Newsmaker of the Year: Pipeline expansion dominates the headlines

Kinder Morgan’s pipeline expansion proposal made headlines in a big way in 2014, culminating in two weeks of protests in November that dominated the Twittersphere.

The project, to almost triple capacity on the Trans Mountain pipeline between Edmonton and Burnaby to export oil sands crude to overseas markets, has been in the news for the last couple of years.

But 2014 was the year when people had a chance to apply to participate as intervenors. The National Energy Board (NEB) accepted 400 as being directly affected while many others were turned down. It was also when Kinder Morgan decided it preferred routing the pipeline in a tunnel through Burnaby Mountain itself, causing the NEB to extend the review process.

It was the year when both the company and City of Burnaby waged a legal battle, with the city attempting to stop survey and geotechnical study work in Burnaby Mountain Conservation Area after several trees were felled.

And when the NEB granted the company an order preventing Burnaby from interfering, and the courts granted an injunction to keep protesters away from the work site, that’s when protesters actively took to the mountain.

About 100 protesters defied the injunction, and were arrested for civil contempt last month, only to have the charges thrown out after the company admitted it inadvertently provided the wrong GPS coordinates for the area that was off-limits.

But for Lindsay Meredith, Simon Fraser University marketing professor, the pipeline story was a classic case study in what companies ought not do.

Resource companies and businesses who sell to other businesses, have been slow to realize the game has changed now that the Internet and social media have leveled the playing field, Meredith said. “Corporations ignore this stuff at their peril.”

In the past, such companies were involved in one-way communications, “which was government and big corporations talking to the rest of the peons.” It used to be “nobody else could do it when you had to cough up a couple million dollars on an ad campaign, but anybody can put up a website and anybody can get on a social network site.”

As a result, small groups with small budgets “very quickly become very, very accomplished marketers.” They’ve become adept at getting out their messages highlighting the negative attributes of a project such as the Trans Mountain pipeline project.

Meredith specifically cited First Nations groups and environmentalists as becoming “extremely accomplished” at this game.

“Guys like Kinder Morgan are running smack into the old glass plate wall and getting their nose smashed in. And they’re in shock, they can’t figure out what the hell happened. Now they’re starting to catch on very quickly.”

In recent months, Kinder Morgan, Enbridge, and other energy-related companies have been “advertising like hell,” all trying to position themselves as being part of the community.

“They’re all trying to basically play the same game, which is grassroots consumerism, trying to get back down to that level to try and gain a toehold to counter this negative attribution because the environmentalists and the natives are cleaning their clocks.”

All that advertising is an expensive way to try and get people on side, but they have the means and the stakes are high.

When social media sites get critical mass, generating lots of attention, mass media start to take notice, Meredith explained. The mass media then draw even more attention to such smaller groups, creating even more critical mass at the grassroots level and in turn generating even more media coverage.

Everyone is trying to influence that silent majority that rarely gets the attention that the squeaky wheels do. And once public sentiment goes one way, “that scares the hell out of the politicians,” he said. Political stakeholders then influence government regulatory bodies, and in one scenario, a project can be rejected.

With the next federal election scheduled to take place in 2015, before the NEB is slated to make a decision on the pipeline application, there will continue to be a push to influence public opinion before voters go to the polls.

“Kinder Morgan should’ve seen this one coming more and got much more active before the protests ever got off the ground.”

Meredith noted if your company has had bad publicity in the past, “it will come back and haunt you.”

He believes that’s the case with Kinder Morgan whose pipeline was ruptured by a backhoe in 2007, showering the Westridge neighbourhood in crude oil. The Transportation Safety Board concluded the incident was due to outdated pipeline maps, exacerbated when the company responded to the spill by turning off the flow of oil at the tanker ship it was loading, not at the source.

Why the company would choose to involve the same neighbourhood in its expansion plan is a head scratcher, said Meredith.

“There are so many signals, hey boys, give your head a shake, you’ve got a problem here. That is what I like to put so delicately—that’s what you get, serves you bloody right when you let a bunch of engineers run things.”

Meredith suggested it would have made more sense, at least from a marketing point of view, to route the pipeline down to Delta, through farmers’ fields, “and put a great big nice deep-water offloading oil port and keep those tankers way down there, way out of sight.

“Instead, let’s choose the difficult ground. Go over an area in North Burnaby where we already pissed off the locals. Get a whole bunch of freighters coming through a narrow gap and getting [Vancouver Mayor Gregor Robertson and Burnaby Mayor Derek Corrigan, both outspoken opponents of the project] worked up and then start saying, ‘OK, gee I wonder why people kinda hate us?’ ” he said.

“Not in my marketing class.”

wchow@burnabynewsleader.com

Falling Oil Prices Could Rock Canada’s Politics: Expert

What do the plummeting oil prices tell us not only about our near term economic future in Canada, but the political fragility of the world’s petro states?

If Canada fully joins the petro state club, as our prime minister and his party desire, is oil’s volatility just the cost of doing business, or a threat to our nation’s well-being?

The ideal person to ask is Terry Lynn Karl, one of North America’s foremost experts on the politics of oil. The Tyee recently caught up with Karl, who teaches at Stanford University and lives in San Francisco.

Asked in a wide ranging interview what Canadians might expect if oil prices stay low for a few years, she predicted “a rapidly declining Canadian dollar, greater problems over pipelines, the reduction of future investments, and a very bumpy oil ride, especially for Alberta.

“Any adverse effect low oil prices will have on Canada’s high cost oil industry will have a multiplier effect on the economy and polity. Government services will be cut back, house sales will decline, and banking will slow down. Canadians will not be so happy with their government.”

‘The Paradox of Plenty’: a classic

How oil shapes the relationship between citizens and their governments has been the focus of Karl’s work since 1976, when she journeyed to Venezuela as a young doctoral candidate. The researcher wanted to find and interview the founder of the Organization of Petroleum Exporting Countries (OPEC), Juan Pablo Perez Alfonzo.

But Perez Alfonzo, a testy fellow, wanted nothing to do with this academic inquiry.

Then he relented. Karl even stayed with his family for two days.

Her visit corresponded with the first huge increase in oil prices — the days of “Venezuela Saudita” — when petrodollars poured into the country, and Venezuelans partied as never before. But Don Juan Pablo (as she called him), one of Latin America’s first conservationists, was not celebrating.

“You are such a smart girl,” OPEC’s founder remarked as he closed the interview. “Why study OPEC? It’s so boring?”

“Don Juan Pablo, what would you suggest I study?” Karl wondered aloud.

“Study what oil is doing to us,” he said. “Eventually, oil will bring us ruin. We are drowning in the devil’s excrement.”

Since then, Karl has studied the impact of oil revenue on oil-exporting states. Her seminal book, The Paradox of Plenty, remains a classic on how the world’s most capital-intensive industry corrodes the economy, politics, and culture of most oil exporting states in much the same way gold undid King Midas.

Karl even coined the term “petro state.” She developed her thinking from the so-called staple theory of Canadian historian Harold Innis. “I was excited to read his work. Everyone at the time thought having oil meant certain and progressive development. But they had not read Innis, the Iranian Mahdavy or the great economist Albert Hirschman who wrote about how commodities shape development — for good and bad.”

Petro states aren’t like other states for several reasons, says Karl.

For starters, their dependence on oil profits breaks the necessary link between taxation and representation. Instead of extracting state funds from citizens, wealth magically comes from the ground. This makes governments unaccountable; it means that people don’t demand to see how money is spent.

And oil governments, in turn, tend to treat their citizens like subjects, either paying them off or, when necessary, repressing them. Wedded to boom and bust cycles, oil-dependent regimes are either overspending to keep themselves in power or accruing debt to mask problems with seemingly no ability for fiscal reform.

Oil and highly centralized rule go together. Oil wealth permits governments to dismantle accountability mechanisms, weaken bureaucracies and undermine the rule of law.

Karl further found that although petro states appear strong, and some governments last for long periods of time, these oil infused regimes are highly vulnerable. When they collapse, they fall apart very quickly. Neither autocracies nor democracies are immune.

Petro-fueled environmental damage, violence and civil war often dominate oil-producing regions. In this respect, Karl sees resonance in Perez Alfonzo’s words: oil is indeed the devil’s excrement.

In her conversation with The Tyee, Karl commented on falling oil prices, climate change, vulnerable petro states, aboriginal resistance to oil, the commodity’s increasing volatility, and whether or not Canada is a petro state.

Tyee: How will falling oil prices affect global politics and the stability of some petro states?

Karl: “The effects of falling oil prices will be quickly felt in Venezuela, which is extremely vulnerable. If oil keeps dropping, the country’s employment, standard of living and GDP will be affected. This tends to make people not like their government.

