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A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & amp; Tankers Project June 2017

A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project

Kinder Morgan Trans Mountain project, BC Government
Author(s):

Jessica Clogg, Eugene Kung, Gavin Smith, Andrew Gage

Summary:

The historic NDP/Green alliance in British Columbia has committed to “Immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the transportation of raw bitumen through our province.”

In light of this commitment, many people have been asking: “What can BC do about Kinder Morgan?”

In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?” Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”

This brief outlines concrete legal options that a new government could use with respect to Kinder Morgan’s Trans Mountain pipeline and tankers project.

Publication Date:

June 2017

Full text:
 A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project
The historic NDP/Green alliance in British Columbia, which is poised to form BC’s next provincial
government, has committed to:
Immediately employ every tool available to the new government to stop the expansion of
the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the
transportation of raw bitumen through our province.
In light of this commitment, many people have been asking: “What can BC do about Kinder
Morgan?”
This question raises important issues that in many ways eclipse a single pipeline and tanker
project: global climate change, Indigenous rights and reconciliation, and Canadian federalism, to
name a few.
In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?”
Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”
This brief outlines concrete legal options that a new government could use with respect to Kinder
Morgan’s Trans Mountain pipeline and tankers project. It is not a laundry list – while there are
many tools available, we have focused here on what we believe are the best tools that are:
a) available immediately; and
b) in our view the most likely to withstand legal and political challenges.
2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus, at 2.c.
Photo: BC NDP
LEGAL BACKGROUND
1) The Province of British Columbia has the constitutional authority to:
• conduct its own studies and assessment(s) of projects like the Trans Mountain pipeline
and tankers project, even if the process requirements imposed have the potential to
result in a “no”; and,
• attach conditions related to areas of provincial authority that go beyond those imposed
by the federal government in its approval of the project.
2
2) The Province of British Columbia also has a constitutional and moral obligation to fulfill its
duties to consult and accommodate potentially affected First Nations before issuing provincial
approvals and permits required for the Trans Mountain project.
3
3) Furthermore, the Province of British Columbia: (i) cannot authorize an unjustifiable
infringement of Aboriginal title or rights; and (ii) must, where a claim is particularly strong take
steps to preserve the underlying Aboriginal interest pending final resolution of the claim.
• In this context, proceeding with the BC approval – which was granted in January 2017 –
could make BC vulnerable to further legal challenges.
4) The Province can set aside existing provincial approvals and prohibit future provincial approvals
until additional process steps and/or conditions – related to areas of provincial authority – are
fulfilled. Such legal steps can, in our opinion, be taken without offending constitutional provisions
related to the division of powers between the federal and provincial governments.
• This is particularly relevant because of the high-profile problems with the federal
National Energy Board (NEB) process, and the federal Crown’s failure to meet its
constitutional duties to First Nations, as set out in 10 legal challenges brought by First
Nations to the federal approval and NEB recommendation.
5) An outright final rejection or prohibition of the Trans Mountain project by the provincial
government could result in a legal challenge by the federal government on division of powers
grounds,
which would then take many years to resolve in the courts.
• However, we note that if multiple legal challenges
to the federal approval of the Trans Mountain project by First Nations and others are successful in setting the federal
approval aside, then the operational conflict between the federal and provincial decisions
would be removed. This would eliminate one basis for a potential legal challenge by the
federal government.
• The potential of a future legal challenge, which may not occur, should not discourage BC
from taking principled steps to safeguard matters squarely within provincial jurisdiction
(such as drinking water, health and safety, provincial lands and resources etc.), and to
meet its own constitutional duties to First Nations.
Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 at paras 51-56, 71-74.
In R v. Sparrow [1990] 1 SCR 1075, the Supreme Court of Canada recognized that section 35 is a limit on both federal and provincial
powers. More recently, Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 SCR 447 and
Coastal First Nations, supra have confirmed that a province must satisfy the duty to consult First Nations.
See Tsilhqot’in v. British Columbia, 2014 SCC 44 at para 91.
See:
See e.g., Canadian Western Bank v. Alberta, 2007 SCC 22;
British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R.86, 2007 SCC 23, Coastal First Nations, supra.
See:
LEGAL TOOLBOX
The provincial government has the authority and obligation to meet its duties to First Nations,
and to protect the interests of British Columbians from this risky project. Below we have set out
four high-potential legal approaches for doing so. They are not mutually exclusive and in some
cases may be mutually enforcing.
Regardless of which legal approach is used, we recommend that the provincial government:
a) Add further processes and conditions related to matters within provincial jurisdiction;
b) Prohibit the issuance of any provincial approvals or permits to Trans Mountain, and
include a provision that any such approvals (i.e., that may have already been issued) are
