NEB could fix ‘critical error’ in protecting killer whales
When the National Energy Board reconsiders its recommendation to approve the Trans Mountain Pipeline expansion, it could include new rules for tanker traffic, spill response and protection of endangered orcas, conservationists say.
The Federal Court of Appeal ruled that the NEB made a “critical error” by not considering the impact of tanker traffic on the marine environment when it reviewed the expansion of the pipeline.
While the board doesn’t regulate shipping, it could set conditions to regulate the speed, maintenance and operation of tankers, said Ecojustice lawyer Dyna Tuytel.
In quashing the federal government’s approval of the project, the court directed the NEB to consider the project’s environmental impacts, and the impacts of tankers and oil spills on southern resident killer whales. The NEB concluded that the orcas would suffer “adverse effects,” but did not consider that in its final decision and so failed in its legal obligation to protect endangered orcas under the Species at Risk Act.
A recent study found that the southern residents are at the highest risk of death in the event of an oil spill compared with 20 other coastal mammals.
Ecojustice lawyers presented arguments to the court on behalf of Living Oceans Society and Raincoast, arguing that the NEB “used an overly narrow interpretation of the law to avoid addressing the pipeline expansion’s impact on endangered southern resident killer whales and their critical habitat.”
The NEB must now consider Trans Mountain’s environmental impacts and make a new recommendation to the federal cabinet.
“They have a lot of work to do now to see if there are ways to lessen or avoid those impacts under the Species at Risk Act,” said Misty Macduffee, a biologist with the Raincoast Conservation Foundation. “The Salish Sea is already too noisy for killer whales, so any traffic you add to it makes a bad situation worse.”
A Vancouver Fraser Port Authority voluntary trial found that ships that reduce their speed generate less of the kind of underwater noise that interferes with the ability of orcas to hunt and communicate. Shipping vessels and ferries reduced their speed by about 40 per cent to 11 knots (20 km/h) for a 16-kilometre stretch in Haro Strait, which is a critical habitat for southern residents.
“The trial demonstrated that reducing vessel speeds is an effective way of reducing the underwater noise ... which may in turn benefit the behaviour and feeding success of the southern resident killer whale,” the port authority reported.
If the project proceeds without mitigating the noise, pollution and shortage of prey that plague the whales, there is a 50 per cent chance the southern residents could be extinct by the year 2100, Raincoast experts testified. Only 75 southern residents remain today after several recent deaths.
The existing Trans Mountain Pipeline supplies oil to refineries in British Columbia and Washington state and to about 60 crude oil tankers per year. The expansion would increase tanker traffic to 400 vessels per year.
The Tsleil-Waututh Nation, whose community is on the Burrard Inlet across from the Trans Mountain marine terminal, conducted its own environmental assessment that was released in 2015 and concluded that environmental and public health risks had been underestimated for both major and minor oil spills in Burrard Inlet.