“Venezuela, which is already extremely polarized, is in big trouble. In this respect, there is a big difference between how oil prices affect Canada and the U.S. and how they affect countries where the politics have become totally petrolized. Where there is simply no difference at all between wealth and power, where corruption and rent seeking have taken over the whole enterprise or where conflict is already very high, these are the most vulnerable countries.

“Venezuela has been an economic and political mess for a long time — well prior to the rise of Chavez. Indeed, Chavez came to power during the 1998 price collapse because the former party system could not manage the oil economy, control massive corruption, or direct petrodollars to alleviate poverty.

“But the current government does not have the power or charisma of Chavez nor economic management capacity.

“Thus, even though prices are much higher than 1998, like the party system earlier, it too is facing a perfect storm. If prices stay low and the economy continues to contract, grave civil conflict could result. In this respect, those who want to see the complete collapse of chavismo should be careful what they wish for. Venezuelans would be better off negotiating their crisis.”

What about Putin’s Russia, a classic petro state where oil revenues make up more than 50 per cent of government revenue?

“Russia isn’t quite as vulnerable as Venezuela, but because it is a global power its fate is more important. In the face of both sanctions and low prices, the ruble has plummeted, debt is rising, living standards are declining, and food prices are up sharply. With oil prices high, Putin took certain actions in the Ukraine and elsewhere because he felt untouchable; his popularity remains very high.

“But this could change very quickly if prices remain low.

“Most people don’t understand that the decline of the former Soviet Union was closely linked to the 1986 collapse in oil prices. Putin later took advantage of high prices to build his own personal power. That could be at stake if prices stay low.”

What about Saudi Arabia (a Sunni state) which has played a major role in orchestrating the price collapse by flooding the market with its low cost oil?

“Saudi Arabia is the most interesting petro state of all because of its continued influence on prices.

“The Saudis have obviously learned a lot from their orchestration of the 1986 price collapse, which they used to increase their market shares. This time the net effect of low prices is good for them in many ways. They have substantial financial reserves, and they can weather this low price better than any other major oil exporter.

“What is really interesting is how quiet and calm they are. The government is not saying much. But lower prices permit the Saudis to protect their market share in the face of the huge production threat from the U.S.; lower prices, if they last over time, will drive some high cost shale and bitumen producers out of the market.

“Saudi Arabia has always used oil prices for its regional political ends. When prices were high, they gave ten times more money than the US to the Egyptian generals. Now that prices have dropped, this plunge directly weakens their biggest rival, Iran (a Shia state), which is in a tacit alliance with the U.S. in the fight against ISIS. Saudi Arabia should weather this period well.”

Why is this oil price collapse different than previous ones?

“The United States is a major oil producer this time around. Production is higher than it has been since 1972, and over half of this comes from relatively high cost fracking. Equally important, this has a secondary effect on international financial markets, especially because oil has become a hugely traded financial asset. Today, oil price volatility has become a tipping point in the financial system.

“Oil prices and stock markets used to go in different directions. When prices went up dramatically, market hysteria pushed stocks down, and recession would ensue. Because the price is now down, this should be a boon to consumers, help the economies of consuming nations, and represent a massive transfer of wealth from oil producers to oil consumers. But the stock market doesn’t reflect this. In the last few years, the markets and oil prices are moving in tandem, and this is new.

“I suspect there are several reasons for this. First, advanced industrialized economies, and most especially the United States, have reached historic highs in inequality. This means that there is no wage growth, there is little consumer spending and the main concern is deflation, not inflation. While low prices help consumers, they simply will not have the same effect given acute poverty levels and the squeezing of the middle class.

“Second, the global economy may be de-accelerating, meaning this is not just a supply glut but also a reflection of lower demand from China, Europe and elsewhere.

“Finally, the stock market is reflecting the dangerous intertwining between oil futures and junk bonds, which was not the case decades ago.”

Both oil companies and global economies are now carrying great debt loads as hydrocarbons become more extreme and difficult to extract. The world’s largest 127 oil and gas firms generated $568 billion in cash from their operations during 2013-2014, while their expenses totalled $677 billion? How is debt affecting this whole picture?

“Debt is the Achilles heel of this picture. If prices remain low for several years, a lot of U.S. shale producers have high debt loads, especially in junk bonds. Today, energy debt currently accounts for a substantial 16 per cent of the U.S. junk bond market. If these producers start going bust, investors in junk bonds will be in for a shock.

Terry Lynn Karl: ‘We are in a situation where oil supply limits can cause recessions and oil supply gluts can cause stock market failures.’

“But this is only part of the picture.

“Dropping oil prices affect international debt as well, creating a high risk of default by countries like Venezuela. Around the world two sets of debt are coming in — from the high cost bitumen and shale oil producers who borrowed to help create the current supply glut and oil exporting producers who have borrowed heavily. Both affect the entire financial system.

“The biggest danger of prolonged low prices is a debt-related collapse linked to the rising cost of hydrocarbon extraction. Because low oil prices take a while to work their way through the system, this is not an immediate threat. But we should not forget that falling oil prices and junk bonds all played a role in the crash of 2008.”

Will oil prices stay low for a while?

“Uncertainty is the name of the game now. The price of oil is more volatile than ever before. Oil is linked to finance more than ever before. And the economies of producing and consuming countries are more intertwined than ever before.

“Predicting prices is a fool’s errand. Oil prices could stay down in 2015. There is a lot of supply and little demand right now. But what happens if unrest increases inside some oil-exporters because their regimes are forced to cut back on their extensive food and oil subsidies? What happens if conflict disrupts supply in Libya, Venezuela, Nigeria, Iraq or Iran? The price of oil could soar overnight.

“I don’t know how things will play out. But there is the tightest of links not only between the global economy and finance but also energy producers, environmental damage and the speed up in climate change. We are in a situation where oil supply limits can cause recessions and oil supply gluts can cause stock market failures.

“We urgently must wean ourselves from fossil fuels. All we are doing now is moving costs and benefits around in a highly volatile system. Few win, and most people lose. But I am not optimistic that this will happen before the consequences are catastrophic. There is just too much money in oil. As long as these extraordinarily high profits exist, oil will be extracted and politics will be petrolized to prohibit better alternatives.”

What have some aboriginal people foreseen about oil that industrialized societies haven’t?

“In Asia, Africa and Latin America, companies are searching for oil in pristine areas where ethnic minorities and indigenous peoples live. There are conflicts between Aboriginal people and oil companies everywhere. In northwestern Columbia, for example, some 5,000 U’wa have been battling Occidental Petroleum for years. The U’wa believe that oil is the blood of earth. When you take out too much blood from the body of Mother Earth, this will bring fluctuations in weather, fires, huge storms and changes to the climate.

“One U’wa chief came to my office at Stanford and stood in line during my office hours. Dressed in traditional garb, he did not look like any of my students. He did not speak Spanish, and I quickly learned that the U’wa do not have a written language. But through an interpreter, he explained that as head of 200 religious leaders; it was their duty to protect the earth. These U’wa religious leaders had made a pact to commit collective suicide if they failed to protect their territory from Occidental Petroleum.

“After years of struggle, including court cases in Colombia, Occidental was stopped — at least temporarily. Pretty sobering…”

Does the term petro state fit for places like Alaska, Texas, Louisiana, Alberta and Saskatchewan?

“Yes and no. When I developed the idea, I referred to the central government, not states in a federalist system. The petro state applied only to capital deficient oil exporting countries with big populations that were late developers.

“Since the U.S. was a producer but not an exporter, the same effects were not present.

“I showed that petro-states had the effect of replacing tax mechanisms with excessive oil profits, and this, in turn, then petrolized the whole political and economic environment. Oil influence and oil issues dominated the government.

“Petro states do not have to bargain or negotiate with their citizens. Their power depends on how they pass around oil revenues, how this wealth is distributed. Regimes that do that well, like the Saudi royal family or the former Venezuelan two party system, stay in power for a long time. Those that keep the revenue too closely inside their own support base, whether this is an autocratic family or a small religious or ethnic group, often don’t last as long.

“In most petro states, government spending is never an issue for public debate. Norway, the exception that proves the rule, has constant debates about oil distribution, even between its citizens today and future generations.

“A centralized power, to the contrary, just hands out petrodollars, quieting the loudest voices and its own power base. Thus statecraft is stifled. Because petro states invite little debate, nourish no coherent bureaucracy and engage in volatile spending, the state’s institutions get weaker and weaker. Stability-wise, this is not good.

“Alaska and Texas and Alberta are all part of a federal system, but they certainly take on some of the same characteristics of petro states. If you look at Texas or Alaska, and how they distribute oil wealth, they have boom and bust cycles just like an oil state, and they have repeated serious trouble balancing their budgets. But this volatility is mediated by central government.

