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.

Letter from a petro-state

Author
SAMIR GANDESHA
In the wake of the US Senate narrowly failing to pass the Keystone XL pipeline bill, we must return to the central question: is Canada becoming a petro-state?

Over a year ago, a colleague at the University of Waterloo, Thomas Homer-Dixon, penned a compelling opinion piece for the New York Times in which he addressed, from a Canadian perspective, the debate surrounding the future of the planned Keystone XL Pipeline. If built, this pipeline would transport unprocessed, environmentally toxic Alberta tar sands bitumen to refineries in the Gulf of Mexico, Illinois and Oklahoma. Given the fact that Keystone has recently just failed, again, to pass the House, it is worth returning to the question raised by Homer-Dixon: is Canada becoming a ‘petro-state’? For Homer-Dixon, a state could be defined as a petro-state if virtually all of its main features could be ever more narrowly geared to the development of this single sector: non-renewal energy.  This narrowing has deleterious implications for innovation, economy and democracy. Let us address each of these in turn.

If we understand basic research in science to be directly related to innovation insofar as many forms of technology and their application stem not from research in applied science per se but from basic research, then in Canada we have seen specifically a drastic diminution in a  substantive commitment to technical innovation. Two years ago, Stephen Harper’s Conservative government announced that it would only fund science with determinant applicability, which is to say, those forms of sciences that could be directly marketable. Moreover, it has actively muzzled government scientists and librarians, severely limiting what they can and cannot say in public. For Karl Popper, the “open society” was a society in which there existed a robust culture of “conjecture and refutation” which constituted the very condition for the possibility of scientific innovation. That is, scientific truth-claims are those claims that can stand the open test of evidence-based falsifiability by other scientists and the public at large.

In my own province of British Columbia, the government has announced a dramatic shift of priority away from liberal arts and science at the level of secondary education, despite evidence that employers prefer prospective employees with a general education, to training geared specifically to the oil and gas industries which it is actively promoting as the economic future of the province. It has just secured the green light within the legislature for the development of a number of new Liquefied Natural Gas (LNG) projects. The closure of scientific discourse, as well as roll-backs to liberal arts education, of course, does not bode well for social innovation. Prospects are slim for envisioning new modes of living together – ever more important with increasingly levels of migration and societal diversity – insofar as robust and unrestricted discussion and debate is its necessary if not sufficient condition.

Economically, with the price of oil now at $67 a barrel and falling, the Canadian dollar has plummeted with little end in sight. The oil-producing province of Alberta, as well as the federal government, is beginning to worry about the prospect of a staggering diminution of tax revenue. This is surely only to worsen with OPEC’s recent decision that it would not scale back its oil production and would wait to see what the reaction of the markets would be.  Vulnerability to such fluctuations and contingencies of the market for its products has always been a hallmark of petro-states unless, of course, they can form a cartel, such as OPEC, to act in concert and have some chance of collectively determining the price of oil. Short of that, Canada will simply have to weather the stormy seas without a rudder.

Yet the negative feed-back loop with respect to innovation is unmistakable. There will be even less money invested in the liberal arts at the secondary level and the increasing proportion of dollars spent on narrow training for this faltering industry will fall on hard, dry ground.  In short, it will be increasingly difficult to break this vicious circle by social investment in ‘green’ industries such as wind-farming, electric cars and solar-energy production, to name but three.

While lack of innovation and economic vulnerability are serious, they are not quite as serious as the drastic rollback of Canadian democratic institutions as a result of the country’s metamorphosis into a petro-state. The reason for this is that it is at the level of democratic institutions that changes can be initiated. The Harper government won its long sought-after majority in 2011 on a promise to transform Canada such that it would be unrecognizable. This is one of the few promises that it has kept. On a power base of a paltry 40 percent of the electorate, it has centralized power in a Westminster system that already over-archingly favours the executive branch of government.

The Conservatives have introduced into Ottawa unheard-of levels of secrecy and control. They have stifled debate, to an unprecedented level, occasionally proroguing Parliament in order to do so, on some of the crucial questions facing Canadians. Government ministers typically send their parliamentary secretaries to the House of Commons who, often in a way that seems to express a limitless contempt for the democratic process, typically avoid answering the questions that are put to them. At the international level, the government in league with the governments of Australia and New Zealand, sought to keep the issue of global climate change off the agenda at the most recent G20 meeting in Brisbane, with the deeply disingenuous argument that the purpose of the meetings were to focus on “economic issues,” as if climate change could somehow be extricated from the economy as a simple “externality.”