without effect until the processes and conditions have been satisfied; and,
c) Establish a requirement, with reference to the United Nations Declaration on the Rights
of Indigenous Peoples, that the proponent demonstrate to the Province’s satisfaction
that every First Nation whose territory is potentially impacted by the Trans Mountain
project, including by the risks of spills or malfunctions from either pipelines or tankers,
has provided its free, prior and informed consent for the project (FPIC).
Approach 1:
Cabinet order under section 7 of the Environment and Land Use Act encompassing points a-c above Section 7 of the
Environment and Land Use Act empowers Cabinet to make any order considered “necessary or advisable respecting the environment or land use.” Such an order applies despite any other Act, and a Minister, ministry or agent of the Crown specified in the order may not exercise its power under any other Act or regulation except in accordance with the order.
• Action: Make a Cabinet order establishing additional conditions and processes, beyond
those currently set out in Trans Mountain’s environmental assessment certificate, which
must be satisfied before relevant provincial permits can be granted.
• Effect: This approach does not depend on overturning the existing environmental
assessment certificate per se, but could suspend it until further conditions are met
and processes occur. A condition requiring FPIC from potentially impacted nations
is particularly relevant, as it aligns with commitments also made by the federal
government.
Approach 2:
Court order setting aside the provincial environmental assessment certificate
This approach would involve reviewing the current legal challenges to BC’s Trans Mountain
approval, and issuing new instructions to Crown counsel, on the basis that the former government
did not meet its constitutional duty to consult and accommodate, cannot justify potential
infringements of Aboriginal title and rights from the project, and must take steps to preserve
underlying Aboriginal interests while claims are resolved.
• Action: Instruct counsel for British Columbia in Squamish Nation v British Columbia
(Minister of Environment) to review the application filed and relief sought by the
Squamish Nation, in light of the position of the new government. If the Province of
BC concludes that the previous government did not fulfill its constitutional duties,
then consider seeking a court order based on points of agreement with the Squamish
Nation. Relief sought by Squamish includes overturning the provincial environmental
assessment certificate on the basis that the Province did not meet its duty to consult and
accommodate, and prohibiting further permitting or approvals until the duty is met.
• Effect: Trans Mountain would likely oppose such an order, potentially requiring the
parties to present arguments to a judge before a decision is made. However, given that
consultation and accommodation is an issue between the Crown and First Nations, if
the provincial Crown and the Squamish Nation agree that the environmental assessment
certificate should be set aside, this would provide a highly compelling basis for the Court
to make such an order.
This option has the potential to judicially set aside Trans Mountain’s existing provincial approval,
and could result in a judicial prohibition on issuance of further provincial permits or approvals.
Even if pursuing this option does not immediately overturn the Trans Mountain approval (because
the court wishes to hear argument from Trans Mountain first), it would swiftly signal the new
government’s intention to take seriously the provincial Crown’s constitutional obligations to First
Nations impacted by the project.
In our view, this would greatly increase the likelihood that the environmental assessment
certificate would be set aside by the Court following argument. This approach would open up
opportunities for BC to engage meaningfully with First Nations, undertake additional review
processes and make a new decision on the environmental assessment certificate with additional conditions, if required.
Approach 3:
Order under section 31 of the BC Environmental Assessment Act to vary provisions of the Act as they apply to the Trans Mountain project.  This approach would involve using an existing variation provision in the Environmental Assessment
Act.
to enable changes to Trans Mountain’s environmental assessment certificate by order.
• Action: Make an order under section 31 of the
Environmental Assessment Act, which allows the Minister to order a variation of one or more provisions of the
Environmental Assessment Act or its regulations “in respect of a specified reviewable project” if “there
is or will be an emergency or other circumstance that warrants or will warrant the variation” and “the variation is in the public interest.”
8
Supreme Court of British Columbia Registry Number S-173649.
• Effect: There are a number of different ways this provision could be employed. For
example, the Minister could order a variation of section 37(2) of the Act, which could
broaden the scope of reasons for which the Minister may (by order) amend, suspend
or cancel the Trans Mountain environmental assessment certificate. This would, for
instance, enable the Minister to make further orders adding conditions to the Trans
Mountain certificate as per points a-c above (or even suspending or canceling the
certificate). As another example, the Minister could order a variation of sections 18
and 37 of the Act to enable the Minister to order that the certificate be amended to
significantly shorten its expiry date. Such orders could be made under the existing
Environmental Assessment Act without the need to introduce legislation.
Approach 4:
After existing permits have been altered, suspended or expired, collaboratively develop the
details of further processes and conditions that must be met before provincial permits can be
granted to Trans Mountain
• Existing assessment and review processes in BC are not up to the task of fully assessing
potential impacts on areas of provincial concern from the Trans Mountain project, nor
