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The Law Versus Logic – A Review of the Federal Court of Appeal Decision on the Trans Mountain Expansion Project

Contributed by Robert Lyman © 2018

Robert Lyman is an Ottawa energy policy consultant.  He worked as a public servant for 27 years; prior to that he spent 10 years as a diplomat.

On August 29, 2018, the Canadian Federal Court of Appeal issued its decision on applications by a number of aboriginal groups, the cities of Vancouver and Burnaby and two non-governmental organizations to set aside the report of the National Energy Board and the federal government Order-in-Council approving the Trans Mountain Expansion Project. The court granted the application challenging the Order-in-Council, thereby potentially terminating a pipeline project that has been undergoing regulatory analysis and review since 2013.

 

The court’s reason for decision document is over 200 pages long and contains closely argued legal considerations. In the summary released by the court, it stated that one of the main reasons for its judgment was that the National Energy Board’s process and findings “were so flawed that the Governor in Council could not reasonably rely on the Board’s report”. Specifically, the Board allegedly did not examine the environmental effects of the marine tanker movement associated with the project, including the “significant adverse effects on the Southern resident killer whale”.

 

The purpose of this note is to show that, whatever the legal merits of the decision (which I am not qualified to determine), the decision is false with respect to marine environmental effects.

 

Some Background Facts

 

The Trans Mountain Expansion project involves the expansion of an existing oil pipeline system that runs from Edmonton, Alberta to Burnaby, British Columbia, at which point some of the crude oil would be loaded onto tankers at the Westridge Marine Terminal where it would be delivered to markets throughout the west coast of North America and the Pacific Rim. This pipeline system has operated for 65 years, since 1953.

 

The project would result in the looping (or twinning) of the existing 1,147 km Trans Mountain Pipeline (TMPL) system with about 987 km of new buried pipeline. The older pipeline would be designated Line 1. The proposed new pipeline segments, along with two currently active segments, would become Line 2.

 

Currently, the Westridge Terminal loads about five oil tankers per month with crude oil delivered by TMPL; this has been occurring for decades.

 

The National Energy Board conducted an extensive review of every aspect of the project in accordance with its requirements under the National Energy Board Act, which requires it to conduct a review based on the Canadian public interest. These subjects included an evaluation of the potential benefits and burdens of the project throughout its entire life cycle, from pre-construction through construction and operation to eventual decommissioning. The topics covered included the need for the pipeline, the safety and engineering integrity of the facilities, the approach to be taken to land acquisition and construction, the economic and financial issues, the impacts on communities and on aboriginal people, and the effects of shipping, among others. The National Energy Board was also responsible to evaluate the project under the Canadian Environment Assessment Act and so it examined the effects of the pipeline on a host of environmental aspects, including air, land and water as well as wildlife; it also reviewed the TMPL plans to avoid accidents that might cause spills and to take rapid action to clean up and remediate any spills that do occur.

 

The NEB collected a large amount of written and oral evidence concerning the marine portion of the project and devoted a number of sections of its final report to these. Chapter 14 of the Board’s report, from pages 323 to 406, addresses the consequences of the project-related increase in shipping activities. Chapter 10 of the report assesses the environmental effects on air, land and water, and specifically, in section10.2.15, addresses the environmental effects on marine mammals, including whales, of the expansion of the Westridge Marine Terminal.

 

The NEB reasons for decision can be read here:

 

https://www.ceaa-acee.gc.ca/050/documents/p80061/114562E.pdf

 

The British Columbia Environmental Assessment Office on January 11, 2017, issued an Environmental Assessment Certificate for the project, subject to an additional 37 conditions. The B.C. announcement of this can be read here:

 

https://news.gov.bc.ca/releases/2017ENV0001-000047

 

What will be the Effect of the Project on Shipping Traffic?

To understand the claims that the marine portion of the project poses an unacceptable risk, it is necessary to place it in context. The project would result in an increase in tanker traffic from 60 per year to about 408 per year (720 additional movements including in and out).