More specifically, though, the government has used this increasingly controlling and secretive style of governing to push through an agenda extremely favourable to the development of the tar sands which lies at the very geographical core of its support, namely Alberta. In 2012 it introduced a massive omnibus budget bill that contained provisions that effectively gutted the protection of waterways. These rivers, creeks and lakes and oceans are especially important economically and spiritually for the many First Nations whose land remains unceded and who therefore must be consulted but typically are not, particularly when it comes to the development of oil and gas. It remains to be seen what the long-term implications are of a recent Supreme Court decision regarding the Chilcoltin First Nation that in a historic move granted a First Nation in the interior of British Columbia the title to a tract of 1500 acre land. This means that any development of that land would have to involve serious and thorough consultation with the Chilcoltin Band.  

The tendency of the government to ride roughshod over the concerns of First Nations leads to flashpoints of conflict and crisis. Indeed, it was the passage of the Omnibus Bill, as well as the baleful conditions of a tiny First Nations community in Northern Ontario called Attawapiskat in 2012 that led to the indigenous social movement, fronted predominantly by young educated women, called ‘Idle No More’ that took the country by storm with the kind of flash mobs, protests and conferences that garnered it truly international attention. 

Earlier this year, it led to the standoff in New Brunswick at the Elsipogtog Nation that was opposed to fracking in and around its community. This led to the government sending in an RCMP contingent including snipers, to enforce an injunction filed by Texas based SWN Corporation for explorative activity, to deal with peaceful protestors, many of the them grandmothers, mothers and children concerned about to the degradation of their potable water. The sight of snipers just metres away from this vulnerable community was horrifying to many at home as well as abroad. The coercive measures of the police were met with increased agitation and this led to elders being pepper sprayed, police cars set ablaze and over 40 arrests.

More recently, on Burnaby Mountain, just a few kilometres east of Vancouver, it led to a standoff between police and protestors, very much reminiscent of the ultimately successful struggles to defend the old-growth forests against logging companies around Sulfur Passage in Clayoquot Sounds in the early 1990s.  The police were enforcing an injunction-line granted by the courts to the energy giant Kinder Morgan, started by a former Enron executive, to complete its survey work as part of its application to the National Energy Board to expand its capacity to move tar sands bitumen by a factor of three from Alberta to the Pacific Ocean and to markets in Asia. The injunction was granted on the authority of the National Energy Board and marked the first time in history that the authority of a board appointed by the Federal Government has been permitted to take precedence over municipal by-laws. Yet the legitimacy of this board has been widely questioned. For example, in submitting his resignation from it two weeks ago, Marc Eliesen, the former head of BC Hydro, claimed that it was “industry-captured,” “fraudulent” and a “farce.”
In this case, the by-laws establish the particular area on Burnaby Mountain to be “conservation lands” and therefore off-limits to development. This sets a chilling precedent though one that is currently being appealed on constitutional grounds: that an executive-appointed board – one whose very legitimacy has been so contested – can simply over-ride democratically elected bodies. As it turns out, the injunction was recently dropped as, in Kinder Morgan’s attempt to extend its duration by 11 days, it came to light that the injunction zone was based on inaccurate GPS coordinates. This inspires precious little confidence in an oil company which in 2007 spilled something like 1500 barrels in the very community in which they now want to triple their distribution capacity. The more than 100 citizens who had crossed the line of injunction to protest Kinder Morgan’s presence have now had the civil contempt charges directed at them dropped. This is a battle won in an ongoing war for citizens and First nations within this country to be able to collectively determine their fates.  

A key consequence of the transformation of the Canadian state, which was once a model of a pluralistic, multicultural, federal democracy, into a state that is in the process of restructuring itself around a specific sector of the economy – a sector that will have disturbing and disrupting future consequences not just for Canadians but for every creature on this planet – means that genuinely democratic action is likely to take an extra-parliamentary form. And this action will continue to be led by a ever more confident, articulate and determined First Nations leadership and a new generation of uncompromising young environmentalists who see their own futures hanging in the balance.  Indeed, growing numbers of Canadians are seeing themselves displaced and disenfranchised by a state that has historically done the same to aboriginal peoples. Democracy in Canada  will be able to renew itself only by virtue of massive civil disobedience and by way of a profound reevaluation of the legacy of colonialism that constitutes the history of the country.