can they ensure that the Crown’s duties to First Nations met. Both the NDP and Green
Party have recognized the deficiencies in the current BC environmental assessment
(EA) process and have pledged to fix them. New legislation will ultimately be required
to ensure that things are done right in reviewing not just the Trans Mountain project
but future proposed developments. A new BC environmental assessment of the Trans
Mountain project, if required, should ideally occur under the revitalized EA process,
following the enactment of new EA legislation.
• Impacts on health, safety and drinking water have not been fully assessed in relation
to the Trans Mountain project to date. To do so, one option would be to pass a law
requiring an additional in-depth process reviewing impacts of the Kinder Morgan project
on community health and safety before any relevant provincial permits can be granted.
This approach could enable a detailed and in-depth review of Trans Mountain outside of
the current environmental assessment process.
• In general, we recommend that the time be taken to “get it right” in relation to the way
in which proposed projects like the Trans Mountain pipeline and tanker project, and the
cumulative effects of multiple human activities, are assessed in future in BC. However,
flexible tools such as those discussed above (e.g., under the Environment and Land Use Act) or the Public Inquiries Act could be used to design special review processes in the short term. West Coast has been deeply engaged in all four environmental law review processes currently ongoing at the federal level: environmental assessment law and processes, National Energy
Board, Navigation Protection Act, andFisheries Act. We look forward to contributing to similar BC
processes to strengthen our environmental laws and decision-making processes.
A note regarding BC’s protected areas and the Trans Mountain project.
We note that, to accommodate Kinder Morgan, the provincial government has already removed
land from Finn Creek Provincial Park and weakened protective designations for Finn Creek and
Lac Du Bois Grasslands Protected Areas in order to allow the granting of park use permits for
construction of the Trans Mountain pipeline.
9
There are indications that Trans Mountain may be seeking to have lands removed from the North Thompson River and Bridal Veil Falls Provincial Parks as well.
10
Parks are important and receive a very high level of legal protection under BC law. Indeed, the Park Act does not allow the government to approve industrial development within the boundaries of a Class A or C provincial park.
11
To the extent that Trans Mountain may request that the BC government pass legislation removing further land from provincial parks to accommodate its pipeline, the Province has no legislative obligation to do so.
12
The federal government arguably has the legal power to authorize the taking up of Crown land in a provincial park by Trans Mountain under s. 77 of the National Energy Board Act, but such an action needs to be authorized by the federal Cabinet.
13
Thus, if Trans Mountain seeks to have further land legislatively removed from provincial parks and BC does not change its existing laws to allow it, federal Cabinet would need to address the protected status of the lands explicitly and
would presumably have an obligation to consult impacted Indigenous nations before doing so.
Conclusion
It’s time for BC to hit the ‘pause’ button on Kinder Morgan, uphold its obligations to Indigenous
peoples, and properly assess the project’s impacts – before it’s too late. The legal approaches laid
out here are, in our view, the most reasonable, logical and moral options to ensure that Trans
Mountain does not jeopardize the environment, Indigenous rights and public health.
Prepared by:
Jessica Clogg, Eugene Kung, Gavin Smith & Andrew Gage
West Coast Environmental Law Association
Lands were removed from Finn Creek Provincial Park by amending the Protected Areas of British Columbia Act , through Bill 25 of 2016, the Miscellaneous Statutes Amendment Act 2016. Through Order in Council 216/2017 (March 6, 2017), the lands removed were then made subject to an order under the Environment and Land Use Act that provides that the lands will be managed as park-land, subject to the powers of the Lieutenant Governor in Council to approve the construction and operation of the Trans Mountain. Pipeline through a future park use permit. At the same time, in order in Council 117/2017, the government amended an existing Environment and Land Use Act Order related to Lac Du Bois Grasslands Protected Area to make similar provision for the future issuance of a park use permit to Trans Mountain.
10
Carol Linnitt, “Kinder Morgan asks B.C. to Remove Land from Provincial Parks to Make Way for Trans Mountain Pipeline Con-
struction” (September 11, 2014),  eSmog Canada, online: <https://www.desmog.ca/2014/09/11/kinder-morgan-asks-b-c-remove-
land-provincial-parks-make-way-trans-mountain-pipeline-construction >.
11
Park Use Permits are required for activities within a park:
Park Act , R.S.B.C. 1996, c. 344, ss. 8 -9. In relation to Class A and C
parks, Park Use Permits to disturb natural resources may only be issued where the Minister finds that it is “necessary for the preser
-vation or maintenance of the recreational values of the park involved” (s. 9).
12
Note that the approaches set out above would position the provincial government to refuse, for the time being at least, park
use permits for the pipeline until further processes and conditions are addressed. Ideally, the provincial government would also
permanently restore removed lands to Finn Creek Provincial Park by legislation, and make an order restoring the pre-existing level
of protection to Lac Du Bois Grasslands Protected Area by removing the ability to grant park use permits to Trans Mountain. How-
ever, this may more directly raise constitutional issues similar to those discussed in Burnaby (City) v. Trans Mountain Pipeline ULC,  2015 BCSC 2140 in which Burnaby unsuccessfully sought to restrict pipeline related activities in a local protected area.
13
National Energy Board Act
, R.S.C. 1985, c. N-7, s. 77, requires Cabinet to authorize the taking up of Crown land.