“As easy oil becomes scarcer, and the commodity becomes even more valuable, oil politics inside these states have a contagion effect and tend to increasingly influence the central government. I suspect this same phenomenon can be seen in Alberta and the Canadian government.”

There are many such indicators in Alberta and Canada. Pipelines dominate all political discussion. Environmental legislation has been gutted while environmentalists and aboriginals protecting their land have been branded as foreign-funded radicals. The Harper government has centralized power enormously. Climate change is regarded with skepticism. Little money has been saved from oil. Alberta is a fiscal basket case. Foreign policy consists of bashing other petro states because Canada has so-called ethical oil. And scientific dissent has been muzzled.

“This does not surprise me. Democracies today are especially vulnerable to oil interests. But if oil prices stay low, this political arrangement won’t last over time.

“Instead, if prices continue declining and if they stay low for a few years (two big ‘ifs’) — they have already dropped 40 per cent but no one knows whether this price will endure — expect the following: a rapidly declining Canadian dollar, greater problems over pipelines, the reduction of future investments, and a very bumpy oil ride, especially for Alberta.

“Any adverse effect low oil prices will have on Canada’s high cost oil industry will have a multiplier effect on the economy and polity. Government services will be cut back, house sales will decline, and banking will slow down. Canadians will not be so happy with their government.

“How long will the prices stay down, and how long will it take for those effects to work their way through the economy? That is the question. If other vulnerable petro-states collapse, like Venezuela or Libya, or if conflict removes oil from the market, prices quickly could soar again.”

Has oil ruined us, as Perez Alfonso feared?

“For those of us living in advanced industrialized countries, inexpensive oil through 1970 has largely made our current standard of living. But Perez Alfonzo understood that oil is a non-renewable resource. It has huge costs associated with it, not only benefits.

“Let me be clear: the commodity itself is neither good nor bad.

“But the excessive profit involved from what Adam Smith called ‘reaping what has not been sown’ has led to a concentration of power and influence that makes it exceptionally difficult to fight the negative consequences of hydrocarbon dependence. This is true not only in Venezuela, Nigeria, Russia and the Middle East but also in the U.S. and Canada.

“Today, more than ever before as the ‘easy’ oil is being used up, the exploitation of petroleum in pristine environments hurts our water and the air we breathe. It threatens our climate. It props up authoritarian regimes and increases the propensity for war. In this respect, Juan Pablo Perez Alfonso was a visionary. He saw something about ‘the devil’s excrement’ before anyone else, and then he was kind enough to show it to me.”

Read more: Energy, Politics,

Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee. Find his previous stories here.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

Malicious lawsuit settled

MONTREAL, Aug. 15, 2014 /CNW Telbec/ – In a landmark decision, the Quebec Superior Court sentenced businessman Eddy Savoie, owner of Les Résidences Soleil, to pay $297,095.77 in damages to Ms. Pierrette Thériault-Martel for filing a malicious lawsuit against her.

This decision ends a legal saga that lasted three years. In July 2011, Ms. Thériault-Martel was served with a libel lawsuit filed by Mr. Savoie, in which he claimed $400,000 over remarks that she had made denouncing the poor quality of the services offered at the CHSLD Saint-Lambert-sur-le-Golf. In September 2013, the Quebec Superior Court held that Mr. Savoie’s lawsuit was malicious and unreasonable and reserved Ms. Thériault-Martel’s right to claim damages.

“This judgment is a great relief for me. The last three years have been very hard, but today I realize that there is a justice,” says Ms. Thériault-Martel.

Ms. Thériault-Martel, whose has an annual income of only $12,000, had learned about the lawsuit while she was taking care of her dying mother. The numerous legal procedures that ensued caused her severe stress, and also demonstrated that Mr. Savoie, whose net worth is more than $1,5 billion, had filed this lawsuit with the sole goal of intimidating and silencing her. This type of lawsuit is commonly referred to as a “strategic lawsuit against public participation”, or SLAPP.

“This judgment will have a significant impact on the protection of vulnerable people in the health system and in Quebec society in general,” says Me Jean-Pierre Ménard, attorney for Ms. Thériault-Martel.

The decision, rendered by The Hon. Gary D.D. Morrison, includes $87,095.77 in costs and extrajudicial fees, $10,000 in moral damages and $200,000 in punitive damages, which is the highest amount of punitive damages awarded in a malicious lawsuit case in Quebec.

Ms. Thériault-Martel, Me Ménard and Mr. Louis Plamondon, spokesman for the Association québécoise de défense des droits des personnes retraitées et préretraitées (AQDR), will comment on this judgment at a press conference held at the office of Ménard, Martin avocats on Monday, August 18th, at 10:30 am. More details on this press conference to follow.

SOURCE Ménard, Martin, avocats

For further information: Please contact Me Jean-Pierre Ménard at (514) 253-8044 or by e-mail at

What to do if someone SLAPPs you

Author
Paul Heisler

There is a reason why Hollywood legal thrillers always cast the big company as the defendant and never the plaintiff in lawsuits: there is nothing romantic about being sued by a company with deep pockets. There are no opportunities to bang the table and demand the truth; no vindication through articulate and impassioned speeches to the court; and most importantly for an activist, no chance of a victory on the substantive issue that instigated the lawsuit in the first place. In most cases, victory for a defendant in a strategic lawsuit against public participation (or a “SLAPP” as they are commonly known) is pyrrhic: a no cost settlement that leaves you no further ahead and much poorer than when you began.

A SLAPP is a lawsuit (or threat of a lawsuit) used mostly by private interests to intimidate opponents into silence or acquiescence. In the Canadian context, SLAPPs have reportedly been used to silence dissent on a wide range of issues, including environmental practices, zoning by-laws and consumer complaints. The purpose of the SLAPP is not normally to win an actual legal victory, but to change the channel on an issue by putting individual citizens and public interest groups on the defensive. A SLAPP moves the fight into the legal arena where corporate Goliaths have a massive advantage which they can exploit to suppress criticism and ultimately discourage activism. Lawsuits are almost always a painfully slow, technical and expensive process that favours those with greater resources and even if successful, a defendant will rarely recover more than a third of their actual legal costs. As the proceeding drags on and expenses mount, the pressure to capitulate and reach some form of settlement can be overwhelming.

While a SLAPP can take many forms, the most notorious cases involve allegations of defamation, interference with economic relations, and conspiracy. Such lawsuits usually seek both monetary damages and injunctive relief. They can be effective because the legal system is not designed to efficiently screen lawsuits for improper motives. While a lawsuit brought for purposes other than the assertion of legitimate rights is undoubtedly an abuse of the court’s process, judges are generally reluctant to exercise their inherent jurisdiction to dismiss abusive litigation, except in the clearest of cases.

The rules of civil litigation in most Canadian jurisdictions do provide mechanisms to attack abusive lawsuits at an early stage of the legal process, such as the rules in British Columbia for summary trial or the striking of a pleading that discloses no reasonable claim or is unnecessary, scandalous, frivolous or vexatious. While such procedural safeguards are conceptually sound, in practice it is extremely difficult to dismiss a claim using summary procedures if the court is being asked to resolve complicated issues and conflicting evidence.
Striking a claim for being unnecessary, scandalous, frivolous or vexatious is only really possible where it is plain and obvious the case is sure to fail. In both cases, the instigator of a SLAPP can gain an almost insurmountable advantage by initiating proceedings that are factually complex and involve multiple causes of action. Like an unrelenting game of whack-a-mole, the lawsuit does not end unless the defendant can effectively knock down all of the allegations.

Starting unjustifiable litigation is itself a ground for a lawsuit in Canada. The tort of abuse of process occurs where a legal proceeding is commenced with the predominant purpose of furthering some indirect, collateral and improper purpose outside the ambit of the litigation. Unfortunately, the tort of abuse of process is of little assistance to most defendants in a SLAPP. First, the intention to silence a critic through a lawsuit is not, in and of itself, an improper purpose in a defamation lawsuit.
Second, even where a defendant in a SLAPP and commences a counterclaim for abuse of process, the decision there may be delayed until the resolution of the SLAPP itself. In other words, there is very little chance to explore a plaintiff’s motives in the midst of being sued.

This point was recently confirmed by the British Columbia Supreme Court in a lawsuit that some commentators have labelled a SLAPP. In Canwest Mediaworks Publications Inc. v. Horizon Publications, Canwest commenced a lawsuit to enforce its intellectual property rights after the publication of a mock edition of the Vancouver Sun. The parody mocked the Sun’s coverage of the Israeli Palestinian conflict, which has previously received criticism for a perceived lack of balance.

