TURN OFF THE TAPS?

Why Kenney’s retaliatory vow to stop the flow of oil to B.C. may fail,

CALGARY— Energy and constitutional law experts say the UCP’s plan to stop the flow of oil and gas to B.C. could be hindered by the party’s vengeful election rhetoric — and even if the attempt succeeds, it could grant other provinces the tools to retaliate.

At a rally last week in Medicine Hat, now-premier-designate Jason Kenney repeated a promise he made often on the campaign trail.

“Within the first hour of a United Conservative government, we will stand up, proclaiming into law the turn-off-the-taps legislation,” Kenney told the crowd in the Southern Alberta city.

“And we will make it very clear to the NDP government in Victoria that if they continue their campaign of obstruction, that we will be prepared to turn off the flow of Alberta energy to B.C.’s Lower Mainland.”

With the UCP’s decisive win Tuesday night, Kenney must now make good on his promises. He told reporters in Edmonton on Wednesday that his government would table a turn-off-the-taps bill on April 30 when the UCP forms their cabinet. It’s not clear what the party’s bill will look like, but Kenney isn’t the first to float the idea.

The Alberta NDP drafted a so-called turn-off-the-taps law of their own in April 2018, called Bill 12. Officials said at the time it was designed to counteract a threat to the province’s energy industry, after B.C. challenged the expansion of the Trans Mountain pipeline in court. However, Bill 12 was never proclaimed into law.

The bill would have allowed Alberta’s government to require any energy company moving their products out of the province to obtain a licence and potentially be subject to export restrictions. Licences would be issued by Alberta’s minister of energy “if it is determined to be in the public interest” — meaning licences could also be denied in certain circumstances, effectively stopping oil from leaving the province.

Experts are divided, however, on whether such legislation is constitutional.

Dwight Newman, a law professor at the University of Saskatchewan, said it all depends on how the Alberta government uses it.

“If they use it in a way that is directed at punishing British Columbia, for example, they’re more likely to run into difficulties,” Newman said.

A nuts-and-bolts overview of Bill 12 by Andrew Leach, an associate professor of energy and the environment at the University of Alberta, described it in a post to his website as “the furthest any provincial legislation has gone towards limiting the unfettered interprovincial trade of oil and gas.” He suggested the bill stepped far outside the province’s constitutional authority. Not only that, such a law — if successfully defended — would create a legal tool available to any Canadian province.

“If Alberta can successfully defend the fact that it can decide what flows in a federal pipeline, then it’s not a very far bridge for B.C. to start talking about legislating under some of the same types of conditions, or at least they … can threaten to,” Leach said in an interview.

Because Bill 12 focused on restricting refined product shipments, Leach didn’t think it would make a material difference to several major oil companies operating in Alberta, such as Suncor and Imperial. Some of these companies have refineries in B.C.’s Lower Mainland or Washington state as well and could make use of them.

“You’d create some winners and losers,” Leach said.

The Canadian Association of Petroleum Producers, which lobbies on behalf of the oil-and-gas industry, welcomed many of the United Conservative Party’s policies on Wednesday morning, following the election. In a conference call with reporters, CAPP president Tim McMillan said he was hopeful British Columbia would support efforts to build the Trans Mountain pipeline expansion.

However, he noted a degree of uncertainty with the ramifications of turn-offthe-taps legislation.

“How that power would be executed, I think, is yet to be determined — or whether it would need to be,” McMillan said.

Newman said that if the Alberta government uses legislation in a more neutral fashion — to address, for instance, overproduction and a lack of pipeline capacity — they might be able to use it in a constitutional fashion.

But there’s also a chance Kenney’s campaign statements about punishing B.C. with “a carbon-free Vancouver by 2020” could keep a turn-off-the-taps law from passing muster.

“It would be wiser not to make statements of that sort because someone could try to introduce them into court action,” Newman said. “But in terms of a particular use of the bill, in some ways, the use might speak for itself.”