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How to revolutionize climate change storytelling

Climate change storytelling is undergoing a major transition, gaining the attention of politicians, countries and corporations around the world. However, with climate deniers newly emboldened and the upcoming Trump administration threatening to turn back environmental progress, will climate change keep capturing our imagination?

Greenbiz.com by  Anya Khalamayzer      Thursday, December 29, 2016

climate-wltc-article

Joel Bach (left) and David Gelber (right), the creators and executive producers of “Years of Living Dangerously”.

Joel Bach and David Gelber, the creators and executive producers of Emmy Award-winning television show, “Years of Living Dangerously,” not only think so —  they’re proving it. The National Geographic Channel show harnesses the power of blockbuster filmmaking to tell the saga of climate change playing out before our eyes.

“Years of Living Dangerously,” which debuted in 2014 and just wrapped its second season, brings together celebrities, politicians, business leaders and individuals impacted by climate change to dive deeper into angles of the story than one feature film can capture. Here, Bach discusses how the craft of storytelling can push momentum towards clean energy and sustainable business.

Joel Bach (left) and David Gelber (right). Anya Khalamayzer: What inspired “Years of Living Dangerously?”

Joel Bach: (Executive producer) David Gelber and I used to work on “60 Minutes” together. We did a couple of stories on climate change and quickly realized this was the most important story out there. We had a fantasy that we would do a feature film on it, but that’s not what we do.

At the time that we launched, it had been a while since “An Inconvenient Truth” had run. We thought there should be a big follow-up to this film that would wake people up to climate change. We wanted a big ensemble of people showing that climate change is happening now, affecting people in the U.S., and there are thousands of people trying to combat it and plan for it.

Khalamayzer: What makes for effective climate change storytelling?

Bach: Vibrant characters matter. And, ideally, a story where you care about the outcome. In season 2, Bradley Whitford did a brilliant story on the Citizens Climate Lobby, which has a stated missions to try to get Republicans to act on climate.

Whitford went to Washington, D.C. and over the course of many months got involved in the process of trying to get Republicans in the tent. There are some struggles and pitfalls, but in the end he succeeds — and you’re along for the ride. We are careful to position our characters so that they are proxies for the viewer. They begin on a journey; they learn things along the way; they continue to ask questions and they encounter people who can provide more information about how to solve the problem.

Khalamayzer: You take people known for their talent in other areas and turn them into climate journalists. How can that teach viewers to investigate their climate impact?

Bach: The show will hopefully encourage people to seek out answers in the way that our cast members seek out answers and find them. It’s always nice to meet people on the ground, but you can also use the Internet. If you’re curious about deforestation, you can begin your own investigation into why it’s on the rise in Indonesia while other areas have it under control.

You can learn, as we did in our story on Amazon deforestation (with Gisele Bündchen), that meat production is the driver. What are the alternatives: Using fake meat? Using land more effectively?

And then, of course, if you really have the inclination, go out there and go to these places and learn for yourself. Hopefully the show can do that heavy lifting for people.

Khalamayzer: How do you address the “doom and gloom” aspect of climate storytelling?

Bach: In season 1, we decided to show that climate change is happening now — not 50 or 100 years from now. In season 2, we wanted to tell a slightly different narrative: We are in a race against time. Each year, the science on climate change gets clearer while the impacts get worse, exceeding what climate scientists had predicted.

On the other hand, solutions to climate change are getting better in the form of technological developments and the falling cost of solar and wind energy solutions. Communities, individuals and governments are taking action to combat climate change. These two narratives playing out at the same time is where the tension exists.

We need to martial our collective will to make sure the good narrative wins at the end of the day — and it’s too soon to tell which one will win. [One example is journalist ] Thomas Friedman’s story on climate migrants fleeing the African continent because the conditions in which they normally grow crops no longer exist. By the end of the century, it’s expected that 60 million people are going to flee Africa. We don’t shy away from those stories because they’re coming at us hard and fast.

Khalamayzer: How do you measure the impact of climate change storytelling?

Bach:If you want people to act, you don’t just throw a bunch of data at them. You get them emotionally engaged. We did an impact survey with Participant Media and got a score of 95 in the category of emotional involvement with viewers.

The survey found that three out of four viewers came to realize that climate change was relevant to their daily lives. Nine in ten viewers learned something about climate change. Half of the respondents took some sort of action as a result of watching the show; a third shared information with others in person or on the phone; a quarter sought out more information. One in six viewers voted in the 2016 election as a result of watching the show and one in five viewers changed another person’s mind on climate change.

Khalamayzer: What key messages did you learn while making this show?

Bach: There are real grassroots solutions that people can get involved in. We have associated with our series a grassroots, millennial-led campaign to put a price on carbon. Any industry that creates carbon dioxide pollutes for free, although we know that CO2 is the most abundant greenhouse gas and the Supreme Court has ruled that it is a pollutant.

Khalamayzer: What should businesses learn about climate storytelling?

Bach: One of the things we are seeing from businesses is a commitment to put a price on carbon. We learned that 100 Fortune 500 companies have pledged to put a price on carbon. The car industry is going through real changes: We did a story in on the rise of autonomous and electric vehicles to completely revolutionize the automobile industry. Not just Tesla, but also Chevy, Cadillac and other companies are getting on board.

These are blue-chip companies that are taking climate change seriously. When companies have the right information to be better stewards of the environment, they jump at the chance because it’s better for business to do things more sustainably.

