SLAPP Suit Resources (Strategic Lawsuits Against Public Participation)

In November 2014, hundreds protested daily for weeks on Burnaby Mountain against the Kinder Morgan (KM) pipeline expansion, and over 100 were arrested. KM launched lawsuits against five individuals and Burnaby Residents Opposing Kinder Morgan Expansion (BROKE) claiming huge damages.

Below are a number of links to informative articles and other documents about that case and about SLAPP suits in general.


Financial Clout v. Right to Speak Out

Kinder Morgan v. Freedom of Speech

BC Pipeline-Protest Case Shows How Lawsuits Threaten Democratic Voices

How should we slap back at SLAPPs?

Lessons from a fish farm defamation lawsuit

Kim Benson

The West Coast Environmental Law SLAPP Handbook

Canadian Internet Policy and Public Interest Clinic

Strategic lawsuit against public participation

Strategic Lawsuits Against Public Participation: The British Columbia Experience

Washington State can view spill-response plans for pipeline that B.C. cannot

Washington State has documents outlining emergency response plans for a Kinder Morgan pipeline –plans similar to those British Columbians have been told by Canada’’s National Energy Board they’’re not allowed to see due to security concerns.

The B.C. government lost a battle with the National Energy Board in January to have greater access to Kinder Morgan’s Trans Mountain Pipeline emergency response plan (ERP). Kinder Morgan had already provided B.C. with a version of the plan, but significant portions were blacked out.

The denied information included specific response times, valve locations, and evacuation zone maps. The government had argued it needed the entire plan to be able to understand Kinder Morgan’’s ability to respond to an oil spill. The proposed $6.5-billion Trans Mountain expansion would twin the pipeline and triple the capacity for Alberta oil intended for Asian markets.

But in Washington State–where the pipeline would cross through to Puget Sound–Kinder Morgan has provided a more comprehensive response plan.

NDP environment critic Spencer Chandra Herbert wants to know why a similarly detailed plan isn’’t available for B.C. residents.

““We need to be able to get at least the information they are providing in Washington State,”” he said.

The U.S. plan includes information on response timelines, the availability of emergency equipment near specific pipeline sections, and a list of companies that could help out after an oil spill.

In one example, a company called BakerCorp is identified as being able to deliver “”21,000 gallon tanks to a spill site within 12 hours,”” and having enough pumps and hose to remove 6,300 gallons of oil per minute.

Yet in B.C., the energy board rejected B.C.’s demand for a complete response plan, citing sensitive information that could cause ““security concerns.””

A link to the Washington State ERP was available online recently at DeSmog Canada, but has since been deactivated by state officials.

The emergency plans were only to be online between Jan. 9 and Feb. 9 during a public consultation, said Scott Zimmerman from the Washington State Department of Ecology, but they were accidentally left up until Feb.18.

The U.S. plan details further information about “”unique”” sections of the pipeline. These include the location of shutoff valves, areas where the pipeline crosses water, peak volumes, and the thickness of pipeline walls.

In the event of an emergency, 48-hour timelines are also presented for each section of the pipeline, with descriptions of the type of equipment and number of people needed–as well as how much oil could be recovered immediately after a spill.

On the Samish River – a location identified as “”Zone 3,”” about 40 kilometres south of Bellingham-Kinder Morgan, estimated it could have 18 people and 600 metres of containment boom available within two hours of a spill.

A spokesman with the B.C. Mines Ministry did not respond directly when asked for an opinion on the plan’’s availability in Washington State.

But the B.C. government has been aware since last year that a version of the plan was available to the Americans. B.C. argued in its motion to the NEB asking for the public release of the information that keeping it secret in B.C. is ““inexplicable.””

It “”calls into serious question the legitimacy of Trans Mountain’s claim,”” reads the B.C. government motion.

In the same motion, the province said history showed the possibility of a spill from Trans Mountain facilities.

“”The potential for devastating effects on the environment, human health, and local economies is irrefutable,”” it said.

In 2007, a spill released about 1,500 barrels of oil in a Burnaby neighbourhood, with 440 barrels flowing into the Burrard Inlet.

