Challenge against Fraser Surrey Docks facility by grassroots coal opponents fails after years-long case

Looking east from Harbour Centre Lookout in Vancouver, towards Fraser Surrey Docks in the distance. Photo: Bobanny/Wikimedia

A David-and-Goliath story pitting a small group of local environmentalists against the largest port authority in Canada ended earlier this month.

On Jan. 15, a federal court ruling struck down a legal case challenging the establishment of an export coal facility in Surrey, B.C. The legal challenge, filed against the Port of Vancouver in 2014, drew in the municipalities of New Westminster and Surrey as legal interveners, and was accompanied by a sophisticated grassroots campaign that raised significant questions about the democratic accountability of port authorities in Canada.

The lawsuit inspired calls for reform of the Port of Vancouver from residents, environmentalists, two Liberal MPs and several councillors from municipalities throughout the Lower Mainland. But in the end, the legal challenge was struck down.

"This one was hard fought, there was a lot of procedural wrangling over it," said Karen Campbell, an environmental lawyer who represented the complainants.

"So, in that sense it was a big case, it was a big-time commitment for our organization but this was absolutely worth it."

Two environmental groups -- Voters Taking Action on Climate Change (VTACC) and Communities and Coal -- and two individual Surrey residents, Paula Williams and Christine Dujmovich, filed the legal challenge in September 2014. Campbell’s legal organization, Ecojustice, provided legal representation. The environmentalists claimed the permit granted to Fraser Surrey Docks, a marine terminal contracted by the Port of Vancouver for the coal facility, should be struck down because it was improperly issued due to a bias in favour of its approval.

Justice James O’Reilly ruled against VTACC and Communities and Coal, claiming that he saw no evidence the port had acted improperly in granting a permit for the coal facility.

"I can find no basis for overturning the Port Authority's decisions -- they were made fairly and lawfully, and untainted by a reasonable apprehension of bias," O’Reilly said in his ruling.

The planned coal facility at Fraser Surrey Docks would allow the export of up to eight million metric tons of U.S. thermal coal, likely to China. The coal would be transported to the West Coast from Wyoming’s Powder River Basin, via the Burlington Northern Santa Fe Railway Company, owned by U.S. billionaire Warren Buffett. If the $50 million project goes ahead, the facility will be one of the largest coal shipping points in North America.

But the future of the facility is still uncertain. The Chinese government has pledged to replace coal-powered plants with LNG, due to increasing levels of urban smog. Thermal coal is also widely considered to be one of the most greenhouse gas-intensive energy sources. U.S. export of coal dropped by more than half between 2012 and 2016.

The market for thermal coal may be rebounding due to increased demand from Asia, but it is largely being phased out in Europe. The Trump administration has increasingly tried, with limited success, to revive the faltering coal industry.

These market fluctuations are a source of hope for Williams, one of the complainants in the lawsuit.

"In that sense, maybe we did Fraser Surrey Docks a favour by delaying it and they didn't waste money building the facility," Williams said.

Climate court challenge

The court challenge of the Port of Vancouver began after Williams, a South Surrey resident, found out trains carrying coal, one 125-car coal train each day, were slated to start rumbling through her neighbourhood.

She met Dujmovich, whose house is located half a kilometre away from Fraser Surrey Docks, at a community consultation held after the coal facility was announced. Dujmovich had expressed concern about the health impacts of a coal facility nearby. The pair eventually launched the legal challenge after becoming frustrated with the port’s consultation process.

“We had gone through all the channels that we thought we needed to go through and that still wasn't good enough because they approved the proposal,” Williams said.

"We felt that this project should never have been approved, and that it was approved based on the self-interests of the port."

The Port of Vancouver said that it had conducted an environmental impact assessment (EIA), public consultations, and a health review before approving the permit for the facility. The port’s assessment states that the project is expected to create 25 new jobs, and would "allow FSD to maintain its existing workforce of 230 full time employees."

