion would mean a seven-fold increase in oil tanker traffic from the Westridge terminal, from around 60 oil tankers to more than 400 per year.
The pipeline was reviewed by Canada's National Energy Board. During the review process, Canada’s Department of Fisheries and Oceans argued Kinder Morgan’s assessment of threats to whale species off the B.C. coast from increased tanker traffic contained “insufficient information and analysis.”
A separate analysis, commissioned by the Raincoast Conservation Foundation, found the anticipated increase in tanker traffic gives the local Southern Resident Killer Whale population only a 50 per cent chance of survival. Southern resident killer whales, which use echolocation to hunt their prey, have been overwhelmed by noise pollution in their habitat, a problem that has recently been connected to starvation.
In addition to concerns about an increase in oil tanker traffic, many criticized the National Energy Board review for its elimination of oral cross-examination, exclusion of upstream climate change considerations and failure to adequately consult affected First Nations along the pipeline route.
The board also did not compel Kinder Morgan to answer questions regarding the company's oil spill response capacity.
Several high-profile intervenors publicly withdrew from the review of the project, saying the process was biased. Former energy executive Marc Eliesen dropped out of the process in late 2014, calling it “fraudulent” and an “act of deception.
A lack of faith in the pipline review process was noted by Prime Minister Justin Trudeau in 2015 during his federal election campaign. Trudeau committed to overhauling the National Energy Board and the review process of major pipeline proposals. On the campaign trail, Trudeau publicly confirmed the overhaul would apply to existing pipeline project proposals, including the Kinder Morgan Trans Mountain pipeline project. However, after Trudeau took office, the Trans Mountain pipeline review was not restarted under new rules. Instead the federal government assigned a ministerial panel to conduct public hearings regarding the project.
In November 2016, the ministerial panel released a report on the project, the “Report from the Ministerial Panel for the Trans Mountain Pipeline Expansion Project,” which recommended against the project proceeding without a serious reassessment of its impacts on climate change commitments, indigenous rights and marine mammal safety.
On November 29, 2016, the federal government approved the project subject to 157 conditions.
Legal and Public Battles Against the Kinder Morgan Trans Mountain Pipeline Project
As of October 2017, there are 18 distinct legal proceedings against the project.
That includes six against the National Energy Board’s recommended approval, nine against the decision by the federal cabinet to approve it, three against the B.C. government for its decision to accept the federal review process and another two from Indian Tribes in Washington State for potential impact of significantly increased tanker traffic on endangered southern resident killer whales.
The Tsleil-Waututh First Nation launched a legal challenge against the Canadian government and the National Energy Board over legal compliance and consultation with First Nations in relation to the proposed pipeline expansion. In addition, the Secwepemc First Nation has vowed to defend its land against the project. The pipeline crosses 518 kilometres of unceded Secwepemc territory.
The first round of legal hearings against the project started in October 2017 in front of the Federal Court of Appeals.
In addition to legal challenges, there is strong public opposition to the project, especially concerning early engineering and construction work, resulting in hundreds of arrests. The project is formally opposed by the mayors of Vancouver and Burnaby.
In January 2018, B.C. announced its intention to explore restricting the transport of diluted bitumen across the province. Alberta Premier Rachel Notley responded with a brief boycott of B.C. wine. In April 2018, Kinder Morgan announced it was suspending spending on the project. Unless uncertainty is resolved by May 31, “it is difficult to conceive of any scenario in which we would proceed with the project,” the company said.
Image credit: Carol Linnitt | DeSmog Canada
Amongst all the hooting and hollering over the Kinder Morgan Trans Mountain pipeline, it’s easy to lose track of how on earth we ended up in this place of dysfunction.
But Canadians didn’t become deeply divided about oil pipelines overnight. Indeed, much of the current tension can be traced back to the federal review of Trans Mountain, which the National Energy Board (NEB) began in early 2014.
“The reality is that there are huge gaping flaws in the Canadian environmental review process that have been known about for decades and have never been fixed,” David Boyd, an environmental lawyer and associate professor at UBC, told DeSmog Canada.
In December 2015, the world agreed to the Paris Accord; to slash greenhouse gas emissions to hold global average temperature increase to 1.5 degrees C (over what it was before the Industrial Revolution), and, if we miss that target, to as far below 2 degrees as possible.
The International Energy Agency (IEA) is not an environmental agency. It advises governments about demand and supply of energy. Since 2012, IEA has warned that to avoid going over 2 degrees C, two-thirds of all known reserves of fossil fuels must stay in the ground until 2050.
Ian Anderson, president of Kinder Morgan Canada Ltd., must be laughing all the way to check on his stock options since the Trudeau government offered to use public funds to bail out the company’s stalled Trans Mountain Pipeline Expansion project.
