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The B.C. government will announce on Thursday the question it will put to the province’s highest court, seeking a ruling on its jurisdiction over the transportation of heavy oil across its borders.

The province’s reference case will point to gaps in science to justify its quest to assert its authority over the environment when oil is moved by truck, rail or pipeline.

“We’re not sure – and neither is the Royal Society of Canada – that we know everything we need to know to make pipelines safer, particularly when they cross water bodies,” B.C. Environment Minister George Heyman said in an interview.

The B.C. NDP government is battling with neighbouring Alberta over the expansion of Kinder Morgan’s Trans Mountain pipeline to the West Coast, which would open up access for Alberta’s landlocked oil products to overseas markets. B.C. argues the project would put the environment at risk, in large part because of the increased oil tanker traffic that would transport the oil offshore.

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B.C. intends to refer to the provincial Court of Appeal a question to determine whether it has the jurisdiction to restrict increased shipments of bitumen across its borders. The restrictions are proposed as a temporary measure while an independent scientific advisory panel determines how – or whether – heavy oil spills in the marine environment can be cleaned up.

Mr. Heyman was citing a 2015 expert panel report from the Royal Society of Canada that identified several information gaps around how bitumen behaves when spilled. That report found “the environmental behaviour of unconventional oils and blended oils currently cannot be predicted with confidence, which affects spill response planning and decisions.”

More recently, the U.S. National Academies of Sciences, Engineering, and Medicine produced a consensus report, titled Spills of Diluted Bitumen from Pipelines, that underscored the need for further research. “There remain areas of uncertainty that hamper effective spill response planning and response to spills. These uncertainties span a range of issues, including diluted bitumen’s behaviour in the environment under different conditions, its detection when submerged or sunken, and the best response strategies for mitigating the impacts of submerged and sunken oil,” the report states.

Although the federal government has vowed to push the pipeline through over the B.C. government’s objections, it tacitly acknowledged the need for more research when it promised more than $45-million in new science funding last December to study how oil spills behave, how best to clean and contain them, and how to best minimize their environmental impacts.

Eugene Kung, the lead lawyer on the Kinder Morgan file for West Coast Environmental Law, said Ottawa should not have approved the pipeline before seeking those answers.

“There are huge gaps in our understanding of how diluted bitumen would behave in a spill, which I would hope would inform our spill responses before any approvals are granted,” he said in an interview Wednesday.

Kinder Morgan Inc. says the B.C. government’s efforts to push back against the project has caused “unquantifiable risk” to its project. It has halted non-essential construction and set a May 31 deadline to decide whether it will proceed with the pipeline expansion, which the Trudeau government has ruled to be in the national interest.

Both Ottawa and Alberta have promised to consider financial support and other rescue options to keep the project moving forward.

B.C. has not yet appointed its scientific panel, although it has pledged to file its reference case before the end of April.

The province has acknowledged that the federal government has jurisdiction over inter-provincial pipelines, but is seeking to build a case that the province has the authority to regulate the environment – although it cannot be seen to impair the operation of the pipeline.

The money for Ottawa’s scientific research is coming from the $1.5-billion Oceans Protection Plan, a program announced at the same time that Ottawa gave approval for Kinder Morgan’s Trans Mountain expansion project in 2016.

B.C. Premier John Horgan says he’s hoping a Court of Appeal ruling can help clarify pipeline jurisdiction “now and into the future.” B.C. is in a dispute with Alberta and Ottawa over the Trans Mountain pipeline expansion.

The Canadian Press

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