Premier Philippe Couillard was not kidding when, on the eve of this week's first ministers' conference, he referred to the timing of his government's move to seek an injunction forcing TransCanada Corp. to comply with Quebec's environmental laws as an "unfortunate coincidence."
TransCanada's $15.7-billion Energy East pipeline project has been inflaming regional tensions, and the last thing the federalist Mr. Couillard needs is for hot-headed Western politicians to give the Parti Québécois one more grievance to stir up sovereigntist support.
Yet, that is what he got from Saskatchewan Premier Brad Wall and Alberta Wildrose Leader Brian Jean after Quebec went to court on Tuesday to force TransCanada to provide more documentation on Energy East's environmental impact. Given its timing, the move looked like a provocation, one that led Mr. Wall to declare "enough is enough" and Mr. Jean to order Quebec to return the $10-billion in equalization payments it will get this year. PQ Leader Pierre Karl Péladeau quickly took to Facebook to denounce their "contempt" for the rights of eight million Quebeckers.
What seems certain to further complicate Energy East's already tortured path to approval is really just the result of the Couillard government's own fumbling of a file that has bedevilled it from Day 1. Its injunction request is principally a face-saving measure, but one that could have major consequences for Energy East and all future interprovincial infrastructure projects.
Last June, Quebec Environment Minister David Heurtel announced that the province's Bureau d'audiences publiques sur l'environnement (BAPE) would hold public hearings on Energy East, which includes about 650 kilometres of new pipeline through Quebec aimed at moving Alberta crude to the East Coast. But the hearings, designed to help the officially fence-sitting Couillard government craft its own position on Energy East, were to be held under a section of Quebec's Environmental Quality Act that dispensed with a full-fledged environmental assessment.
A coalition of environmentalists denounced this "truncated BAPE" process, which they said betrayed the Couillard government's bias in favour of Energy East. Two weeks ago, they filed a court case to force TransCanada to seek a certificate of authorization from the BAPE for Energy East. The case aims to test the limits of Quebec's jurisdiction over interprovincial energy projects that, technically speaking, fall under Ottawa's purview. The environmental groups vow to go all the way to the Supreme Court if need be.
The injunction Mr. Heurtel sought Tuesday is his response to environmentalist allegations that the truncated BAPE process contravenes Quebec's environmental laws. But what Mr. Heurtel is seeking from the court falls far short of requiring TransCanada to submit Energy East to a full-fledged BAPE environmental review. The request seeks to force TransCanada to submit an environmental impact study on the Quebec-only portion of Energy East, which crosses dozens of communities and waterways.
There is little possibility of that happening before Monday, when the BAPE hearings are set to begin. Mr. Heurtel nevertheless insists on proceeding with this truncated BAPE consultation without additional documentation from TransCanada. That is unacceptable to the Quebec Environmental Law Centre, which is seeking an injunction to prevent the hearings from going ahead, arguing 1) that a full provincial environmental assessment of Energy East is required, and 2) that the process can't begin until TransCanada has submitted an environmental impact study.
It could be months or longer before this legal imbroglio is sorted out. It won't, in all likelihood, be settled before the National Energy Board begins its own hearings into Energy East, adding an additional layer of uncertainty to not only this energy infrastructure project but all future ones.
The B.C. Supreme Court ruled in January that British Columbia has an obligation to conduct its own environmental review of Enbridge's Northern Gateway pipeline (rather than outsourcing the job to the NEB) because the project, "while interprovincial, is not national and it disproportionately impacts the interests of British Columbians." Energy East, which would cross six provinces, is a far different beast.
The Couillard government is also in a tougher position than its counterparts elsewhere given Quebec's greater dependence on equalization (B.C. receives none, while Ontario will this year get a quarter of what Quebec pockets, and is soon likely to get none at all) and the presence of a separatist opposition eager to seize on real or perceived slights from the rest of Canada.
Mr. Couillard has struggled to find a way to get to "yes" on Energy East that does not compromise his own green credentials or political future. The BAPE mess won't make it any easier.