 

The tanker traffic associated with the project would use the Westridge Terminal, which is near the port of Vancouver. The port of Vancouver now has about 23,000 ship movements a year and is engaged in public consultations about plans to significantly increase its size. The increase would add more than 5,000 ship movements per year if all the future upgrades were included. This dwarfs the 720 additional ship movements associated with the project.

 

 

The TERMPOL Process

 

The marine portion of the TMPL project was reviewed under the Technical Review Process of Marine Terminal and Transshipment Sites (TERMPOL). A TERMPOL Review Committee, whose members include experts from federal departments and authorities with responsibilities related to safe marine transportation, reviews submissions. The purpose of the TERMPOL review process is to:

 

  • Objectively appraise operational vessel safety, route safety and cargo transfer operations associated with a proposed marine terminal system or transshipment site
  • Focus on improving, where possible, those elements of a proposal which could, in certain circumstances, pose a risk to the integrity of a vessel’s hull while navigating and/or the cargo transfer operations alongside the terminal

 

The TERMPOL review takes place within the context of Canada’s marine safety regulatory regime, which is one of the most stringent in the world. Under this regime, oil tankers and their operations must comply with a long list of environmental protection requirements of both Canada’s domestic laws and international conventions. These requirements address such areas as safe vessel design and construction, including requirements for double-hulled tankers; safe manning; crew qualifications and training; working conditions; safety management systems, radio communication equipment and equipment for safe navigation including Electronic Chart Display and Information Systems and automatic identification systems (AIS); voyage planning; vessel reporting; and rules to prevent collisions.

 

Det Norske Veritas Review of the Trans Mountain Expansion Project

 

Trans Mountain commissioned the consultant Det Norske Veritas, a marine classification society recognized internationally for its marine risk assessment, to conduct a marine transport Quantitative Risk Analysis to determine the impact of the project on oil cargo spill risk, and identify mitigation measures necessary if required.

 

Det Norske Veritas (DNV) performed a thorough review of all the factors that might affect the likelihood of a shipping incident, the possibility and volume of an oil spill, and the likely effects of a spill given all the precautionary and response measures in place. DNR analyzed the risks associated with tanker traffic under three scenarios, one in 2018 without the project, one in 2018 with the project (i.e. assuming it was completed by then), and one in 2028 with the project. Measured in terms of sailed nautical miles, in the first case Trans Mountain tankers would constitute 0.5% of the total 3.8 million miles by all vessels in the Salish Sea and Juan de Fuca Straight. Under the third scenario, in 2018, Trans Mountain tankers would constitute 3.0% of the 4.3 million miles by all vessels in the area.

The assessment considered the effect on incident risk of traffic growth from Trans Mountain tanker traffic as well as from overall growth in the area. Here are the main conclusions as stated in the risk analysis submitted to the TERMPOL process:

 

  • The increase in traffic resulting from the Project is found to have a negligible effect on the total incident frequency for the region. With or without the Project, tanker traffic remains a small part of the total traffic in the region.

 

  • Without the Project, the frequency of accidents resulting in an oil cargo spill of any size is estimated to be one in every 309 years. Post implementation of the Project, if no additional risk reducing measures are implemented, the frequency will be one in every 46 years. If all the risk reducing measures discussed in this report are implemented, the frequency will be one in every 237 years.

 

  • Without the Project, the risk of a credible worst-case oil spill (estimated by modeling to be 16,500 cubic metres) is estimated to be one in every 3093 years. Once the Project is implemented, if no additional risk reducing measures are implemented, the frequency will be one in every 456 years. If all the risk reducing measures discussed in this report are implemented, the frequency will be one in every 2366 years.

 

  • Spill response in the region is currently the subject of review by the Federal and Provincial governments of Canada. Based on the information from the risk assessment, enhanced planning standards for spill response describe a regime that will be able to deliver 20,000 tonnes of capacity within 36 hours from dedicated resources staged within the study area. This represents a response capacity that is double and a delivery time that is half the existing planning standards. These enhancements will reduce times for initiating a response to two hours for the harbor and six hours for the remainder of the study area and parts of the west coast of Vancouver Island. The standard for cleaning of oiled shoreline is also improved significantly from 500 metres per day to 3,000 metres per day.