The defendant Gordon Murray alleged in his defence that the true purpose of the lawsuit was not to protect intellectual property but to stifle expression of a contrary point of view on that issue. In effect, Mr. Murray characterized the lawsuit as a SLAPP. The court ultimately agreed with Canwest that its motives for bringing the lawsuit are irrelevant to Canwest’s intellectual property infringement claim and explained that the “mere assertion in a statement of defence that a lawsuit is an abuse of process does nothing more than assert — in an inappropriate, overly-polemical manner — that the plaintiff’s claim is without merit. It has no place in a [defence].”
While the Canwest suit, which remains ongoing, may indeed strike some readers as a SLAPP, it also nicely illustrates the difficulty for SLAPP defendants and judges confronted by such lawsuits. Canwest has the same right as anyone to enforce its intellectual property and unless it is plain and obvious that a claim has no merit, no one should be deprived of the opportunity to prove their case at trial. The difficulty facing ordinary citizens and public interest groups, however, is that by the time a trial is finished the damage may already be done.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

New York Says No to Fracking: State Bans Drilling Following Grassroots Outcry over Public Health

Author
Democracy Now!
New York has become the first state in the nation with major natural gas deposits to ban the oil and gas extraction process of hydraulic fracturing, known as fracking, citing potential risks to public health. Fracking involves blasting sand, water and toxic chemicals deep into shale rock to release oil and gas, a process which can poison water supplies and pollute the air. Following a two-year study, New York Acting Health Commissioner Howard Zucker said fracking was too risky. We speak to biologist, activist and author Sandra Steingraber, co-founder of New Yorkers Against Fracking. Also joining us is Cornell University professor Tony Ingraffea, president of Physicians, Scientists and Engineers for Healthy Energy.

JUAN GONZALEZ: New York has become the first state in the nation with major natural gas deposits to ban the oil and gas drilling process known as fracking, citing potential risks to public health. Fracking involves blasting sand, water and toxic chemicals deep into shale rock to release oil and gas, a process which can poison water supplies and pollute the air. Following a two-year study, acting New York Health Commissioner Howard Zucker said fracking was too risky.

HOWARD ZUCKER: The potential risks are too great. In fact, they are not even fully known. Relying upon the limited data that is presently available to answer the public health risks would be negligent on my part. I have identified significant public health risks in the current data. And until the public health red flags are answered by valid evidence through longitudinal long-term studies, prospective analysis, patient surveys with large population pools showing that the risk for impact on public health are avoidable or sufficiently low, I cannot support high-volume hydraulic fracturing in the great state of New York.

AMY GOODMAN: The decision to ban fracking was announced by New York Governor Andrew Cuomo.
GOV. ANDREW CUOMO: This is an emotional debate, and I think this is a very factual presentation and persuasive on the facts. Do I believe the facts will trump all emotion? No. So I’m sure the people who disagree with this will continue to disagree with it.

JUAN GONZALEZ: Anti-fracking activists welcomed the ban with celebrations across the state. Environmentalists have waged a fierce campaign to ban fracking in New York. The actor and longtime anti-fracking activist Mark Ruffalo posted a short video online after the ban was announced.

MARK RUFFALO: New York state just passed a moratorium on hydrofracking. Thank you, Governor Cuomo, Joe Martens and Commissioner Zucker. And thanks to all the beautiful, dedicated people in the anti-fracking movement, who used science, their guts, their brains and their hearts to make this day a reality. Love you!

AMY GOODMAN: Activists note infrastructure related to fracking remains in place upstate New York. On Tuesday, 41 people were arrested for blocking the gates of a gas storage facility as part of a campaign against the Texas-based company Crestwood Midstream. The group, We Are Seneca Lake, has seen more than 130 arrests in a series of actions against the company’s plans to expand methane gas storage at a lake which provides drinking water to 100,000 people.

Among those at the protest was the biologist, the activist, the author, Sandra Steingraber. She joins us now from Ithaca, New York. She co-founded both New Yorkers Against Fracking and Concerned Health Professionals of New York. Her books include Living Downstream and, her latest, Raising Elijah: Protecting Children in an Age of Environmental Crisis.

Also joining us from Cornell University is Cornell professor Tony Ingraffea. He’s also the president of Physicians, Scientists and Engineers for Healthy Energy.

We welcome you both to Democracy Now! This is a major decision. New York has major gas deposits. Sandra Steingraber, can you talk about how this actually happened? Sure, the governor announced it, but what was the pressure brought on the governor?

SANDRA STEINGRABER: Well, that’s a tale that could be told as an opera, I think. So, we had the good fortune to have a moratorium in place by our previous governor, and I’ll let Tony tell some of the details of how that came to be. But because we had pushed the pause button, that gave those of us in the scientific community a chance to begin to really look at the data and the research and what it showed.

And we started off with only a handful of studies. There were only six studies on the health effects of fracking and the environmental impacts in 2008, for example, when we had the first moratorium declared. Now there are 414 studies and counting. And so, it was like we had pieces of a jigsaw puzzle, and when you only have a couple of pieces and you try to see what the picture is, it’s hard to see. But we saw troubling signs, but it was a little bit like trying to read the tea leaves. And then, as more data came in and more studies were done, and we talked to more scientists and we knew what the data looked like that was in the pipeline that was coming up to be published, we began to put more pieces of the jigsaw puzzle. And now we have 414 pieces assembled.

And even though there are still parts of the picture we can’t see very well, what’s obvious to us now is that fracking is not only harmful to our water supply and poisons our air and is beginning to actually show signs of and indicators of making people sick, but also that the problems associated with fracking are inherent to the engineering itself and cannot be mitigated in any regulatory framework. So we couldn’t see any signs that fracking had been done in a certain way, under certain rules that could govern the safety of it such that people wouldn’t be harmed.

And so, we – Tony and I, together – as well as a whole bunch of other scientists, we didn’t just take that information to our regulatory agencies – although we did that, too – because they actually seem sort of deaf to the science. We started early on taking it directly to the citizenry. So, this idea that sort of science and politics exist in two separate boxes, I don’t think so. I mean, objectivity is one thing, and we’re really objective as scientists, but science is not neutral, and it’s not a monk that should be sequestered away in a monastery. Science is like a gladiator that should be in the public arena. And so, we took – we spent, I don’t know, a couple years, every Friday night in a church basement somewhere, in a Rotary Club, in a public library, in a junior high school gymnasium, giving PowerPoint presentations with whatever data we had to groups of citizens in small towns all across the state. And so, that began then citizen organization. Local ban movements sprang up. And then, of course, at some point in 2011, 2012, we had so many different anti-fracking groups, that we united them then under the umbrella, my organization, New Yorkers Against Fracking. And then, Concerned Health Professionals of New York was the sort of science branch of that movement.

And at the same time, Tony’s shop, Physicians, Scientists and Engineers, a completely separate organization, we began to look at the same data sets – PSE from a statistical point of view, we did the qualitative analysis. We not only brought that out to the people in our compendiums and reports, we sent it to our Department of Health commissioners, first Dr. Shah, now Dr. Zucker. We sent it to the DEC. We sent it to the governor. So we were constantly bringing data forward to inform the political process.

JUAN GONZALEZ: Well, Sandra . . .

SANDRA STEINGRABER: So that was a big . . .

JUAN GONZALEZ: And, Sandra . . .

SANDRA STEINGRABER: That was a big part of it.

JUAN GONZALEZ: . on that whole issue . .

SANDRA STEINGRABER: And then, of course, musicians and filmmakers all played their own role in captivating the citizenry and uniting us and making us feel like we were on a winning team.

JUAN GONZALEZ: Well, Sandra, on this whole issue of your outreach to citizen groups, I remember talking to Governor Cuomo a few weeks ago when he was at the Daily News Editorial Board and asking him specifically about the fracking issue, and it was clear that he was feeling enormous pressure. Clearly, the primary vote, where Zephyr Teachout won huge numbers of vote in the region targeted for fracking, he was aware that there was a major upsurge in the population of New York state that was opposed to fracking. And I have to think that that had some kind of impact on this final decision of his health commissioner. Clearly, the local municipalities were banning fracking in their own area. There were protests constantly where the governor went. So this was a – meanwhile, the rest of the country was increasingly turning to fracking, other states. So this is a really unusual situation, what’s happened here in New York state.

SANDRA STEINGRABER: It is. And I really just want to be really clear and thank the governor for listening to the science, because the part of the pressure he was feeling was the pressure of science, because we equipped the citizenry to bring the science, as citizens, to their government. And Governor Cuomo then, in the end, said he would let science make the decision. And he sure did. So, from my perspective as a scientist in the public interest, as somebody who’s spent a lot of years in public health, where I see decision makers and political leaders and elected officials not interested and turning away from the science, here’s a governor who embraced it and said no and stood up to the gas industry. So, all my gratitude to you today, Governor Cuomo.

