Write about pipeline politics for long enough and it’s easy to come to dislike everybody. Especially among those who dislike oil and the oilsands on principle, TransCanada, which wants to build a pipeline from Alberta to Saint John, N.B., makes an easy villain.
According to the government of Quebec, the company was asked to submit its plans for the pipeline, dubbed Energy East. Since it failed to do so, according to Quebec Environment Minister David Heurtel, the province was obliged to threaten an injunction to force the company to follow its environmental laws.
TransCanada said it was totally taken aback by the threat. Especially considering the company hasn’t even submitted the paperwork for Energy East to the National Energy Board yet. A spokesman for the company told The Canadian Press that it thought the issue had been resolved back in early 2015, with both sides agreeing to an alternative process. In any case, TransCanada has agreed to participate in Quebec’s review so the whole matter really should be dropped.
Except for a few lingering points.
The first is that as pipeline regulation is explicitly a matter of federal jurisdiction, there actually is a question about whether TransCanada has a legal obligation to participate in a parallel provincial review process that is unlikely to have any bearing on whether or not Energy East is actually approved.
Further, given Quebec’s not-so-subtle hostility toward pipelines in general and the oilsands in particular, it’s fair to ask whether TransCanada should bother. All the provincial environmental laws in the world won’t overcome a simple matter of jurisdictional hierarchy. Quebec has no veto over Energy East. It just doesn’t.
Nonetheless, like British Columbia and Ontario, the province is increasingly keen to set up public consultations and environmental impact assessments on controversial projects. To the extent that these processes inform the provinces’ submissions to the National Energy Board, they are entirely benign. However, there is an increasing concern that provinces are trying to use little legal levers to usurp jurisdictional authority from the federal government’s approval process.
For example, many of those who have written in support of Quebec seem eager to cite a recent B.C. Supreme Court ruling that seems to grant provinces more say over pipeline approvals. In January, that court decided the B.C. government had erred by trying to streamline its environmental assessment process for the contentious Northern Gateway pipeline.
B.C. had signed an equivalency agreement with the NEB that essentially let that body’s environmental review double as B.C.’s own.
In doing so, the court ruled, B.C. failed to consult affected First Nations (even though the NEB certainly did so). By handing its power to decide on the environmental process to the federal regulator, the court ruled, the provincial government “breached the honour of the Crown.” Many have inferred from this ruling that B.C., therefore, now has some veto over the pipeline itself. But it doesn’t. The federal approval still stands.
In fact, the Supreme Court tried to circle both sides of the drain, here; it ruled that B.C. had a right to regulate its own environment — but that the province would be constitutionally incapable of demanding concessions that would shut Northern Gateway down. In other words, B.C. has the right to create its own environmental laws — but those laws don’t supersede the federal government’s ability to approve the pipeline.
If one needs an example of how this mess actually works, consider this: B.C. did intervene against Northern Gateway during the NEB process. It demanded five conditions by which its approval could be secured. The NEB ignored all but one of B.C.’s proposed conditions and approved the line anyway.
The west doesn’t fear strict pipeline standards — it fears arbitrary, unfair standards that are built around optics, politics and ideology
The B.C. Supreme Court ruling thus raises interesting questions. What kinds of conditions are constitutional for a provincial government to impose? Could a province make demands that have been explicitly rejected by the NEB? And if B.C. doesn’t have the ability to stop a project from going forward, how, exactly, would any of these friendly conditions be enforced? More importantly: Could any of this possibly hold up to a federal appeal?
And, of course, the opinions of a B.C. Supreme Court judge have no binding effect on Quebec. A judge there might consider a proposed injunction and dismiss it on constitutional grounds — or he may find the B.C. ruling’s logic compelling.
Several western politicians have responded to Quebec’s hostile tactics with a predictably strong-arm response. But it should be noted here that no one in the west — ahem, Brad Wall — can reasonably object to Quebec running its own parallel, if largely impotent review process. Whether or not TransCanada can be compelled to participate in that process is for the courts there to decide. And no, this has nothing to do with equalization payments. Stop that.
Alberta Premier Rachel Notley spelled out more reasonable concerns; that is, a disaster ensues for all Canada if the provinces finagle veto powers over infrastructure projects. Giving any province a veto risks turning crucial infrastructure matters into petty tit-for-tat interprovincial trade wars.
Rhetoric aside, Alberta and Saskatchewan aren’t looking for special exemptions or shortcuts for their resource industries. Our oil and gas sector is one of the most heavily regulated in the world, for goodness sake — no one expects an easy or absent regulatory process. Everyone understands that First Nations will play a powerful role in the sector. That is as it should be.
The west doesn’t fear strict environmental standards — it fears arbitrary, unfair standards that are built around optics, politics and ideology rather than science, best practices and good policy. TransCanada should expect to meet any environmental standard that the federal and provincial governments set out for it. All the rest of us expect is that those standards aren’t being built on sand.