The Westridge Marine Terminal, the terminus of the Trans Mountain Pipeline in Burnaby
JASON REDMOND / REUTERS
VICTORIA — The New Democrats are back in court this week for another instalment in the unending litigation over the Trans Mountain pipeline expansion, this time a challenge to Alberta’s turn-off-the-taps legislation.Attorney-General of B.C. versus Attorney-General of Alberta is set for two days of proceedings starting Thursday in Federal Court in Vancouver.B.C. will be trying for the third time to persuade a court — any court — to issue an injunction against Alberta’s use of its Preserving Canada’s Economic Prosperity Act.The grandly titled legislation is better known as “turn-off-the-taps” because it allows Alberta to interrupt the flow of petroleum products to punish B.C. for its opposition to the pipeline twinning.“The reason for the Act is not apparent on its face,” says B.C. at the outset of its court filing, “but is revealed by legislative debates in which both major parties in Alberta stated unambiguously that its purpose was to give the Alberta government the ability to cause economic pain to British Columbians in retaliation for B.C.’s position on the TMX.”The economic pain would be real because this province is dependent on its neighbour, either directly or indirectly, for 80 per cent of its gasoline and 96 per cent of its diesel fuel.“British Columbia’s transportation infrastructure could not receive, store and distribute the supplies necessary to replace Alberta’s products,” says the B.C. submission.Instead the result would be shortages, soaring prices, and hoarding.“Disruption of fuel supplies for political reasons would cause irreparable harm to British Columbia,” says the NDP government.“If pushed as far as the Alberta energy minister could push it, B.C.’s ability to provide health care and fight forest fires would be compromised.“If the supply restrictions are significant enough, it could cause personal injury in remote communities with no other potential supplies, especially those unconnected to the grid and therefore dependent on diesel generators for power.”Doubtless some or all of this is what Alberta politicians had in mind when they crafted “a loaded weapon” to be used against B.C. at the appropriate time.B.C. argues that for one province to threaten another in this fashion is “virtually unique” in the annals of Canadian confederation and also unconstitutional.This province intends to mount the constitutional argument in a full blown trial.But Alberta’s loaded gun could be fired on short notice. So B.C. seeks interim relief from the threat “while the constitutional issues at stake can be sorted out by this court and possibly appellate courts.”The filing asks for an injunction to prevent Alberta from turning off the taps without permission from the court. Failing that, B.C. wants Alberta to provide 42 days notice before any retaliation.Alberta has yet to file a response to the B.C. application.The B.C. NDP government failed in two previous attempts to persuade the Alberta superior courts to issue a pre-emptive injunction against the turn off the taps legislation. But in rejecting B.C.’s second application in July, Alberta Justice Robert Hall pointed to the Federal Court as “the proper forum for resolving interprovincial disputes.”The New Democrats are now hoping it will be third time lucky.They are also proceeding to the Supreme Court of Canada with the so-called reference case, where B.C. seeks authority to regulate the movement of increased shipments of heavy oil from Alberta.The province lost the argument 5-0 in the B.C. Court of Appeal this spring. The SCC hearing is set for Jan. 15.The New Democrats are keeping open the option of intervening in further court action against Ottawa’s second approval of the TMX project itself. The Federal Court of Appeal last week agreed to hear from six First Nations groups, which argue that the second round of consultations on the project failed to rectify the shortcomings of the first round.The court chose not to hear other challenges to the latest project approval on environmental grounds. But environmental groups are already talking about appealing to the Supreme Court of Canada.It is not out of the question that B.C. would seek intervener status in one or both rounds of litigation as well.Ironically, all this action on the litigation front comes as the NDP government’s own inquiry into gasoline prices identified some possible merit in the TMX expansion.The three-member panel found there had been a significant reduction in the supply of gasoline flowing to B.C. through the existing Trans Mountain pipeline after allocation rules were changed back in 2015.The panel noted that without a change in the allocation rules — which are set at the federal level by the National Energy Board — there was no guarantee that the expanded pipeline would bring more gasoline to B.C.The inquiry panel then suggested further exploration “to ensure that some of the increase in capacity through the TMX is reserved to supply the B.C. gasoline and diesel market.”Or, more explicitly, there was this recommendation to the New Democrats: “The B.C. government should ensure there is infrastructure for more refined product to flow to B.C.”The New Democrats have so far ignored that advice from their own panel, instead preferring to focus their indignation on the evidence it turned up of price gouging.They did grant the inquiry a 30-day extension to take further submissions Friday. Perhaps that also opened the door for more advice on pipeline expansion as a way to increase gasoline supplies.