ANTHONY INGRAFFEA: Amen.

AMY GOODMAN: I want to turn to a clip from Josh Fox’s 2013 documentary, Gasland Part II. In this clip, Lisa Parr of Wise County, Texas, explains how her family’s health deteriorated after natural gas drilling began around their home.
LISA PARR: My daughter looks up. Her rash is all over her face. She has a nosebleed. Bob has a nosebleed, burning throat, burning eyes. I had a rash. It covered my scalp. It went through my entire body, literally to the bottoms of my feet. My throat would start swelling. I started gasping for air. I started stuttering. I started stumbling. My face drew up on my left side like I had Bell palsy.

AMY GOODMAN: That’s a clip from Gasland Part II by Josh Fox. I bumped into Josh Fox, interestingly, in Lima, Peru, at the major People’s Climate March last week in the midst of the U.N. climate summit. And he is going to – he’s interviewing people right now in the Amazon as he links oil politics and gas politics around the world. But I wanted to turn to Tony Ingraffea, professor emeritus and Weiss Presidential Teaching Fellow at Cornell University, also president of Physicians, Scientists and Engineers for Healthy Energy, Inc. Not a lot of people around the country are having this kind of success in getting a ban on fracking. Professor Ingraffea, talk about the science you presented and what you were most concerned about. I mean, this ban is based on health concerns.

ANTHONY INGRAFFEA: Yes, but before I answer that question directly, I want to expand a little bit on what Dr. Steingraber said about how this whole process occurred. It’s a perfect example of democracy now. In 2008, where all the other states lying over shale deposits opened the barn doors and let dozens of operators in, absent the science, New York had a special law on the books – an Environmental Quality Review Act. And it took the effort of an individual citizen, Dr. Stan Scobie, to write a brief to Governor Paterson pointing out that that law had to come into effect if shale gas was to be exploited in New York state. That’s a perfect example of an individual citizen informing a governor.

Governor Paterson wisely took heed and said, “OK, let that law go out, go forward,” and that led to something called an environmental review, an environmental impact statement. That led to hundreds of thousands of individual comments, written by citizens all over New York state, that turned back two – not one, not – actually three at this point, three versions of that environmental impact statement. And as of today, we still do not have a viable, valid environmental impact statement for shale gas in New York state. That’s one of the reasons for Governor Cuomo’s decision this week. So there’s another example of democracy at work.

And as Dr. Steingraber just pointed out, while that was happening, hundreds of thousands of New Yorkers saying, “No, your science doesn’t look good to us,” the scientists were at work, going from those six papers in 2008 to over 400 today. And the second wise governor took office in 2010, Governor Cuomo, and realizing that the science was not yet ready, concluded obviously that you don’t establish an important energy policy absent good science, especially science having to do with human health. So he waited, wisely, for the science to catch up. And it almost has. The puzzle is almost complete. We now see what the impacts are, and Dr. Zucker pointed them out in his comments earlier this week.

So, the science that had to be done – now, to answer your question directly – was obvious. What effects, through air, through water, through ground movements, through climate change, through leaking wells, through sociological effects on communities, economic effects on communities, ecological effects on communities? What science do we know when shale gas comes to town? And we knew very little in 2008.

So, some of those studies pointed out that shale gas, unlike previous conventional gas developments, is extremely intense. We have to have many, many wells per square mile – eight, nine, 10 wells per square mile. That means entire regions would have to see tens of thousands of wells. The prospective was that upstate New York was going to be patterned, checkerboard pattern, a pad every mile in one direction, every two miles in another direction, as far as the eye could see. And that means that we increase the risk of all the bad things that can happen when you drill a hole in the ground and when you try to extract enormous amounts of natural gas. There can be leaks. There can be failures. There can be transportation problems. There can be pipeline problems, compressor station problems, processor unit problems, storage problems. All of these lead to potential contamination of water supplies, underground drinking water supplies for people in private water wells, which is quite prevalent in upstate New York, and air contamination.

We all breathe the same air. We’re all downstream, as Dr. Steingraber’s book points out. You can’t isolate shale gas from the people. It makes the people be part of the shale gas-industrial operation. And the people of New York state, using their democratic powers, informed the governors of New York state that they wanted the science to declare whether a policy allowing shale gas development in New York was appropriate – 19.8 million people in the state – on the one hand, their health; on the other hand, the potential, and now unrealizable, wealth of a few hundred people and a few foreign corporations. I think the decision became very clear for Governor Cuomo this week.

JUAN GONZALEZ: Professor Ingraffea, why do you think that this kind of a democratic process has not taken place in other parts of the United States? And, of course, the shale gas industry has expanded worldwide now, seeking to drill in – all over the planet.

ANTHONY INGRAFFEA: That’s an excellent question, and it goes back to one of the things I said. It was a bit of luck and a bit of wisdom on the part of a former governor. The luck was that Cornell had a law on its books that other states, most other states, don’t. And that law very simply says, if a new industrial process seeks to establish itself in the state of New York and it hasn’t been here before, it has to show – it has to show that it does not have deleterious effects on the environment and human health.

And shale gas development, despite what the president of the American petroleum association says – American Petroleum Institute says, is a new process. Developing shale gas is not your grandmother’s and grandfather’s oil and gas well in Texas. It’s an entirely new process. It’s orders of magnitude large in scale. The number of wells, the time it takes to drill wells, the amount of fracking fluid that’s used to stimulate the wells, the amount of waste that’s produced, the amount of ancillary infrastructure, pipelines, compressor station, processing units – all of that makes it different.

So why is it that Colorado or Texas or Oklahoma or Arkansas or Illinois, North Carolina and Maryland, which have negligible shale gas resources, why are they going forward? Two reasons: They didn’t have that law on the books, or that law wasn’t enforced, and, two, they didn’t have the time to generate the kind of citizen impact and citizen input that we luckily had because of that wise decision in 2008 in New York state. But those states are going to catch up. New York state, this is a landmark. This is the wellspring. This is where it all begins for those other states to say, “Yeah, it looks like it’s going to happen in places like Illinois, North Carolina and Maryland, but it hasn’t happened yet, and we can still stop it.” And in places like Colorado and Texas and Oklahoma and Arkansas, where the deleterious effects that you’ve already discussed, we’ve already discussed here, are now becoming more and more apparent every day, the citizens are being involved. They are getting motivated. And what we did in New York state is going to be a tremendous impetus for them.

JUAN GONZALEZ: And do you think – what do you think about the plummeting price of oil on the world market? Is this having some kind of an impact on the full-court press that the oil and gas industry has been doing now for several years in terms of shale gas extraction?

ANTHONY INGRAFFEA: Absolutely. We’re talking about a very complex, global-scale industry. What does happen in Russia does affect what happens in Pennsylvania. So, the dropping prices for hydrocarbons, oil and natural gas, are having huge effects on the industry itself. We’re seeing a pullback in the number of wells being drilled. We’re seeing a pullback in capital flowing from Wall Street into the coffers of the oil and gas industry so that they can drill their wells and build their infrastructure.

But more importantly, I think, here, it gives the lie to the promise, the empty promise, that the industry gave to most other states, and tried to give to New York state, which is, “We’re going to – there will be gold-paved streets for you. Everybody is going to get rich.” It doesn’t work that way in extractive industries. It’s boom-bust. And guess what. It’s now bust.

It didn’t take long. The industry oversupplied. Too many companies trying to get in very, very quickly to make a quick profit, when prices for oil and gas were high. They’ve driven down prices because of oversupply. They’ve made this attempt to address that problem by proposing to build liquefied natural gas exporting facilities on all coasts of the United States – and Canada – to try to get “American-made” natural gas, our resource, exported into foreign markets.

So, the people of New York state and the people of other states are now trying – are beginning to realize that that was all a charade. It was all a big lie. It’s corporate profit making underneath an American flag.

AMY GOODMAN: Before we wrap up . . .

ANTHONY INGRAFFEA: So, is it our gas and our oil? No. Are we really decreasing the cost of energy for Americans? No. For gas right now, gasoline for your car right now, sure. But now what we’re doing is causing a decrease in the most important secondary aspect of this effort, which is to rapidly increase renewable energy supplies.

So, I’m trying to point out that this is a very complex issue involving geopolitics, involving the fight between traditional energy sources, renewable energy sources, different states’ approaches, the people’s common pocketbook – how much they’re paying for energy now versus how much they’re going to be paying for energy in the future, and are they going to go out and buy a Prius tomorrow, or are they going to go out and buy a Hummer?

