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Living Oceans Society and Raincoast Conservation Foundation Hearing Order OH-001-2014 File OF-Fac-Oil-T260-2013-0302

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Living Oceans Society and Raincoast Conservation Foundation Hearing Order OH-001-2014 File OF-Fac-Oil-T260-2013-0302 Living Oceans Society and Raincoast Conservation Foundation Hearing Order OH-001-2014 File OF-Fac-Oil-T260-2013-0302 NATIONAL ENERGY BOARD IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N- 7, as amended, (“NEB Act”) and the Regulations made thereunder; AND IN THE MATTER OF THE Canadian Environmental Assessment Act, 2012, S.C., c. 19, s. 52, as amended and the Regulations made thereunder; AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. (collectively “Trans Mountain”) for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III of the NEB Act. FINAL ARGUMENT OF LIVING OCEANS SOCIETY AND RAINCOAST CONSERVATION FOUNDATION January 12, 2016 _______________________ Date submitted Dyna Tuytel, Karen Campbell and Margot Venton Barristers and Solicitors Representatives for Living Oceans Society and Raincoast Conservation Foundation 900 – 1000 5th Ave. SW Calgary, AB T2P 4V1 [email protected], [email protected], [email protected] PART I - Introduction ........................................................................................................... 1 A) Living Oceans Society and Raincoast Conservation Foundation’s position ............... 1 B) About Living Oceans and Raincoast ............................................................................ 2 PART II - The legal requirements governing this Project Review ....................................... 2 A) The NEB Act requires the Board to evaluate whether the Project is in the public interest ............................................................................................................................ 4 B) CEAA 2012 requires the Board to consider certain factors in this environmental assessment ...................................................................................................................... 5 C) CEAA 2012 requires the Board to recommend whether significant adverse environmental effects are justified ................................................................................ 6 D) SARA imposes additional legal requirements on the Board ...................................... 6 PART III - Evidence of adverse environmental impacts ...................................................... 9 A) The Project’s adverse effects on Fraser River fish and marine forage fish ................ 9 1) The Fraser River is globally significant fish habitat and vulnerable to oil spills ... 10 2) Potential spills from the Project in the Fraser River ............................................. 13 3) Effects of a spill from the Project on Fraser River fish ......................................... 14 4) Trans Mountain underestimates Project effects on Fraser River fish .................. 20 5) Trans Mountain fails to acknowledge significant adverse environmental effects on Chinook or the effects of loss of Chinook on the Southern Residents ................ 22 6) Trans Mountain fails to adequately assess impacts on forage fish ...................... 22 B) The Project’s significant adverse effects on Southern Residents Killer Whales and their critical habitat ....................................................................................................... 24 1) The Project will exacerbate existing threats to the Southern Residents’ Survival and Recovery............................................................................................................. 24 a) Southern Residents are threatened by diminished prey, contamination and disturbance from vessels ...................................................................................... 25 b) Recovery requires keeping existing threats at bay – especially in critical habitat ............................................................................................................................... 26 c) The Project will affect both the Southern Residents and their critical habitat 27 2) The PVA shows Project-related effects cause Southern Resident decline ........... 30 3) Increased vessel noise disturbance will have significant adverse effects on Southern Residents and their critical habitat ........................................................... 32 a) Ability to hear is essential for killer whales ...................................................... 33 b) Critical Habitat is necessary for Southern Resident Survival and Recovery ..... 34 i c) Noise pollution in critical habitat is already a problem for Southern Residents ............................................................................................................................... 35 d) The Project will increase noise pollution in critical habitat.............................. 36 e) Increasing noise pollution in critical habitat has adverse effects on Southern Residents ............................................................................................................... 37 (i) Physical injury and behavioural response .................................................... 37 (ii) Effects of chronic vessel noise and degradation of critical habitat ............. 39 (iii) The Project’s incremental increase in chronic noise does not reflect its effect on Southern Residents ........................................................................... 41 4) The Project will result in increased pollution in Southern Resident critical habitat ................................................................................................................................... 43 (i) Large or medium oil spills ............................................................................. 43 (ii) Oil spills from Chronic Sources and vessel related marine pollution .......... 46 5) The Project could affect prey availability for Southern Residents ....................... 47 C) Trans Mountain’s Marine Ecological Risk Assessment is flawed and incomplete ... 48 1) Trans Mountain’s Marine ERA does not base oil exposure risk on representative locations within ecologically distinct sub-regions along the route .......................... 51 2) The Marine ERA does not assess hazard independently of exposure .................. 53 3) The Marine ERA fails to assess the possibility of organisms being exposed to submerged oil ........................................................................................................... 54 4) The Marine ERA fails to consider relevant possibilities for exposure of organisms to oil and resulting harm to organisms ..................................................................... 58 5) Implications of the deficiencies in the Marine ERA .............................................. 60 D) Human health and air quality impacts from the Project may be significant ........... 62 1) The air quality studies suffer from methodological deficiencies ......................... 64 2) The human health risk assessments suffer from methodological deficiencies ... 67 3) The Project would have significant air quality and human health effects ........... 72 E) The Project would result in a net cost, not an economic benefit, to Canada .......... 73 PART IV - Legal requirements of CEAA 2012, SARA and the NEB Act are not met ........... 78 A) CEAA 2012 requirements not met and significant adverse environmental effects not justified ................................................................................................................... 78 1) CEAA 2012 must be applied consistently with the precautionary principle ........ 79 2) Trans Mountain has not identified all the environmental effects of the Project 79 3) Mitigation measures for significant adverse environmental effects are lacking, and future plans to identify mitigation do not meet the mitigation requirement .. 83 ii 4) Significance determinations should reflect nature of the risks and effects associated with the Project ...................................................................................... 86 a) Factors that should inform the determination of significance ......................... 86 b) When assessed according to the relevant factors, several Project effects are significant .............................................................................................................. 89 5) The significant adverse environmental effects are not justified .......................... 91 B) The Board cannot meet its SARA obligations ........................................................... 94 1) Failure to identify all adverse Project-related effects on Southern Residents .... 97 2) Failure to identify mitigation measures for all adverse impacts on Southern Residents ................................................................................................................... 98 (i) No mitigation identified for effects of tanker noise ..................................... 98 (ii) No mitigation for effects of an oil spill affecting Southern Residents or their critical habitat ................................................................................................. 101 3) If the Project will jeopardize Southern Resident survival and recovery it should not be approved ...................................................................................................... 101 C) The Project is not in the public interest ................................................................. 103 1) Trans Mountain overstates the Project’s benefits ............................................. 103 2)
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