Environmental groups launch court challenge of Trans Mountain

Judicial review application has been filed over the National Energy Board's recommendation on Trans Mountain

(Ben Nelms/Reuters)

(Ben Nelms/Reuters)

VANCOUVER – A pair of environmental groups are asking the courts to quash a recommendation that the federal government allow the controversial Trans Mountain pipeline expansion project to go ahead.

Lawyers for the Living Oceans Society and the Raincoast Conservation Foundation have filed an application for judicial review of the National Energy Board’s recommendation in Vancouver’s Federal Court of Appeal, arguing that it is unlawful.

Documents filed in court Friday allege the NEB did not take into account the impact the $6.8-billion project would have on Southern Resident killer whales and their habitat.

If successful, a judicial review would force the board to reconsider its recommendation that the project be approved by the federal cabinet.

Trans Mountain wants to triple the capacity of its existing pipeline from the oilsands near Edmonton to Burnaby, B.C., increasing the number of tanker ships in the area seven-fold.

The NEB spent two years reviewing the proposal and heard from 35 indigenous groups and 400 interveners before issuing a report and a positive recommendation in May.

The recommendation is subject to 157 conditions on engineering, safety, environmental and emergency preparedness conditions.

But lawyer Dyna Tuytel said the report failed to consider the harm increased tanker traffic noise would cause endangered killer whales off of British Columbia’s coast.

“What (tanker traffic noise) does is it interferes with their communication and it interrupts their critical life functions like hunting or socializing … and causes them to do other activities such as travelling away from the noise,” Tuytel said in an interview.

Evidence about the impact on the whales was made at hearings on the project, but the board has not justified the damage that would be done, she said.

“People are frustrated with what the board has decided in the face of so much evidence of threats from this project.”

The application for judicial review asks the court to declare that the NEB made several errors in law and didn’t meet the requirements of the Environmental Assessment Act or the Species at Risk Act.

Tuytel said the environmental groups want the court to stop the federal government from making a final decision on the project based on what she called a “flawed” report.

“The fact that they’re not addressing the affects, for example on endangered killer whales, means that no one will,” she said.

Trans Mountain spokeswoman Ali Hounsell said in a statement that the company is reviewing the application for judicial review and “will be responding more fully through the court process.”

The environmental groups are not the first to raise concerns about the NEB report. Last week, the Squamish Nation launched its own judicial review of the recommendation, arguing the board did not fulfil its obligation to consult with the First Nation about the project.

Fifty B.C. First Nations also wrote to the prime minister and the premiers of B.C. and Alberta last week, describing the consultation process on the proposed project as “woefully inadequate.”

Prime Minister Justin Trudeau’s government has delayed its final decision on the Trans Mountain project until December to allow for additional indigenous consultation.