BC Government’s Sneaky Non-Rejection of Enbridge Northern Gateway Pipeline

4 Jun

from United First Nations

Environmentalists across the country rejoiced at the news that the BC government formally opposed the Enbridge Northern Gateway pipeline. But reading the 99-page submission, it becomes clear that the door for the controversial oil sands pipeline remains wide open.

I’ve just read the BC government’s May 31 written submission to the Joint Review Panel controversial oil sands pipeline remains(JRP) established by the Canadian Environmental Assessment Agency (CEAA) and the National Energy Board (NEB).

Christy Clark no more rejects the Northern Gateway (NG) than a mother rejects her first-born child.

In fact, that analogy is rather precise. Mothers admonish their children all the time for unacceptable our socially outrageous behaviour. But they don’t disown then, or send them off to live with another family, and it is rare, thankfully, that they “kill” them.

So it’s fair to say that Christy Clark sees herself as the Northern Gateway’s mother. She’s acting, in political terms, like she’s angry and upset because her child has been behaving in a very disruptive and persistently foolish manner.

But the pipeline is still her baby.

So she’s presenting herself like a wealthy mother fiercely admonishing, say, her child’s nanny. She’s talking tough about the nanny, but she’s never going to abandon her child.

Leaving the door open for Northern Gateway

On the other hand, what her lawyers do in spades, in their 99-page written submission, is reject the brainless behaviour and pronouncements of the project’s proponent, Enbridge Inc. They dissect, in some detail, the fantastical pie-in-the-sky proposals Enbridge has been making for building this dangerous piece of infrastructure (without, by the way, mentioning that atrocious video cartoon that removed all the islands from Kitimat’s ocean access). 

But never forget who we’re dealing with. The precise wording in any public document from governments and from the corporate sector, and most particularly from the BC Liberal government (and from Stephen Harper’s government too) is critically important.

Words are often used as stealth weapons by both governments.

Nowhere – not once – does this document say: “we recommend against building this pipeline.” Nor does it say: “the environmental threats posed by this project are too significant for this pipeline to succeed, and so it should not, in our opinion, be built.”

Instead, the legal minds in Christy Clark’s employ have crafted a document that indirectly and repeatedly leaves the door open for development.

Here’s a typical example:

“….in this particular case the Province submits that Northern Gateway should be able to show, in advance of certification, that it will be in a position, once operations commence, to live up to its spill response assertions. Northern Gateway has not done so. The Province submits that the JRP should, in making its recommendations, give this factor significant consideration.” (Section 114, Page 35)

The words dance gingerly away from recommending against the controversial pipeline project. Instead they hint at a set of conditions entirely consistent with the project going forward (“….once operations commence…”).

Then they give the Panel the most insipid of directives (“….the JRP should….give this factor significant consideration.”), allowing Premier Clark’s close political ally, Prime Minister Harper, all the wiggle room he needs to move ahead with construction.

This same insipid, meaningless directive is repeated several times more in the BC government submission:

“The Province submits that its concerns in the regard should be seriously considered by the JRP….” (Section 116, Page 35); “…the Province…submits that its concerns respecting NG’s ability to respond to a spill should be given serious consideration by the JRP.” (Section 144, Page 46).

Eventually, however, the BC Liberal government drops its objections to the project completely, and formally allows that the project can go ahead, provided certain conditions are met. “The Province is not in a position to support approval of the project as proposed for the reasons set out above. However, if the JRP decides to recommend that the project be approved, then it is of the utmost importance that the approval be accompanied by clear, measureable and enforceable conditions.” (Section 153, Page 49) [emphasis added].

In fact the BC government submission reproduces the 13 pages of recommendations from the JRP for how the project can be allowed to go ahead, with comments about the province’s particular concerns if and when this happens.

Having said that, the report from the Province of BC does do one thing very well.

It rigorously tears apart – sometimes with scathing irony or blunt confrontation – the tissue of half-baked generalities that Enbridge has been flaunting boldly before the general public as advertisements, and before the Joint Review Panel as presentations, ever since the JRP was first established on December 4, 2009.

The primary target for the BC Government report is the prevention and mitigation of spills, both on land and at sea.

There, for all to see, is the shaky, speculative and at times utterly implausible world of Enbridge’s planning, a magical realm where hardly anything ever goes wrong, and if it does, “world-class” solutions are put into place in a trice.

Nothing could be further from the truth, as this submission lays bare.

In Section 32, Page 9: “Because of the potential for spills, and their impact, Northern Gateway has committed to develop a comprehensive spill response capability. Indeed, Northern Gateway has stated that it intends to have a “world-class response capability” for the Project…the Province submits that it has failed to do so.”

Section 33, Page 10: “Northern Gateway asserts … that doing nothing is a possible response to a spill.”

Inconsistency over diluted bitumen: does it float or sink?

