Kinder Morgan’s proposal to twin its existing Trans Mountain Pipeline would increase the amount of oil transported from Edmonton to Burnaby’s Westbridge Terminal from 300,000 barrels per day to 890,000 barrels per day, and increase tanker traffic through part of the Southern Resident killer whales’ critical habitat in the Salish Sea by nearly seven times, from 60 tankers per year to over 420.

Towards the end of January 2016, Ecojustice lawyers appeared on behalf of Living Oceans Society and Raincoast Conservation Foundation to present their arguments to the National Energy Board (NEB). Living Oceans Society and Raincoast Conservation Foundation provided evidence on the Southern Residents and their critical habitat addressed project-related contamination (including from a catastrophic oil spill), impacts on prey availability, and impacts from vessel noise.

The “population viability analysis” commissioned by Raincoast for the NEB’s review showed that if the pipeline were to proceed, the Southern Residents have a 50-50 chance of becoming effectively extinct this century. Kinder Morgan agreed that the vessel noise impacts, specifically, were a “significant adverse environmental effect”, and according to them, this and the corresponding impacts on First Nations would be the only significant adverse effects of the pipeline.

The NEB’s report, released in May 2016, recommended the pipeline be approved. It found that the benefits (all economic) outweigh its burdens (mostly environmental), and that it is in the public interest.

In June 2016, Ecojustice lawyers filed lawsuit challenging the lawfulness of the NEB’s report.

In November 2016, federal Cabinet approved the Kinder Morgan pipeline project. Less than a month later, Ecojustice lawyers, on behalf of their clients, applied to the court for leave for a judicial review of the approval. The groups argue that Cabinet broke the law when it relied on the NEB’s report that used an overly narrow interpretation of the law to avoid addressing harm to endangered Southern Resident killer whales and their critical habitat.

Why is Ecojustice involved?
The NEB’s report on the Kinder Morgan pipeline failed to mitigate harm from the increased tanker traffic noise to Southern Resident killer whales, and also failed to consider other oil tanker impacts that could affect the whales’ critical habitat and prey availability, such as oil spills, routine pollution and accidents.

We are going to court to make sure that one of Canada’s most iconic species at risk is protected by the full weight of the law. If the Kinder Morgan pipeline were to go ahead without addressing impacts to marine species, including increased tanker noise, the Southern Resident killer whale’s population’s survival and recovery would be jeopardized and their critical habitat would be threatened.

What would a win mean?
A win in this case would see the NEB required to consider and assess Kinder Morgan’s project impacts on marine species and require the regulatory body to mitigate or avoid harm to the Southern Resident killer whales’ survival.