TransCanada's termination of the $15-billion Energy East pipeline sent shockwaves along Canada's west coast, where Kinder Morgan's Trans Mountain expansion faces a legal challenge from six First Nations, two cities, and two environmental organizations.
“It’s obviously a big day for celebration," Eugene Kung, a lawyer with West Coast Environmental Law, told National Observer.
"I have met with many of the Chiefs in Quebec who came to B.C. to learn what we were doing with pipelines with Enbridge (Northern Gateway) and Kinder Morgan. They also invited myself and others from Tsleil-Waututh to share our experiences with the National Energy Board. Part of that was the forming of the Treaty Alliance Against Tar Sands Expansion, which of course has resulted in (an) international alliance against tar sands expansions and includes Standing Rock tribe and the Mohawks.
Similar issues in both cases
Kung said the news on Thursday about Energy East would have a major impact on First Nations challenging the Kinder Morgan Trans Mountain expansion in court.
On Monday, the Federal Court of Appeal began hearing arguments from lawyers for groups fighting the Kinder Morgan's Trans Mountain pipeline expansion, which proposes to triple capacity along an existing pipeline to carry up to 890,000 barrels of diluted bitumen from Alberta to B.C.'s coast. While proponents say the pipeline will create jobs and boost the Canadian economy through oil exports, critics say the pipeline will pose major risks to B.C.'s coastline.
Six First Nations, as well as the cities Cities of Burnaby and Vancouver, and the Raincoast Conservation Foundation and Living Oceans Society, filed a court challenge to fight the project. The number of First Nations applicants decreased by one on Wednesday, when the Musqueam First Nation withdrew its appeal case against the pipeline approval. Pipeline proponents and opponents were in court Thursday to hear the arguments by the lawyer representing the Coldwater Indian Band.
“Energy East, like Kinder Morgan was an export pipeline that had very strong Indigenous oppositions as well as community oppositions, and in particular did not have the consent of the communities where it was going to cross," Kung said. "A lot of the issues here that the federal court is grappling with were the very same issues that contributed to Energy East’s demise."
Kung said the National Energy Board's decision to include climate as part of the review for Energy East dramatically changed the dynamics of that proposal. Climate, meanwhile, was not a factor in the Kinder Morgan Trans Mountain review.
Kung said another factor contributing to the demise of Energy East were revelations, by National Observer’s Mike De Souza, of a conflict of interest involving Quebec’s former premier Jean Charest and the NEB.
“I think that [the Jean Charest controversy] was symptomatic of what we’ve seen as a much broader and widespread cultural problem with the National Energy Board, which Mike De Souza has been very diligent at unearthing," he said.
"I think it’s much the same with Kinder Morgan. Even though we didn’t have the same smoking gun... we did have the pause of several months after the National Energy Board appointed Stephen Kelly, who was the author of Trans Mountain’s own economic case, in order to give them time to replace that evidence. I think those issues were not one-offs, I think they were actually indicative of a broader cultural problem within the board. And of course that is currently subject to the National Energy Board modernization process.”
Kinder Morgan did not immediately respond to a request for comment.