NAIVE REGULATORY PLAN WILL KILL OFF PIPELINE INDUSTRY
I always hoped the Liberal government would get it right when it comes to pipelines.
I certainly never wanted to think the worst about Bill C-69. Unfortunately, that’s not an option anymore, not after digging into this issue for months and reading Andrew Roman’s devastating critique.
Roman, who taught and practised environmental law in his 40-plus year career as a Toronto lawyer, makes it crystal clear why the worst is about to come.
In his essay, Pipelines, The Environment and the Economy: Canada’s New Impact Assessment Law, he spells out in depressing detail exactly how C-69, the Trudeau government’s naive and over-reaching regulatory framework for pipeline and other industrial permitting, will kill the pipeline industry.
Bill C-69 is based on a fundamental miscalculation — it’s written as if the decision on whether a pipeline will proceed is political and decided by the federal cabinet, when it fact these cases now all end up in court with judges deciding their fate.
With this in mind, any assessment procedure needs to be written in expectation of that future court battle, Roman writes.
“An impact assessment process should not effectively hang a target on its back with a sign saying, ‘Sue me.’ An important goal of the IAA (Impact Assessment Act) should be to minimize the likelihood of successful court challenges, thereby improving the likelihood that the cabinet’s decision will be final. Unfortunately, the IAA increases the likelihood of successful court challenges by introducing several new litigation triggers.
“The underlying message to prospective investors, whose advisers will read the law behind the political salesmanship, is that Canada is now indifferent to, and perhaps actually opposed to, any new pipeline projects.”
In the previous assessment process, a federal board had to consider environmental issues around a pipeline, such as whether or not it would safely move oil or gas.
But the Liberals seek to greatly expand that list of legally required considerations.
“You don’t only look at the environment, you look at social, economic, gender-related and other factors, so you’ve gone from what was an environmental assessment to what is a political assessment,” Roman said in an interview.
“By doing that we’ve made it 10 times more complicated. And the government thinks it can do this in half the time. That just isn’t going to happen.”
Natural Resources Minister Amarjeet Sohi is likely right when he says that by having the assessment board open to hearing from more people on more issues, the process will be seen as more transparent.
But he’s made a crucial mistake, Roman said.
“It only takes one person to disagree and take you to court. His assumption that we’ll all get along just fine is based on the idea that everybody who is going to be involved in the process wants the same outcome. And that’s just not true. There will be many people involved in the process, like the (anti-TMX pipeline) plaintiffs in the federal court, who want the exact opposite. They’re perfectly happy to go to the hearing and take as long as they want and try and delay it even further by submitting endless rounds of questions and evidence. But if the decision (from the board and federal cabinet) is approval, they’re off to court.”
The additional legal triggers include things like First Nations being allowed to present secret evidence of “Indigenous knowledge,” a vague and broader definition of environmental impacts so wide it might be expanded to looking at all environmental issues around the world, and a new focus on the pipeline’s impact on gender.
C-69 is now before the Senate. A massive amount of work is needed if it’s going to be fixed. A good start will be to invite Roman to speak at upcoming Senate hearings.
To get this right, the government needs to refocus and think clearly about the public’s one vital interest in pipeline permitting: to make damn sure that a private company can safely move oil or gas from Point A to Point B.
That focus has now been obliterated by an earthquake of good intentions gone wrong. C-69 essentially scapegoats pipelines and other industrial projects, putting the crushing weight of world environmental problems, historic Indigenous issues and societal gender grievances onto the permitting process.
The Trudeau government has many resources and endless levers outside of pipeline projects to deal with such pressing social issues. They should do so pronto.
They should also listen to critics like Roman who can help us figure out how to fairly assess pipelines and get safe and sound projects permission to proceed.