Moving away from the transport of dangerous goods toward safer, low-carbon solutions

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The Lac‑Mégantic derailment in Quebec last July involved the transportation of 72 tank cars of crude oil. This derailment caused the confirmed deaths of 42 people, with five more missing and presumed dead. Approximately half the downtown core was destroyed. It is one of the most significant train disasters in Canadian history.

This event and other train derailments that have since followed have proponents of pipelines using these occasions to expound the view that pipelines are the safest way to move fossil fuels. As the argument goes, we should be allowing new pipelines and the hold‑up of their approvals will only force the transportation of dangerous goods onto a more dangerous form of transportation, rail.

On Tuesday, the Auditor General's 2013 Fall Report looked in part at rail safety. But it did not specifically look at the Lac‑Mégantic accident or any other rail accidents. For that, we must go back to a December 2011 report by the Commissioner of the Environment and Sustainable Development.

In that report, the Commissioner concluded, among other worrying conclusions, that Transport Canada did not know the extent to which organizations transporting dangerous goods were complying with regulations.

Through the Transportation of Dangerous Goods Act, 2002, dangerous goods and their transport by rail, road, marine and air is regulated. Transport Canada is responsible for overseeing transportation of dangerous goods.

The National Energy Board (NEB) is an independent agency responsible for regulating pipelines that cross provincial, territorial or national boundaries. This amounts to about 71,000 km of pipelines. The Commissioner's December 2011 report also looked at the NEB's activities.

The Commissioner's report concluded that the NEB has not taken steps to ensure that identified deficiencies are corrected and that it has not appropriately monitored whether regulated companies have prepared emergency procedure manuals according to established legislation, standards and Board expectations.

As is the normal course, the Commissioner made several recommendations, and Transport Canada and the NEB committed to corrective actions.

As recent events make plain, however, not a lot has changed. And the truth of it is while more dangerous goods are transported by rail, and increased risks come with that, we also have a lot of pipeline spills; at least 1,047 between 2000 and 2011, with the rate of spills doubling in the past decade. Many probably haven't been reported at all.  

This only raises the question, why do we keep doing this? Well beyond the "how do we transport oil" debate is the simple point that complex systems fail. We create regulatory regimes that the regulated cannot keep up with and the regulator cannot enforce. We are crushed by the weight of our own systems. We need to move away from transporting dangerous goods by finding safer solutions that require less oversight.

Given the reality that movement of these dangerous goods is simply fraught with problems, and that we have an urgent need to cease using fossil fuels if we want to protect our climate, it seems a reasonable question to ask why Canada has yet to take seriously the need to move to a low-carbon energy future. Instead, the Canadian government continues to obstruct meaningful efforts to curb greenhouse gas emissions. At the same time, Transport Minister Lisa Raitt, made an announcement a few days ago that rail companies must inform communities about dangerous goods coming through their communities. As reported, the information will not make it to those communities until well after the fact.

Ultimately, there will no doubt be a number of findings and recommendations coming out of the Lac-Mégantic tragedy. And almost as certainly, they will not prevent future tragedies, as we continue to barrel down a trajectory of a carbon-intensive energy future.

Paula Boutis has a special interest in public interest environmental law, and practiced environmental law exclusively for her first five years of practice. She currently practices part‑time at Saxe Law Office, one of Canada's premier environmental law boutiques. She also currently practices part‑time at Iler Campbell, where she has a broad-ranging litigation practice for the firm's clients.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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