See article here…..


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Industry-Captured National Energy Board urgently needs that overhaul Trudeau promised


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Have your say on Kinder Morgan TMX with 1 to 7 different options to get your message to the Kinder Morgan panel, Fed. & Prov. governments!!!! DO ALL 7 AND TELL YOUR FRIENDS! By 9/30/2016

At the end of the panel’s public meetings, over 91% of all speakers were opposed to Kinder Morgan overwhelmingly opposed!

September 16, 2016

bcscoreboardfinal-1080x592

NUMBER #1: Realhearings.org

Kinder Morgan REAL Hearings!

If you weren’t able to speak at a public meeting – or even if you did! – you can still have your say by sending a message directly to the panel. Your comments will inform the panel’s report to Cabinet, who will make a final decision in December.

Please fill out this important initiative sponsored by BROKE – Burnaby Residents Opposed to Kinder Morgan
A copy of your comments will be sent automatically to over 80 Federal, Provincial and Municipal politicians, including the ministerial panel setup by the government in May.

NUMBER #2: Email to Ministerial Panel

 Also, send an e-mail directly to the TransMountain Ministerial Panel.

NUMBER #3: Federal Government website

Go directly to Federal Government link to put your comments in writing by filling in the Natural Resources public questionnaire available until Sept 30, 2016  – http://www.nrcan.gc.ca/questionnaire/18721link to put your comments in writing by filling in the Natural Resources public questionnaire available until Sept 30, 2016.

Number #4: Georgia Strait  Alliance Website

Send a message to the Kinder Morgan Panel by Georgia Strait Alliance!!!

Use the form on our website to send a message to the three members of the Trans Mountain Ministerial Panel: Kim Baird, Tony Penikett and Annette Trimbee. Your comments can be short and from the heart, long and technical, or anywhere in between. Check out this fact sheet if you’re looking for a place to start.

Together we can show the government that Kinder Morgan has no social license in BC!

Write to the Prime Minister, MP, Premier  and MLA directly!

Prime Minister Justin Trudeau : justin.trudeau@parl.gc.ca

Find your Member of Parliament

 Premier Christy Clark : premier@gov.bc.ca

Find your Member of Legislator Assembly

(NOPE website.)

NUMBER #7: Write to your local Newspapers

Please note that you must provide your full name and address and a daytime phone number for all submissions. Observe the maximum word count if you’d like to get published—if your letter is great but too long, the editors will edit as they see fit only if they have time. Need a little inspiration? Check out our letter template and a sample letter for Letters to the Editor

(NOPE website.)

In solidarity with All Earth Warriors! Thank You!

We Love This Coast Group


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Vaughn Palmer: Expect slick oil talk to come down election pipeline


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Vancouver’s Preview of a Spill from Hell – Oil Spill in April, 2015 English Bay

After this week’s mess, does anyone still think bitumen tankers pose no risk to our coast?

By Mitchell Anderson 10 Apr 2015 | TheTyee.ca
oil tanker
Cargo ship in English Bay, three days before the bunker fuel spill. Photo by Sally T. Buck in Your BC: The Tyee’s Photo Pool.

Vancouver just got a small whiff of what a sevenfold increase in tanker traffic could mean for a place aspiring to be the world’s greenest city. On a calm afternoon in English Bay this week, a grain freighter at anchor apparently started leaking bunker fuel into the scenic waters off Stanley Park.

Local residents and their municipal government were not informed for 13 hours. The Coast Guard was ostensibly in charge of the cleanup, but its private sector partners at West Coast Marine Response Corporation took six hours to start skimming the oil and nine hours to put a boom around the leaking vessel.

Making matters worse was the apparently invisible response from the federal government. While the Vancouver Aquarium staff and police boats were doing what they could to pitch in, where were Transport Canada and Environment Canada?

Years of federal downsizing and program cuts have come home to roost. The Environment Canada Environmental Emergencies office in Vancouver was closed by the federal government in 2012 and moved to Montreal. Sixty staff nationwide specifically trained to deal with oil spills lost their jobs.

Meanwhile, Ottawa is cheerleading virtually every pipeline proposal in the country while gutting the National Energy Board to the point that citizens are now suing Ottawa for denying them due process in public hearings.

The bunker fuel now fouling the shores of English Bay is the barely refined dregs of crude oil and highly toxic. While officials maintain that almost all the oil has been recovered, the fact is that even a successful oil spill cleanup often recovers only about 15 per cent of what is spilled. Two days later and we still don’t know what exactly was in the oil, so residents and volunteers are being told to stay away from their beloved beaches, even to try to clean them.

A far worse scenario

Obviously, a larger spill would have catastrophic consequences for one of the most iconically beautiful cities in the world. Visitors from around the world are drawn to Vancouver’s magnificent waterfront, injecting some $4 billion into local businesses each year.

While bunker fuel is bad, diluted bitumen is far worse. Kinder Morgan wants to massively scale up tanker shipments through Vancouver of this hazardous mixture of volatile solvents and tar from Alberta’s oilsands.