Province needs more details on Kinder Morgan’s emergency plan

by Jennifer Moreau

The National Energy Board is allowing Kinder Morgan to keep parts of its emergency management plan for the Trans Mountain pipeline system redacted for commercial, security and privacy reasons, despite the provincial government’s insistence on more details.

The provincial government asked for the missing information, along with an oil spill response plan, in a Dec. 5 motion filed with the NEB.

“The province has found the redactions made by Trans Mountain to be excessive, unjustified and prohibitive. The redactions thwart the province’s examination of the EMP (emergency management program) documents, and preclude a thorough understanding of Trans Mountain’s EMP by the board and all intervenors,” the government’s motion reads.

Some of the missing information includes people’s names and phones numbers, bomb threat checklists and valve locations. A section on the Burnaby tank farm is missing information on site drainage and maps for the terminal and the evacuation zone.

But in a decision released last Thursday, the NEB sided with Kinder Morgan.

“In this instance, the board is satisfied that sufficient information has been filed from the existing EMP documents to meet the board’s requirements at this stage in the process,” the response reads. The board went on to explain that the province will be privy to some of the missing documents as Kinder Morgan consults “implicated parties” to update the plans for the proposed pipeline expansion.

Pending NEB approval, Kinder Morgan plans to twin the Trans Mountain pipeline, which would nearly triple the line’s capacity from 300,000 barrels per day to 890,000, while increasing tanker traffic nearly seven fold.

As for the oil spill response plan, the NEB cited Kinder Morgan’s line – that it can’t file what it doesn’t have – because Kinder Morgan is waiting for information from Western Canada Marine Response Corporation, the company in charge of cleaning up oil spills on water.

Several municipalities wrote to the NEB in support of the province’s request for more information, including Burnaby, Vancouver, Surrey, Langley, Abbotsford, North Vancouver and West Vancouver, as well as First Nations bands and environmental groups.

Kinder Morgan filed most of its emergency management plan with the NEB last October, which means the documents are publicly available through the board’s website. Kinder Morgan initially wanted to keep the documents secret for proprietary reasons, which the NEB sometimes allows. In this case, the board ruled that public interest outweighed Kinder Morgan’s request to keep the plan confidential.

The Pipeline Plan that Rattled BC, Explained

Geoff Dembicki

Enbridge’s Northern Gateway proposal struck a deep nerve, and its story continues this election.

[Editor’s note: With voting day fast approaching, we look back on big issues that have driven debate in our province during the last 12 years of BC Liberal governance. What did B.C.’s leaders and opposition parties say and do on these major files? What are they saying now? What are the facts? Humbly offered here, a cure for political amnesia among candidates and media alike. Today, a primer on the proposed Northern Gateway pipeline.]

You’d be excused for assuming that NDP leader Adrian Dix was campaigning against the federal Conservatives during B.C.’s recent televised leaders’ debate, and not his election rival, Liberal Premier Christy Clark, standing just to his right.

On oil pipelines and tankers, Dix framed the issue as a power struggle between Victoria and Ottawa — one that he pledged to resolve in British Columbia’s favour if elected on May 14.

How? Dix would “end the equivalency agreement with the federal government” on Enbridge’s Northern Gateway project, thereby creating a situation, he claimed, where Ottawa would not “make our decisions about these pipelines.”

Clark reminded viewers of the “five conditions” Enbridge would have to meet to win Liberal approval, and how she had stood her ground last fall, as she put it, against “all the other premiers” in Halifax who opposed them.

In effect: one front-running candidate for premier would stand up to Prime Minister Stephen Harper on oil tankers and pipelines — the other, to Canada’s premiers.

No other 2013 B.C. election issue offers such a stark referendum on the authority of the provincial government. Then again, Enbridge’s pipeline proposal is unlike most other political issues.

‘Radical groups’

Enbridge’s vision of a pipeline that would feed diluted bitumen from Alberta’s oil sands to an export terminal on B.C.’s west coast is about a decade old.

Yet in terms of public engagement, the story of Northern Gateway truly began on Jan. 9, 2012, when federal Natural Resources Minister Joe Oliver delivered his “open letter” to Canadians.

His now-infamous address, issued just as Joint Review Panel hearings on the pipeline were set to begin, decried the “environmental and other radical groups” that “threaten to hijack our regulatory system to achieve their radical ideological agenda.”