 

  • DNV concludes that the regional increase in oil spill risk caused by the expected increase in oil tanker traffic to Trans Mountain Westridge Marine Terminal is low, and that the region is capable of safely accommodating the additional one laden crude oil tanker per day increase that will result from the Project.

 

 

The DNV report also concluded that the increase in vessel traffic resulting from the project would have “a negligible effect on the total incident frequency for the region.

 

The Det Norske Veritas report can be read here:

https://transmountain.s3.amazonaws.com/application14/V8C_TERMPOL_REPORTS/1142.html

Based largely on this analysis and the views received from the participating federal government departments and authorities, the TERMPOL committee concluded:

 

“While there will always be some risk in any project, after reviewing Trans Mountain’s studies and taking into account its commitments, the TRC has identified no regulatory concerns for the tankers, tanker operations, the proposed routes, navigability, other waterway users and the marine terminal operations associated with the Project tankers. The TRC has identified several findings and recommendations in response to Trans Mountain’s submission and has proposed actions for Trans Mountain to undertake that, in conjunction with Trans Mountain’s commitments, will provide for a higher level of safety for tanker operations commensurate with the increase in traffic.”

 

The report of the TERMPOL review panel can be read here:

 

TERMPOL Review Process Report on the Trans Mountain …

 

The National Energy Board, in issuing a permit to the Trans Mountain Expansion Project, included the TERMPOL recommendations as binding conditions.

 

The Impact on Orca Whales

 

Blair King, a professional chemist and biologist who specializes in environmental risk assessment, writes a frequent blog on energy and environmental issues under the title of “A Chemist in Langley”. One of his articles dealt with claims that the Trans Mountain Expansion project posed a threat to Orca whales. The following is an excerpt from his blog.

 

“The latest argument against the Trans Mountain has been its purported added risk to the resident Orca population. Originally the argument went: increasing the number of tankers would increase the number of collisions with marine mammals and this could result in the extirpation of the resident Orca community. That trope was quickly demonstrated to simply represent a mis-reading of a single scientific article by someone apparently unaware of BC geography. The paper indicates that the Orcas are at high risk of collision in Johnstone Strait, which would be a problem if tankers were heading in that direction, which they are not. As for the increase in tanker traffic, the TMX tankers would represent an increase of 720 more ship movements in a Strait that sees 23,000 ship movements a year. This at a port that is engaged in a build-out that will expand ship traffic significantly. If acoustics are really a concern for the activists then rather than fighting the TMX, they should be protesting the Port of Vancouver’s expansion plans.

 

Never a group to let a good idea go to waste, once the collision myth was busted the activists turned to the risks to the resident Orca population posed by an oil spill. This myth comes courtesy of the Raincoast Conservation Foundation who prepared a study “Report on Population Viability Analysis model investigations of threats to the Southern Resident Killer Whale population from Trans Mountain Expansion Project. The study represents a modelling exercise to examine the effect of the TMX on the resident Orcas. Now, much like the City of Vancouver modelling, I was a bit surprised by the conclusions of the analysis and so looked a bit deeper into the methodology and like the Vancouver Study I discovered another case of garbage in, garbage out. The model itself seems sound and the statistical methodology was excellent. The problem with the exercise was the data used to generate the results. In this case the authors chose to use a very interesting source for their spill occurrence frequency input value. Specifically they relied on a “report” called Foschi (2014). Except when I go to the references I see that Foschi 2014 is not a peer-reviewed journal article but rather a blog post by an interested engineer.

