Ecojustice Blog – Climate change Posted on April 15, 2016 (updated: March 29, 2017)

The death of coal on a Tuesday in April

Karen CampbellLawyer

Editor’s note: We went to court to keep our legal challenge against the Fraser Surrey Coal coal port alive — and won!  This means our clients will get their day in court, despite efforts by the company and the Vancouver Fraser Port Authority to dismiss our case outright.  Since we first launched this case a year and half ago, we’ve learned firsthand that the death of coal won’t come easy. Here’s what you need to know.

The death of coal will not be easy.

Perhaps the best example of this these days is our challenge to the Fraser Surrey Docks Project on the Fraser River. The project would see up to four million tonnes of thermal coal, one of the world’s dirtiest fossil fuels, shipped by open-car rail from Wyoming’s Powder River Basin through Vancouver’s Lower Mainland each year. The coal would then be transferred to ships or barges, and ultimately exported to Asia. Once built, and subject to another review, the project has the potential to double its capacity and ship up to eight million tonnes of coal per year.

At a time when there is a global imperative to keep dirty fossil fuels like coal in the ground, this project could unleash close to another eight megatonnes of CO2 emissions into the atmosphere each year. This is the equivalent of adding some 1.6 million passenger vehicles to the road. Our calculations show that the Fraser Surrey Docks project would be the sixth-largest greenhouse gas emitter in the country, accounting for approximately 1.25 per cent of Canada’s total CO2 emissions.

CO2 sources VTACC image

Photo via VTACC

In September 2014, we filed a legal challenge against the Vancouver Fraser Port Authority (the Port) for approving this project.

Our case argues that the conduct of the Port and its officers suggests bias — that the approval was a done deal long before the permit was issued. We also challenge whether the Port had lawfully delegated the authority to make the decisions at issue. Finally, we argue that the Port Authority failed to consider the climate impacts of burning the coal in Asia.

Since that date, we — and our clients — have been on a non-stop treadmill of motions and procedural disputes related to what should have been a relatively straightforward case. We have seen motions related to the production of documents, time extensions and cross examinations. Now, to top it all off, the Port Authority and Fraser Surrey Docks have filed motions to turf our case before it even gets heard.

Of the many motions, we were relieved when the Cities of Surrey and New Westminster, who have real concerns about the approval of the coal port, both brought motions to intervene in in support of our case — a clear indication that the health and environmental impacts of this project are far reaching in the Lower Mainland.

We also brought a motion to add a further ground of review to our challenge because there are questions about whether the Port had properly delegated its authority when approving the project. While this may seem like a sticky detail — it is critically important. When public authorities such as the Port act on our behalf and make decisions that affect all of us, it is crucial that these decisions be lawful and proper. We need to be able to trust that if the Port approves a coal export project, that it has done so properly and within the limits of the law. This case has implications for all the decisions the Port makes when it acts on our behalf.

Which brings us to where we are now. On Tuesday (April 19) we will be in court to defend against motions brought by the Port and Fraser Surrey Docks to strike our case before it is even heard. In other words, we are going to court to preserve our clients’ right to their day in court.

The Port and Fraser Surrey Docks will argue that because the Port amended the permit for the project in November 2015 to allow the facility to ship coal by ship as well as by barge, that the original permit is now moot. They are effectively saying that the minor amendment to the permit now wipes the slate clean of any unlawful conduct. This would also essentially shield the Port’s decision from our legal challenge.

This is hard-fought litigation. Lawyers for the Port and Fraser Surrey Docks are pulling out all the stops to prevent this case from ever being heard in court. But the Ecojustice team is no stranger to tough court battles. Whether it’s appearing before the Supreme Court of Canada to advocate for the rights of municipalities to ban cosmetic pesticides, taking legal action to protect endangered killer whales, or defending groundwater sources from being sucked dry by Nestlé, we work as hard as we can, for as long as it takes, to ensure the environment is front and centre before the courts and in the public eye.

Our clients don’t want to see their communities become conduits for dirty coal. Not only are they concerned about the potential impacts posed to their health, they are also worried about the urgent need for action on climate change. And to be clear, shipping coal to Asia is utterly inconsistent with the need to keep fossil fuels in the ground.

This is an important milestone in our efforts to defend the health of local communities and stand up to fossil fuel infrastructure that takes us in the wrong direction on climate change. We thought we’d simply be calling for support to stop the coal port; instead we are calling for support to defend our right to have our day in court.

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