A major difference is that bunker fuel floats, and bitumen typically doesn’t. A relatively small spill of diluted bitumen from an Enbridge pipeline into the Kalamazoo River in 2010 proved to be one of the most expensive inland clean up efforts in American history. Why? Because conventional recovery equipment designed for floating oil proved useless in recovering the thick bitumen that quickly sank once the toxic “diluent” began off-gassing in surrounding area.

This brings us to the second scary difference between bunker fuel and diluted bitumen. More than two-thirds of residents near the Kalamazoo spill began experiencing headaches, nausea, and dizziness after inhaling the toxic fumes from volatile solvents used to thin the thick tar so it can be pumped through a pipeline. Local health authorities declared a voluntary evacuation zone for people within a mile of the spill. What would be the public health implications of a diluted bitumen spill in the Lower Mainland, home to more than two million people? AFRAmax tankers now transiting through the region 60 times per year carry more than 30 times the volume of what spilled into the Kalamazoo River. Kinder Morgan wants to scale up these shipments to more than one per day if its TransMountain pipeline project is approved.

Rather than merely sitting at anchor in English Bay, these tankers must squeeze through the narrow shallow Second Narrows channel with less than two metres of under-keel clearance during a slack-water high-tide window lasting less than 20 minutes. What could go wrong?

Plenty. If a tanker ran aground or struck the pilings supporting the CN railway bridge, the results could be catastrophic for human health, the environment and our economy. Where could two million people flee if a cloud of toxic carcinogenic chemicals began filling the confined airshed of the Lower Mainland? I predict a several sailing wait at the BC Ferries…

Take a deep inhale

Exactly this kind of accident is what a group of local marine experts are worried about. In a letter to the National Energy Board, they estimated a one in 10 chance of a spill more than 8.25 million litres over the 50-year lifespan of Kinder Morgan’s project. That is about 2,500 times larger than the 3,000-litre spill that just happened in English Bay.

The chances of containing an accident like that are essentially zero, as evidenced by the bungled response to a relatively minor spill of comparatively benign bunker fuel. A large bitumen spill due to a bridge collision would quickly be carried out into the Strait of Georgia, propelled by a five-knot tidal current. This would be devastating for abundant local marine life. Just last month, a pod of orcas was spotted hunting off the Stanley Park seawall.

Worse still, Kinder Morgan is refusing to release details of its emergency response plan even to local governments, citing “personal, commercial and security reasons.” Naturally, our federal regulator sided with the company when the City of Vancouver petitioned the National Energy Board for this critical information.

While pipeline projects are portrayed as an economic imperative, an oil spill would be economically disastrous if it closed Canada’s busiest port for a protracted cleanup. Parts of the Kalamazoo River remained closed three years after the Enbridge spill as crews dredged the sunken tar from the river bottom.

Anyone who still thinks that bitumen tankers pose no risk to our coast, or that Ottawa sincerely cares about protecting our environment should go down to English Bay and inhale deeply. That could be the smell of our oily future.  [Tyee]


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Why Do We Pretend to Clean Up Ocean Oil Spills?

 

Many scientists describe such efforts as ‘prime-time theatre.’ Yet the farce continues.

By Andrew Nikiforuk 13 Jul 2016 | Hakai Magazine

oil spill pelican

An oiled brown pelican near Grand Isle, Louisiana. Photo by Petrarchan47. Creative Commons licensed.

en the Deepwater Horizon well operated by BP (formerly British Petroleum) exploded and contaminated the Gulf of Mexico with at least 650 million litres of crude oil in 2010, blue-smocked animal rescuers quickly appeared on television screens. Looking like scrub nurses, the responders treated oil-coated birds with charcoal solutions, antibiotics and dish soap. They also forced the birds to swallow Pepto-Bismol, which helps absorb hydrocarbons. The familiar, if not outlandish, images suggested that something was being cleaned up.

But during the chaotic disaster, Silvia Gaus poked a large hole in that myth. The German biologist had worked in the tidal flats of the Wadden Sea, a region of the North Sea and the world’s largest unbroken system of intertidal sand and mud, and critical bird habitat. A 1998 oil spill of more than 100,000 litres in the North Sea had killed 13,000 birds in Wattenmeer National Park, and the scientist had learned that cleaning oil-soaked birds could be as harmful to their immune systems as the oil accumulating in their livers and kidneys. Kill, don’t clean, she advised responders in the 2010 BP spill. Gaus then referred to scientific studies to support her unsettling declaration. One 1996 California study, for example, followed the fate of brown pelicans fouled by oil. Researchers marked the birds after they had been “cleaned” and released them into the wild. The majority died or failed to mate again. The researchers concluded that cleaning brown pelicans couldn’t restore them to good breeding health or “normal survivability.” Another study from 1997 observed that once birds affected by an oil spill had been cleaned, they fared poorly and suffered higher than expected mortality rates.

