Pipelines – Route Hearing
In this decision, the CER found that the detailed route proposed by Trans Mountain Pipeline ULC (“Trans Mountain”) for the Trans Mountain Expansion Project (“TMEP”) would be the best possible detailed route on the Lands. The CER found Trans Mountain’s proposed timing and method of construction was the most appropriate.
Overview of the Proposed TMEP Pipeline on the Subject Lands.
The scope of Detailed Route Hearing MH-018-2020 was limited to the land owned by the Grays, (the “Lands”). The Grays proposed an alternative to the route proposed by Trans Mountain.
Is Trans Mountain’s Proposed Detailed Route the Best Possible Detailed Route?
Trans Mountain proposed to install the TMEP pipeline within the existing Trans Mountain Pipeline (“TMPL”) right of way (“ROW”) for the entirety of the route through the Lands. The CER found that Trans Mountain’s proposed route is, on a balance of probabilities, the best possible detailed route.
Did Trans Mountain Apply Its Routing Criteria Appropriately?
The Governor in Council (“GIC”) approved the criteria recommended by the CER’s predecessor, the NEB, to determine the pipeline’s route.
Mr. Gray raised concerns that the proposed route (i) was not appropriate for the current community, (ii) would go through a wet area, and (iii) its associated workspace would result in the removal of trees on the Lands. The CER found that the first and third concerns were not about whether the proposed route was practicable. The concern about the wet area was about practicability; however, Trans Mountain’s evidence showed that it had plans in place to mitigate potential impacts to wetlands if any were discovered during construction.
The CER found that Trans Mountain had appropriately applied its routing criteria when selecting the proposed route.
Considering the Grays’ Proposed Alternate Route, Is Trans Mountain’s Proposed Route the Best Possible Detailed Route?
Mr. Gray proposes an alternate route about 60 meters south of the Lands, across a turf farm. This proposed alternate route through adjacent lands would still have been within the approved corridor.
When considering an alternate route, the CER was mindful that Trans Mountain retains the onus to establish, on the balance of probabilities, that its proposed route is the best possible route. One way for a landowner to cast doubt as to whether the proposed route is the best possible route is to propose an alternate route that may be better. However, in considering the proposed alternate route, the CER was not persuaded that Trans Mountain’s proposed route is not the best route, on a balance of probabilities.
Mr. Gray’s alternate route did not follow the TMPL easement or another existing easement or ROW. It would have required a new easement, which would be located on his neighbours’ adjacent properties to the west and south, as well as on the property to the southeast of the Lands. His argument that it would avoid the wet area on the Lands would be related to the feasibility of co-location with the TMPL. However, the CER had found that Trans Mountain’s proposed mitigation actions were adequate, such that the proposed route is feasible. Trans Mountain submitted that the TMEP pipeline will cross the watercourse either on the Lands or on the property adjacent to the Lands. The evidence showed no difference in environmental impacts or impacts to Trans Mountain’s ability to construct the pipeline according to the specific crossing location. Accordingly, in the CER’s view, Trans Mountain’s proposed route continued to be the best possible route.
The CER was not persuaded by Mr. Gray’s argument that the alternate route avoids trees and vegetation and goes through unhindered land. The evidence demonstrated that Trans Mountain’s proposed route also avoided trees and vegetation since it would follow the TMPL easement, which Mr. Gray stated that he kept clear of vegetation. The CER did not agree that the turf farm, that the alternate route would cross, was “unhindered land.” According to the evidence, it is cultivated, possibly irrigated, and likely has commercial value. In contrast, the proposed route follows the TMPL easement, which is already encumbered with another pipeline. The CER found it preferable to avoid encumbering additional land with new pipeline easements.
The CER found that Trans Mountain’s proposed route reflected an appropriate application of Trans Mountain’s routing criteria. The CER found this was not the case with Mr. Gray’s alternative route. Therefore, and because Trans Mountain has appropriate plans in place to mitigate any potential impacts to wetlands in the event any are discovered during construction, the CER found, on a balance of probabilities, that Trans Mountain’s proposed route was the best possible detailed route.