Oliver’s letter elevated the stakes around Northern Gateway in three significant ways.

First, it turned the public hearings into a polarizing debate about Prime Minister Stephen Harper’s vision for Canada: A decision between Enbridge’s “nation-building” pipeline, and the oil sands crude that would fill it — or an alternative, so-called “radical,” environmental agenda.

Second, according to University of British Columbia professor George Hoberg, Oliver’s letter pushed “many moderates who were offended by the style of the attacks into strong opponents of the pipeline.”

And third, by suggesting all critics of Northern Gateway belonged to a monolithic “radical” movement, it strengthened the alliance between B.C. First Nations and the province’s green groups.

That’s not an alliance that should be taken for granted. The 2009 provincial election, after all, saw the environmental movement split between those in favour of run-of-river power projects, many of which are also supported by First Nations, and those opposed to them.

Nor are First Nations and green groups pursuing identical goals in their fight against Northern Gateway. Both agree that a pipeline rupture in B.C.’s heartland, or a tanker crash off the province’s north coast, would be disastrous.

But Northern Gateway also provides First Nations a forum to discuss outstanding land claims, historical cultural grievances and their broader relationship with the Harper government.

‘Very troubled’

In the weeks after Oliver’s “open letter” appeared, The Tyee ran two in-depth stories explaining the deep roots of First Nations concerns.

One revealed how a years-old tree-cutting incident, as well as other cultural missteps by Enbridge, galvanized aboriginal opposition to the pipeline.

The other explained Northern Gateway’s precarious legal position: exactly how First Nations intend to fight the project in court and why many believe their concerns are being ignored by federal decision-makers.

Then, on March 29, 2012, Conservative Finance Minister Jim Flaherty tabled Bill C-38 in Parliament. Its 425 pages of legislation promised to cancel hundreds of environmental reviews, limit the powers of Canada’s leading energy authority and withdraw the country from the Kyoto protocol.

“It is comprehensive, it is forward-looking, it is our government’s major policy document,” Flaherty reportedly said.

Bill C-38 also gave the federal government new powers to order the approval of such projects as Northern Gateway, West Coast Environmental Law noted, “even if the [Joint Review Panel] recommends against it.”

Now, in addition to everything else, Enbridge’s pipeline represented a test of Canadian democracy.

“We are very troubled,” NDP leader Dix wrote in April to the Joint Review Panel, by federal government statements suggesting the outcome of the hearings “is predetermined.”

Building the pipeline, he argued, would harm B.C.’s “economy, environment, and social and cultural fabric.” Dix added: “Therefore [Northern Gateway] should not be permitted to proceed.”

His letter was in effect a major strategic decision from B.C.’s Opposition party. The NDP not only staked out a clear position in the Enbridge debate. It also laid claim to all the perceived values — environmental protection, aboriginal rights, democratic freedoms — associated with that position.

Premier Clark, meanwhile, chose to remain officially neutral on Northern Gateway.

Polling numbers suggested British Columbians preferred Dix’s approach. From April to July, the opposition leader’s approval rating on the environment rose four percentage points, showed Angus Reid data (click here, and then here). Clark’s rating fell two percentage points during the same time frame.

‘Politically toxic’

It wasn’t long before Clark’s neutrality became difficult to justify. On July 10, 2012, American regulators released a scathing report about Enbridge’s oil spill, two years earlier, into Michigan’s Kalamazoo River.

“Their employees performed like Keystone Kops and failed to recognize their pipeline had ruptured,” said one high-ranking U.S. official.

The condemnation “produced a fundamental shift” in domestic opinion, Hoberg wrote, as leading political columnists in B.C. and elsewhere “declared the pipeline dead.” He added: “Suddenly support for Enbridge was politically toxic.”

Two weeks later, Clark officially abandoned her neutral position on Northern Gateway, declaring her Liberal government would only support the project if five conditions were first met.

Conditions one through four were uncontroversial: Enbridge must win the approval of federal regulators, take appropriate safety measures and meet any legal requirements vis-à-vis First Nations.

