Trans Mountain promises to mitigate marine wildlife risk in bid to secure approval: documents

CALGARY – Trans Mountain says it will agree to three new measures to reduce its impact on marine wildlife in its bid to secure a second approval for the controversial pipeline project, according to a new legal filing.

In its final written argument, dated Jan.17, in favour of the project, lawyers for the 590,000-bpd pipeline developer say the Canadian energy industry is in a state of crisis and desperately needs pipelines that connect Alberta with the country’s coast.

Trans Mountain said it its taking measures to minimize its impact on marine wildlife, including the endangered southern resident killer whale.

The Crown corporation has agreed to instruct oil tankers travelling to its Westridge Marine Terminal to follow a new route away from orca-foraging areas, to evaluate the feasibility of using escort tugboats to assist with oil spill response, and to work with oil companies shipping on the pipeline to reduce the number of oil tankers using the terminal.

However, the company also argued a number of measures proposed in the reconsideration were not feasible, and should be discarded. These suggestions included the creation of year-round “no-go” zones, restrictions of ship movements at night and the use of liquefied natural gas as a fuel source for the oil tankers.

The filing also criticized attempts by third parties to expand the scope of the NEB reconsideration.

“Many of the interveners and commenters opposed to the project have sought to use this reconsideration hearing as an opportunity to re-argue aspects of the (NEB’s) report that they disagree with, including by filing ‘updated’ evidence that re-iterates evidence and submissions they made in the oral hearing,” wrote Shawn Denstedt, vice-chair, Western Canada, at law firm Osler, Hoskin and Harcourt, in Trans Mountain’s final written submission.

A view of Kinder Morgan’s Trans Mountain marine terminal filling a oil tanker in Burnaby, B.C.


He said that allowing that new or repeated evidence to sway the board would be unfair to the participants in the original hearings and added that “Trans Mountain submits that very little of the evidence filed by interveners is relevant to the board’s decision in this reconsideration.”

The company is arguing that the need for the pipeline expansion has grown and the project should be approved again.

“The Canadian energy industry is in the midst of a crisis. Now more than ever market diversification is critically needed to ensure Canadians receive full value for their resources,” wrote Denstedt.

The law firm also said there has been no evidence presented during the National Energy Board’s reconsideration of the project that undermines the regulator’s original findings, so “the fact that the project remains in the public interest is incontrovertible.”

Final written arguments from interveners on the project are due Tuesday. The NEB is expected to complete the process and issue its report no later than Feb. 22.

Trans Mountain requires new approvals in order to proceed after the Federal Court of Appeal quashed the project’s permits in 2018, noting that the National Energy Board failed to include analysis of the project’s effect on marine wildlife and because Ottawa did not properly consult with affected First Nations.

The federal government launched a new round of consultations, which are ongoing, and instructed the NEB to reconsider the project’s effect on the marine environment as a result.

Since then, delays in new pipeline projects have gone from being a concern to a crisis in the Canadian energy industry, which faced record-setting price discounts relative to U.S. oil barrels at the end of last year.

The federal government, which purchased Trans Mountain and its under-reconsideration expansion project for $4.5 billion in early 2018, has said it is committed to getting the project built. It also announced additional measures for its Oceans Protection Plan in support of the project.

Meanwhile, environmental group Stand Earth also filed a motion on Monday asking the NEB to give a broader consideration to climate change when weighing its decision on the Trans Mountain expansion.

… we are filing a motion with the NEB asking them to simply apply the same standard to Trans Mountain that they applied to Energy East when it comes to the pressing issue of climate change

“Today we are filing a motion with the NEB asking them to simply apply the same standard to Trans Mountain that they applied to Energy East (TransCanada Corp.’s scrapped oil pipeline project) when it comes to the pressing issue of climate change,” said Martin and Associates lawyer Casey Leggett, who is acting on behalf of Stand Earth.

The upstream emissions associated with the Trans Mountain expansion were included in the original NEB assessment of the project, but Stand Earth wants to add an assessment of downstream emissions to the reconsideration.

The deadline for expanding the scope of the NEB’s reconsideration has likely passed, as all interveners are required to file their final written arguments with the energy regulatory by Tuesday.

The project’s reconsideration, as ordered by the Federal Court of Appeal, is also narrowly focused on the environmental impacts of increased tanker traffic off Canada’s West Coast and full consultation with affected First Nations along the route.

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