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Reversing Enbridge & Big Oil’s Pipeline Plans

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Big Oil is furious at a small community in Maine that has dared to throw a legal monkey wrench into their pipeline plans.

At issue is the Portland-Montreal Pipe Line (PMPL) that extends from Portland, Maine to Montreal, Quebec. The PMPL is comprised of the Portland Pipe Line Corporation, and its parent company Montreal Pipe Line Ltd., whose biggest shareholders are tar sands producers Suncor Energy, Royal Dutch Shell PLC, and Imperial Oil Ltd. (Canadian subsidiary of ExxonMobil).

Realizing that the PMPL, if reversed, could be used to pipe tar sands oil from Montreal to the deep-water harbour in Maine for export, the good folks of South Portland began mobilizing a few years ago to make that reversal impossible. In July 2014, City Council voted in favour of a Clear Skies Ordinance (Ordinance #1-14/15) which effectively bans the loading of piped crude oil onto tankers in South Portland’s deep-water harbour.

It was a gutsy move, cheered by supporters across New England and Eastern Canada. The PMPL crosses through pristine terrain and waterways not just in Maine, but in Vermont, in New Hampshire, and in the Eastern Townships of Quebec.

In February this year, Big Oil struck back.

“More Money Than God”

On Feb. 6, 2015 The Portland Pipe Line Corporation (the U.S. segment of PMPL) and The American Waterways Operators filed a lawsuit against the City of South Portland, seeking to overturn the Ordinance. Behind them (certainly in terms of bluster, and possibly financing) is the huge American Petroleum Institute lobby group, which had been warning about a lawsuit for months.

You can tell how angry Big Oil is by some of the wording in the lawsuit: “One city in Maine cannot impede federal decision-making on international relations, trade and resource transportation and replace it with its own foreign policy,” the lawsuit huffs. [1]

The City of South Portland (only about 32,000 people) has launched a Legal Defense Fund to fight the lawsuit. Mary-Jane Ferrier, spokesperson for Protect South Portland, says, “They’ve got more money than God, but we’ve got a very good case here in South Portland.” [2]

Big Oil and others have consistently maintained for the last three years that there are no plans for a PMPL reversal to carry tar sands oil – despite visits by the Canadian Consulate to the Governor of Maine, to other governors in New England, and even to various communities to tout tar sands crude arriving in the region.

Finally a few days ago Sandy Fielden, a Texas consultant and director of energy analytics with RBN Energy, told the Portland Press Herald that reversing the PMPL would give Canadian-based tar sands companies “access to an ocean port and international markets. President Obama’s decision early this month to reject the proposed Keystone XL pipeline, which would have carried oil from Canadian oil sands to refineries on the Gulf Coast, creates an opportunity for the Portland Pipe Line because it would provide another international pipeline route to export, he said. “There is a lot of crude in Canada looking for a way to reach the water right now,’ Fielden said.” [3]

Ahead of Their Game

Actually, rather than focus on Keystone XL, there is a different Canadian pipeline that is relevant here, and one which just started pumping crude to Montreal in early December after years of opposition and controversy: Enbridge’s Line 9, which has been reversed to pipe tar sands diluted bitumen (“dilbit”) and fracked Bakken crude from Sarnia, Ontario to Montreal. Line 9 is fed by Enbridge’s massive pipeline system that extends from the Alberta tar sands through the U.S. Midwest and down to the Gulf Coast.

In this sense, environmentalists were ahead of Big Oil’s game, recognizing in 2012 that a reversed Line 9 from Ontario to Quebec coupled with a reversed PMPL would bring otherwise land-locked tar sands dilbit all the way to Maine for export.

The June 2012 report called “Going in Reverse: The Tar Sands Threat to Central Canada and New England” – released by the Natural Resources Defense Council in partnership with 19 NGOs from Canada and the U.S. – stated: “Tar sands oil companies have clearly stated their interest in accessing eastern markets for tar sands exports, and the complete reversal of Line 9 and the Portland-Montreal pipelines would link tar sands oil production centers to international shipping facilities in Maine….Reversing Line 9 and the Portland-Montreal pipelines would be one of the quickest ways for the industry to achieve this goal, as it would not require new pipeline construction or the associated regulatory delays faced by other tar sands export pipeline projects like [TransCanada’s] Keystone XL and [Enbridge’s] Northern Gateway.” [4]

Confronting the Prime Minister

Enbridge’s Line 9 reversal project has been fiercely fought in Ontario and Quebec for years. Line 9 is an aging, 40-year-old pipeline, built of sub-standard materials, which will be used to sometimes carry a product (dilbit) that it wasn’t designed for, at a greatly increased capacity and pressure, and after a second reversal of flow direction since being built in 1975. For these reasons, pipeline safety expert Richard Kuprewicz (president of Accufacts Inc.) has stated that the probability of Line 9 rupturing is over 90% in the first five years of operation. [5]

But in late November, Canada’s National Energy Board gave the company a “Leave to Open” status for the pipe, prompting an Open Letter to Prime Minister Justin Trudeau from 80 groups.

