Canada should look south for oil spill laws

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Alaska, Washington strengthened regulations after Exxon Valdez spill

Jen St. Denis / Business in Vancouver
April 20, 2015 11:37 AM

In all his years as a recreational sailor, it was something Rob O’Dea says he’d never seen before: thousands of globules of oil, suspended in the water of Vancouver’s English Bay.

“The water was thick with oil, pea-sized, up to fist-sized gooey clumps,” said O’Dea, who was sailing with a friend on the evening of April 8. “As soon as we realized we were in an oil spill we turned around. The jib sheet dropped into the water, and it was immediately covered with this black goo.”

Following a relatively small fuel oil spill from a ship anchored at the entrance to Burrard Inlet, critics are taking aim at federal oil spill response measures. They’re pointing to the United States as an example of how Canada can do better, in terms of holding oil-transporting companies to account, involving local communities and providing more reassurance to the public.

Canada should learn from states such as Alaska and Washington, which strengthened regulations after the Exxon Valdez oil spill in 1989, said Karen Wristen, executive director of Living Oceans.

“They cautioned that we should not be relying on any voluntary measures on the part of the oil companies,” Wristen said, referring to comments made at a 2013 oil spill response symposium hosted by the B.C. government.

“The advice from the United States was quite strong: legislate the requirements down to the last boom and skimmer.”

Environmental groups are concerned that if two controversial oil pipelines — Enbridge’s Northern Gateway project and Kinder Morgan’s plan to twin its existing Trans Mountain pipeline — are approved, the number of oil tankers travelling along B.C.’s coast would sharply increase.

Spencer Chandra Herbert, NDP MLA for Vancouver-West End, pointed to Washington state’s requirement that Kinder Morgan provide the government with its emergency response plans as the company seeks approval to increase the amount of oil it moves by pipe from Alberta to the B.C. coast.

But in Canada, the National Energy Board declined to provide the plan to the B.C. government, citing security concerns.

“Washington state said, ‘You have to tell us,’” Herbert said. “Here in B.C. and Canada we don’t require it, so they said, ‘Well, we won’t provide it.’”

In the United States, shipping comes under federal jurisdiction, but state governments also have the ability to regulate shippers, said Shelley Chapelski, a partner at Bull, Housser & Tupper LLP’s maritime law practice. Some states require response plans on top of the plans required by the federal government.

In Canada, provinces have no jurisdiction over shipping and giving provinces any authority over the sector would require a constitutional change, Chapelski said. Canada follows international shipping safety standards, whereas the United States tends to do “its own parallel thing.”

For shipping companies, the additional requirements demanded by some U.S. states are a headache.

“For the rest of the world you comply with MARPOL, the international convention on vessel response plans,” Chapelski said. “Then if you go into the United States you also have to comply with Washington state and Alaska and California.

“The vessel response plans are pages and pages long, dealing with everything from salvage to firefighting, and they’re very, very extensive plans that they have to come up with to satisfy both the United States requirements and the international requirements.”

Most ships that ply Canadian waters also travel through U.S. waters, and therefore are compliant with state and federal U.S. regulations, as well as Canada’s, Chapelski said.

In a 2013 report, Transport Canada’s tanker safety review panel said there are major deficiencies in Canada’s oil spill response regime. The panel didn’t recommend following the lead of U.S. jurisdictions but said the current “rigid, national structure that fails to account for the different risks that exist along our expansive coastline” is the biggest problem.

The panel recommended adopting an approach to spill response planning that would provide more flexibility and considerations of regional conditions. The model will also “incorporate scientific information to inform appropriate decision-making,” according to Transport Canada.

A pilot project has been started on the  southern coast of B.C., a Transport Canada spokesperson wrote to Business in Vancouver in an email. So far a risk assessment contract has been tendered and “initial efforts on data acquisition and methodology development are ongoing.”

Aside from the legal requirements around oil spill response plans, former Canadian diplomat Robert Hage believes there are lessons Canada can learn from Alaska’s response to the Exxon Valdez spill.

Hage studied the two regional citizens’ councils that were set up in Alaska following the disaster; they continue to operate today.

“It’s effective at getting people who would be most affected by spills and [tanker] traffic to have some sort of voice in the process,” Hage said. “They do studies, they get money from the government, they get money from the pipeline companies.”

The councils provide recommendations to government and industry and generally act as another “independent … analytical voice,” Hage said.

Canada has six similar regional councils, with one on the West Coast, but the contrast with how the Alaskan councils operate is striking.

“Just trying to find out something about them [is difficult],” Hage said of the Canadian councils. “It’s run by the government, they do the appointments, there are no websites – what do they do?”

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