Crude awakening: FOUR REASONS KEYSTONE REALLY MATTERS – AND TAR SANDS OIL DEVELOPMENT IS IN DEEP TROUBLE

It doesn’t matter: ever since the debate over the Keystone XL pipeline exploded three and half years ago, that’s been the argument from the project’s liberal supporters.

Sure, the oil that Keystone would carry from the Alberta tar sands is three to four times more greenhouse-gas-intensive than conventional crude. But that’s not on Keystone XL, we’re told. Why? Because if TransCanada isn’t able to build Keystone to the south, then another pipeline will be built to the west or east. Or that dirty oil will be transported by rail.

But make no mistake, we’ve long been assured, all that carbon buried beneath Alberta’s boreal forest will be mined no matter what the president decides.

Up until quite recently, the tar sands boom did seem pretty unstoppable. The industry regularly projected that production would soon double, then triple, and foreign investors raced to build massive new mines. But these days, panic is in the air in formerly swaggering Calgary.

In less than a year, Shell, Statoil and the French company Total have all shelved major new tar sands projects. And a rather large question mark is suddenly hanging over one of the world’s largest – and dirtiest – carbon deposits.

This radically changes the calculation confronting Barack Obama. His decision is no longer about one pipeline. It’s about whether the U.S. government will throw a lifeline to a climate-destabilizing industrial project that’s under a confluence of pressures that add up to a very real crisis.

Here are the four main reasons that the tar sands are in deep trouble:

1. OIL PRICES ARE LOW.
In mid-November, oil prices dipped to levels not seen since 2010. Ahead of the recent G20 summit, Vladimir Putin spoke of preparing for further “catastrophic” drops. This matters nowhere more than in the tar sands, where the semisolid bitumen is hugely expensive to extract; the sector really started booming when it looked like $100 a barrel was the new normal. Prices may well rebound, but the dip has been a vivid reminder of the inherent risk in betting big on such a high-cost extraction method.

2. TAR SANDS PIPELINES ARE PROTEST MAGNETS.
Supporters of Keystone frequently claim that if the oil doesn’t go south through the United States, it will simply be piped west through British Columbia to get it onto tankers. They might want to pay closer attention to what’s going on west of the Rockies.

Since November 20, more than 60 people have been arrested outside Vancouver as they attempt to block the expansion of a tar sands pipeline owned by Kinder Morgan.

Further north, Enbridge’s proposed Northern Gateway pipeline, another would-be tar sands escape route, is even more widely rejected. Indeed, opposition to increased tanker traffic along their beloved coastline has united British Columbians.

So what about east? Well, on November 21, the premiers of Ontario and Quebec signed a joint agreement that erected a series of obstacles to TransCanada’s proposed Energy East pipeline, which, if completed, would carry tar sands oil to the East Coast. The move came in response to strong opposition to the project in both provinces.

Some members of the “it doesn’t matter” camp point out that tar sands oil is getting out anyway through the existing infrastructure. This completely misses the point that Keystone XL has always been linked to plans to greatly expand the amount of heavy oil being extracted.

And the capacity to transport that oil isn’t there. When Statoil nixed its mine (reportedly worth $2 billion), it cited “limited pipeline access” among its reasons.

3. INDIGENOUS LAND RIGHTS CLAIMS KEEP WINNING IN COURT.
Adding more uncertainty is the fact that all these projects impact land to which First Nations people have title and treaty rights – rights that have been repeatedly upheld by Canada’s Supreme Court.

Most recently, in June, the high court ruled unanimously that development couldn’t happen on the lands of the Tsilhqot’in First Nation in BC without seeking their consent. The pipeline companies do not have First Nations consent. On the contrary, dozens of indigenous communities have vigorously asserted their opposition.

Canadian courts are already jammed with pipeline challenges, including nearly a dozen targeting Northern Gateway alone.

4. CLIMATE ACTION IS BACK.
Yes, the targets in the U.S.-China deal are wholly inadequate, and so are the sums pledged to developing countries for climate financing.

But there can be no doubt that climate change has landed back on the world stage in a way not seen since the failed Copenhagen summit in 2009.

That’s another strike against unchecked tar sands expansion, because those mines are the main reason behind Canada’s status as the world’s foremost climate criminal, with emissions nearly 30 per cent higher than they should be under the Kyoto Protocol.

Canadian Prime Minister Stephen Harper got away with laughing off his country’s international commitments when other governments were doing the same. But now that the United States, China and the European Union are at least making a show of taking the climate crisis seriously, Canada’s defiance is looking distinctly rogue.