It was the fifth and final condition that led news coverage over the summer and into the fall: “We expect a fair share of the fiscal and economic benefits [from Gateway] for our province,” Clark said.

Alberta Premier Alison Redford immediately rejected the proposal. In no way would her province financially compensate B.C. to support Enbridge’s pipeline. “It’s certainly not a path I’m prepared to go down,” Redford said at the time.

There were two problems with Clark’s “fair share” strategy. One, because B.C. appears to lack legal authority to actually demand greater pipeline revenues, it made the Liberals seem weak.

And two, though Clark’s strategy operated on a simple and compelling logic — that the province should be compensated for taking environmental risks — it also implied that core Liberal values could be bought for the right price.

‘Frosty’ meeting

An Angus-Reid poll from early August suggested that 43 per cent of British Columbians were “dissatisfied” with Clark’s approach, compared to 27 per cent for Dix’s outright rejection of Gateway.

(Interestingly, only about one-third of respondents were actually “satisfied” with either leader’s position.)

By the end of the month, NDP views on Gateway had been framed more blatantly as a power struggle with Prime Minister Harper.

Dix’s opposition party promised to withdraw the province from Northern Gateway’s federally-appointed joint review panel hearings, and submit the project to a “made-in-B.C.” review.

Clark continued to push her “fair share” bargaining position: First at the Halifax premier’s meeting (where she claims to have “stood my ground” against other provincial leaders) and then culminating in a “frosty” meeting with Premier Redford last October.

Nevertheless, Alberta’s energy sector would likely prefer Clark’s Liberals retain political power on May 14, as opposed to their NDP rivals.

“You should be concerned about the risks posed by the election of a New Democratic Party government,” read a January letter inviting business elites to a Calgary fundraiser for Clark.

No doubt a Jane Sterk victory would also pose “risks” to them — her Green Party is promising an unconditional rejection of Northern Gateway. Less so B.C. Conservative leader John Cummins, who unequivocally supports it.

Yet Alberta’s oil patch, and its boosters in Ottawa, won’t know for sure what kind of pushback to expect from B.C. until May 24, only 10 days after the election, when the next premier will have to present an official position on Northern Gateway to the public hearings process.

That’s when we’ll start to see how much power B.C. truly has.

Read more: Energy, Labour + Industry, BC Politics, BC Election 2013

Geoff Dembicki is covering the 2013 B.C. election for The Tyee with a focus on energy issues.

Pipeline safety records under scrutiny as B.C. set to get more

Kinder Morgan says Trans Mountain project has seen only small leaks in the last decade

By Gordon Hoekstra, Vancouver Sun July 17, 2012

Pipeline safety records under scrutiny as B.C. set to get more

Boats clean up oil spilled in a Kinder Morgan crude oil pipeline rupture in 2007 along the shore of Burrard Inlet. The company announced Wednesday that its Trans Mountain pipeline expansion would be smaller than expected, after fewer shippers signed up.
Photograph by: Ian Lindsay, Vancouver Sun Files , Reuters

Kinder Morgan’s 1,150-kilometre Trans Mountain pipeline that transports oil from Alberta to southwestern B.C. has averaged about one leak a year in the past decade, but has not experienced the kind of major spill seen more recently in Alberta and Michigan from other pipelines.

“The pipeline is in many ways in better condition than when it was constructed almost 60 years ago,” said Kinder Morgan vice-president of operations engineering Hugh Harden.

“We have extensive integrity management programs that identify defects from original construction [and] removes them or repairs them. The tools we have today can see much smaller defects than we used to, maybe even 10 years ago,” he said.

The public’s interest in the risk of leaks on oil pipelines has been heightened in British Columbia, with two major projects moving forward in the province.

Kinder Morgan Canada has a $4.1-billion plan to twin its existing pipeline to tap into growing oil demand in Asia. And Enbridge is in the midst of a federal review of its $5.5-billion Northern Gateway project, also to ship oil to Asia.

But existing pipelines are also under the public microscope after a scathing National Transportation Safety Board report released last week found it took Enbridge 17 hours after the initial alarm to take action on an oil spill in Michigan in 2010. The report also noted Enbridge failed to fix the pipeline, despite knowing since 2004 it suffered from corrosion.

