A case is being heard this week in the B.C. Court of Appeal that could have a big impact on the Trans Mountain pipeline expansion project.
That’s because the B.C. government wants to be able to refuse a pipeline coming through the province if it finds it could hurt the environment, human health or communities.
Environmental legislation proposed by the government is specifically targeting the pipeline expansion and would significantly impact it, the project’s proponent and the Alberta government argued Thursday.
The court is hearing a reference case that asks whether the government can amend its Environmental Management Act to create a permitting system for companies that increase the amount of heavy oil they’re transporting through the province.
B.C. has argued the amendments are not intended to block the project. They are being made to protect the environment from spills and require companies to pay for damages.
But a lawyer for Trans Mountain ULC said B.C.’s motive is to obstruct the expansion.
“Trans Mountain will be directly and significantly impacted by the proposed legislation. Indeed, we say it is the target of the proposed legislation,” Maureen Killoran told a panel of five judges.
Killoran said Trans Mountain, which has operated since 1953 and runs from the Edmonton area to Metro Vancouver, is the only pipeline that transports liquid petroleum to the West Coast and the only pipeline to which the legislation would apply.
The proposed law presented more risk than private-sector proponent Kinder Morgan was willing to accept, prompting it to sell the pipeline to Canada for $4.5 billion last year, she said.
Since the plan to triple the pipeline’s capacity was first proposed in 2013, it has been through the largest review in the National Energy Board’s history, a number of court challenges and faced protesters and blockades, Killoran said.
The energy board ruled the expansion is in the public interest because the country cannot get all its available energy resources to Pacific markets, she said.
First Nations, the cities of Vancouver and Burnaby, and environmental group Ecojustice have delivered arguments in support of B.C.’s proposed rules.
The government of Canada opposes B.C.’s proposed permitting system because it says Ottawa _ not provinces _ has exclusive jurisdiction over inter-provincial infrastructure.
The new rules would allow a provincial public servant with expertise in pollution management to apply conditions to permits, which B.C. says would be intended to address concerns posed by a company’s proposed activities.
Peter Gall, representing the government of Alberta, said the permitting scheme is a “vague, amorphous” process that gives wide-ranging discretionary powers to a government official to do whatever he or she thinks is necessary to protect the environment.
“We accept that the province genuinely wants to protect the environment,” he said. “The problem is … the province believes that the best, indeed the only, way to protect the environment is to stop the project.”
Justice Harvey Groberman questioned why Gall would raise the motives of the legislation, given the argument that it interferes with federal jurisdiction should suffice.
Gall said the court should not ignore the “reality of the situation” _ the B.C. government is committed to stopping the project.
Premier John Horgan said while in opposition that he would use “every tool in the toolbox” to stop the expansion. The court has heard that after his minority NDP government took power in 2017, it received legal advice that it could not block the project.
Gall quoted Environment Minister George Heyman as saying that the government could not delay or obstruct the project through “anything other than even-handed consideration of permit applications.”
-with files from the Canadian Press