Trans Mountain challenges Vancouver bid to include climate change discussion in hearings

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Lawyers representing Trans Mountain Pipeline ULC have asked the National Energy Board to reject a City of Vancouver application to have the coming hearings deal with the issue of climate change.

In a motion to the NEB, Vancouver sought to have the list of issues under review expanded to include "the environmental and socio-economic effects associated with upstream activities, including the development of oil sands crude, and the downstream use of the oil transported by the proposed pipeline."

But Shawn Denstedt, a lawyer with OslerHoskin & Harcourt LLP, which is representing Trans Mountain, has asked the NEB to reject the city's motion, saying the topics are clearly outside the scope of the hearings.

"Trans Mountain is not seeking the Board's approval for upstream or downstream projects which are outside of the Board's jurisdiction and subject of their own regulatory processes," Mr. Denstedt states in a letter to the NEB. "Trans Mountain is simply responding to a general market need by proposing to expand its existing system."

He states that the city's application should be denied because it "has failed to establish a sufficiently direct connection between existing or proposed oil sands developments, upstream and downstream effects, and the Project under review."

Trans Mountain Pipeline wants to twin an existing oil line that runs across British Columbia, delivering crude oil from Alberta to a tank farm and loading facility in Burnaby. Several municipalities along the route have expressed concern about the $5.4-billion project, which would triple the amount of oil currently being shipped.

In its application, Vancouver asked the NEB to look at the environmental impacts caused by increasing oil-sands extraction in Alberta, and by burning the oil at its end destination.

The city says it's concerned about sea-level increases due to climate change and included in its NEB submission an estimate that the Trans Mountain project would increase greenhouse-gas emissions by more than seven million tons a year.

But Mr. Denstedt said in his letter that the NEB was correct to leave those issues off the table. "As the master of its own procedure, the Board must be able to set its agenda and exclude issues outside of its jurisdiction that are not directly related to the project under review," he states.

Mr. Denstedt pointed out that the recently concluded Joint Review Panel hearings on Enbridge Inc.'s proposed Northern Gateway pipeline did not include an environmental assessment of the oil sands. He also argued it would be "inappropriate and unmanageable" for the NEB to consider downstream uses of the oil to be shipped through the proposed Trans Mountain pipeline. "There is no discernible way for the Board to assess the patterns of energy use in potential downstream markets," he states.

However, Ecojustice, a non-profit law foundation representing Living Oceans Society and Raincoast Conservation Foundation, has written to the NEB expressing support for the City of Vancouver motion. "Expansion of oil sands activity induced by the project will result in additional direct environmental impacts, including additional greenhouse gas emissions that further exacerbate climate change, the impacts of which are increasingly being felt throughout Canada," states Ecojustice. "The direct effects that will result from this project's operation, are extensive, and must be evaluated by the panel in this proceeding." The NEB will hold oral public hearings into the Trans Mountain project later this year, starting with aboriginal traditional evidence in August and continuing to general hearings beginning in January 2015.