Trans Mountain pipeline expansion quashed by Federal Court of Appeal

Approval of Trans Mountain pipeline expansion quashed by Federal Court of Appeal

Federal Court of Appeal quashes Trans Mountain approval, calls it ‘unjustified failure’ in win for First Nations, environmentalists

Kamloops-Thompson-Cariboo Conservative MP Cathy McLeod called Thursday's Federal Court of Appeal decision on Kinder Morgan's Trans Mountain pipeline project hard and said she is disappointed and concerned.

The court combined into one case almost two dozen lawsuits calling for the National Energy Board's review of Kinder Morgan Canada Ltd.'s project to be overturned.

"It's very clear from this decision that environmental assessment considerations and Species At Risk Act decisions aren't optional, and they need to be taken seriously", said Dyna Tuytel, a lawyer with Ecojustice, who represented conservation groups that filed a court challenge to the federal government's approval for a pipeline expansion.

"If the Federal Court strikes down the permit authorizing the pipeline because of inadequate consultation, or for another reason, then I don't see how the pipeline project can proceed - unless or until the Supreme Court reversed that decision", he said.

Shortly after the court ruling, Kinder Morgan Canada shareholders voted more than 99 per cent in favour of its $4.5 billion deal of the controversial project to the federal government. Trans Mountain is now taking measures to suspend construction related activities on the project in a safe and orderly manner.

Thursday's ruling puts the government in a hard position, said Stewart Phillip, grand chief of the Union of British Columbia Indian Chiefs. The Trans Mountain expansion would cause tanker traffic to balloon from about 60 to more than 400 vessels annually as the pipeline flow increases from 300,000 to 890,000 barrels per day. "We've never given consent to this project".

Bill Morneau, Canada's finance minister, said the government is reviewing the court's decision carefully, but it has not yet decided what its exact response will be.

The court's rejection places greater importance for Canada's oil industry on two other pipeline projects.

Christie said the court decision on consultation was based on established law, but another expert said the ruling appeared to shift the requirements for governments.

The decision was a major victory for Canadian First Nations, environmental groups and USA tribes that opposed the pipeline expansion.

That exclusion made the NEB report unreliable for the government when assessing the project, the court found.

For example, the Coldwater Indian Band in south-central B.C. raised concerns about the pipeline route passing through an aquifer that is the sole supply of drinking water for its main reserve.

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Corrigan said he doesn't think this ruling will put the nail in the coffin of the proposed expansion project, but he said it remains a "victory for opponents of the pipeline".

In a statement, Kinder Morgan said it is reviewing the court decision and assessing its next steps.

In April, Horgan's government asked the B.C. Court of Appeal to decide if the province has the legal right to restrict the flow of bitumen by pipeline or rail. "So I believe that the arguments about where the environment rests in terms of jurisdiction in Canada is still important".

"Certainly I understand that this is going to be a devastating decision for many in Alberta, and I respect that", Horgan said.

Calling the pipeline a "key piece of infrastructure" for economic stability in the Kamloops area, the North Shore Business Improvement Association released a statement welcoming the decision.

The decision means the National Energy Board will have to begin anew its review of the Trans Mountain project.

The expansion, which has sparked anti-pipeline protests, pro-pipeline rallies and an Alberta-B.C. standoff in recent months, will almost triple the line's capacity to 890,000 barrels per day.

"We believe this project is in the national interest, we believe that it's critically important for our economy, critically important to allow us ... to get to global markets", said Morneau. It would also increase the number of tankers in Burrard Inlet sevenfold.

That failure "was so critical that the Governor in Council could not functionally make the kind of assessment of the project's environmental effects and the public interest that the (environmental assessment) legislation requires, " stated the ruling, written by Justice Eleanor Dawson.

In particular, the court said it was an "unjustifiable failure" that the National Energy Board did not consider the environmental impacts the increased shipping traffic could have.

Fuel spills and underwater noise from tankers are just some of the threats that have endangered the southern resident killer whale population.

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