Demanding that Line 9 be “immediately halted and reassessed,” the December 16th Letter notes that this aging pipeline “cuts across every major river and tributary flowing into Lake Ontario,” and also endangers “the drinking water source of 2.5 million people” in Quebec. [6]

The Letter particularly calls on PM Trudeau to act on behalf of Indigenous Peoples, stating: “Furthermore, in your mandate letter you express that there is no relationship more important ‘than the one with Indigenous Peoples.’ First Nations communities in Ontario and Quebec have been on the frontlines of this fight, resisting Line 9 and the social, economic and ecological risks it poses to the land and to their communities. You say that ‘it is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership,’ and yet treaty rights are being expressly and illegally denied with the advancement of this [Line 9] project.”

Indeed, the National Energy Board’s approval, and Enbridge’s December start-up of the reversed Line 9 are seen by many as a blatant defiance of important legal requirements.

Duty To Consult

If Big Oil is furious about that small community in Maine and its City of South Portland Ordinance #1-14/15, they are likely enraged about an even smaller community in Ontario, whose legal action could throw another legal monkey wrench into those big pipeline plans.

In early December, the Chippewas of the Thames First Nation announced that they are appealing to the Supreme Court of Canada to uphold their Constitutional rights to consultation regarding Enbridge’s Line 9.

Section 35 of the Canadian Constitution affirms the treaty rights of Indigenous Peoples, which include consultation regarding projects that would impact upon these rights. In order to uphold these laws and principles, Enbridge and the federal government would have had to undertake a process of consultation and have obtained the consent of the 18 Indigenous communities whose land would be impacted by Enbridge’s Line 9 reversal project. Lawyers for First Nations maintain that this was not done. [7]

This “duty to consult” comes from a Canadian legal concept called the “honour of the Crown”. As DeSmog Canada explains, “The federal government is required to act ‘honourably’ or in the best interests of indigenous peoples in regard to their rights. The legal precedent for the duty to consult comes from the Supreme Court’s ruling in Haida First Nation v. British Columbia in 2004.” [8] Myeengun Henry, a band Councillor for the Chippewas of the Thames, told DeSmog Canada, “Failing to consult with First Nations about Line 9 is a slap in the face to Canada’s own law.”

In other words, with regard to Enbridge’s Line 9, First Nations have been trying to get the Canadian federal government to uphold and live up to its own law.

An excellent report called “Not Worth The Risk” lists several of the Treaties impacted by the Line 9 reversal and states: “With non-compliance of the above treaties and agreements, Enbridge Corp. and the Crown are in contravention of the Canadian Charter. [9] The Chippewas of the Thames First Nation and others have been in court since 2013 on this issue.

Third Party “Consultations”

In a split 2-1 decision in October 2015, the Federal Court of Appeal dismissed the Chippewas of the Thames’ latest case, “which was made on the basis that the Crown violated its constitutional obligation by not consulting the community before the National Energy Board approved Enbridge’s request to increase and reverse the flow of crude oil through Line 9.” [10]

Now the Chippewas of the Thames are going to the Supreme Court. “We have no choice,” Chief Leslee White-Eye told The London Free Press, because the October Federal Court of Appeal ruling, as case law, could be a precedent-setting decision that allows the Crown to ignore its duty to consult on other projects across Canada. [11]

The Crown has argued that the duty to consult can be conducted by a third party – like the National Energy Board or Enbridge – but First Nations lawyers to do not agree. Chippewas of the Thames Band Councillor Myeengun Henry told Rabble.ca that the government of Canada has “never given us one phone call or one letter” regarding Line 9. He and others worry that the October Federal Court of Appeal decision “will affect other pipeline proposals in Canada,” and First Nations’ Constitutional rights will simply be ignored to help Big Oil. [12]

It can cost millions of dollars to go to the Supreme Court, so the Chippewas of the Thames are fund-raising on line (www.gofundme.com/chippewas). As well, Rachel Thevenard – a 22-year-old University of Waterloo student – is running the entire length of Line 9 over the next six weeks to fund-raise for the court battle and raise awareness. [13]

“A Different Beast Altogether”

Just days after Enbridge’s Line 9 started pumping crude to Montreal in December, the U.S. National Academy of Sciences released a major study that reinforces what tar sands pipeline critics have been saying for years: that tar sands diluted bitumen (dilbit) is uniquely hazardous to the environment and defies conventional methods for oil-spill cleanup.

