This week, the British Columbia government went to the B.C. Court of Appeal in an attempt to limit the passage of heavy oil into the province in response to the Trans Mountain pipeline expansion.
At the opening of the hearing, the B.C. government acknowledged it could not stop the Trans Mountain pipeline expansion, however, the reference submitted to the Court of Appeal seeks to determine whether the province can enact environmental laws that can “prevent oil spills and leaks and mitigate the harm that may occur”.
In the hearing, the B.C. government is attempting to obtain judicial approval of draft regulations to British Columbia’s Environmental Management Act that would allow it to limit any increase of heavy oil being transported through the province, whether by pipeline, rail or highway.
At issue will likely be the division of powers between the federal and provincial governments regarding the proposed environmental regulations.
Lawyers for the federal government are expected to argue that British Columbia’s proposed regulations would frustrate its right to oversee the pipeline expansion.
The Trans Mountain Pipelineis a pipeline that carries crude and refined oil from Alberta to the coast of British Columbia. In 2013, Trans Mountain submitted an application to the National Energy Board for a certificate of public convenience and necessity for the Trans Mountain Expansion Project. A company may not operate an interprovincial or international pipeline in Canada unless the National Energy Board has issued a certificate of public convenience and necessity and given leave to the company to open the pipeline.
The expansion project proposal included, among others, adding a second span of pipeline parallel to the existing pipeline system with approximately 987 kilometres of new segments for the purpose of transporting diluted bitumen from Edmonton, Alberta to Burnaby, B.C. The project would also increase the overall capacity of Trans Mountain’s existing pipeline system from 300,000 barrels per day to 890,000 barrels per day.
In 2016, the National Energy Board issued its report concerning the proposed expansion of the Trans Mountain pipeline system. The Board’s report recommended that the Governor in Council approve the expansion. The Board’s recommendation was based on its findings that the expansion is in Canada’s public interest, and that if certain environmental protection procedures and mitigation measures were implemented, and if the conditions the Board recommended were implemented, the expansion would not be likely to cause significant adverse environmental effects. The Governor in Council accepted the Board’s recommendation.
In 2018, the Federal Court of Appeal overturned approval of the project, ruling that the National Energy Board had not properly considered its impact on marine life and that Ottawa had not meaningfully consulted with Indigenous groups.
However, in 2019, the Energy Board found the pipeline was still in the public interest, and added 16 additional conditions for the project.
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