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article imageOp-Ed: Ecojustice lawyer Barry Robinson on Joint Review Panel outcome Special

By Grace C. Visconti     Jan 13, 2014 in Environment
Calgary - This is an Interview with Ecojustice lawyer Barry Robinson about the Joint Review Panel outcome and more. Barry acted as legal counsel to three environmental groups in the Joint Review Panel hearings into the proposed Northern Gateway pipeline.
Barry Robinson is a staff lawyer in the Calgary office of Ecojustice. Prior to obtaining his law degree, Barry worked in the forest industry in northern Alberta and as an environmental consultant. Since joining Ecojustice in 2008, Barry has represented clients dealing with the environmental impacts of oil and gas activities, water allocation and licensing issues and the protection of species at risk. Barry acted as legal counsel to three environmental groups in the Joint Review Panel hearings into the proposed Northern Gateway pipeline.
GCV: Overall, what was your impression of the Joint Review Panel report that gave the approval of the Enbridge Northern Gateway pipeline with 209 conditions? Were there any surprises?
BR: Overall, the Joint Review Panel Report was disappointing. The Panel appeared to give little weight to much of the evidence presented by intervenors. Also, the Panel failed to adequately explain its findings. As identified during the hearings, many studies and plans were delayed until after the Project was approved. For example, we still don’t have an answer to the basic question of whether or not, and under what conditions, diluted bitumen will sink in the marine environment and there is no means of recovering sunken bitumen. But if you asked the Panel, I think their response would be that they have enough information to determine that there will not be significant adverse effects. For example, for the risk of landslides, the Panel requires Northern Gateway to do further studies. However, based on the evidence before it already, the Panel is of the opinion that any identified risks can be mitigated by known engineering methods.
GCV: How long do you think it will take to fulfill the 209 conditions and what if the federal government approves this pipeline regardless, can it be implemented as planned if not all 209 conditions are met?
BR: The conditions apply at various stages of the project – some before construction, some during construction, some during operations. Northern Gateway must meet all of the conditions throughout the life of the project. If the federal cabinet approves the project, it must accept and enforce all 209 conditions. The National Energy Board (NEB) will be responsible for monitoring and enforcing that all 209 conditions are met throughout the lifetime of the Project. Would the NEB halt the project if one of the conditions were not met? In theory they could, but more likely we would see some other form of enforcement e.g. a warning letter, request for a plan to correct the deficiency etc. It is also possible that Enbridge could convince the NEB to amend or drop a condition.
GCV: Specifically, what are the pros and cons of the Joint Review Panel Report and how will this benefit or be a detriment to Canada and First Nations communities?
BR: As the Coalition argued during the hearings, the Panel has overestimated the economic benefits of the project while discounting the environmental impacts. For example, 35 percent of the project’s estimated contribution to the Gross Domestic Product comes from increased oil and gas production induced by the project. Yet, the Panel excluded increased oil and gas production from its consideration of the environmental effects of the project.
GCV: How long is it estimated that the Northern Gateway pipeline will be operational? Did they consider the amount of spills that could occur over this length of time and the cost of the potential numerous cleanups? In other words, were they only looking at immediate profits without considering this lengthy project and long-term effects for the environment and the citizens it will affect?
BR: The benefits of the Project were estimated over a 35 year period. Enbridge estimated, and the Panel accepted, very low probabilities for spills on the pipeline and in the marine environment. Therefore, the costs related to spill cleanup were very low. See the JRP report for details.
GRV: Is there anything in the Joint Review Panel Report about the species at risk laws and how species should be protected in the event of a spill? This was another criticism stated by the Coastal First Nations, namely “The JRP did not examine the cumulative effects of marine transport and impacts on the environment and on endangered whales.”
BR: The Panel did not consider the approved Recovery Strategy for the North Pacific Humpback Whale. The Recovery Strategy clearly identifies the potential impacts of ship noise, ship strikes and an oil spill on this species at risk. It is difficult to reconcile approval of this project with the mandatory protection of humpback whale critical habitat required by the Species at Risk Act.
GCV: If clean-up technologies have been effective, then why did Art Sterritt, Executive Director of Coastal First Nations, make this comment in response to the Joint Review Panel report, “The science on bitumen hasn’t been done. Beaches are still polluted in Alaska from the Exxon Valdez, and some fish and wildlife populations (including marine mammals) have never recovered.” (Reference: Coastal First Nations Respond to Joint Review Panel Recommendation on the Northern Gateway Pipeline.) Can this help the First Nations’ cause legally if it is proven as fact in a court of law?
BR: The Joint Review Panel found that ecosystems would recover from a major oil spill in a few weeks to a couple of years. This is contrary to the evidence presented with respect to the Exxon Valdez spill. See pages 120-131 of the JRP report for the evidence that was presented and how the Panel dealt with this evidence.
GCV: In the Joint Review Panel, what was the price recommended for oil spill clean-ups and was the price reduced originally from billions of dollars to millions of dollars? What will this mean to Canadian taxpayers if there are simultaneous spills and not enough money allocated for Enbridge to clean up the messes?
There is a limit of approximately $1.3 billion under various liability and insurance funds for the cleanup of a marine oil spill. Clean up and restoration of the Exxon Valdez spill far exceeded this amount. There is no limit on liability for a pipeline spill. The Joint Review Panel, in Condition No. 187, requires Northern Gateway to provide $950 million in financial security for liabilities arising from the project. Northern Gateway would have to maintain the security at $950 million throughout the lifetime of the project. For example, if $250 million were spent on cleaning up an oil spill, Northern Gateway would have to top up the financial securities held back to $950 million. It is possible that taxpayers could have to cover clean up costs above these amounts.
GCV: If the 5 conditions stipulated by Christy Clark are met and B.C. therefore approves the pipeline but the majority of B.C. citizens, Canadians and First Nations disapprove, how do you see this playing out? Do citizens have legal recourse even if the B.C. government reneges on their initial disapproval of the deal?
BR: There is no legal recourse if the B.C. government changes its position. This is really a political question. Both the Christy Clark government and the Harper government will need to weigh the political costs of approving this pipeline in the face of strong public opposition.
GCV: Some people believe due to the intense opposition of the Northern Gateway pipeline that it will never get built. (View Why the Northern Gateway ruling won’t matter on the Business News Network (BNN). Would you agree with this scenario?
BR: Generally, I expect that there will be legal actions brought against any approval of the pipeline based on Aboriginal rights and title. Also, there may be legal cases brought based on environmental aspects of the project. It is difficult to predict whether these would delay or possibly even kill the project.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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