And, consider the 2002 sinking of the MV Prestige. The tanker split in half off the coast of Spain, spilling more than 70 million litres of highly toxic bunker fuel that coated more than 600 beaches with oil. The catastrophe killed some 300,000 seabirds. Although response teams diligently cleaned thousands of animals, most of the birds died within a week. Only a few hundred ever made it back to the wild. In fact, said Gaus, studies indicate that, in general, the post-treatment survival rate of oil-soaked birds is less than one per cent.

Not all bird cleaning is futile. Rescuers saved thousands of penguins following the MV Treasure spill off South Africa in 2000, for example. Success stories, however, are rare. In the Gulf of Mexico, the giant BP spill probably killed nearly a million birds. Gaus’s comments highlighted two uncomfortable realities: cleaning oily birds is a risky business, and the marine oil spill cleanup can often do more harm than good.

In many respects, society’s theatrical response to catastrophic oil spills resembles the way medical professionals respond to aggressive cancer in an elderly patient. Because surgery is available, it is often used. Surgery also creates the impression that the health-care system is doing something even though it can’t change or reverse the patient’s ultimate condition. In an oil-based society, the cleanup delusion is also irresistible. Just as it is difficult for us to acknowledge the limits of medical intervention, society struggles to acknowledge the limits of technologies or the consequences of energy habits. And that’s where the state of marine oil spill response sits today: it creates little more than an illusion of a cleanup. Scientists — outside the oil industry — call it “prime-time theatre” or “response theatre.”

582px-ishpx version of OilCleanupBooms_610px.jpgOil spill workers clean the beach of Naval Air Station Pensacola as oil washes ashore from the BP spill on June 10, 2010 in Pensacola, Florida. Photo by Cheryl Casey via Shutterstock.

The hard scientific reality is this: a big spill is almost impossible to contain because it is physically impossible to mobilize the labour needed and current cleanup technologies in a timely fashion. When the City of Vancouver released a study in 2015 on the effectiveness of responses to large tanker or pipeline spills along the southern coast of British Columbia, the conclusion was blunt: “collecting and removing oil from the sea surface is a challenging, time-sensitive and often ineffective process,” even in calm water.

Scientists have recognized this reality for a long time. During the 1970s when the oil industry was poised to invade the Beaufort Sea, the Canadian government employed more than 100 researchers to gauge the impacts of an oil spill on Arctic ice. The researchers doused sea ducks and ring seals with oil and set pools of oil on fire under a variety of ice conditions. They also created sizable oil spills (one was almost 60,000 litres, a medium-sized spill) in the Beaufort Sea and tried to contain them with booms and skimmers. They prodded polar bears into a man-made oil slick only to discover that bears, like birds, will lick oil off their matted fur and later die of kidney failure. In the end, the Beaufort Sea Project concluded that “oil spill countermeasures, techniques and equipment” would have “limited effectiveness” on ice-covered waters. The reports, however, failed to stop Arctic drilling.

Part of the illusion has been created by ineffective technologies adopted and billed by industry as “world class.” Ever since the 1970s, the oil and gas industry has trotted out four basic ways to deal with ocean spills: booms to contain the oil; skimmers to remove the oil; fire to burn the oil; sand chemical dispersants, such as Corexit, to break the oil into smaller pieces. For small spills these technologies can sometimes make a difference, but only in sheltered waters. None has ever been effective in containing large spills.

582px-ishpx version of OilSpillSign_610px.jpgWhite sands of the Gulf Coast with BP oil cleanup sign. Sign photo via Shutterstock.

Conventional containment booms, for example, don’t work in icy water, or where waves run amok. Burning oil merely transforms one grave problem — water pollution — into sooty greenhouse gases and creates air pollution. Dispersants only hide the oil by scattering small droplets into the water column, yet they often don’t even do that since conditions have to be just right for dispersants to work.  “Sadly, even after over 40 years experience, the outcomes are not acceptable. In many cases, the strategy is still to ignore spills on open water, only addressing them when the slicks reach shore.”

The issue partly boils down to scale, explains Jeffrey Short, a retired National Oceanic and Atmospheric Administration research chemist who studied the aftermath of the 2010 BP disaster as well as the Exxon Valdez spill in Prince William Sound, which grew at the alarming rate of half a football field per second over two days. “Go try and control something like that,” says Short. Yet almost 30 years after the Exxon Valdez contaminated much of Prince William Sound, the cleanup technology has changed little.

“What I find the most disturbing is the tendency for responsible authorities and industry to adopt technologies mainly because of their optics and with scant regard for their efficacy,” says Short. In addition, chaos rules in the aftermath of a spill. The enormous political pressure to do something routinely sacrifices any duty to properly evaluate what kind of response might actually work over time, says Short. “Industry says ‘we just want to clean it up,’ yet their demonstrative ability to clean it up sucks.”

Consider, for a moment, the industry’s dismal record on oil recovery. Average citizens may think that a successful marine oil spill cleanup actually involves recovering what has been spilled. They may also expect the amount of oil recovered would increase over time as industry learns and adopts better technologies. But there has been little improvement since the 1960s.

