The Canadian government’s decision to buy a controversial oil pipeline project is drawing intense criticism from environmental groups and could open the door to legal challenges over its ability to meet the emissions reduction target the country promised to the Paris Climate Agreement.
The Trudeau administration announced last week it would buy the Trans Mountain Pipeline from Houston-based Kinder Morgan for $3.5 billion. Kinder Morgan had threatened to walk away from a planned expansion of the pipeline, which has been mired in lawsuits, if the government could not assure the company it could proceed. Instead of providing assurance, Prime Minister Justin Trudeau decided to buy the whole pipeline and proceed with the expansion.
Kinder Morgan secured federal permits in 2016 to build a pipeline parallel to its existing, 65-year-old one. It would increase the volume of crude it could move from the oil sands of Alberta to the coast of British Columbia from 300,000 barrels to 890,000 barrels per day, most of which will be shipped overseas. Kinder Morgan estimated that the new 715-mile pipeline will cost $5.72 billion to build.
The government’s plan to own Trans Mountain is heightening the already intense criticism of Trudeau and his oft-repeated claim that the country can both boost oil production and reduce emissions by 30 percent from 2005 levels by 2030, the country’s commitment to the Paris Agreement.
“Trudeau has beautiful speeches and a great reputation as environmentally progressive. But his actual policies involve taking actions on climate change as long as it doesn’t touch the oil industry,” said Keith Stewart, a senior energy strategist with Greenpeace Canada.
Greenpeace has so far worked on public protests of Trans Mountain, but it will now consider whether to sue the administration over its climate policy in light of its decision to own Trans Mountain, Stewart said.
Trudeau reiterated his argument in a speech last month to make clear he will fight to keep the Trans Mountain expansion project on track despite legal challenges from dozens of organizations, including the province of British Columbia, city of Vancouver and six First Nations.
Yet his administration submitted a report to the United Nations last December that outlined a growing gap between its Paris Agreement promise and the emissions reduction it could achieve with its current policies.
“The government has an obligation to fulfill our international treaty agreement. The building of this pipeline is counter to that,” Stewart said. “My government has turned itself into a pipeline company.”
Greenpeace has already taken another oil-rich country, Norway, to court, arguing that the government failed to uphold its constitutional duty to safeguard the environment for its people when it expanded drilling in the Arctic Ocean with 10 new oil exploration licenses in 2015.
A Norwegian court ruled in January that the government didn’t violate the constitutional provision because the climate impacts from oil exploration wouldn’t be significant. Greenpeace is appealing.
Climate lawsuits based on constitutional claims have popped up in countries such as the Netherlands, Ireland and Pakistan. One such case, Juliana v. United States, won a crucial ruling earlier this year that allowed it to proceed to trial in October.
Canada doesn’t have a provision in its constitution that spells out the right of its people to a healthy environment, said Eugene Kung, staff lawyer with West Coast Environmental Law (WCEL), a legal advocacy group in Vancouver. WCEL is working on the lawsuit filed by the Tsleil-Waututh Nation against the Canadian government after the Trans Mountain expansion was approved.
But Kung noted that the constitutional provision that guarantees the “right to life, liberty and security of the person,” could be used to hold the government to account for failing to address climate change, which threatens the lives of its people.
So far, the Trudeau administration is facing 14 lawsuits over whether it has adequately assessed the pipeline’s environmental impact and whether it adequately consulted with the First Nations whose land it runs through.
By law, the government must accommodate the environmental and economic concerns of the indigenous groups that live near the proposed pipeline. The Federal Court Appeal, which consolidated the cases, held a hearing last October and is set to rule soon.
Enbridge’s Northern Gateway oil pipeline project was struck down in 2016 by a lawsuit, Gitxaala Nation v. Canada, that ruled the government failed to adequately consult the First Nations.
Trudeau often touts his administration’s progress on climate change by working to phase out coal power plants, putting a price on carbon and protecting the country’s coastlines.
The source of Canadian power is not its biggest issue—hydropower accounts for the majority of electricity in Canada, followed by nuclear. Coal makes up only 9.5 percent, according to the government— but the oil extraction industry is the biggest source of carbon emissions.
Caroline Thériault, press secretary for the environment and climate change minister, Catherine McKenna, said the new pipeline won’t hinder the country’s effort to meet its climate goal.
“We assessed the emissions impact of the Trans Mountain Expansion project when we reviewed it, and we model emission projects to assess our progress to our Paris Agreement target each year,” Thériault wrote in an email. “That modelling shows that Canada’s clean growth and climate action plan gets us on track to our target after factoring in the impacts of the Trans Mountain Expansion and a growing oil and gas sector.”
Canada’s oil sands, which yield a heavy crude that produces more carbon emissions than regular crude and is also more difficult to clean up if spilled, have long been a sticking point with climate and environmental activists. The most recent assessment by the Intergovernmental Panel on Climate Change concluded that 30 percent of the world’s oil reserves, 50 percent of its gas reserves and 80 percent of coal must stay in the ground for the world to keep global warming below 2 degrees C over pre-industrial levels.
The agreement to buy Trans Mountain also drew harsh words from Washington State Gov. Jay Inslee, who called the project “profoundly damaging,” reported the Seattle Times.
The new pipeline would increase oil tanker traffic in the waters between Washington and British Columbia and threaten a prime habitat for killer whales, whose ability to hunt for food is already being disrupted by the underwater noises from existing oil tanker traffic.
The Trudeau administration said it’s buying Trans Mountain to ensure it will get built but will seek buyers to take it over. To sweeten the deal for potential buyers, the government plans to offer loan guarantees for the construction and will cover costs from “any financial loss posed by politically motivated unnecessary delays,” according to its announcement about its deal with Kinder Morgan. The indemnity clause offers to cover legal and other costs for the new owners, with a stipulation that the government would buy back the project if the new owners abandon it.
“Kinder Morgan has pulled an Enron on Canadian taxpayers. They have fleeced the federal government, who paid a premium for the assets and project, and now assumes the greatest amount of risks in trying to get this thing built,” Kung said.