AMY GOODMAN: I want to thank you both for being with us, Professor Tony Ingraffea, professor emeritus at Cornell University, president of Physicians, Scientists and Engineers for Healthy Energy, Inc., and Sandra Steingraber. Dr. Steingraber is an activist, biologist, author, co-founded both New Yorkers Against Fracking and Concerned Health Professionals of New York. She has quite a remarkable resume. She has been named Woman of the Year by Ms. magazine, one of “25 visionaries who are changing the world” by Utne Reader, among many other things.

And end with the quote of Rebecca Solnit, who said, “The governor did it because he was pushed hard by activists. Look at the weather vanes, but respect the wind.”

Most Canadians support anti-Kinder Morgan protesters: new online poll

But majority believe Trans Mountain pipeline expansion will go ahead as planned

More than half of all Canadians support the protesters who disrupted Kinder Morgan’s work on Burnaby Mountain last month, but a majority also believe the company’s Trans Mountain pipeline will be finished despite such civil disobedience, according to a new online national survey.

Fifty-seven per cent of respondents to a recent Angus Reid Institute survey voiced their approval of the protests, but at the same time, almost as many (51 per cent) said they wanted the expansion of the pipeline carrying oil from Alberta to Kinder Morgan’s Burnaby terminal.

British Columbians were 46 per cent in favour of the expansion and 54 per cent in favour of the protesters trying to stop it. Not surprisingly, the strongest support in the country came from Alberta, where 70 per cent of respondents wanted the pipeline to expand.

The Trans Mountain expansion found support from more than half of respondents from the Prairies and Atlantic Canada, while Ontario respondents were split evenly on the matter and 65 per cent of Quebeckers said they were against it.

Even if it’s slowed down by protests, the vast majority (88 per cent) said they thought the pipeline project would go ahead.

The pollster’s survey was conducted online from Nov. 25-28 among 1504 randomly selected Canadian adults who are members of its opinion panel group. The survey has a margin of error of plus or minus 2.5 per cent 19 times out of 20, according to the pollster.

© Copyright (c) The Vancouver Sun

Read more: http://www.vancouversun.com/news/Most+Canadians+support+anti+Kinder+Morgan+protesters+online+poll/10665104/story.html#ixzz3TrXikz61

Expert Engineers Deem Trans Mountain Too Dangerous

s it safe?

That is the critical question regarding the proposed seven-fold increase in tanker traffic through Vancouver’s harbour if the National Energy Board approves Kinder Morgan’s Trans Mountain pipeline project.

A group of B.C.-based engineers finds the current plans decidedly unsafe and just told the NEB so in no uncertain terms.

They echo a much earlier report commissioned by the federal government that unequivocally warned against such a plan.

Start, then, with the Concerned Professional Engineers (CPE), a group of senior local experts with decades of experience in marine transportation, naval architecture and risk mitigation. Last month they submitted a letter to the NEB regarding Kinder Morgan’s proposal that states the proposed project ”presents a high risk to the environment and to structures located along these routes.” They have not yet received a reply to their concerns, which include :

”Based on Trans Mountain’s own experts’ estimations…there is a 10 per cent probability that a spill of 8.25 million litres or more will occur in a 50 year operating period, even with all the proposed mitigation strategies. This is considerably greater than the mitigated spill risk of nine per cent for a 5.0 million litres spill estimated for the Northern Gateway project out of Kitimat.”

Potential public health nightmare

To put this risk in perspective, 8.25 million litres of diluted bitumen is more than twice the size of the disastrous spill in Kalamazoo, Michigan, in 2010. Costing over $1 billion, this was the one of the most expensive clean up operations in U.S. history because a large proportion of the bitumen sank in the Kalamazoo River, rendering conventional recovery equipment essentially useless.

A spill twice the size of what happened in Kalamazoo happening here in Vancouver would be a public health emergency because the volatile solvents that make up more than 30 per cent of diluted bitumen would off-gas toxic fumes into the confined airshed of the Lower Mainland — home to more than two million people. In Kalamazoo, officials issued a voluntary evacuation order within a mile of the spill because 60 per cent of local residents were complaining of headaches, nausea, vomiting and dizziness due to high levels of carcinogenic chemicals such as benzene.

Insurance unrealistically low

The engineering experts with the CPE also feel the insurance coverage available from the shipping industry is woefully inadequate to deal with the one-in-10 chance scenario based on Kinder Morgan’s own numbers.

”We believe that the funds available according to the latest estimates of the federal government are $1.3 billion, which would fall vastly short of cleaning up and compensation for 8.5 million litre (or greater) spill… In our view, Kinder Morgan should require that all vessels that come to pick up product should have unlimited liability insurance. If this were the case, the insurance company would do a realistic assessment of the risks and would increase the premiums. These premiums would then be added to the cost of the barrel of oil and we would see a more realistic cost of the price of oil.”

And who would be on the hook for any additional cleanup costs? Very likely local citizens in what aspires to be the world’s greenest city.

Riskiest of 27 ports

The CPE are not the first to question the wisdom of shipping oil through Burrard Inlet. A report by the federal government in 1978 ranked the comparative safety of 27 potential ports on the B.C. coast that could be used to ship oil. The route being used by Kinder Morgan in Port Moody was ranked dead last in every category considered, including navigational risks to tanker traffic and the potential impacts of spills on the local economy, communities and ecosystems.

The authors of this study state, ”Major tanker terminals at Port Moody, Britannia Beach, Roberts Bank and Cherry Point pose the highest relative risk… Should any one of these sites be contemplated for future development or increased production capability, it must be opposed on the grounds of high relative environmental marine risk.”

Thirty-six years later, the risks of this route are arguably only worse given increased ship traffic in Vancouver harbour and local population growth. The main concern for the members of the CPE are the dangers of tanker transits that have to thread under three bridges in Burrard Inlet during a short high-slack tidal window. Their submission to the NEB states:

”We…believe that there has not been a proper analysis of the potential for a collision of a fully loaded or an empty Aframax-type tanker with either the First or the Second Narrows bridges, particularly with the present Second Narrows railway bridge… What forces would be exerted on the bridges’ structures or foundations and what would be the expected damage to these bridges? Also, would the forces exerted by the vessel in striking the foundations of the bridge be sufficient to damage or rip a double-hulled vessel, resulting in a release of its oil cargo?”

Why is KM stuck on Burrard Inlet?

The CPE also ask in their letter to the NEB why Kinder Morgan is choosing to use the existing pipeline terminus in Burnaby when it would be safer from an engineering point of view to extend the pipeline to the deep-water port at Roberts Bank. This would allow for much larger ships and one-third the number of tanker transits.

Brian Gunn of the CPE, with decades of personal experience in building port facilities, speculates that Kinder Morgan may be seeking to avoid the expense of building a new marine terminal and pipeline route, which Kinder Morgan estimates would cost $1.2 billion more than their current proposal.

Local groups in the Tsawwassen area are also strongly opposed to further expansion of Roberts Bank due to impacts on critical eelgrass and migratory salmon habitat.

But there is another, perhaps more compelling, reason that Kinder Morgan is choosing the perilous route through Vancouver’s inner habour. In 2005, Kinder Morgan purchased the existing pipeline to Burrard Inlet, which had been originally built in the 1950’s. While they still have to undergo an environmental assessment to add an additional pipeline, the NEB process will be much less rigorous because little or no new land will be taken for the pipeline corridor.

Enbridge had to walk across hot coals compared to the relatively mild review that Kinder Morgan is undergoing. As a new project, Enbridge is facing years of legal challenges from First Nations opposed to the Northern Gateway project, which as a result may never get built. The TransMountain project is much more insulated from such legal challenges — as long as Kinder Morgan uses the existing pipeline right of way.

They would have good reason to be concerned about First Nation opposition. Last month, 12 First Nations whose territories will be affected by the project, co-signed a letter condemning the NEB process as unconstitutional. Grand Chief Stewart Phillip was arrested on Burnaby Mountain to protest the project.

Proposing an alternate pipeline route through the densely populated Lower Mainland and the traditional territories of several First Nations opposed to the project would open a legal can of worms Kinder Morgan might prefer to stay closed.

Is it safe?

The tanker route through Burrard Inlet seems safer only for Kinder Morgan, and according to reports from the federal government and local engineering experts, much more dangerous for the rest of us.

Read more: Energy, Environment,

Whose contempt? Burnaby Mountain, Kinder Morgan and the law

Author
IRINA CERIC
Burnaby Mountain, probably best known as the home of Simon Fraser University, is the site of a proposed expansion of Trans Mountain, Kinder Morgan’s Edmonton to Vancouver tar sands pipeline. The mountain is also unceded Indigenous territory, part of the traditional land of the Musqueum, Squamish, and Tsleil-Waututh Nations. But for the last few months, Burnaby Mountain played host to a concerted struggle for climate justice and Indigenous sovereignty, a battle over one pipeline that became a proxy fight over the Harper government’s fixation with extractive industry as a whole.

