A misleading Cabinet Order (November 29, 2016)

Part 7 in a series of 18 discussion papers

The final step taken to legally authorize the construction of the Trans Mountain pipeline expansion project (TMX) was a decision by the cabinet – collectively the thirty members of the Trudeau Government – announced on November 29, 2016. The discussions and information considered by the cabinet in making that decision is secret, protected by cabinet confidentiality. We know, from the information revealed in the text of the Order in Council that gave legal force to the decision, that the cabinet considered the report of the NEB Inquiry (dated May 19, 2016), the Trans Mountain Upstream Emissions Assessment report (publicly released on November 25, 2016), and the Ministerial Panel’s report (dated November 1, 2016).

The only public record we have of the cabinet’s decision and the justifications for it is found in the formal Order in Council dated November 29, 2016. It recites, in a few short paragraphs, the grounds relied on. The Order is one page in length, supplemented by a nineteen-page “Explanatory Note”: http://www.gazette.gc.ca/rp-pr/p1/2016/2016-12-10/html/sup1-eng.html.

In reciting the reasons for the government’s decision, the Order states that it “accepts” the NEB’s recommendation that the Project is “required” (i.e., the cabinet accepts the NEB’s findings about the economic benefits and need for the additional pipeline capacity) and that it “will not likely cause significant adverse environmental effects under the Canadian Environmental Assessment Act, 2012.” The Order thus assures us that the NEB report contained evidence and findings that supported and justified the government’s crucial decision that the project “will not likely cause significant adverse environmental effects”.  

But the NEB Inquiry had refused to consider any evidence at all about the greenhouse gas emissions caused by Canada’s increasing oil production and declined accept or consider any scientific evidence about the impact of emissions on the climate system. The cabinet had therefore not obtained any analysis, or indeed any information at all, about the emissions implications of oil sands expansion from the NEB report.

The government says it relied on the Upstream Emissions Assessment Report 

With respect to concerns about rising greenhouse gases and climate change, the Order in Council states that in making its decision to approve the TMX Project the government relied on the Upstream Emissions Assessment, which had been released on November 25, 2016:

Whereas the Governor in Council, having considered upstream greenhouse gas emissions associated with the Project and identified in Environment Canada’s report entitled Trans Mountain Pipeline ULC – Trans Mountain Expansion Project Review of Related Upstream Greenhouse Gas Emissions, and the Government of Alberta’s Climate Leadership Plan commitment to cap oil sands emissions at 100 megatonnes of carbon dioxide equivalent per year, is satisfied that the project is consistent with Canada’s commitments in relation to the Paris Agreement on Climate Change.

— Order in Council, November 29, 2016 (emphasis added)

But that report (officially known as the Review of Related Upstream Greenhouse Gas Emissions) did not address whether oil sands growth could be reconciled with Canada’s commitment to reduce its total emissions to 517 Mt by 2030. The report did not address whether we can make large enough emissions reductions from other economic sectors in Canada to obtain the deep cuts we need – sufficient to offset the projected increases in oil sands emissions. It merely accepted that Canada’s oil production would increase to 2030 and acknowledged that the accompanying emissions from the extraction process in Canada will also increase, but it declared that if the pipeline is not built the same oil production increases will occur and it will be shipped by rail.

More egregiously, the report failed to examine the fundamental question, which is whether the planned increase of Canada’s oil production to 2030 facilitated by the TMX pipeline project could be compatible with Canada’s most important commitment under the Paris Agreement, namely a commitment to hold the increase in global temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C

The Upstream Emissions Report agreed, in general terms, that global crude oil production will need to decline overall to limit warming to 2°C but offered no guidance on the magnitude of the required future reductions, or the timelines. It merely stated that the impact of lower future levels of global oil demand on Canadian oil production “was unclear”. The Upstream Emissions Assessment was completely silent about the deeper reductions that would be needed to meet the 1.5°C goal. It said nothing about whether the planned increase of Canadas’s oil production was consistent with either of those goals.

The cabinet could not have obtained any analysis or guidance from this November 25, 2016, report to satisfy itself that the expected emissions growth from the expansion of oil sands production between 2015 and 2030 could be consistent with 1.5°C goal or the 2°C warming threshold. The report was silent on that. The text of the Order declares that “the project is consistent with Canada’s Paris commitments”. There was nothing in the upstream assessment report that could have supported that conclusion. The Order was misleading.

A second Order in Council dated June 18, 2019

About a year later the government repeated that misleading statement in a second Order in Council.

In an unexpected set-back to the government’s plans, on August 30, 2018, the Federal Court of Canada ruled that the government had failed to adequately consult with the Tsleil-Waututh, Squamish, and other Indigenous Nations in B.C. regarding the impacts the TMX project on their unceded territories and rights. As a result, the original Order in Council dated November 29, 2016, was quashed. That legal challenge, however, did not relate to emissions or the climate change impacts of the pipeline project. It related only to the marine risk of oil spills, increased tanker traffic and the threat to marine life, in particular to the Orca in the Salish Sea.  Following a period of additional consultations, the Federal Government issued a new Order in Council on June 18, 2019. With respect to the matter of rising oil production, emissions, and climate, the new Order contained identical wording again justifying the Project based on the same Upstream Emissions Assessment report dated November 25, 2016.

The TMX Project was re-authorized, repeating the misleading assurance that Canada’s expanded oil production facilitated by the additional pipeline capacity would be consistent with our climate commitments under the Paris Agreement.