On the issue of whether diluted bitumen or “dilbit” will sink (and become unrecoverable and a long-term hazard) or not, the report displays Enbridge’s inconsistency – almost as if the corporation were playing a guessing game (which it probably is). It starts out like this: “….in certain conditions diluted bitumen…can sink. This occurred in the case of Enbridge’s spill in Michigan.”(Section 42, Page 11).

Then the submission describes how Enbridge went to work:
“Some evidence it presented suggests that dilbit may sink when it enters the water….other evidence suggests that it will only sink if it combines with sediment.”(Section 43, Page 12).

After citing 3 examples of Enbridge saying it will sink, the government report notes that at least two of its witnesses claimed that that “dilbit cannot sink, as this would be contrary to an ‘immutable fact of physics’”. (Section 44, Page 12). One Enbridge witness then says that “fine grain sediments” will make the dilbit sink, while another says “finer sediments reduce the potential for oil to sink.” (Section 45, Page 13). Another Enbridge witness says faster water movement and more turbulence will cause dilbit to be caught up in sediments, and another says “oil sinking is unlikely to occur in areas with fast currents”. (Section 46, Page 13).
Feeling a bit dizzy and confused? 

Well, Christopher Jones and Elisabeth Graff, the lawyers who wrote the BC government submission, certainly did. They concluded: “These [uncertainties], taken together, suggest that, at least as of today, Northern Gateway is not yet prepared to deal with sunken oil in the event there were a spill of dilbit into a British Columbia watercourse.” (Section 58, Page 17)

Then there’s the “say a lot of nothing” problem.

“Northern Gateway was also asked by Mr. Overstall about a potential spill into the Sutherland River. … Mr. Taylor’s answer, while lengthy, merely recited the general approach that would be taken to respond to a spill in this location. He did not respond to Mr. Overstall’s question, however.” (Section 71, Page 22)

Remember that line, quoted above, about a possible response to a spill being “doing nothing”?

In one of the most delicious bursts of irony in the entire document, the government’s lawyers note that: “…it is not at all clear what Northern Gateway means by ‘response’ [to a spill] when doing nothing is a possible response to a spill…If doing nothing or monitoring constitute responses, it goes without saying that Northern Gateway could ‘respond’ to each spill.”

I would have loved to see the expression on the face of the CEO of Enbridge when he read that. .

The BC government lawyers twist the knife and add: “Whether this is an effective response is a different question entirely. Exactly what Northern Gateway means by responding to a spill remains unclear, as is the effectiveness of that response.” (Section 75, Page 23)

Mr. Jones and Ms. Graff mercilessly expose Enbridge’s history of disastrously bad management of previous spills. They zero in on the worst of them all, the horrendous spill into the Kalamazoo River in Michigan on July 26, 2010. There, Enbridge employees watched pressure drop in a pipeline for 17 hours, responding to this drop by increasing flow rates in a feckless attempt to bring pressure back up, until people outside noted that a massive 843,000 gallon leak – compounded significantly by the employees’ unthinking behaviour – was the actual cause of the drop in pressure.

The following paragraph reveals the illusion that is Enbridge’s “world class” system.

“Concerns about Northern Gateway’s inability to respond to a spill are magnified by Enbridge’s conduct with respect to the spill which took place in Michigan. Northern Gateway concedes that, in that case, there were procedures in place that were not followed. Northern Gateway asserts that it now has in place a number of “golden rules”, including that whenever there is a doubt with respect to whether the spill detection system has detected a leak, the pipeline must be shut down. However, Northern Gateway concedes that this rule was in place before the Michigan spill; it self-evidently was not followed. In fact, the rule under which Enbridge would shut down its pipeline system within 10 minutes of an abnormal occurrence which could be immediately analyzed was put into place following a spill in 1991. At that time, similar commitments were made indicating that procedures would change and that a spill of that nature wouldn’t take place again.” (Section 82, Page 26). [First emphasis added]

The BC government minces no words in its conclusion: “Enbridge has not demonstrated an ability to learn from its mistakes in order to avoid spills. While Northern Gateway witnesses provided lengthy statements in cross-examination about the changes Enbridge has made to its corporate culture in an effort to reduce the potential for spills in the future, given its pattern of making similar commitments in the past, there are serious reasons for concern that the commitments it has made in this proceeding will be hollow.” (Section 91, Page 29)

The lawyers follows this up with a direct challenge to Enbridge’s constant repetition that all will be worked out satisfactorily once it is granted a permit to proceed:

“Although a spill of dilbit may not be likely in any particular location of the project at a particular time when considered in isolation, the possibility of a spill is very real, as Enbridge’s track record demonstrates; the potential for devastating effects on watercourses is obvious; and there is serious reason to question NG’s ability to respond effectively to a spill. Given these facts, in this particular case the Province submits that Northern Gateway should be able to show, in advance of certification, that it will be in a position, once operations commence, to live up to its spill response assertions. Northern Gateway has not done so. The Province submits that the JRP should, in making its recommendations, give this factor significant consideration.” (Section 114, Page 35) [emphasis added]

However in a gesture of legal legerdemain that has ironic implications for the BC government (more about that in a moment), the province’s team introduces a famous court case to bolster its request for Enbridge to “demonstrate the practicability of the mitigation measures it has proposed” (meaning: show us that what you say you’ll do will actually work!).