As organizing against Kinder Morgan’s exploratory work built, the Texas-based energy infrastructure giant enlisted the B.C. courts in an effort to salvage its pending National Energy Board (NEB) application to expand Trans Mountain.

In late October, Kinder Morgan filed a multi-million-dollar lawsuit against five named pipeline opponents, the community organization BROKE (Burnaby Residents Opposing Kinder Morgan), as well as John and Jane Doe and persons unknown. The company sought damages — for nuisance, assault by threat, trespass, intimidation, and interference with contractual obligations — costs, and most crucially, an injunction.
Injunctions ––court orders prohibiting certain actions or behaviour — are commonplace in B.C., an all-too typical response by corporations — and sometimes the government — to disputes over land, resources, and most recently, extractive projects. Kinder Morgan was no doubt expecting smooth sailing, on the mountain and in the courtroom.

Their injunction aimed to keep protesters away from two drilling sites on Burnaby Mountain, key “bore holes” central to gathering the necessary evidence for Kinder Morgan’s NEB application, due December 1. The case was first brought before B.C. Supreme Court Associate Chief Justice Cullen on one day’s notice to the defendants.

He granted an adjournment so the defendants could find lawyers, and then, after hearing the three-day long application, surprised everyone by reserving his judgment for up to 10 days. He turned out to need less time, and issued a judgment on Friday, November 14 that granted Kinder Morgan an injunction preventing access to the bore hole sites and preventing interference with Kinder Morgan’s “works” and access.

The ruling delayed enforcement of the injunction until 4 p.m. the following Monday, it was Thursday, November 20 when the RCMP began making arrests. Twenty-four people were arrested that first day, all of them charged, not with a criminal offence or even trespass, but civil contempt of court. Most were released on the spot after signing a promise to appear to appear in court in January, 2015, and in some cases, an additional undertaking to not violate the injunction again.

Three people — two of them Aboriginal, the third a tree-sitter pulled from his perch by the RCMP — were held overnight until a hearing before B.C. Supreme Court Chief Justice Hinkson. The hearing, held in downtown Vancouver’s cavernous Air India courtroom, was an odd affair quite unlike most bail hearings. The activists, represented by pro bono counsel (including myself), faced off not against Crown Attorneys but Kinder Morgan’s own lawyers, joined by counsel for the RCMP. C.J. Hinkson released all three protesters on a simple promise to appear with no conditions. It was the first of several micro victories to come.

The number of protesters on the mountain continued to grow, as did the number of arrests, a wave of civil disobedience that quickly drew comparisons to the mass arrests of the 1994 Clayoquot Sound campaign.

On November 24, Kinder Morgan filed an application to extend its injunction by 11 days, to December 12, expand its reach, and, more surprisingly, “to clarify the precise GPS coordinates” of the injunction boundaries “[f]or the certainty of the RCMP and protesters.”
On Thursday, November 27, as UBCIC Grand Chief Stewart Phillip and Tsleil-Waututh elder Amy George were arrested crossing the injunction line, ACJ Cullen ruled on Kinder Morgan’s application, refusing to extend the injunction or expand its “exclusion zone.”

If these denials had seemed impossible just 24 hours earlier (until a Kinder Morgan VP’s letter to the NEB indicating that the company did indeed have the geotechnical information it needed already was disclosed in court), the remainder of the judge’s decision was even more stunning. ACJ Cullen granted Kinder Morgan’s application to “correct” the GPS coordinates, thus setting the stage for the withdrawal of contempt of court charges issued the previous week.

It felt like a victory and it was, especially as Kinder Morgan’s trucks began rolling off Burnaby Mountain that same afternoon. And for the 112 people arrested for crossing what turned out to be an inaccurate injunction line, ACJ Cullen’s invitation to Kinder Morgan to vacate all Promises to Appear and Undertakings it meant that the threat of looming contempt trials — not to mention possible fines and/or jail terms — was suddenly lifted. But a week later, the wages of victory are harder to grasp.

Most clearly, the expanded Trans Mountain pipeline remains under consideration by the NEB, an approval process now “streamlined” after changes to the Canadian Environmental Assessment Act in 2012 removed the requirement of a Joint Review Panel, leaving the decision solely in the hands of the NEB panel.

For the City of Burnaby, itself a pipeline opponent, ACJ Cullen’s decision served only as a distraction from the municipality’s jurisdictional lawsuit against the NEB and Kinder Morgan (in which Burnaby was denied an injunction pending trial).
In the meantime, the RCMP had run up costs estimated at $1 million while enforcing the injunction, a bill that so far appears to be Burnaby’s to pay.

Yet the cost of policing Kinder Morgan’s injunction is not just a fiscal concern for Burnaby taxpayers, it is also the clearest example of the perverse use of private-public partnership injunctions and contempt as tools for managing public opposition.

The resort to injunctions by extractive industries embroils the courts and police in the enforcement of struggles that — despite all appearances to the contrary — are constructed by the law as private disputes. That the NEB loomed large behind the opposition to Trans Mountain serves only to highlight the broader absurdity of injunctions founded on tenuous civil suits, and yet enforceable against all, as a means of policing public dissent and facilitating opposition to environmental injustice.

In the aftermath of the battle for Burnaby Mountain, understanding this contradiction puts a legal victory in context, and seizing on it provides one tool for building stronger, more resilient movements for climate justice in the years to come. Injunctions, contempt and the policing of public protest point us toward broader questions of environmental governance, policy-making and most importantly, power, paving the way for prying political victories out of a dense web of law.

Irina Ceric is a progressive lawyer, activist and legal scholar. A recent transplant to Vancouver/Unceded Coast Salish Territories, she practices immigration and criminal law with Edelmann and Company. Formerly based in Toronto, Irina was a founding member of the Movement Defence Committee, a law teacher at York and Ryerson Universities, and a longtime community activist.

IRINA CERIC, SLAPP Suits

http://rabble.ca/news/2014/12/whose-contempt-burnaby-mountain-kinder-morgan-and-law

Critical Theory, Left Strategy, and the Making of a New Political Subject

http://intertheory.org/raven.htm

Kritikos an international and interdisciplinary journal of postmodern cultural sound, text and image
Volume 2, August 2005, ISSN 1552-5112

Review of:
Sanbonmatsu, John. The Postmodern Prince: Critical Theory, Left Strategy, and the Making of a New Political Subject. Monthly Review Press, 2004, 272 pp., $22.95 paper.

Francis Raven

The question, after the last unmentionably depressing election, is how the left can formulate a compelling unified vision that will allow us to win the next big election. Many of us thought the globalization movement would unite the left after decades of fragmentation. In Seattle, circa 1999, it sure felt like it would. It didn’t. Maybe that was because of 9/11, as some suppose, and maybe not. A few people thought that the anti-war movement would unite the left. Not only did it fail to do this, it ended up alienating many people who progressives should consider friends.

For the simple reason that the left is not unified and thus cannot unify the rest of the country around its “values,” all progressives must ask the question at the heart of John Sanbonmatsu’s The Postmodern Prince: “Can the now-dispersed forces of emancipation, having been forced by history to abandon the ‘skin’ of socialism and the International, and the Party, discover or invent a new form?” Can the left come together so that we might eventually run the world or are we forever doomed to small wins in diverse movements that never add up?

The first half of the book charts the failures and collusions of the left. Sanbonmatsu demonstrates how the New Left’s (the leftists who came of age in the 1960’s and were radicalized by social injustices, the civil rights movement, and the war in Vietnam) valuation of expression over strategy (this is sometime called ‘expressivism’), critical theory, and collusions with capitalism dismantled the Marxist’s dream of historical construction and brought us ever closer to Babel, where we no longer have the ability to talk to each other. It is in this Babel that progressives now live and must break free.

First, Sanbonmatsu shows how the New Left valued expression over strategy. That is, it was more important to express that you were on the right side of the argument than to show how you were going to win that argument. Second, he shows how the critical theory popularized in the 1960’s (think Derrida) led away from strategy by marginalizing the subject and leaving her stranded as a “site of discourse.” Third, the market exacerbated these two trends. Expressivism “left capitalism unbound by smashing bourgeois cultural norms that had previously placed subjective limits on consumerism.” If a person expresses what he is and there is no connection between what he is and his political actions then there is no reason why the market can’t tell him what his political actions should be. When this is coupled with the rationalization of the university, the effects on leftist strategy are truly devastating: knowledge is aestheticized. Critical theory books proliferate, each with an original style (aesthetic) but without anything original to say. The use value of knowledge is denigrated in favor of its exchange value. The market comes to rule all and rules only through fragmentation of leftist political unity.