The report, requested in May 2014 by regulators at the U.S. Department of Transportation, comes more than five years after an Enbridge pipeline (Line 6B) ruptured in July 2010 and spilled more than 1.5 million gallons of dilbit into the Kalamazoo River in Marshall, Michigan. Subsequent major dilbit pipeline spills in Romeoville, Ill. (Sept. 2010), Lubicon Lake, Alberta (April 2011), Grand Marsh, Wis. (July 2012), Sundre, Alberta (Aug. 2012), Mayflower, Ark. (July 2013), and other spills have raised alarm about tar sands pipelines.

Tar sands crude has the consistency of peanut butter, so in order to transport it by pipeline, the bitumen oil is mixed with toxic diluents. If dilbit spills, the diluents rapidly evaporate, endangering the lungs and health of local people and leaving behind a tarry sludge that sinks in water and is almost impossible to clean up.

The National Academy of Sciences study found that “there must be a greater level of concern associated with spills of diluted bitumen compared to spills of commonly transported crude oils.” One of the recommendations by the National Academy of Sciences is that oil companies need to inform regulators which type of crude they are transporting in every pipeline segment before a spill occurs.

Inside Climate News explained: “When a pipeline ruptures, often the people impacted do not know it is dilbit. ‘In the U.S., and many other places, once the oil spills, the first responders do not know what it is,’ said Merv Fingas, a study author and an Alberta-based energy consultant. ‘They are told it is crude,’ not what kind of crude. Once on the scene, the oil cleanup crew still won’t know the oil type by looking at it, explained Fingas, because dilbit and the more commonly transported oil, called conventional medium and light crude, look exactly the same – ‘until a few days pass’…Here’s the rub: once it becomes clear to responders that the oil at hand is dilbit – because it has visibly started to degrade – it is likely already too late to effectively clean it up, according to the recent report.” [14]

Natural Resources Defense Council’s Anthony Swift told the press: “The National Academy of Sciences is skewering the industry’s ‘oil is oil’ talking point – making it clear that diluted bitumen is a different beast altogether and needs to be treated as such. The agonizingly slow and costly Kalamazoo River spill cleanup in Michigan made many of these points clear. Yet, the tar sands industry has continued to insist that diluted bitumen creates no deeper environmental threat as they push for unsustainable growth. While Keystone XL is off the table, there are numerous other projects being considered that extend the unique pipeline problems of dilbit into communities across North America.” [15]

Usually, those communities are small ones, like the Chippewas of the Thames in Ontario, and the City of South Portland in Maine – taking on tremendous legal and financial burdens. They deserve our support, even if that infuriates Big Oil.

Footnotes:

[1] Edward D. Murphy, “Portland Pipe Line sues South Portland over ban on loading crude oil,” Portland Press Herald, February 6, 2015.

[2] Ibid.

[3] Tom Bell, “Shifting markets may make Portland Pipe Line redundant,” Portland Press Herald, December 6, 2015.

[4] NRDC Report, “Going in Reverse: The Tar Sands Threat to Central Canada and New England,” June 2012.

[5] Joyce Nelson, “NEB limits public input at oil pipeline reversal hearings,” CCPA Monitor, October 2013.

[6] “80 groups call on Trudeau to halt Enbridge’s Line 9,” rabble.ca, December 16, 2015.

[7] Rachel Avery and Kan Kellar, “Enbridge and the National Energy Board Push To Open Line 9 Ahead of Legal Challenge by Indigenous Community,” Toronto Media Co-op, May 22, 2015.

[8] Derek Leahy, “Federal Government Failed to Consult with First Nations on Line 9,” DeSmog Canada, November 6, 2013.

[9] Sonia Grant, Andrea Peloso, Erin Pope, Sakura Saunders, John Sharkey, Dave Vasey and Lukas Vos, “Not Worth the Risk: A Community Report on the Line 9 National Energy Board Hearings,” February 2014.

[10] Jennifer O’Brien, “Chippewas of the Thames First Nation not backing down on Line 9,” The London Free Press, December 3, 2015.

[11] Ibid.

[12] Redeye Collective podcast, Rabble.ca, November 23, 2015.

[13] Press Release, Chippewas of the Thames First Nation, Decembe 4, 2015.

[14] Zahra Hirji, “Unique Hazards of Tar Sands Oil Spills Confirmed by National Academies of Sciences,” Inside Climate News, December 9, 2015.

[15] “Tar Sands are Trouble! National Academy of Science Study Skewers Diluted Bitumen,” Natural Resources Defense Council, “December 8, 2015.

Joyce Nelson is an award-winning Canadian freelance writer/researcher working on her sixth book.

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