What’s coming down the pipeline

The company already did this once, when Burnaby attempted to use municipal bylaws to prevent access to city land for preparatory work on the pipeline expansion.

“The company went to the National Energy Board and said ... the statute gives you the power to answer constitutional questions,” Junger said. “The NEB gave them that ruling.”

Ian Blue, a lawyer with Gardiner Roberts and expert in energy and constitutional law, said Kinder Morgan may indeed be able to manage this through an order from the energy board. But he said the federal government has options for intervening if B.C. moves forward with the regulations.

“It could instruct the Attorney General of Canada to commence action in B.C. Supreme Court for a declaration that the proposed regulations are unconstitutional,” he said. “That in itself would be a huge shot across Premier Horgan’s bow.”

And there is another federal power that could be called upon. “Once the regulations came into force, the Liberal government could just cut through all this delay and legal process, and under section 90 of the Constitution Act, disallow the regulations,” he said. “It has not been used since the 1940s, but it’s still a very definite power in the Constitution Act and could be used.”

But even if B.C. has little chance of prevailing legally in the long run, in the short term it could still cause so much delay and general uncertainty that Kinder Morgan eventually decides the project isn’t worth it.

“If B.C. wanted to get really bloody-minded about it, it could play constitutional whack-a-mole,” Blue said. “While the Attorney General of Canada and Kinder Morgan are in court arguing over one provision, they could then pass another provision, and the whole process would have to start all over again.”

That’s why a political solution may be necessary now, before any legal process gets underway. Junger said there’s a “poker game” going on between B.C. and Alberta, which is why Notley is calling for federal intervention despite the fact no regulations have been set yet.

“I think the government of Alberta must know that legally it’s premature, but they’re worried that the net effect (of B.C.'s threat) will be to just scare the proponent away,” he said.

Meanwhile, construction on the Trans Mountain pipeline has now been delayed.

“Currently Trans Mountain is focusing on route hearings and advancing the permitting process,” it said in a statement. “Until we receive greater clarity and certainty on permitting, approvals and judicial reviews, Trans Mountain will not be moving towards broader construction activities.”