Killer Whales versus Kinder Morgan

Government cannot avoid legal responsibilities to protect endangered species.

Raincoast Conservation Foundation and Living Oceans Society are in court this week, represented by Ecojustice lawyers, to challenge the federal Cabinet’s unlawful approval of the Kinder Morgan pipeline project and defend BC’s endangered Southern Resident killer whale population.

“We have repeatedly said that Cabinet based its approval of this project on an unlawful National Energy Board report that failed to apply the Species at Risk Act and mitigate impacts on Southern Resident killer whales,” said Dyna Tuytel, Ecojustice lawyer.

If Kinder Morgan’s project proceeds, there is a greater than 50% chance that the Southern Resident killer whales will decline to such a small number that they will be on an irreversible path to extinction within the next century.

“This chain of flawed decision-making almost guarantees the extinction of this already endangered population. We need the court to send this unlawful approval back to Cabinet with instructions that it must meet all of the legal requirements, which includes addressing the risks to Southern Resident killer whales.”

Ecojustice lawyers argue that the National Energy Board (NEB) broke the law when it used an overly narrow interpretation of the law to avoid addressing harm to Southern Resident killer whales and their critical habitat in the Salish Sea, and that Cabinet broke the law by adopting the NEB’s report.

“The NEB’s decision to exclude adverse impacts caused by tankers carrying oil from the Kinder Morgan pipeline terminal to foreign markets from its environmental assessment was based on an arbitrary distinction between the effects of the pipeline and marine terminal, and those of marine shipping,” said Karen Wristen, Living Oceans Society executive director. “As a result, no environmental assessment of the impacts of increased tanker traffic was undertaken.”

“The federal government has said that it is committed to protecting the environment, slowing climate change, and making evidence-based decisions, but its approval of this pipeline and tanker project is a direct contradiction of those promises.”

Raincoast’s population viability analysis has shown that there is a greater than 50 per cent chance that the Southern Resident killer whales will decline to such a small number that they will be on an irreversible path to extinction within the next century if Kinder Morgan’s project goes ahead as planned.

“The Kinder Morgan project would cause a seven-fold increase in oil tanker traffic through the Southern Resident killer whales’ critical habitat in the Salish Sea. Even without oil spills, the noise alone from this rise in tanker traffic significantly increases the risk of extinction for these endangered whales,” said Paul Paquet, Raincoast Conservation Foundation senior scientist.

“Approving the Kinder Morgan project without conditions to ensure protection for the endangered whales is the equivalent of signing the death certificate for the Southern Resident killer whale population. We are asking the court to compel the government to comply with the law and protect endangered species from harm.”

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