Ecojustice Case – Nature Case Status: In Progress

Trans Mountain 2.0: Challenging the federal government’s project approval

Margot VentonLawyer
Dyna TuytelLawyer
Southern Resident killer whale breaching
Photo by Miles Ritter, via Flickr (CC BY-NC-SA 2.0)

Ecojustice is taking the fight to protect endangered killer whales all the way to the Supreme Court of Canada, where we’re asking the country’s highest court to hear our Trans Mountain challenge.

The Trans Mountain project threatens endangered Southern Resident killer whales, the climate, and coastal ecosystems and Canadians. The proposed expansion would carry 890,000 barrels of oil per day from Edmonton to the Westridge Terminal in Burnaby. The oil would then be shipped by tanker through the Salish Sea and on to American and overseas markets.

The federal government first approved the project in 2016. Ecojustice challenged this decision in court the following year — and won. The victory overturned the project approval, forced the National Energy Board to re-evaluate the project’s marine shipping impacts, and halted construction on the expansion.

Unfortunately, in June 2019, the government approved the Trans Mountain project for a second time.

For the sake of the Southern Residents — and upholding the law – Ecojustice went back to the Federal Court of Appeal to seek leave to challenge Cabinet’s decision to re-approve the project.

To our disappointment, the Federal Court of Appeal decided not to hear our case. In fact, the court declined to hear any environmental law arguments against the government’s Trans Mountain re-approval.

We think this was a mistake.

If built, the Trans Mountain expansion would lead to seven times more tanker traffic crossing the Salish Sea, critical habitat for the Southern Residents. This raises the risk of tanker strikes, which could be deadly to whales, or a catastrophic oil spill.

Even if neither of those scenarios play out, the increase in tankers will mean more underwater noise when current levels already severely impact the whales’ ability to navigate, hunt and communicate with each other.

The environmental law case against the Trans Mountain re-approval is too important to go unheard. That’s why we’re asking the Supreme Court to reverse the Federal Court of Appeal’s decision.

Why did Ecojustice get involved?

Beyond its immediate impacts on the Southern Resident killer whales, Ecojustice remains concerned about the threat Trans Mountain poses to our collective climate future.

Environment and Climate Change Canada estimates project-related tankers alone would create 76,200 tonnes of CO2 emissions per year — the equivalent of adding 16,178 passenger vehicles to the road each year. And this doesn’t even take into account the oil sands emissions associated with the project, or the carbon footprint from burning the oil on the other end.

The fact is that any increase in emissions is too much at a time when the science says we need to be dramatically reducing our carbon footprint to avoid climate breakdown.

We are in a climate emergency and we simply can’t afford to build a project that will increase emissions and lock us into fossil fuel production for decades to come.

What would a win mean?

The government must follow the law.

It has a responsibility under the Species at Risk Act to help at-risk species survive and recover. This means that, without measures to mitigate harm to at-risk species, the government cannot approve a project that will push endangered species or populations to extinction.

If we are successful, the Supreme Court of Canada will agree to hear Ecojustice’s challenge of the Trans Mountain re-approval.

Ultimately, a win at the Supreme Court level would overturn the re-approval making sure that the government can only issue a third approval if it complies with the Species at Risk Act and protects Southern Resident killer whales

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