NEB Recommends Approval of TMX Despite Concerns Over Impacts on Marine Birds

Aerial view of the Burrard Inlet, through which tankers will travel to and from the Westridge Marine Terminal
Photo credit: Anthony Ho

The National Energy Board has again recommended that the federal government approve the controversial Trans Mountain Expansion Project (TMX) in its report released on February 22, 2019. The report was published after a truncated 22-week reconsideration hearing that the federal Cabinet directed the NEB to conduct into the potential impacts from project-related marine shipping.

The federal Cabinet asked the NEB to conduct a reconsideration hearing after the Federal Court of Appeal quashed the government’s approval of the project back in August. In its reasons for judgment, the Court held that the NEB’s decision to exclude project-related marine shipping impacts from its assessment under the Canadian Environmental Assessment Act, 2012 was such an “unjustified” and “critical error” that its report could not be considered a proper report for federal Cabinet to make a decision. The Court also held that the Crown had failed in its duty to consult First Nations.

In its reconsideration report, the NEB found that marine shipping is likely to cause significant adverse environmental effects on Southern resident killer whales, and on Indigenous cultural use associated with the Southern resident killer whales. The NEB also found that greenhouse gas emissions from marine vessels associated with TMX is likely to be significant. Lastly, the NEB found that environmental effects from a credible worst-case spill would be significant, but that such a spill is not likely to occur. Despite these findings, the NEB recommends that the federal Cabinet find that the expected benefits from the project justified the such environmental effects.

Lawyers with CELL1 represented two nature groups in the reconsideration hearing: BC Nature and Nature Canada. These two groups were also intervenors in the NEB’s original hearing into TMX that started in 2014. Both nature groups share serious concerns about potential adverse impacts to marine bird species from the increase in tanker traffic and the risk of an oil spill.

From the start of the reconsideration process, BC Nature and Nature Canada voiced their concerns to the NEB about the inadequacies in the hearing process, including the narrow scope of the hearing, the short time-frame for the reconsideration, and the lack of cross examination of the proponent’s experts and consultants. Throughout the hearing, BC Nature and Nature Canada continued to highlight the lack of proper assessment of the project’s impacts on marine birds, including marine bird species at risk, particularly in light of evidence of continued and drastic declines in marine bird populations in the Salish Sea and the Pacific coast generally. In their final argument, BC Nature and Nature Canada urged the NEB to seek additional time from federal Cabinet to conduct a proper environmental assessment, something that the NEB ultimately decided not to do.

The NEB’s reconsideration report is deeply disappointing for its failure to give proper consideration to the impacts that project-related tanker traffic, including a potential oil spill, can cause to vulnerable marine bird populations. If TMX is approved, the amount of heavy oil (bitumen) transported through the pipeline and exported by tankers will increase from 300,000 bbl/d to 890,000 bbl/d, and marine export traffic could increase from 60 tankers to an estimated 408 tankers per year. A marine oil spill could have catastrophic impacts on the environment, including many marine bird species at risk, in British Columbia.

BC Nature is a province‐wide federation of naturalists and naturalists’ clubs, and Nature Canada is the national voice of naturalists in Canada. In partnership with BirdLife International, Nature Canada implements the Important Bird Areas (“IBA”) program in Canada. BC Nature coordinates the IBA program in British Columbia.

Posted: March 1, 2019

1Providing legal services as a law corporation.

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