One of the most consequential questions after the recent British Columbia election is the fate of Kinder Morgan's Trans Mountain pipeline. Alberta Premier Rachel Notley argues that B.C. has no authority to "block or overturn" the federal government's approval of this controversial project. But that does not mean that a newly elected B.C. government cannot do its own independent assessment of the Trans Mountain project, even though the Clark government has given the project its blessing. Indeed, we argue that the province may be duty-bound to do so, on behalf both of British Columbians and Canadians.
Some background: Soon after its own election, the Trudeau government announced interim regulations for oil pipeline projects under review by the National Energy Board (NEB), including Trans Mountain and the equally controversial Energy East project. The new regulations required that pipeline decisions be based on science and traditional Indigenous knowledge, public input, and project-related direct and upstream greenhouse gas (GHG) emissions.
These new measures were put in place because the federal Liberals recognized that Canadians had lost confidence in the NEB, which they vowed to review and modernize.
Soon after, however, when the Trudeau government approved Trans Mountain, it relied heavily on the NEB's own review of the project, its supplemental review adding little to the process.
Among other things, this supplemental review was unable "to conclude definitively on whether emissions will increase as a result of the project." Despite this, the government concluded – curiously – that Trans Mountain will "not impact the emissions projections that underpin the plan to meet or exceed Canada's 2030 target of at least 30 per cent reduction below 2005 levels of emissions."
However, a study conducted by energy economist Mark Jaccard estimated the annual upstream GHG emissions of Trans Mountain to be 8.8 metric tonnes of carbon dioxide equivalent, the same as adding 2.2 million cars to Canada's roads every year. Meanwhile, to meet its 2030 target, Canada has only 13 years to cut nearly 200 million tonnes of annual emissions, the equivalent of removing 44 million cars from the road.
The Trudeau government's math simply doesn't add up.
Nor did the Trudeau government's supplemental review of Trans Mountain remedy any of the other glaring deficiencies of the NEB's review, including its failure to address spill impact and response concerns (a key issue raised by B.C. and many other intervenors), its decision to deny cross-examination rights and its effects on First Nations (many of whom are challenging the project in court along with municipalities and conservation organizations).
All of which sets the stage for a much-needed province-led assessment of the Trans Mountain project. The recent election in B.C., leaving the Greens holding the balance of power, provides the perfect political opportunity to do so. All that is required is a simple amendment to the B.C. Environmental Assessment Act.
There is strong legal precedent supporting the right of provinces to do their own environmental reviews of pipeline projects. In a 2016 decision known as Coastal First Nations, the B.C. Supreme Court was sharply critical of the B.C. government's decision not to do its own assessment and render its own decision on pipeline projects such as Trans Mountain. It called the province's decision to stand down while the NEB assesses and the federal government decides the fate of projects like this an "abdication" of B.C.'s responsibility to protect its environmental, economic and social interests in its lands and waters.
Instead of heeding the court's admonition and doing its own independent review, however, the Clark government simply rubber-stamped the NEB's flawed report.
Coastal First Nations and other recent judicial pronouncements underscore that provinces have the right, indeed the obligation, to assess the impacts of federally regulated projects as long as they do so to protect bona fide provincial interests.
While we await the final results of the May 9 vote, what does seem clear is that British Columbians have some serious concerns and questions about the Trans Mountain project. A new B.C. government would be well advised to heed that message and undertake its own independent assessment of this controversial and historic project.
Chris Tollefson, Faculty of Law, University of Victoria, and Jason MacLean, Bora Laskin Faculty of Law, Lakehead University