It is in this rapidly changing context that Obama must make his final determination on Keystone.

A jittery market is looking to him for a signal – not just about this one project, but about the much larger and consequential one at the mouth of that pipe. Are the tar sands a long-term business prospect, a safe haven in which to sink hundreds of billions of dollars for decades to come? Or was the whole idea of flaying a huge, beautiful swath of this continent to exploit an energy source that is guaranteed to help cook the planet merely a brief folly, a bad dream from which we all must awake? All eyes are on the president. Yes or no?

Either way, Keystone matters.

This column was first published in The Nation on November 25. thenation.com

thischangeseverything.org | @NaomiAKlein

THE FEDERAL GOVERNMENT HAS SPENT MILLIONS ON ADVERTISING CAMPAIGNS TELLING CANADIANS THAT TAR SANDS EXPANSION IS INEVITABLE. THE NUMBERS TELL A DIFFERENT STORY.
$70 Cost per barrel of oil on world markets.

$84.99 Break-even cost per barrel of oil for new tar sands projects in 2014 (9.1 per cent higher than 2013).

21% Profit margins for tar sands producers in 2005.

8.5% Profit margins for tar sands producers in 2011.

$28 billion to $17 billion Drop in capital spending on tar sands projects between 2012 and 2013.

$3.50 Break-even cost per barrel for transportation of bitumen via pipeline.

$15.30 to $22.70 What it actually costs producers to ship a barrel of bitumen by rail.

2015 Year tar sands production is expected to exceed existing pipeline capacity.

2% Tar sands production’s contribution to Canada’s GDP.

Expansion plans on hold

Shell’s new 100,000-barrels-per-day Pierre River mine project.
Total’s $11 billion 160,000-barrels-per-day Joslyn North mine project.
Statoil’s 44,000-barrels-per-day expansion of its Corner project.

Enough with pipelines. Refine it

Oil prices are down, but they will be back up, as always. Meanwhile, new supply comes on stream from existing construction. So the great Canadian issue remains new oil pipelines from Alberta. For supporters, these long-term projects will generate untold billions of dollars every year, including tax revenue to pay for all the health and education and other good things. For opponents, the pipelines will facilitate the very destruction of the planet through carbon release, or at a minimum foul our streams and oceans.

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VIDEO
Video: Alberta Premier Jim Prentice pushes Energy East pipeline in Ontario, Quebec

ENERGY
Video: Enbridge’s restructuring plan explained
This is surely of national consequence. So it is passing strange that the debate is being led by premiers and even mayors. After all, the Constitution gives Ottawa exclusive jurisdiction in this area, including the Northern Gateway, Kinder Morgan and Energy East pipelines. And the government with the power stands mute.

Yes, the National Energy Board is holding hearings, but that process is getting minimal respect from opponents on three grounds.

First, that it is an alleged rubber stamp. I don’t believe that, though. The technical and route environment and aboriginal investigations are thorough.

The second, correct observation is that the process is not considering the supposedly most important matter of all, namely the carbon consequences of extracting oil from what opponents call the “tar sands.” But the NEB does not have jurisdiction here – the matter of carbon emissions is a wriggling monster squarely in the lap of Ottawa, and Prime Minister Stephen Harper’s government doesn’t want to acknowledge it.

Finally, that for some opponents, the only legitimate answer is “no.” Minds are made up, and closed. Indeed, if you truly believe that planetary ecological collapse is imminent, it is your duty to lie down in front of the bulldozers.

But most people are neither oil men nor hard enviros. They understand that much of our prosperity and many of our social services are paid for by petroleum production. They also want a sustainable environment. It’s a matter of balance.

This majority in the middle cries out for leadership. The leadership of those opposing these projects is strong and skillful. You might think that the oil industry would be leading the pro-pipeline charge, but Big Oil – the major U.S. companies – quite like the current situation. Canadian oil has no Canadian pipes to get it to the ocean, and so we have to sell it south at a significant discount.

For neutral leadership then, that really leaves governments, academics (who are all over the place) and the news media, which as a whole is more interested in writing about protests than in deep analysis.

Local governments bend to local protests, but this is a national issue. Where is Ottawa? Scared and silent, with an election on its way. Mr. Harper has not spent one ounce of political capital on this file. If things remain that way, my guess is that Gateway and Kinder are toast in our time, and Energy East is a gamble.