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ANDREW COYNE: Politicians who put the public good first? If only the pipeline drama was that simple

 Jason Kenney
Alberta Premier Jason Kenney speaks beside Energy Minister Sonya Savage about Bill 12, the turn-off-the-taps legislation, during a press conference on May 1, 2019. - Ian Kucerak/Postmedia

If you’re just joining us, the government of British Columbia has launched a court challenge of legislation passed by the government of Alberta that would allow it to cut off shipments of oil to B.C.; the government of Alberta has announced it will go to court to challenge federal legislation banning tankers from shipping oil off the coast of northern B.C.; and the federal government is in court challenging B.C. legislation that would allow it to bar shipments of oil from Alberta — not the oil it is demanding Alberta ship to it, which Alberta is threatening to block, but the oil Alberta would like to ship it, which B.C. does not wish to take.

If only it were that simple. The Alberta legislation, known as Bill 12, was passed, but not proclaimed, under the outgoing NDP government, at a time when the NDP government of B.C. was vowing to stop construction of the Trans Mountain pipeline expansion, through which Alberta hopes to ship heavy oil on its way to foreign markets. It has now been proclaimed by the incoming Conservatives, though the B.C. government has since admitted that it cannot stop the pipeline, which falls under federal jurisdiction, from being built (it asserts only that it can regulate the flow of oil through it, a claim the courts will probably reject).

For his part, the new premier of Alberta, Jason Kenney, has said he does not intend to use the powers he has now armed himself with to retaliate against a threat that would appear to have dissipated. But now that he has proclaimed it, and having expressly stated that it is aimed at punishing B.C., he has left the legislation open to challenge on the grounds that it is not a general restriction on exports, which is probably constitutional, but a discriminatory one, which is not. Which may indeed have been the reason to proclaim it: to let the courts bail him out of a campaign promise he had no intention of keeping.

The federal Liberals, meanwhile, might be expected to have a view on this, having bought the entire Trans Mountain pipeline, existing and proposed, at a cost of $4.5 billion, on the grounds that this was the only way to ensure it went ahead. The project was delayed, however, when a court found the Liberals had failed to consult properly with Aboriginal groups in an additional round of consultations the Liberals themselves had insisted be added. That was eight months ago. Is the project now ready to proceed?

If only it were that simple. The federal government has delayed its decision on whether to approve construction of the Trans Mountain pipeline it bought to ensure its construction, claiming additional consultations are needed — that’s in addition to the additional consultations in which it has been engaged until now, after the original additional consultations were ruled inadequate. Indeed, the government says there is no guarantee it will make a decision until after the federal election.

The suspicion is that the feds are dragging their heels in response to the Alberta election, a suspicion fed by the timing of the federal announcement — right after the Alberta election. The provincial Conservatives, after all, had not only promised to cancel the provincial carbon tax, which the NDP government had imposed in order to help assure Trans Mountain’s progress but had frozen at $30 in response to Trans Mountain’s failure to progress, but had also pledged to scrap the 100 megatonne cap on emissions from the province’s oilsands. Surely, then, the federal Liberals have no choice but to retaliate?

If only it were that simple. The 100 MT cap may have been provincial policy under the NDP, but the regulations to give it effect were never implemented. Even if they had, emissions are currently so far below the cap it is estimated it would not begin to bite for at least another 12 years — maybe not even then.

How can the Conservatives promise to lift a cap that doesn’t exist? Simple, Kenney now says: they didn’t. The promise appears nowhere in the party platform: “We have not committed to amending the legislation.” Indeed, he doesn’t have to — he just has to leave the regulations undrafted.

In any event, the Liberals are now saying they will exempt new oilsands projects from review under its new impact assessment process — contained in legislation, Bill C-69, that is not yet law — so long as Alberta keeps the cap in place that is in fact not in place.

Of course, all of this discussion around Trans Mountain would be moot, as is well known, if Quebec were not standing in the way of construction of the Energy East pipeline to the Atlantic coast. Kenney even reached out to the province in his election night speech, only to be rebuffed by Premier Francois Legault (“there is no social acceptability for oil in Quebec”). Surely some sort of entente could be struck that would allow it to proceed?

If only it were that simple. There is in fact lots of social acceptability for oil in Quebec — the province burns tens of millions of barrels of the stuff every year, much of it imported by pipelines from both east and west. But whether it finds oil acceptable or not, the province has no power in law to approve or reject inter-provincial pipelines, any more than B.C. does. The problem with Energy East is not that it cannot win Quebec’s approval: it is that there is no pipeline to be approved — TransCanada Pipelines has long since abandoned it as uneconomic.

Is it possible that all sides in this protracted national drama are posturing, brandishing powers they do not have and do not intend to use in response to threats that don’t exist, all for crass political gain? If only it were not that simple.

Copyright Postmedia Network Inc., 2019

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