CER Rulings Fall
June 30, 2021, the day before Canada Day. After years of work to protect our community’s drinking water sources and cherished natural habitat areas, Canada Energy Regulator decisions fell in route hearings for the Trans Mountain Expansion Project across Chilliwack. All in favour of the company.
WaterWealth’s alternate route was rejected as unfeasible based on the crossing of Highway 1 at Evans Interchange. One of the lines drawn on a map to illustrate a corridor there — a corridor, not a precise placement — crossed a building.
CER wrote “Trans Mountain’s burden of proof requires consideration of proposed alternate routes, considering reasonable modifications, to prove on a balance of probabilities that they are unfeasible or inferior to its own proposed route.” But apparently they were unable to see wiggling the line over a few metres into a parking lot at that spot as a “reasonable modification”. Deeply disappointing.
The project has been plagued with safety and environmental violations. Our drinking water sources and important habitat areas such as the Great Blue Heron Nature Reserve, not to mention schools and residential areas, are needlessly being put at risk. Risks that will span generations. Another instance in Canada where ‘legal’ and ‘moral’ part ways.
From our evidence, one of the places at risk. Have your sound up for the bird song. (Taken with cell phone. Apologies for the bit of noise from handling it part way through.)
23 July 2021 WaterWealth filed an application under section 69(1) of the CER Act, asking the Commission to review their decision in the City detailed route hearing.
Trans Mountain had argued that WaterWealth’s alternate route was not feasible for reasons that don’t stand up to the shallowest of scrutiny. They even contradicted their own evidence.
Where WaterWealth suggested a Direct Pipe crossing of Highway 1, Trans Mountain argued “if a Direct Pipe installation of the Evans Interchange Crossing were unsuccessful, there are no apparent contingency options to complete this crossing. An open-cut construction methodology would likely be unacceptable to the BC Ministry of Transportation and Infrastructure (“MOTI”).”
That statement was made despite that Trans Mountain themselves had filed MOTI guidelines in evidence, which include:
“Open trench options may be considered for pipeline installation where trenchless technology has been identified by a qualified professional geotechnical engineer as not being suitable for the site ground conditions.”
Yet the Commission accepted Trans Mountain’s arguments uncritically, writing in the decision that it “accepts Trans Mountain submission that, without a suitable construction methodology for the Evans Interchange Crossing, WaterWealth’s alternate route is not feasible.”
The Commission agreed that WaterWealth’s alternate route would eliminate risk to City and Yarrow Waterworks wells, Peach Creek, Browne Creek Wetlands, Vedder River downstream of Trans Mountain’s crossing, and the Great Blue Heron Nature Reserve (they didn’t mention that it would also remove risks from schools and residential areas), but ruled that the alternate route not following Trans Mountain’s existing pipeline “far outweighed” those benefits.
Setting aside the oddity of saying, in effect, an alternate route fails because it is not Trans Mountain’s route, the ruling ignores that in almost all other populated areas in the project’s path Trans Mountain themselves chose not to follow the existing pipeline. Somehow their chosen route not following the existing pipeline in those areas was not such a heavy consideration as to get their expansion project route rejected. Like in Burnaby for instance, where they’re literally drilling through a mountain to avoid a residential area. Maps comparing the old pipeline route with the new in populated areas of the project can be seen in WaterWealth’s application for review.
A person who had not been following the project might think it reasonable for the Commission to look at Trans Mountain as the experts in pipeline routing, and maybe to take Trans Mountain’s evidence without casting a critical eye on its veracity. But Trans Mountain expressed their motivation multiple times in evidence and argument, writing of project delays and increased costs if they had to take an alternate route despite both of those issues being out of scope in detailed route hearings. (And never mind that they could have corrected the route here at any time since WaterWealth first raised the issue of route change in 2016.)
This is also the same Trans Mountain that installed spawning deterrents in 7 BC streams prior to any construction being approved in 2017, the same Trans Mountain that has had the project halted for safety issues and environmental infractions, and the same Trans Mountain that was cautioned by the CER just days ago for conducting construction prior to consulting landowners and filing revised PPBoR for approval at the Thompson River crossing in Kamloops.
We argue in the request for review that Trans Mountain’s claims “are self-serving, not in the public interest to the degree the public interest intersects the well being of this city, and do not stand up to scrutiny” and hope that the Commission might be swayed in the end to reconsider their decision and have the alternate route assessed by a qualified, independent third party.
We try not to be disheartened by the fact that in the hearing decision the Commission described our alternate route as leaving the TMEP and going north, when in fact it goes west. In any case, with this request we have exhausted every option the regulatory regime provides short of an appeal to the Federal Court of Appeal, which would take more money than WaterWealth even dreams of.
One last possibility is that the government could direct Trans Mountain to act on the concerns in our community. It is a Crown corporation answerable to Parliament after all. A thought for another day perhaps.
You can find WaterWealth’s request for review in Regdocs at https://apps.cer-rec.gc.ca/REGDOCS/Item/Filing/C14216
UPDATE 28 July
We have an opportunity regarding the request for review that WaterWealth filed of the CER decision in the City’s Trans Mountain route hearing.
The CER today invited comments from the City of Chilliwack and Trans Mountain.
Specifically, the CER invited the City to comment on whether a doubt has been raised as to the correctness of the hearing decision, and if the application for review were granted, whether WaterWealth’s application for a stay of the hearing decision until the review is complete should be granted. The City has till August 3 to comment.It will be interesting to see how the City use this opportunity. You can let your views be known to Mayor and Council at https://www.chilliwack.com/main/page.cfm?id=673&contactID=181
The CER letter inviting comments from the City and Trans Mountain is at
Prime Minister Trudeau once famously said regarding another pipeline, “even though governments grant permits, ultimately only communities grant permission.”
That’s certainly not what has been playing out here in Chilliwack on the Trans Mountain pipeline. But this review request provides one last window of opportunity for the City to protect our drinking water sources and valued natural areas that could be safe from construction impacts or later accidents if the Trans Mountain project was just moved to a safer alignment.
Our Wealth is in Our Water, Let’s Protect It!