Provincially approved LNG pipeline project faces legal hurdle

TransCanada’s Prince Rupert Gas Transmission Project challenged in Federal Court of Appeal

A successful legal challenge regarding the provincial jurisdiction of TransCanada’s Prince Rupert Gas Transmission pipeline may place the project in the hands of federal regulators.

Michael Sawyer, a former environmental consultant from Smithers, argued that the $5-billion 900 kilometre pipeline project should be regulated by the National Energy Board (NEB) and that it shouldn’t have been transferred to provincial jurisdiction.

Insisting that TransCanada is a federal network of gas pipelines, Sawyer filed an application with the NEB to declare the Prince Rupert Gas Transmission pipeline under federal jurisdiction.

He was denied — at least until Federal Court of Appeal delivered its judgment in Ottawa on July 19 when the court ruled in favour of Sawyer.

“The court found that the board (NEB) essentially had been too quick to dismiss the request by Mr. Sawyer to have a hearing into the jurisdiction over the pipeline,” said Sawyer’s lawyer, William Andrews, who added that the court went further and found that the board had made legal errors regarding the constitutional issues that apply.

“The board had put a lot of weight on the fact that the pipeline begins and ends within British Columbia but didn’t take into account the jurisdictional consequences of the fact that the purpose of the Prince Rupert pipeline is to bring gas from the northeast of B.C. to Prince Rupert for export — and it’s that ‘for export’ that is a factor pointing to federal jurisdiction,” Andrews said.

The proposed pipeline project would bring natural gas to the North Coast from the North Montney Mainline, north of Hudson’s Hope, which received approvals in January 2017 from the B.C. government with 21 conditions attached. The NEB had already approved the northeastern pipeline with 45 conditions in April 2015.

The Prince Rupert Gas Transmission project is 780 kilometres of land based pipeline and 120 kilometres of marine based pipeline that would end at Lelu Island, near Port Edward — where the federally approved Petronas-led Pacific NorthWest LNG project is planned to be built. However, as stated on its website, TransCanada is waiting for a final investment decision from Petronas to begin construction.

In November 2014, the B.C. Environmental Assessment Office approved of the pipeline project, then in October 2015, the BC Oil and Gas Commission, a Crown corporation, issued the pipeline’s final permits.

But provincial approvals weren’t enough for the environmental organization, SkeenaWild Conservation Trust, that is financially supporting Sawyer’s legal process to push for federal regulation.

“It’s a solid judgment supporting the issue that this should in fact have undergone a federal review and a more rigorous environmental assessment process,” said Greg Knox, executive director for SkeenaWild.

“We feel that the federal process is much more rigorous and would allow us to put in place more stringent protections to protect salmon habitat along the pipeline especially in the Skeena watershed.”

Should TransCanada and the National Energy Board disagree with the judgment, they have the opportunity to apply to the Supreme Court of Canada to appeal against the decision within 60 days.

“We are still reviewing the judgment of the court, and considering our options,” said Shawn Howard spokesperson for TransCanada. “It is notable that this decision is not a determination that federal jurisdiction applies. Instead, the court determined that the National Energy Board needs to reconsider their original decision about holding a hearing to determine whether federal jurisdiction applies. Accordingly, the court remitted the case back to the NEB for reconsideration.”

If the legal process continues with the Supreme Court, Knox said SkeenaWild will continue to financially support the legal process but they’re hoping it doesn’t come down to that.

“We’re hoping that the NEB has a hearing and ideally it will go through a federal review,” Knox said.