Are Trans Mountain’s Proposed Methods of Construction the Most Appropriate?
Trans Mountain proposed to use only the conventional footprint or open-cut pipeline construction method on the Lands.
In the CER’s view, Trans Mountain’s criteria to determine its proposed methods of construction on particular lands are reasonable and appropriate. They minimized the risk of failure, prioritize safety, and consider physical constraints both on the surface of the land and subsurface. Further, temporary workspaces would be located to avoid proximity to residences, treed areas, and areas of environmental or cultural sensitivity. Where a landowner raises concerns, the CER was of the view that the criteria were flexible enough to allow Trans Mountain to incorporate mitigation strategies in response. The CER concluded that Trans Mountain’s proposed method was, on a balance of probabilities, the most appropriate.
Mr. Gray argued that Trans Mountain could use a trenchless method of construction, the Lands had circumstances that require a trenchless method, and the adjacent properties had space within the existing encumbered areas for excavation work, such that there were no barriers. In the CER’s view, although a particular method of construction may have been technically feasible, the practical ability to use that method did not necessarily mean that it is appropriate to the circumstances on the particular lands.
Mr. Gray’s concern was that the temporary workspace associated with the open-cut method would destroy the wooded area and the walking path on the south part of the Lands.
Although the CER recognized that the removal of the forested area to accommodate the temporary workspace did not align with Trans Mountain’s stated aim to avoid treed areas, it was of the view that the proposed temporary workspace was appropriate. The temporary workspace avoided proximity to residences and would not affect areas of environmental or cultural sensitivity, which was both appropriate and consistent with Trans Mountain’s stated aims. The CER further found the temporary workspace appropriate, as it accepted that Trans Mountain required it to install the pipeline safely. The CER accepted that Trans Mountain would only clear woody vegetation to the extent required to safely construct the pipeline, such that Trans Mountain would minimize the removal of trees from the Lands. The CER also found that Trans Mountain’s proposed mitigation measures for the forested area and the walking path were responsive to the Grays’ concerns and were acceptable and appropriate for the Lands. The CER agreed that mitigation measures could not completely address the Grays’ concerns in the short term because the only full solutions are to leave the forested area untouched or to reproduce a forest of the same state of maturity.
The CER acknowledged Trans Mountain’s and the Grays’ previous efforts to address the Grays’ concerns by exploring the possibility of a narrower temporary workspace. In the CER’s view, it was appropriate to explore this option, and it was unfortunate that the parties were unable to agree to a revised temporary workspace. The CER encouraged Trans Mountain to undertake further studies and engagement to determine if the construction footprint area could be reduced.
The CER expected Trans Mountain to fulfill the significant commitments it has made in this detailed route hearing. The CER was of the view that several of Trans Mountain’s proposed mitigation measures are particularly responsive to the Grays’ concerns, including Trans Mountain’s commitment to consult with them to develop a site-specific reclamation plan and its proposal to establish understory vegetation of the same species along the walking path, which would also provide a visual buffer between the walking path and the lands to the south. The CER expected Trans Mountain to provide the Grays with a full list of the commitments it made to them throughout this hearing and to follow through with each one. Notably, these commitments included conducting an assessment of the existing trees and providing to the Grays an arborist report that sets out the number, species, age, size, health, and value of all the trees proposed to be removed from the wooded area and the walking path. The CER expected Trans Mountain to develop the site-specific reclamation plan in consultation with the Grays, and to consider construction activities and replanting, how these activities could be coordinated, and how reclamation of the impacted forested area could be expedited.
The CER found that Trans Mountain’s proposed conventional open-cut method of construction was the most appropriate method of construction for the Lands.
Is Trans Mountain’s Proposed Timing of Construction the Most Appropriate?
Trans Mountain proposes a schedule of construction as follows:
begin tree clearing in Q4 2020 to accommodate bird nesting window restrictions;
prepare the ROW and install the pipe between Q1 and Q2 of 2021; and
complete clean-up and restoration in Q3 2021.
In the absence of evidence of specific concerns, the CER found that Trans Mountain’s proposed timing of constructing the TMEP pipeline across the Lands was the most appropriate.