Anderson earned almost $2.9 million last year in salary, stock awards and other compensation, according to company documents — and that was only from June through December.
Kinder Morgan Canada’s vice-president, David Safari, collected $1.95 million in stock awards and other compensation during the same seven-month period.
But that’s latte money compared to the hundreds of millions of dollars in annual dividend earnings of Texas billionaire Richard Kinder, who was the CEO of parent company Kinder Morgan Inc. until 2015.
For years, we’ve been told again and again (and again) that Kinder Morgan’s proposed expansion of the Trans Mountain pipeline is desperately needed for producers to export oil to Asian countries and get much higher returns.
The way it’s been framed makes it seem like it’s the only thing standing between Alberta and fields of gold.
Small problem: Canadian producers already have the ability to ship their heavy oil to Asia via the existing 300,000 barrel per day Trans Mountain pipeline — but they’re not using it.
With the announcement on Wednesday that the B.C. government will file its reference case on the ability of the province to regulate the transport of diluted bitumen in the Court of Appeal by April 30th, it’s finally official: the much-debated constitutional question will be put to the test.
Alberta Premier Rachel Notley has repeatedly said that B.C.’s intention to regulate the transport of diluted bitumen will “break the rules of Confederation,” but provinces have strong jurisdiction over the environment according to Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law.
In the fall of 1981, Jack Woodward was a young lawyer in Ottawa when NDP leader Ed Broadbent and prime minister Pierre Trudeau struck a deal to include aboriginal rights in the Canadian constitution.
“I banged out a first draft,” Woodward recalls. “I typed it out on a manual typewriter. I had to do it in a hurry.”
In less than an hour, Woodward had laid the foundation of Section 35, the part of the Canadian constitution that recognizes and affirms the rights of Indigenous peoples.
In the ensuing 37 years, Woodward has come to know a thing or two about Canada’s constitution. For one, he fought the Tsilhqot’in Nation’s title case for a quarter century, resulting in the landmark Supreme Court ruling that the nation holds title to about 1,900 square kilometres of its traditional territory in B.C.
So when Woodward hears pundits and politicians bandying around the phrase “unconstitutional,” his ears perk up.
Kinder Morgan’s decision to suspend work on its controversial $7.4-billion Trans Mountain pipeline looks like a another corporate attempt to blackmail Canadian governments.
Reflecting on his long struggle against South African apartheid, Nelson Mandela said, “One effect of sustained conflict is to narrow our vision of what is possible. Time and again, conflicts are resolved through shifts that were unimaginable at the start.”
The Kinder Morgan Trans Mountain pipeline expansion is not apartheid — let’s get that off the table right away. It’s a pipeline. But in its sustained, divisive nature, in the way in brings up hard constitutional questions and emotional responses while deepening political entrenchment, the very debate over the pipeline is worth considering in its own light.
“Debate” might not even be the right word at this point. When one side is being arrested for opposition while the other is worried about their ability to operate within the basic Canadian principles of peace, order and good government, this has become something deeper and less flexible than a debate.
As the national conversation about the Kinder Morgan Trans Mountain pipeline goes thoroughly bananas, one thing is becoming crystal clear: this conflict is likely to get worse before it gets better.
Thankfully, there are people out there who specialize in resolving conflicts like this — people like Canadian Adam Kahane who has been credited with helping to end Colombia’s civil war.
For Kahane — the author of the book Collaborating with the Enemy: How to Work with People You Don't Agree With or Like or Trust — the most striking thing about the pipeline debate is that the rules are not clear.
“The question of who gets to decide on what in Canada between the provincial and federal governments on one hand and Indigenous rights holders on the other hand is not settled,” he told DeSmog Canada in an interview.
All hell is breaking loose over the Trans Mountain pipeline.
On Sunday, Kinder Morgan announced it was putting all “non-essential spending” on hold until it could be guaranteed “clarity on the path forward.” That sent both the Alberta and federal governments into a near-frenzy — Premier Rachel Notley pledged to buy the entire pipeline if needed, while the federal cabinet held an “emergency meeting” (ministers literally ran from the media afterward).
It’s also come to light that Kinder Morgan could actually sue the government of Canada if it can’t build the pipeline. In a call with investors, Kinder Morgan chair and CEO Steven Kean said that it’s far too premature to consider.
But it certainly wouldn’t be unusual: between 1995 and 2015, Canada has been sued 35 times by investors and paid out at least $170 million.
“It is extraordinarily easy for a deep-pocketed company like Kinder Morgan to sue Canada using NAFTA,” said Gus Van Harten, an associate professor at York University's Osgoode Hall Law School and expert in international investment law and arbitration, in an interview with DeSmog Canada.