Sanbonmatsu’s critical project makes the reader salivate for his positive project and in the second half of The Postmodern Prince he delivers it. His basic division is between Michel Foucault, “the archaeologist” and Antonio Gramsci, “the Prince.” Gramsci is the leftist Prince of strategy and hegemony, whereas Foucault is an archeologist searching in discourses for differences. As a result of Sanbonmatsu’s progressive agenda, he picks Gramsci as a model of how we should move forward. The author is careful to note the extent to which Gramsci’s theoretical structure could lead to totalitarianism such as was seen in the former Soviet Union. To hedge these tendencies, Sanbonmatsu uses the positive aspects of postmodernism and shows how Gramsci was aware of some of these more negative possibilities. But at the end of the book it is unclear if coming together in the name of a cause really would just end up in a morass of totalitarian politics.

Gramsci formulated the ‘Modern Prince’ who was supposed to formulate people’s political will and was in obvious response to Machiavelli’s Prince. Oddly however, instead of being one person, the Modern Prince was actually a collective, such as a political party or a social movement. Sanbonmatsu refreshes the notion of the Prince once more in his formulation of the ‘Postmodern Prince,’ which he defines as “a unified movement in which many diverse movements come together to form the nucleus of a new civilizational order.” Basically, he has added a diversity criterion to the Prince.

The author argues that the diverse movements of the left must be meaningfully brought together because our opponents thrive on our diversity. “In its coming-to-form as a unified subject, the postmodern prince would illuminate the many-sided nature of power and domination-capitalism, patriarchy, racism, and other distorting institutions-and also prefigure the society just to come.” We must come together in the name of a “new normality” with a new perspective and a new unity. This new unity would be dynamic, dialectic, in constant motion, and would not be merely humanist.

Sanbonmatsu’s model for the Postmodern Prince is Octavio Ocampo’s portrait of Cesar Chavez, which portrays Chavez as composed of all the individuals in his labor movement. For Sanbonmatsu, this portrait gathers the strands of his Postmodern Prince. First, the unity of the Postmodern Prince is based upon the experience of the individuals involved like the workers’ experiences in the struggle culture of the United Farm Workers. Second, the portrait represents “unity in diversity only within a single movement” that we might extend metonymically “to stand in as a figure for the unity of multiple movements in a common utopian project.” That is to say, there can be no Postmodern Prince absent (1) the experiences of the people gathered by it and (2) a common and perhaps utopian vision of the future. The differences within the unified movement cause the Postmodern Prince to move with empathy toward an ethic where no oppression is privileged. When (and if) this occurred all subjugations would be seen as interlocking power struggles, which must be battled not with the mere spectacle of a protest, but with a full-on perceptual change both of participants and the world at large. The difference between the Postmodern Prince and Michael Hardt and Antonio Negri’s conception of the “multitude” is that for Hardt and Negri our differences come before our ability to act in common. The multitude is thus an inversion of the Postmodern Prince, an inversion that Sanbonmatsu believes has the effect of undermining the formation of our political will as it focuses its energy not on political goals but on differences of identity and culture. In the end, it’s not really clear how the Postmodern Prince is supposed to arise, but perhaps that is where there is new work to be done.

U.S. report slams Kinder Morgan’s enviro transgressions: “Bad neighbour” allegations from the U.S.

“Bad neighbour” allegations from the U.S.

Bribing a ship captain, oil spills, and million-dollar fines among the transgressions highlighted by a U.S. report on Kinder Morgan.

Front cover of Sightline Institute’s “Facts about Kinder Morgan” report released Tuesday.

The Seattle-based think-tank Sightline Institute released a report Tuesday highlighting Kinder Morgan’s enviro-transgressions across the energy giant’s continent-wide network of pipelines and export terminals.

The company’s recent troubles on Burnaby Mountain in Canada were cited as a major reason for updating the second edition of this report. More than 100 people were arrested last month — including scientists, environmentalists, First Nations and other people young and old — for disobeying a court order designed to protect the company’s drillers on the mountain.

The story was not widely reported in U.S. press, the think tank lamented.

“It’s become the Keystone XL fight of Canada,” said the institute’s policy director Eric de Place in a tele-press conference to journalists on both sides of the border.

“I often despair that the 49th parallel ends up being quite a barrier [to news coverage from Canada].”

The Sightline Institute’s report — “The Facts about Kinder Morgan” — is described as a “careful, factual examination of Kinder Morgan’s track record.” It contains a laundry list of the company’s troubles with American federal investigators, million-dollar fines, oil and gas spills, and safety failures.

“For years, and in many locations, Kinder Morgan has engaged in behaviour that experts and regulators have called fraudulent, deceptive and irresponsible,” said De Place.

“Kinder Morgan’s plans have run into trouble, both in the Gulf Coast region, Louisana and Texas, as well as in British Columbia and many other places around North America,” he added.

Kinder Morgan protesters arrested after crossing an RCMP-zone protecting the company’s drillers last month on Burnaby Mountain. Photo by Mychaylo Prystupa.

The Texas head office of the company responded to the report, stating:

“The Sightline Institute has an agenda, and their report certainly takes sensational liberties,” wrote Kinder Morgan spokesperson Sara Loeffelholz from Houston.

“Kinder Morgan complies with all applicable rules and regulations, and we are committed to employing sustainable business practices and conducting ourselves in an ethical and responsible manner.”

“You will find that Kinder Morgan continues to perform better than its industry peers relative to environmental, health and safety measures,” she wrote Tuesday.

Ship Captain bribed

The $100-billion company is the “largest energy infrastructure company in America” according to its website. The company is well known for its pipelines – but it also operates several coal and fertilizer export terminals.

In one colourful example, Sightline highlights how Kinder Morgan plead guilty to bribing a Portland, Oregon ship captain to dump a 160 tonnes of potassium-chloride fertilizer in the Pacific Ocean in 2003. The U.S. Department of Justice fined the company $240,000.

“Kinder Morgan…is paying for its employees’ attempts to save money by illegally dumping materials at sea,” said a U.S. Attorney General in 2008.

The 2007 Burnaby oil spill that dramatically sprayed local homes and vehicles with oil was highlighted.

So too was the company’s gas pipeline explosion in California in 2004 that killed five workers. That incident resulted in six felony counts, states the report.

The Seattle think tank says the report is a reminder to Canadians that Kinder Morgan is a massive American corporation, and not just another pipeline company from Calgary.

The company’s Canadian division president, Ian Anderson (born and raised in Winnipeg) may not have a southern U.S. accent, but the CEO of the larger U.S. holding company certainly does.

The Missouri-born billionaire Rich Kinder — who has describes himself as an “old Texas oil man” — owns 24 per cent of the company, and earns $400 million annually in dividends making him one of the richest men in America. Kinder’s salary is otherwise one dollar per year.

The former Enron executive built the pipeline company over 17 years, by aggressively buying up oil and gas infrastructure. The company now controls 130,000 km of pipelines – enough to circle the Earth three times.

The U.S. report claims Kinder has been a major financier of the Republican Party, as well as Bush presidential campaigns. It quotes the CEO as having told Forbes Magazine:

“I think that for any of our lifetimes fossil fuels are going to be the primary source of energy in this world…. I’m a huge believer in the genius of mankind, and I think we’ll continue to find new ways to utilize, explore for and produce more and more fossil fuels,” Kinder was quoted.

In a January investor call, the company said the $5.4-billion Trans Mountain pipeline expansion in Canada was the biggest infrastructure project at Kinder Morgan.

“Bad neighbour” allegations from the U.S. deep south

The Sightline Institute also brought on to its media teleconference a Louisiana resident who recently won a class-action lawsuit against the company, over coal dust blowing on to local homes like hers.

“I was asked to come here today to speak to y’all about living beside one of Kinder Morgan’s coal plants,” said Linda Ramil with a southern drawl.

“The coal dust gets on everything… homes, boats. It sticks to everything, and it only comes out with pressure washers and elbow grease.”

“I don’t understand why this company isn’t a better neighbour than they are,” concluded Ramil.

Kinder Morgan pipeline construction. Company’s own photo for use by media.

Sightline also described investor analysts in the financial press who have said the company substantially under invests in pipeline maintenance. Kinder Morgan disputes this, saying:

“We spend hundreds of millions of dollars each year on integrity management and maintenance programs to operate our assets safely and to protect the public, our employees, contractors and the environment,” wrote its spokesperson Tuesday.

Americans in Washington state were also said to be worried about the 400-plus oil supertankers that would result from the Trans Mountain pipeline expansion. The shores of the American San Juan islands, to the southeast of Vancouver Island, could face oil spill risks, De Place stated.

The Sightline report contains nearly 100 footnotes to various federal investigation reports and news media stories, to back up its assertions. The Vancouver Observer is quoted for its coverage of Burnaby Mayor’s comments opposing the company’s pipeline for example.