The provincial submission refers to the pivotal and unanimous 2001 decision of the Supreme Court of Canada in the case known as “Spraytech v. Hudson (Town)”, which allowed the little community of just over 5,000 citizens to eliminate pesticide spraying on lawns and gardens within the city limits, despite massive industry pressure.

The BC report quotes from this decision as follows: “ In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation.”(Section 109, Page 35) [emphasis in original]

What is so ironic about introducing this case, and the Supreme Court’s clear support of the precautionary principle with respect to pesticide use, is that this same BC government last year flatly refused to commit to doing what Hudson did a dozen years ago, and limit the use of “cosmetic” pesticides for “precautionary” reasons – despite the fact that the Supreme Court of Canada stated, in its 2001 decision, that there was “a good argument that the precautionary principle is a principle of customary international law”.

Massive industry pressure works differently in different times and places, it would seem.

One final example of how the province excoriates the embattled Enbridge position centres on the latter’s promise of a “world class capability” for cleaning up an ocean oil spill. Enbridge’s Northern Gateway team say they are committed to clearing 36,000 cubic metres of oil in 10 days.

But right next door, in Alaska, the standard for oil clean-up is 47,000 cubic metres in 72 hours.

As the authors of the BC government brief drily point out: “If Northern Gateway claims to be “world-class”, it should be required to adopt a standard which is no less stringent than that of northern British Columbia’s closest neighbour.” (Section 124, Page 39)

“World-class”, in this context, sounds like little more than public relations.

What is left unsaid in the final submission 

Let’s turn now to what the province’s submission the JRP doesn’t say.

As I pointed out at the beginning of this piece, the government is clear that it does not oppose this project per se. It leaves out any outright suggestion that it not happen.

Probably that position would alienate the very corporate sector that the provincial Liberals so assiduously court, and that so firmly supports and even funds their activities. 

The submission is also almost completely silent with reference to First Nations’ interventions and participation in the JRP hearings, devoting only one small section to this aspect. However in this one small section it does make a big concession. It quietly acknowledges that First Nations’ interventions have had a had a major influence on its position, admitting that “…the Province has relied for its submissions on pipeline and marine issues on much of the evidence produced as a result of these interventions.” (Section 152, Page 49)

Quite a turnaround, for a province that has, by and large, been very difficult for First Nations’ communities to deal with.

The biggest omission by far from the BC government submission, however, is any reference to the underlying problems of the Tar Sands themselves. There is no mention of the “dirty”nature of Alberta bitumen – the widespread associated pollution and massive consumption of energy and water involved in its extraction – and of its ultimate problem, the huge impact exploiting the Tar Sands will have on global climate change.

But should that come as a surprise? The BC Liberal Party is closely tied to the federal Conservative Party under Stephen Harper, and both in turn are supported by and closely aligned with the global fossil fuel industry, All three are a hair’s-breadth away from being outright global climate change deniers; they’ve just learned to talk about the subject recently, but they resolutely refuse to act as if it mattered.

Christy Clark’s campaign was constructed around another fossil fuel, natural gas, which is mostly made of methane, a very potent greenhouse gas and inducer of global climate change. She may have turned her back, ever so slightly, on the export of bitumen from the Tar Sands, but she’s tied her political future to the production of natural gas, which has just been revealed, in a ground-breaking and independent study, to be as “dirty” as coal. If she’s going to try and make natural gas “work”, increasingly difficult though that will be, it is to her benefit to ignore global climate change. She needs to act as if the only issue is “jobs, growth and long-term prosperity” – at least until the bubble bursts and the energy industry is compelled to pull back from the brink of runaway temperature increase.

Demanding money back

When I was about 13, I went to the PNE, and stood entranced by a man hawking pens that would write under water. His patter and manner were engaging, and his arguments why this pen was the best in the world and something everyone should have one utterly convincing. So I bought one.

But then I tried to write with it, and it didn’t work that well. And it suddenly dawned on me that writing under water was something I’d never needed, wanted or even tried to do.

So I stood up, my heart in my mouth, and said I wanted to return the pen and get my money back. The hawker gave me remarkably short shrift – just grimly handed my money back and dismissed me.

Enbridge and Stephen Harper have tried to sell us the tar sands. Christy Clark has come out of the closet and acknowledged that there are big problems with the jewel in the crown of pipelines designed to make the tar sands work.

But it’s going to be up to the rest of us to stand up and demand our money back.

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