 

The blog post that serves as the critical data input for this modelling exercise uses values from the Trans Mountain TERMPOL 3.15 General Risk Analysis and Intended Methods of Reducing Risk (caution large file) to generate a likelihood of an incident. But the modelling exercise appears to use the wrong numbers from that blog post. In Foschi he relies on Table 34 (p83 of 454 on the pdf) to get his risk of oil spills. Now looking at the table the TERMPOL 3.15 authors presented several scenarios, a current (Case 0), a Case 1 (expansion with no mitigation) and then Case 1a and Case 1b (expansion with specific mitigations to reduce risk). Now the intention of the TEMPOL 3.15 report is to provide a description of the appropriate and necessary mitigation efforts associated with the increase in tanker traffic that would come with TMX. The conclusion of the report was that Trans Mountain make use of those mitigations. Those mitigations (including tugs etc….) were subsequently written into the TMX proposal as a requirement for the project.

 

Given that the mitigation plans were incorporated into the TMX proposal would anyone care to guess which of Foschi’s numbers were used for this modelling exercise? Yes, you guessed it, the “no mitigations applied” number (Case 1) for spills. They used the very numbers that the authors of TEMPOL 3.15 suggest are not relevant (since the intention of the work is to describe the mitigations). But that is not all. Because “the reports do not clarify the average volumes or the distributions of those small spills” the authors tested the projected effects of frequencies of larger (>16,500 m3) and smaller (>8250 m3) spills that are double those stated above” [highlight mine]. So not only did they use the “no mitigation applied” numbers but they then doubled the likelihood of a spill from the “no mitigations applied” scenario. Let me say that again to make it clear, they took a value that was recognized as being 4-5 times too high and then they doubled the frequency of those spills for conservatism. They then took those inflated numbers and inserted them into their model.

 

This is essentially like looking at the difference between a “no seatbelt” and “mandatory seatbelt” scenario in car crashes. If someone argued that we should ban cars because accidents for passengers without seatbelts is too risky your response would not be to ban cars. Your response would be to point out that seatbelts are mandatory and that modern cars have air bags as well thus any analysis that ignores the existence of seatbelts and air bags is not terribly relevant. Well sadly for the Raincoast Conservation Foundation, their analysis metaphorically argues that people are driving around without access to seatbelts or air bags and therefore driving is too dangerous. The model, which relies on the inflated risk of incidents, thus presents a similarly inflated risk of extirpation of the resident orca population.

 

Sadly, no one with the expertise to catch this bait and switch had read the report prior to it going to the TMX Ministerial Panel. As a consequence, the flawed inputs were used to generate necessarily flawed outputs and those flawed outputs from that modelling made it into the TMX Ministerial Panel final report. So, I suppose the opponents of the TMX Ministerial Panel were correct, maybe we should have been allowed to cross-examine presentations because then someone might have had the opportunity to debunk this flawed modelling exercise before it was broadcast to the world and treated as correct.”

 

Mr. King’s full blog post can be read here:

 

https://achemistinlangley.net/2016/11/30/debunking-activist-myths-about-the-trans-mountain-expansion-project/

 

Conclusion

The Federal Court of Appeal’s decision rests on two highly dubious claims of fact: first, that the National Energy Board did not examine the marine tanker consequences of the Trans Mountain Expansion Project, when it clearly did; and second, that the modest increase in tanker traffic places the Orcas at a much higher risk of collision with shipping. Common sense, however, does not necessarily trump law.

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4 Comments

  1. Great post! There`s a typo in the second line of The Impact on Orca Whales section where it states “environmental rick assessment”.

  2. Graydon Tranquilla

    August 31, 2018 at 10:57 pm

    solid factual data from Robert Lyman again as usual……….Has Canada’s legal system, medias and politicians all lost their minds…..?

    • Not sure it is lost their minds, the fact is our schools, including post secondary, no longer teach risk assessment, our media no longer talks risk assessment. People now judge everything on an emotional response without considering the overall effects. The reality of the pipeline cancellation is that it does exactly the opposite of the goals of the groups that launched the court action. The amount of emissions will rise as oil moves by train rather than pipeline. the risk to the marine environment will rise as the additional security measures required in the approval are no longer required. All of life is risk and the risk to Canada has increased with this ill advised decision.

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