If foes could beat Trans Mountain, why not Dakota Access?

By Ellen M. Gilmer | 08/31/2018 01:19 PM EDT

A protester holds a sign during a rally in Vancouver, Canada, last year against Kinder Morgan’s Trans Mountain pipeline.

A protester holds a sign during a rally in Vancouver, Canada, last year against Kinder Morgan’s Trans Mountain pipeline. William Chen/Wikipedia

A Canadian court’s rebuke of federal approvals for the contentious Trans Mountain pipeline expansion drew cheers from American environmentalists — and a degree of wistfulness over their less successful campaigns against Dakota Access and other U.S. oil projects.

Canada’s Federal Court of Appeal ruled yesterday that the government failed to adequately consult with indigenous tribes about the 700-mile project, which would largely parallel an existing pipeline to move oil from Alberta to British Columbia for refining and export.

The court also found that the National Energy Board ignored potential impacts to the marine environment around the British Columbia shipping terminal at the end of Trans Mountain’s route (see related story).


Prime Minister Justin Trudeau, who announced in May that Canada’s government would buy the embattled pipeline, has pledged his continued support. But for now, construction is suspended and the project’s future is uncertain.

Environmental groups and tribal advocates celebrated the court’s ruling as a monumental victory. Some lamented that legal challenges to U.S. oil pipelines haven’t played out as favorably.

Earthjustice attorney Jan Hasselman, who represents the Standing Rock Sioux Tribe against Dakota Access, pointed to Canada’s regulatory system as a key point of distinction between the projects’ fates.

American oil pipelines are subject to a jumble of state permits and individual federal approvals for water crossings, Endangered Species Act considerations and the like.

Canadian projects, by contrast, must receive a central permit from the National Energy Board. That overarching permit helped ensure that Trans Mountain was subject to broad and comprehensive review in the courts, Hasselman said.

"It would have provided a focal point for the national discussion that we needed to have about a project of this scale," Hasselman said. "That’s the kind of national discussion they’re having in Canada, and I think it’s a good discussion to have. That never happened for DAPL, and the project was half-built before anybody even knew anything about it."

Litigation over Dakota Access centers on the Army Corps of Engineers’ approval for the pipeline’s route across a body of water near tribal land in North Dakota. A federal court agreed with Standing Rock and other challengers that the Army Corps had fumbled part of its analysis, but the project was able to move forward and is now in service.

"This piecemeal review of tiny sections of pipeline doesn’t make sense factually," Hasselman said.

The Keystone XL pipeline has received broader federal review than Dakota Access because the former crosses the U.S.-Canada border, triggering oversight by the State Department.


Andrew Leach, a business professor at the University of Alberta, said clearer tribal consultation requirements also played a role in the Trans Mountain outcome, as the Canadian Constitution spells out the government’s duty to closely consult with tribes.

The U.S. government is also required to consult with tribes, but the standard is less defined, governed by a variety of treaties, statutes, executive orders and case law.

"The biggest difference between the two is the power of the government’s duty to First Nations," Leach said, comparing Trans Mountain and Dakota Access. "[The government’s obligations] are much more powerful in Canada than they are in the U.S."

The Federal Court of Appeal’s 3-0 decision on Trans Mountain found that consultation wanting. The same court in 2016 overturned federal approval for the Northern Gateway oil pipeline for inadequate consultation.

James Coleman, an energy law professor at Southern Methodist University, said the case serves as a wake-up call to regulators and developers.

"It’s not enough to have support of the government — you can’t have any more support of the government than if they own the pipeline," he said. "You need to pay attention to what the judicial review standards are."

Hasselman agreed.

"We are seeing a broad trend line of more and more opposition and bigger challenges to pipelines around the continent," he said. "The long-term trajectory for new pipelines looks more and more difficult."

Coleman noted that Canada’s government has a tricky path forward on Trans Mountain, given its ownership of the project.

"The government really is just going to be doing everything possible to make sure it’s built as quickly as possible," he said. "It’s difficult, of course, because part of it being good-faith consultation is that they have to be open to changes."

Trudeau has not yet said whether the government will appeal the decision to the Supreme Court of Canada.