Justin Trudeau has the jurisdiction to push back B.C.'s new threat to block the Trans Mountain pipeline, but does he have the will?
The Prime Minister hoped he had done the politics on pipelines in 2016, long before an election, balancing approval of an expansion of the pipeline to Burnaby, B.C., with a price on carbon and a climate-change agreement with provinces. But the mess is back, and that spells trouble for Mr. Trudeau.
B.C.'s NDP government, which depends on Green Party support to survive, announced a review of whether a bitumen spill could be properly cleaned up – and said it would regulate to block any increase the flow of bitumen through the province and onto tankers until that review is completed.
If this were just a jurisdictional fight between B.C. and Ottawa, it would be pretty easy for Mr. Trudeau to push back. B.C. has powers to regulate its environment, but approving pipelines, and the inter-provincial transportation of resources such as oil, is federal jurisdiction. The pipeline is supposed to meet provincial rules, but if B.C. is using them to frustrate the federal government's powers, it would have a hard time making its case in court.
But this is politics. Mr. Trudeau has to worry that if he picks a fight with B.C., it shines the spotlight on his approval of the Trans Mountain pipeline. That just brings up a decision that is unpopular with environmentally conscious Liberal voters, and with some of the constituents of Liberal-held ridings in the Lower Mainland. The Liberals wanted the controversy to cool down, not fire up as the 2019 election gets closer.
While Alberta Premier Rachel Notley called an emergency cabinet meeting on Wednesday and threatened legal action if B.C. tries to prevent the flow of more bitumen, federal Natural Resources Minister Jim Carr was mum, standing pat on a terse statement he issued on Tuesday. That statement said the Liberal government stands by its approval of the pipeline – but did not warn B.C. it does not have the power to obstruct the decision.
Ms. Notley's government wants Ottawa to make a stronger statement. "Alberta also expects the federal government to stand up and defend the constitution and its significance to the economic stability of the country," Cheryl Oates, Ms. Notley's director of communications, said in an e-mail.
There were already significant court challenges filed by First Nations, and 157 conditions that pipeline promoter Kinder Morgan Canada Ltd. had to meet. The B.C. government has every right to review whether it is really feasible to clean up a spill of diluted bitumen. But their right to apply environmental protections is likely to stop at Ottawa's power to approve pipelines. Among the plans, according to B.C.'s backgrounder, is to broaden its authority over marine affairs.
But Ottawa has the sole power to regulate the navigation and shipping of the oil tankers that would carry the diluted bitumen, said Dalhousie University law professor Aldo Chircop, a professor of maritime law at Dalhousie University.
At the moment, B.C. has not said just how it proposes to regulate to prevent an increase in the amount of bitumen that flows through the province, but almost any effective measure is likely to meet a pretty stiff challenge from those who insist it is Ottawa's jurisdiction.
Having jurisdiction does not help Mr. Trudeau with his political problem, though. He thought he had finessed the issue in 2016 by promising to balance approval of the pipeline with climate action. Mr. Trudeau and Ms. Notley argued that climate policy was supposed to help provide the "social license" for oil sands development and pipelines. Mr. Trudeau also got the government of former BC Liberal premier Christy Clark to buy in by pumping $1.5-billion into an ocean protection plan.
That neat piece of work is unravelling now. B.C. Premier John Horgan is already facing tension with his Green Party partner Andrew Weaver over approval of the Site C dam and apparent interest in liquefied natural gas projects. He has to talk tough on Trans Mountain.
Mr. Trudeau, meanwhile, cannot just ditch his promise to make sure Canadian resources get to market – that was the balance between development and environment he promised. But it is politically dangerous to act too tough with a B.C. government that argues it is protecting its citizens against environmental risks, especially as an election gets nearer.