Harden said Kinder Morgan will be scrutinizing the U.S. safety board report on Enbridge for lessons. “Is there something we need to look at in our operations? Because nobody is perfect,” he said.

Kinder Morgan would only say it spends “tens of millions” annually maintaining and repairing the Trans Mountain line, declining to provide more detailed information for business reasons.

The company also declined to provide details on spill incidents in the past decade, but National Energy Board data show there have been nine leaks on the pipeline since 2002, which spilled a total of nearly 4,800 barrels of oil.

The largest pipeline spill took place in 2007, when about 1,400 barrels of oil leaked in Burnaby after an excavator punctured the line.

Two other spills of similar size took place in 2005 at the Sumas tank farm and in 2009 at the Burnaby terminal.

The other six spills were of much smaller sizes, including two in 2011: a nine-barrel spill at its Kamloops terminal, and a 10-barrel spill near Chip Lake, Alta.

In comparison, recent spills in Alberta and the Enbridge spill in 2010 in Michigan were larger.

A Plains Midstream pipeline leak in 2011 spilled about 28,000 barrels northeast of Peace River, Alta. Another Plains Midstream leak last month spilled up to 3,000 barrels into a tributary of the Red Deer River in west-central Alberta.

The Enbridge pipeline rupture in Michigan in 2010 spilled 21,000 barrels of oil, some of it into the Kalamazoo River.

Kinder Morgan says the integrity of the Trans Mountain pipeline has been helped by the fact it was built to the highest standards available in 1953, which included a plastic coating and cathodic protection system, which provides an electric current, to protect if from corrosion.

The company also uses specialized tools that examine the pipeline from inside to look for metal loss, cracks and deformations such as wrinkles. Pipeline sections are checked every five years.

The company will dig up and repair sections of the line when needed, said Harden.

The biggest section of line ever replaced was a 1.2-kilometre section under the Fraser River at the Port Mann Bridge in 2002, at a cost of about $5 million, noted Harden.

Environmental groups in British Columbia have taken a hard stand against pipeline expansion and have pointed to the record of existing pipelines in the province.

Western Wilderness Committee campaigner Ben West said he was skeptical of Kinder Morgan’s safety record in B.C.

“I guess just in the broader sense, it seems harder and harder to trust these oil companies at their word,” he said. “We hear from them they will do everything in their power to make these the safest pipelines possible. And it seems like every other week there’s something rupturing.”

B.C. Business Council executive vice-president Jock Finlayson said focusing in on a small number of pipeline spills is misleading because the overall safety record is good. But pipeline companies and regulators need to be prepared to disclose more information about their safety records because environmental groups have grown into formidable forces in Canada and the U.S., he said.
© Copyright (c) The Vancouver Sun

Read more:

Cleanup continues on B.C. oil spill

Cleanup continued Tuesday on a major oil spill that has forced residents of a Burnaby, B.C., neighbourhood from at least 50 homes, and raised serious environmental concerns.

A pipeline was ruptured at Inlet Drive and Ridge Drive in Burnaby, B.C., spilling oil in the neighbourhood.
By late afternoon, the spill, which crept down to the waters of Burrard Inlet, was contained.

But officials were still assessing how much crude oil was spilled, after a construction crew’s backhoe inadvertently broke a pipeline that connected a refinery to a refuelling facility in the harbour.

There’s controversy over how the spill occurred. The construction crew charges that the pipeline wasn’t properly marked, and the pipeline operator has blamed the crew.

The leak was stopped after 30 minutes and the larger, precautionary evacuations of homes west of Inlet Drive, along Ridge, Belcarra, and Malibu drives and North Cliff Crescent were called off.

Some witnesses said oil shot 30 metres into the air like a geyser for 25 minutes. The black liquid rained down on houses, spewed across two lanes of traffic and ran downhill into the inlet.

The residents of the 50 homes that had to be evacuated will be put up at hotels for one to two nights, Burnaby Mayor Derek Corrigan said.

Witnesses say crude oil shot 30 metres into the air like a geyser for 25 minutes.
“We smelled oil and the smell of gas in [our] home,” said one resident, Natalie Marson. “Next thing I know, we heard a frantic knock and it was police officers telling us to get out.”