During the BP disaster, the majority of the oil evaporated, dropped to the ocean bottom, smothered beaches, dissolved, or remained on or just below the water’s surface as sheen or tar balls. Some oil-chewing bacteria offered assistance by biodegrading the oil after it had been dispersed. Rough estimates indicate that, out of the total amount of oil it spilled, BP recovered three per cent through skimming, 17 per cent from siphoning at the wellhead, and five per cent from burning. Even so, that’s not much better than the Exxon Valdez spill in 1989 when industry recovered an estimated 14 per cent of the oil. Transport Canada admits that it expects only 10 to 15 per cent of a marine oil spill to ever be recovered from open water. “Even informed people are taken aback by these numbers,” says Short.

Nor are the numbers any better for small marine spills (smaller than 7,950 litres). This year, York University researchers discovered that offshore oil and gas platforms reported a total of 381 small spills between 1997 and 2010. Only 11 spills mentioned the presence of seabirds, yet it only takes a dime-sized blotch of oil in cold water to kill a bird.

582px-ishpx version of BlackSeaOilBird_610px.jpgA bird covered in oil from the Black Sea oil spill. Photo by Pauk. Creative Commons licensed.

The danger of wishful thinking

Self-reporting combined with an appalling spill-recovery record underscores how poorly industry’s preferred technologies perform in the field. Deploying dispersants, for example, is about as effective as cleaning oil-soaked birds and remains another example of response theatre designed to hide the real damage. During BP’s catastrophic spill in the Gulf of Mexico, the company sprayed over 6.8 million litres of Corexit. It was the largest volume of dispersant ever used for an oil spill and one giant chemical experiment.

Researchers have known for decades that mixing oil with Corexit rarely works. Short compares it to adding detergent when you’re washing dishes: it produces a cloudy suspension that scatters through the water but hovers close to the top. Sweden has banned its use, and the U.K. followed suit, based on the potential danger to workers. That didn’t stop the aerial bombing of Gulf of Mexico waters with Corexit — which actually killed oil-eating bacteria — because it looked as if the authorities were doing something. Their work made little difference. Bottlenose dolphins, already vulnerable, died in record numbers from adrenal and lung diseases linked to oil exposure.

“We’ve put the wrong people in charge of the job,” says McMahon, who has charted industry’s oil spill myths for years. Corexit, industry’s favorite dispersant, is widely believed to contain hydrocarbon, which gives it an ominous undertone. The product was first developed by Standard Oil, and its ingredient list remains a trade secret. Although the oil industry boasts a “safety culture,” everyone really knows that it operates with a greed culture, adds McMahon. Over the years, industry has become adept at selling an illusion by telling regulators and stakeholders whatever they want to hear about oil spills (in the past, executives claimed that their companies recovered 95 per cent of spilled oil).

In Canada, multinational oil companies also own the corporations licensed to respond to catastrophic spills. The Western Canadian Marine Response Corp., for example, is owned by Kinder Morgan, Imperial Oil, Shell, Chevron and Suncor while the Eastern Canada Response Corp. is owned by Ultramar, Shell, Imperial Oil and Suncor. In a recent analysis on this cozy relationship, Robyn Allan, an economist and former CEO of the Insurance Corp. of British Columbia, concluded that letting international oil companies determine the goals and objectives of marine spill preparedness and response was a flagrant conflict of interest.

Large spills, which can destroy fisheries and entire communities, can impose billion dollar cleanup bills and still not restore what has been lost. The cleanup costs for the Exxon Valdez disaster reached US$2 billion (paid by various parties), and Exxon fought the federal government’s claim for an extra $92 million for restoration, until the government dropped their claim in 2015. To date, BP has spent more than US$42 billion on response, compensation and fines in the Gulf of Mexico. Meanwhile, the evidence shows that nearshore and in-port spills are four to five times more expensive to clean up than offshore spills and that heavy oil, such as bitumen, costs nearly 10 times more than light oils because it persists longer in water. And yet, no more than C$1.3 billion has been set aside in Canada for a major oil spill — a sum experts find woefully inadequate. According to a University of British Columbia study, a release of 16,000 cubic metres of diluted bitumen in Vancouver’s Burrard Inlet would inflict at least $1.2 billion worth of damage on the local economy, which is heavily reliant on tourism and promoting its “natural” beauty. That figure doesn’t include the cost of a “cleanup.”

Based on the science, expecting to adequately remedy large spills with current technologies seems like wishful thinking. And there will be no change unless responsible authorities do three things: give communities most affected by a catastrophic spill the democratic right to say no to high-risk projects, such as tankers or pipelines; publicly recognize that responding to a large oil spill is as haphazard as responding to a large earthquake and that there is no real techno-fix; and recognize that industry won’t adopt more effective technologies that actually recover oil from the ocean until governments and communities properly price the risk of catastrophic spills and demand upfront multibillion-dollar bonds for compensation. “If they spill, they must lose a bloody fortune,” says Short.

Until those reforms take place, expect more dramatic prime-time theatre on oiled ocean waters. But we shouldn’t for a moment believe we’re watching a cleanup. The only things being wiped clean are guilty consciences.

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