The railway and oil industries exert enormous power over governments, tilting decision-makers toward “economic considerations” which often compromises public health and safety, and our environment.
This power is reinforced by a consensus that issues related to the transport of oil by rail are the exclusive jurisdiction of the feds.
However, communities are challenging this consensus. They are becoming increasingly vocal in demanding a say about dangerous goods passing through their communities.
In a precedent-setting ruling, the U.S. Surface Transportation Board granted the town council of Benicia, California, the legal authority to reject an application by oil giant, Valero, to build an major rail loading facility which the council deemed a danger to the community.
In Canada, Mi’gmaw First Nations communities in the Gaspésie are invoking Charter rights to force the federal government to intervene and halt the proposed Belledune, NB oil export terminal. The Mi'gmaw argue they have a constitutional right to be consulted before the project goes ahead.
In January 2016, the Canadian Environment Assessment Agency (CEAA) approved a request from Ecojustice, on behalf of Greenpeace and Safe Rail Communities, to conduct an assessment of the proposed expansion of the Hardisty, Alberta rail loading terminal—a first for a rail-based shipping facility (the company has since withdrawn its proposal.)
Most recently, the municipal council of Rimouski, Quebec asked the federal environment minister for a CEAA assessment of all the implications of the Belledune rail terminal project which would increase oil train traffic by 220 tank carloads per day through their community and other urban centres along its route. The request was made because the provincial government refused to conduct its own assessment.
In most cases, the CEAA can only launch an assessment if the environment minister approves the request. Hardisty escaped this ministerial discretion provision because it fell under a “railway yard” exception. However, Transport Minister Garneau pre-empted a decision by his colleague by stating categorically that the government would not conduct an assessment.
A federal private member's bill tabled by NDP environment and climate critic, Linda Duncan, would remove ministerial discretion. It would mandate the environment minister to conduct assessments and consultations of activities that communities deem risky to the environment, human life or public health, in this case oil trains.
The bill would, if adopted, help open up what has been a cozy closed-door conversation between industry and Transport Canada, one in which industry has generally called the shots.
In the months before the Lac-Mégantic disaster, citizens were raising concerns about a dramatic increase in massive oil trains barreling through the town centre on appallingly poor tracks. Transport Canada seemed oblivious to the dangers.
Would it have made a difference had the environment minister been required to investigate their concerns? Lac-Mégantic’s causes were multiple, mutually reinforcing and cumulative. But giving a voice to those potentially affected is one step in reducing the risks of another disaster.
Regulate the product not just the trains
Communities are also deeply concerned about the highly explosive nature of the oil traversing their territory. The oil companies have largely evaded their responsibility in this regard and have not taken measures to reduce or eliminate the danger of their product.
The federal government has focused its attention much more on the safety of the containers that transport crude oil, than on their contents.
Its touted accelerated phase-out of the legacy DOT-111 tank cars — a largely symbolic gesture — diverts attention from the ongoing danger. The (slightly less unsafe) CPC-1232 tank cars — which now carry the bulk of crude oil and which continue to derail, puncture and explode — will be allowed to operate until 2025. Furthermore, their replacement, the much-improved DOT-117 design, is still untested in an actual crash.
The U.S. petroleum industry continues to resist efforts to require companies to remove Bakken shale oil’s most explosive components — responsible for Lac–Mégantic and other major incidents — prior to loading, on the dubious pretext that the science is not conclusive. The Canadian government appears reluctant to weigh in against the transportation of “un-stabilized” Bakken crude in Canada.
Most bitumen currently shipped by rail from Alberta is in the form of "dilbit" — bitumen mixed with 30% or more diluent to make it flow. It is highly volatile and will explode in a derailment as Gogama, Ontario accidents in February and March 2015 demonstrated. Until Gogama, diluted bitumen was thought to be much safer than Bakken crude.
The National Energy Board testified recently before a Senate Committee that, without new pipeline construction, the volume of bitumen transported by rail could increase ten-fold in the coming decades. Whether or not new pipelines are built, and notwithstanding the NEB’s exaggerated claim, industry bodies foresee a likely increase the transport of bitumen by rail in Canada in coming years.
Whatever the volumes, dilbit poses a clear and present danger to human safety and the environment—danger compounded by a deeply flawed rail regulatory regime.
Bitumen shipped in its raw form (called neatbit) is much safer than dilbit. It does not explode or flow, but few companies are using or considering this option.
Why? One reason is that it must be shipped in specially insulated tank cars with heating coils, of which limited numbers exist at present. Despite neatbit’s potential cost advantages and clear public safety benefits, neither the oil industry nor governments seem in a hurry to adopt this method, focused as they are on pipeline expansion.
As long as bitumen continues to be extracted, and as long as rail continues to transport it, neatbit is clearly the lesser of evils. The threat to human life would be eliminated and the risk of environmental damage would be greatly reduced.
The government should mandate the phase-out of dilbit by rail. It should be encouraging the construction of heated tank cars to handle this much safer raw bitumen as it is doing with the stronger DOT-117 cars.
Communities are on the front lines. Their anxieties have not been quelled by government measures. They are not reassured by federal claims that rail safety is the top priority. They want a say in whether and under what conditions, dangerous goods pass through their territory. Efforts to deny or diminish their voice on narrow jurisdictional grounds will surely fail.
Bruce Campbell is former executive director of the Canadian Centre for Policy Alternatives. He received the Law Foundation of Ontario’s Community Leadership in Justice Fellowship, and is a Visiting Fellow at the University of Ottawa, Faculty of Law.