Communities are rising up to confront oil by rail

While the railway companies and regulators have borne the brunt of criticism for oil train derailments and explosions, oil companies have largely evaded criticism of their responsibility for the highly explosive nature of their product.

The U.S. petroleum industry continues to resist efforts to force companies to remove Bakken shale oil’s most explosive components— responsible for Lac–Mégantic and other major incidents— prior to loading, on the dubious pretext that the science is not conclusive. The Canadian government appears reluctant to weigh in against the transportation of “un-stabilized” Bakken crude in Canada.

Almost all the bitumen currently shipped by rail is in the form of dilbit, bitumen mixed with highly volatile 30% diluent which risks explosion in a derailment. Whether or not new pipelines are built, it is very likely that the transport of bitumen by rail in Canada will increase significantly in coming years. Whatever the volumes, it poses a clear and present danger to human safety and the environment—danger compounded by a still deeply flawed rail regulatory regime.

The amount of bitumen shipped by rail in its raw form, neatbit, in which the high-volatility diluent component is either not added or removed, is negligible. Despite its cost advantages (a case made by CN among others), the oil industry is not in any hurry to make the transition because of the (relatively modest) upfront investment required for heated tank cars, loading and diluent removal facilities.

Nor are the Alberta and federal governments—despite its obvious safety benefits —seeking to accelerate the shift from dilbit to neatbit by rail. Both government and industry are focused exclusively on pipelines. As long as bitumen continues to be extracted, and as long as rail continues to transport it, neatbit is clearly a preferable mode.

Railway and oil companies in the U.S. and Canada exert enormous power over governments in tilting the balance toward “economic considerations,” compromising safety, including that of the planet. Moreover, they continue to insist that issues related to the transport of oil by rail are the exclusive jurisdiction of federal transportation laws.

However, this presumption is starting to be challenged. Communities are becoming increasingly vocal in wanting a say in whether and under what conditions dangerous goods pass through their territory.

In a precedent-setting ruling, the U.S. Surface Transportation Board granted the town council of Benicia, California the legal authority to reject an application by oil giant Valero to build a major oil-by-rail loading facility, which the council deemed a danger to the community.

In Canada, Mi’gmaw First Nations communities in the Gaspésie are invoking the Canadian Charter to force the federal government to intervene to halt the proposed Belledune, NB oil export terminal in order to validate its constitutional right to be consulted before the project goes ahead. It is one of five oil transportation projects identified in a “collective resistance” treaty signed in September by at least 50 First Nations in both Canada and the U.S.

In January 2016, the Canadian Environment Assessment Agency (CEAA) approved a request from Ecojustice, on behalf of Greenpeace and Safe Rail Communities, to conduct an assessment of the proposed expansion of the Hardisty, Alberta rail loading terminal—a first for a rail-based shipping facility. (The company has since withdrawn its proposal.)

Most recently, the municipal council of Rimouski, Quebec asked the federal environment minister for a CEAA assessment of all the implications of the Belledune rail terminal project, which would greatly increase oil train traffic by 220 tank carloads per day through this community and many urban centres along its route. The mayor said this request was made as a result of the Quebec government’s refusal to conduct its own assessment.

The Agency in most cases can only launch such an assessment if the minister approves the request. Hardisty escaped this requirement because it fell under a “railway yard” exception. However, Transport Minister Garneau pre-empted a decision by his colleague by stating categorically the government will not conduct an assessment.

A federal private members bill tabled by NDP environment and climate critic, Linda Duncan, would remove ministerial discretion. It would mandate the environment minister to conduct assessments, including consultations, of actions communities deem potentially risky to the environment, human life or public health, in this case trains carrying crude oil. The bill would, if adopted, help open up what has been a cozy closed-door conversation between industry and Transport Canada, one in which industry has generally called the shots.

In the months before the Lac-Mégantic disaster, citizens were raising concerns about dramatic increase in massive oil trains barreling down on their town centre on appallingly poor tracks. Transport Canada seemed blinded to the dangers.

Would it have made a difference had the environment minister been required to investigate their concerns? Lac-Mégantic’s causes were multiple, mutually reinforcing and cumulative. But giving a voice to those potentially affected is one step in reducing the risks of another disaster.

Bruce Campbell is the former Executive Director of the Canadian Centre for Policy Alternatives. He is currently Visiting Fellow at the University of Ottawa, Faculty of Law.

This piece was originally published by the National Observer.

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