COURT RULES FOR PIPELINE
16th straight win for company
The Supreme Court of British Columbia threw out two challenges of the B.C. government’s environmental approvals for the $7.4-billion Trans Mountain pipeline project, adding to Kinder Morgan Canada Ltd.'s perfect record of winning legal cases even as the project faces stiff opposition on the ground.
The B.C. Supreme Court dismissed applications by the City of Vancouver and the Squamish Nation to overturn the environmental certificates the former Liberal B.C. government had granted to the Trans Mountain project.
In a decisive victory for the company, Justice Christopher Grauer ruled that Vancouver would need to pay Kinder Morgan unspecified legal costs. Prior to the two cases, Kinder Morgan had won 14 court challenges in a row for its Trans Mountain pipeline project.
Kinder Morgan did not respond to a request for comment Thursday, but the company continues to face other legal challenges to its project to expand an oil pipeline system between Alberta and the B.C. coast.
The company cited obstructionist legal challenges from various levels of government in B.C. when it announced last month it would suspend all non-essential spending on the project until the federal government steps in to provide assurances before it builds the pipeline. The company gave Ottawa the end of May to resolve the issue.
Despite the ongoing challenges, the double legal victories Thursday help eliminate some of the uncertainty facing the project.
“While other decisions remain before the courts, the record in the courts of (Trans Mountain) proponents is promising,” Alberta Premier Rachel Notley said in a statement. “This pipeline is unlike any other in that it has been rigorously reviewed, meaningful consultation has taken place and it is paired with an effective climate protection plan.”
Grauer ruled that provincial authorities acted within their legal rights in issuing permits for the project in both cases.
He dismissed Vancouver’s argument that the provincial government did not follow its own requirement to provide a period for public comment on the project because there were opportunities to do so during the regulatory process.
“This was based, in part, on the comprehensive nature of the NEB (National Energy Board) process, in which Vancouver and many others participated fully,” Grauer wrote.
He also ruled Vancouver’s other key argument — that the province was obligated to conduct further assessment of the project’s environmental impacts — was not founded.
“The ministers’ decision to order the issuance of an (environmental assessment certificate) without ordering a further assessment, a discretionary decision, fell within the range of possible, acceptable outcomes defensible in respect of the facts and law,” Grauer wrote.
“I cannot say, then, that the ministers erred in law, mistook their ability to order a further assessment or acted unreasonably. This ground also fails,” he wrote.
In a statement, the City of Vancouver said it was reviewing the court’s decision and has 30 days to decide if it will appeal the decision to the B.C. Court of Appeal.
The city also noted that this is not the end of the legal challenges facing the Trans Mountain project.
“The case does not decide the issues relating to the National Energy Board process and the federal government approval of the project that are currently before the Federal Court of Appeal,” the Vancouver statement reads. “It also does not decide constitutional questions currently being considered by other courts.”
In the Federal Court of Appeal case, the court will decide whether Ottawa sufficiently consulted with affected First Nations along the pipeline route, a consideration Grauer also made at the provincial level in the case brought by the Squamish Nation at the B.C. Supreme Court.
Grauer found that B.C. provincial government authorities conducted sufficient consultations with Aboriginal groups.
“I find that in issuing the EAC (environmental assessment certificate) in this case, the Minister’s conclusion, that consultation and accommodation sufficient to satisfy section 35 of the Constitution Act, 1982, had occurred, was reasonable and entitled to deference,” Grauer wrote in his decision on that case. “The petition is accordingly dismissed.”
B.C. Attorney General David Eby, whose Green party-backed government opposes the pipeline, said in a release the court’s decisions “have no bearing on the ongoing Federal Court of Appeal case challenging the federal approval of the project.”
Greenpeace said it continued to support the Squamish Nation, noting that the company continues to face hurdles.
“Kinder Morgan still faces a litany of legal challenges, growing on-the-ground resistance and crumbling project economics,” campaigner Mike Hudema said in a release. “None of those changed today and the prospects for this destructive pipeline and tanker project are as dismal as they have ever been.”