The provincial government in British Columbia threw another wrench in Kinder Morgan’s plans to build a new tar sands pipeline this week. On Tuesday, it announced proposed new regulations to govern spills from pipelines that include a moratorium on expanded exports of diluted bitumen (i.e. tar sands crude) while an independent scientific advisory panel reviews the gaps in our understanding of how diluted bitumen behaves when spilled in water (fresh or salty).
This move elicited howls of outrage from the oil patch, probably because they recognize that the BC government has found the Achilles heel of the federal approval: our inability to clean up bitumen spills.
Pipeline Promoters Freak Out
BC’s announcement sent Kinder Morgan backers into a frenzy, with one analyst urging the federal government to send in the military to enforce its approval of the controversial pipeline. Alberta Premier Rachel Notley immediately threatened legal action and economic sanctions as retaliation. Saskatchewan – which has been sparring with Alberta over pipelines, beer and license plates when not attacking the federal carbon tax – pledged its unreserved support to the Notley government in any action it might take against British Columbia.
Premier Notley went so far as to say that the BC government is hurting its own citizens. This is a bit rich given that opposition to the Kinder Morgan pipeline was a central plank in the BC NDP’s election platform and is core to their governing agreement with the BC Green Party. A government following through on its election promises should not be seen as an attack on the people who voted for them.
A Constitutional Grey Area
Kinder Morgan’s backers are arguing that the federal government – which does have exclusive jurisdiction over interprovincial pipelines – has approved the project and hence BC should get out of the way.
As long as the oil stays in the pipeline, they’ve got a strong case. But once oil spills from a pipeline, then it enters provincial jurisdiction. In the words of BC Environment Minister George Heyman, “We wouldn’t be proceeding if we didn’t believe we had the right and the responsibility under the Environmental Management Act to protect B.C.’s coast and our environment against real threats.”
In terms of constitutional law, it’s a grey area and it may ultimately be decided in court. In the meantime, BC will consult on their proposed regulation (likely to take a year or so to finalize) and the science panel will undertake its review (likely to take two years).
Bitumen spills: Digging down on the science could bury the pipeline
The independent science advisory panel is the real threat to the pipeline, as its findings could result in the temporary moratorium on expanded exports of diluted bitumen becoming permanent. That means Kinder Morgan would own a pipeline it could never turn on.
The panel will be asked to address the scientific uncertainties outlined in the report the Royal Society of Canada’s 2015 expert panel report, The Behaviour and Environmental Impacts of Crude Oil Released into Aqueous Environments. That report – which looked at all types of crude oil spills – identified seven major research gaps, including: the impacts of spills on deep ocean, shores, inland rivers and wetlands; the understanding of effects of oil spills on aquatic life and wildlife; the efficacy of spill response; and the need to update and refine risk assessment protocols.
When you dig down on the specific problems of bitumen spills, there are even larger gaps. During the National Energy Board (NEB) review of the new Kinder Morgan pipeline, the Harper government was criticized for not releasing a federal science report that identified a number of gaps in the science on bitumen spills. Those gaps included “a clear lack of data regarding the ecotoxicological effects of bitumen and diluted bitumen…. a lack of data on bitumen effects in aquatic ecosystems, especially fish and other sentinel species…. [and] the chronic and long-term effects directly caused by bitumen on an ecosystem are at the moment an uncertainty” (a copy of the report obtained by Greenpeace under Access to Information legislation is available here).
Concerns over due process were heightened when the NEB explicitly excluded the U.S. National Academy of Sciences (NAS) 2016 report, Spills of Diluted Bitumen from Pipelines: A Comparative Study of Environmental Fate, Effects, and Response, from consideration during the Kinder Morgan pipeline hearing. The NAS report found that bitumen behaves differently from conventional oil when spilled in water, and that spill response regulations and practices are inadequate. Key findings included:
- “In comparison to other commonly transported crude oils, many of the chemical and physical properties of diluted bitumen, especially those relevant to environmental impacts, are found to differ substantially from those of the other crude oils. The key differences are in the exceptionally high density, viscosity, and adhesion properties of the bitumen component of the diluted bitumen that dictate environmental behavior as the crude oil is subjected to weathering (a term that refers to physical and chemical changes of spilled oil).
- “Spills of diluted bitumen into a body of water initially float and spread while evaporation of volatile compounds may present health and explosion hazards, as occurs with nearly all crude oils. It is the subsequent weathering effects, unique to diluted bitumen, that merit special response strategies and tactics . . . In cases where traditional removal or containment techniques are not immediately successful, the possibility of submerged and sunken oil increases. This situation is highly problematic for spill response because 1) there are few effective techniques for detection, containment, and recovery of oil that is submerged in the water column, and 2) available techniques for responding to oil that has sunken to the bottom have variable effectiveness depending on the spill conditions.
- “The majority of the properties and outcomes that differ from commonly transported crudes are associated not with freshly spilled diluted bitumen, but with the weathering products that form within days after a spill. Given these greater levels of concern for weathered diluted bitumen, spills of diluted bitumen should elicit unique, immediate actions in response.
- “Broadly, regulations and agency practices do not take the unique properties of diluted bitumen into account, nor do they encourage effective planning for spills of diluted bitumen.
- “In light of the aforementioned analysis, comparisons, and review of the regulations, it is clear that the differences in the chemical and physical properties relevant to environmental impact warrant modifications to the regulations governing diluted bitumen spill response plans, preparedness, and cleanup.”
A Death Knell for Kinder Morgan?
The NAS report ultimately concluded that “When all risks are considered systematically, there must be a greater level of concern associated with spills of diluted bitumen compared to spills of commonly transported crude oils” and that “the current relevant U.S. regulations and agency practices do not capture the unique properties of diluted bitumen or encourage effective planning for spills of that product.”
If BC’s proposed panel comes to similar conclusions, then the federal government’s reassurances regarding spill response will ring hollow, which could be a death knell for Kinder Morgan.