The coal facility will result in a high increase in B.C.s greenhouse gas emissions. The province has set a target of reducing the province’s total emissions to 13 megatonnes per year by 2050. The coal facility’s emissions would increase B.C.’s contribution to emissions by 8 megatonnes, according to Peter McCartney, a climate change campaigner for the Wilderness Committee.

To put this into perspective, a study published in the journal Science suggests three square metres of arctic sea ice disappear per single tonne of carbon dioxide produced by humans.

McCartney believes that the coal export facility would make it almost impossible for Canada to reach its climate change targets under the Paris Accords.

In November 2013, SNC-Lavalin was hired by Fraser Surrey Docks to conduct an Environmental Impact Assessment of the project. The assessment drew criticism from Paul Van Buynder and Patricia Daly, the then-chief medical officers of Fraser Heath and Vancouver Coastal Health. Both Buynder and Daly wrote a letter to the port’s director of environmental programs, stating that they believed the assessment to be inadequate and “a repackaging of work previously done by other consultants.”

Surrey city councillor Judy Villeneuve supported the legal action, but also questioned the economic logic of Fraser Surrey Docks continuing with the coal application.

"I think Fraser Port should review the fact that they really want to expand the coal exporting facility, because I think the demand is way down for that now. From an economic perspective, it doesn't make much sense to me," said Villeneuve in an interview.

Opaque governance

A significant effect of the legal challenge was an increased level of public and media scrutiny of decisions made by the Port of Vancouver. Port authorities operate as semi-private entities, although they have a mandate set out to maximize Canadian trade opportunities and are governed by Transport Canada.

The board of the port is composed of seven appointees of what is called the Port User Group, a collection of marine-oriented businesses. The other four directors are appointed by the B.C. government, the federal government, the prairie provinces, and municipalities in Metro Vancouver.

But critics have begun questioning the port’s governance structure and mandate. Kevin Washbrook, director of VTACC, says there is a fundamental contradiction between the port’s mandate as both a booster of local marine trade, and a regulator.

“They are these opaque, government-appointed agencies that are federal-regulatory bodies on the one hand, and they're also landlords who want to encourage economic activity. Two fundamentally incompatible mandates,” Washbrook said in an interview.

Two federal MPs also raised concerns. Joe Peschisolido, MP for Steveston-Richmond-East stated in a Vancouver Sun interview that he believed there should be "a full review of the port authority, its structure and staff and everything."

Carla Qualtrough, MP for Delta also stated publicly that the port should have more "local" representatives on its board, and was critical of the port’s “in-house” assessment process.

"I think the government is pretty arm’s length from the port. They really are a corporation on their own," Villeneuve said.

Penny Priddy, the sole board appointee representing the 16 municipalities of the Lower Mainland, believes that there are many opinions about the port’s governance amongst Metro Vancouver municipalities.

"There's a lot of municipalities who work really well with the port, who don't have a problem with how the decisions are made," she said.

Shrinking coal hold-outs

The Port of Vancouver is increasingly alone on the Pacific coast in its willingness to construct large-scale infrastructure for coal. A large-scale coal export facility was halted in Cherry Point, Washington, in the spring of 2016 following opposition from the Lummi First Nation.
"When we started fighting this coal port in Surrey, there were plans for six coal ports in the U.S. West Coast, all of which have either been overturned," said Washbrook.

It remains to be seen whether the Port of Vancouver will proceed with the actual construction of the coal export facility. Port CEO Robin Silvester, interviewed at a Greater Vancouver Board of Trade event in December 2016, expressed at the time doubt of the viability of coal as a long-term investment.

"If we look at the medium- to long-term, we would not expect thermal coal to be a major commodity being shipped through this port. I would personally hope that the world is going to progressively move away from such carbon-intensive fuels," Silvester said.

"And I drive an electric car, as a personal decision."

Stuart Neatby is a community reporter currently working at the Prince George Citizen. He can be reached at @stu_neatby on Twitter. Cheryl Whiting is a freelance journalist based in Vancouver. She has a background in biomedical research and is passionate about stories where science, law and politics intersect. On Twitter @Whiting_CJ or blog www.cherylwhiting.wordpress.com.

Photo: Bobanny/Wikimedia

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