Corrigan confirmed to CBC News that a construction crew digging with an excavator on Inlet Drive near the intersection of Barnet Highway and Hastings Street ruptured the pipeline carrying crude oil at around 12:30 p.m local time Tuesday.

The crew said the line, which is operated by Kinder Morgan Canada, was improperly marked.

It’s up to the company to mark the location of the oil pipeline before a construction crew starts working, Corrigan said. But the exact cause of the rupture still needs to be determined, he added.

Ian Anderson, president of Kinder Morgan Canada, blamed city contractors for the massive oil spill.

“We will be undertaking a thorough investigation of what occurred. We will be following up with contractors,” he said.

Oil pipeline work carefully planned: company head
Anderson said his company was in contact with the contractors to ensure they knew the location of the oil pipeline.

“When we mark these lines, we typically mark the surface where the sewer work is to be done,” he said. “We [were] in contact with contractors working in the area last week, planning out the work they’re doing.”

The Barnet Highway has been closed from Hastings to St. John Street until further notice, causing traffic delays between Vancouver and cities east of Burnaby.

The oil spread to nearby Burrard Inlet.
Jay Ritchlin, a marine conservation specialist with the David Suzuki Foundation, said it will take a few days to determine whether the marine environment has been harmed.

“Immediate bird kills are an obvious sign, or marine mammals that are stranded and in distress,” Ritchlin told CBC News. “You also have to be concerned about the oil residue that settles into the coastline, any of the marshes along on the way there.”

Dr. Martin Helina, of the Vancouver Aquarium, said there could be long-term toxic effects on any exposed animals.

“They [toxins] hurt the liver, might infect the lungs, might hurt red blood cells, might affect reproduction many, many years down the line,” he said.

BC Transit officials said Tuesday afternoon that at least one bus route to Coquitlam was out of service. The West Coast Express, a commuter rail service linking cities such as Mission, Maple Ridge, Pitt Meadows, Port Moody, Port Coquitlam, and Coquitlam with downtown Vancouver, was running with delays.

B.C. pipelines shouldn’t proceed: Mulcair

VICTORIA – Neither of the oil pipeline projects proposed to cross B.C. should go ahead unless the federal government’s environmental assessment system is restored after Conservative government amendments, NDP leader Thomas Mulcair said Tuesday.

Speaking to reporters on a campaign swing to back Murray Rankin’s run in a Nov. 26 by-election, Mulcair said the Conservative government’s proposed exemption of most lakes and rivers from federal environmental scrutiny is added to earlier changes that weaken the process too much for it to be reliable.

Both Mulcair and B.C. NDP leader Adrian Dix have strongly opposed Enbridge’s Northern Gateway oil pipeline planned from Alberta to Kitimat. Dix has refrained from making a similar call on Kinder Morgan’s proposal to twin the TransMountain pipeline from Edmonton to Burnaby. But Mulcair said there is no way such an expansion could proceed with the rules the way they are.

“To the extent that you can’t even discuss these things in the absence of a thorough, credible, complete assessment process, you can’t therefore even discuss an increase in flow and an increase in tanker traffic, because the condition is carrying out a thorough examination,” Mulcair said. “And the Conservatives have gutted that. They’ve rendered it meaningless.”

Rankin, a lawyer who advised the B.C. NDP on its plan to withdraw B.C. from the joint review of Northern Gateway, is running in a by-election to replace retired Victoria MP Denise Savoie. Rankin agreed with Mulcair that the Kinder Morgan proposal shouldn’t proceed with the current system, adding that there has not yet been a formal application for the TransMountain expansion.

Mulcair said the most damaging change is making assessments subject to cabinet approval, so even if an expert panel rejects a project, it can be overruled.

Prime Minister Stephen Harper has insisted that Northern Gateway and other projects will still be approved or denied on scientific grounds only.

When federal Transport Minister Denis Lebel announced changes to the Navigable Waters Protection Act in October, he said the 1882 legislation had greatly overextended its original intent. Lebel cited a lake near Edmonton that required 80 separate federal assessments to build boat docks for cottages.

Other environmental laws still apply to protect lakes and rivers, whether they are navigable or not, he said.