Environmental groups launch court challenge over NEB’s Kinder Morgan report

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Vancouver – The National Energy Board (NEB) broke the law when it failed to apply the Species at Risk Act in its final report on Kinder Morgan’s Trans Mountain pipeline project, environmental groups say.

Ecojustice lawyers, representing Living Oceans Society and Raincoast Conservation Foundation, have filed for a judicial review of the NEB’s report that recommended the federal Cabinet approve the Kinder Morgan pipeline.

The groups argue that the NEB’s report is unlawful and used an overly narrow interpretation of the law to avoid addressing harm to Southern Resident killer whales and their critical habitat.

“The NEB’s report is unlawful and irresponsible,” said Dyna Tuytel, Ecojustice lawyer. “Not only did the report fail to mitigate harm from tanker traffic noise to Southern Resident killer whales, but it also failed to consider other oil tanker adverse impacts that could affect the whales’ critical habitat and prey availability. The NEB is the only regulator assessing this project before the government makes its decision. Their hands-off approach means that when it comes to this dangerous project, no one is looking out for the whales.”

The Canadian government’s 2008 recovery strategy for Southern Resident killer whales stated that there are four key threats that must be addressed to ensure their survival and recovery: declining availability of Chinook salmon — the whale’s preferred prey; marine pollution, including the risk of oil spills from tanker traffic; physical and acoustic disturbances (noise pollution) from ships and boats; and degradation of whale critical habitat.

“The Species at Risk Act requires regulatory bodies to ensure that effects to species at risk are either mitigated or avoided when assessing project proposals,” said Karen Wristen, Executive Director of Living Oceans Society. “The NEB’s report on Kinder Morgan’s pipeline did not do that. These whales are already endangered, and this unlawful report further jeopardizes their survival.”

Kinder Morgan is proposing to twin its existing Trans Mountain pipeline. This would increase the amount of oil transported from Edmonton to Burnaby’s Westbridge Terminal from 300,000 barrels per day to 890,000 barrels per day, and increased tanker traffic through Burrard Inlet and the Strait of Georgia (part of the Southern Resident killer whales’ critical habitat) by nearly seven times, from 60 tankers per year to over 420.

“The NEB acknowledged our research indicating that the increased underwater noise from Kinder Morgan’s tanker traffic would accelerate the whales’ decline and increase their risk of extinction, but has refused to address it,” said Paul Paquet, Raincoast Conservation Foundation. “As it stands now, the NEB’s report on Kinder Morgan’s pipeline leaves these whales exposed to an unacceptable level of harm. The NEB’s report gives us no choice but to go to court to ensure that the iconic killer whale is protected by the full weight of the law.”