Alberta Premier Rachel Notley’s decision to pull out of a federal-provincial climate deal is the “wrong approach” in responding to Thursday’s court decision quashing Ottawa’s approval of the Trans Mountain pipeline expansion, a spokesman for Intergovernmental Affairs Minister Dominic LeBlanc said Friday.
Ms. Notley declared that her government would pull the province out of the pan-Canadian framework on climate change and freeze its carbon tax at $30 a tonne, cancelling the plan to increase it to $40 in 2021 and $50 in 2022 as called for under the accord. She urged Prime Minister Justin Trudeau to call a special session of the House of Commons as soon as possible to pass legislation that would essentially override the court’s ruling that the National Energy Board (NEB) should have formally included increased tanker traffic from the project as part of its review. The Commons is scheduled to return Sept. 17.
“Abandoning a plan to tackle pollution is the wrong approach to get this pipeline built, and this decision shows that environmental issues need to be addressed," Mr. LeBlanc’s press secretary, Vincent Hughes, said in an e-mail statement. "We are committed to moving this project forward in the right way.”
Mr. Hughes said the government would not comment on Ms. Notley’s specific demand for legislation declaring that the NEB has no jurisdiction to deal with the impacts of tanker traffic resulting from a pipeline expansion project.
The federal government could pass legislation essentially overriding the court’s order for the National Energy Board to reconsider the matter of increased marine traffic and its impact on an endangered killer whale population, Howard Anglin, a lawyer at the Canadian Constitutional Foundation, said.
“In theory, there could be a legislative change that would specify exactly the scope of what needs to be considered by both the regulator and cabinet in making this decision,” said Mr. Anglin, who served as deputy chief of staff for former prime minister Stephen Harper. “From a political side, I can’t imagine them – having just been told they didn’t consider the adverse effects on killer whale populations in the Salish Sea – then passing a law saying those things do not have to be considered.”
Federal Finance Minister Bill Morneau said Ottawa would take steps to ensure the project proceeds, while addressing the legal issues regarding environmental protection and First Nations consultations. He said he understood the frustration in Alberta, but that the solution is not to give short shrift to environmental or Indigenous considerations.
“We really do need to recognize this reinforces exactly what we have been saying: There is no way forward on important projects without [First Nations] engagement and environmental protection,” the minister told CBC Radio’s The Current on Friday.
Ottawa on Friday closed its $4.5-billion purchase of the Trans Mountain pipeline assets from Kinder Morgan Canada Ltd., a deal that was struck in May after the Houston-based parent company, Kinder Morgan Inc., suspended work because of the prospect of lengthy political and legal delays. The purchase price covered the existing pipeline network, but Ottawa is also committed to finance the expansion, which would roughly triple the amount of crude flowing from Alberta to the export terminal in Burnaby, B.C.
Analysts had already expected the projected $7.4-billion cost to climb and the court-ordered delay will almost certainly increase it even more.
Conservative Party MP Shannon Stubbs said the Liberal government has fumbled the energy and pipeline issue and is facing the prospect of delays and rising costs on a desperately needed project.
The Appeal Court nullified the federal approval and ordered Ottawa to return the project to the NEB for a reconsideration of the tanker-traffic issue and to re-engage with First Nations and seek ways to accommodate their specific concerns about the pipeline expansion.
It’s unclear how long those steps will take. In her judgment on Thursday, Justice Eleanor Dawson said Ottawa could put time limits on the NEB review and that the First Nations engagement could be “efficient and brief.” But lawyers for environmental groups and First Nations warn that any attempt to short-change the judgment will result in further legal action.
However, the NEB could move quickly to reconsider the matter and send it back to cabinet, said Martin Olszynski, a law professor at the University of Calgary and a former lawyer with the federal government. The three members of the NEB panel that oversaw the Trans Mountain review – David Hamilton, Philip Davies and Alison Scott – are still at the board and could be drafted to reconsider it.
As well, the panel did gather considerable evidence on the expected increase in marine traffic that would result from the pipeline expansion, the likely impact on the killer whale populations and even some proposals to mitigate the impact. What was lacking was a formal declaration that the project would have significant environmental consequences that needed to be mitigated and a triggering of the Species at Risk Act, which requires measures to reduce or eliminate potential adverse effects.