The expansion of the Trans Mountain pipeline is being suspended due to a court ruling from the Federal Court of Appeals, but experts say it’s not a clear-cut victory for environmental activists.
The ruling, which was released Thursday morning, cites two main issues with the pipeline: a flawed environmental review of marine shipping conducted by the National Energy Board and a rushed consultation between the government and First Nations.
Opponents of the project have hailed the ruling as a victory.
“We’re winning” said Rueben George from the Tsleil-Waututh Nation on Thursday. “Today the court heard the teachings of our culture.
“The pipeline is not in the best interest of Canada and that’s what the court said today.”
Experts said it’s a shocking decision that has major political implications for the year to come.
Finance Minister Bill Morneau has pledged to continue the government’s purchase of the pipeline and expansion project.
“Our government remains committed to ensuring the project proceeds in a manner that protects the public interest,” he said in Toronto.
“It means upholding our commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.”
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University of British Columbia business Prof. Werner Antweiler said the decision isn’t a “fatal blow” to the pipeline and that the project is likely to continue.
Antweiler explained the ruling reads more like a “request to the federal government to address the deficiencies in the process.”
At most, he said the ruling will merely delay the pipeline expansion. According to the judges’ decision, the government will have to revisit the two issues at hand — a new environmental assessment of the impact to marine life and new consultations with First Nations (referred to as Phase III consultations).
“Now essentially they have to go back to redoing Phase III which … can be a relatively short process. This doesn’t have to drag on for years and can be done in a matter of perhaps a year or so.”
But UBC public policy professor George Hoberg said there’s a lot of work that will go into redoing these processes.
Hoberg said he thinks it’s likely that the federal government will appeal the ruling in the Supreme Court.
“There are circumstances in which the Supreme Court does overturn a decision from lower courts,” Hoberg said. “But the important thing is that that process will take at least a year.”
Antweiler guessed that they’re unlikely to do so, because the reasoning in the Federal Court of Appeals appeared sound.
“My sense is that it would be unlikely that this Supreme Court would really see fault in the ruling by the court of appeals,” he explained.
The government will have to decide how much time and resources they are willing to spend fighting the decision.
There is also the possibility that the government can walk away from the purchase of the pipeline, which isn’t completed. Kinder Morgan shareholders only voted today to approve the sale of the pipeline and the sale hasn’t been finalized.
Hoberg said now would be a good time to rethink the purchase.
“I do think this is really a shocking decision with huge implications and it would be wise and not at all surprising for the Cabinet to have a major rethink about whether or not the expansion project is in fact a good idea,” Hoberg explained.
But Matthew Hoffmann, political science professor at the University of Toronto and co-director of the Environmental Governace Lab, said this is the big question of the day.
“Nothing indicates in any government statement that they are contemplating walking away. However, it just became a lot more difficult to get the pipeline built,” he explained.
If they walked away, they would threaten to break a deal with the Alberta provincial government on climate change policy.
“The deal was going to get you this pipeline but you agreed to climate change measures in particular the carbon tax in Alberta,” Antweiler said. “So it’s a quid pro quo that if the federal government walked away from the pipeline, they would also open the door for Alberta to walk away from carbon policy.”
And Alberta Premier Rachel Notley said the province was doing just that.
“Until the federal government gets its act together, Alberta is pulling out of the federal climate plan,” Notley said at a news conference Thursday evening.
“We’re going to be entering a period of political conflict now,” Hoberg explained, “especially between the government of Canada and the government of Alberta. And we’ll see how that turns out.”
Trudeau said on Twitter that he had spoken with Notley and reassured her that the federal government stands by the project and will ensure it moves forward in the right way.
*with files from the Canadian Press
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