Environmentalists win landmark Kearl Tar Sands lawsuit :
by Jode Roberts

Posted 2009 Updated February 10, 2011.

Groups win huge victory against Tar Sands project
Court finds gaping holes in environmental assessment

The development of the oil sands project in Lake McMurray, Alberta, Canada, is continuing in spite of numerous legal and technical set-backs.

Update since 2009:

The Oil Sands project in Alberta is continuing to have problems.  It is mired in controversy on Alberta, Canada and the United States. 

machineryoilsand Snafu shipping oversize machinery: A U.S. court hearing on September, 2010, could put a major roadblock in front of a contentious bid by Canadian petroleum giant Imperial Oil to send more than 200 oversized truckloads of South Korean-built oil-sands equipment [ photo on right ]along a highway that winds through the wilds of Idaho and Montana en route to a massive open-pit bitumen operation in northern Alberta. Opponents have argued that the proposed nighttime movements pose serious safety hazards and unreasonable inconvenience for area residents. Canuck Press: Oil sands production dates

In a victory for ConocoPhillips, a top Idaho transportation official said Tuesday he would allow the company to transport large replacement coker drums on a highway in the state starting on January 24, 2011, some two months behind schedule.  Mira: Permits to move big machines

U.S. critics of the transport project have also claimed that the Alberta tar-sands project could transform a scenic region that was the backdrop for the 1992 hit movie ‘A River Runs Through It’ into a tourism-killing “industrial corridor.”  Boswell: More problems for tar sands

Construction on the first 110,000 barrel-per-day phase of Kearl is about 50 per cent complete. It is set to come on stream in late 2012. Canuck Press: Oil sands production dates

The company’s other oils-ands holdings include vast steam-driven operations at Cold Lake and a 25 per cent interest in the Syncrude mine, the world’s largest oil-sands project. Canuck Press: Oil sands production dates

Reports have suggested Ottawa does not plan to offer any financial incentives for the project, which Imperial said four years ago was estimated to cost $16.2-billion. Canuck Press: Oil sands production dates

Imperial has said the absolute soonest the pipeline could start up is 2018. Canuck Press: Oil sands production dates

Imperial Oil/ExxonMobil says it's shifting gears in the Kearl oil sands project in Alberta, Canada, [ as of November 1, 2010 ] but that won't alter its plan to transport more than 200 super-sized modules through Idaho and Montana to fuel the project.   Briggeman: Changes in oil sands project

Kearl Tar Sands lawsuit:

The Federal Court of Canada today, Edmonton, Alberta, March 05, 2008, released a judgment finding fatal legal errors in the environmental assessment of the Kearl Tar Sands Project, north of Fort McMurray.

Canadian court decision as viewed in US:

The Canadian Federal Court found that there were gaping holes in the environmental assessment of a huge tar sands project that would strip mine the Boreal forest for oil.

The Kearl project would have emitted CO2 over the next 50 years equivalent to 800,000 cars. Barret-Brown: Impact on USA

... This court case also has important implications for the U.S. The oil from the Kearl project would be destined for U.S. markets. As more states adopt low carbon fuel standards [ LCFS ] modeled on California's LCFS [ California Pollution ] , the carbon dioxide emissions from projects like the Kearl become increasingly important. LCFS are meant to take into account so-called "lifecycle" emissions from "well to wheel". Those emissions start upstream with extraction and extraction of oil from the tar sands produces three times the carbon dioxide pollution per barrel as compared with conventional oil. That means that projects like the Kearl could make it more difficult for us [ in United states ] to lower the carbon in our fuels. Ditto for achieving real reductions under carbon caps. California auto emission new law

USA Congress is also worried about these "lifecycle" emissions. In Section 526 of the energy bill signed into law in December last year [2007 ], federal agencies are barred from purchasing "unconventional" fuels like tar sands that have higher lifecycle emissions than conventional oil extraction. Since emissions are embedded in products - from oil for our cars, trucks and airplanes to steel for our construction - what Canada does, and increasingly what Alberta does in the tar sands, has huge implications for the U.S. Our energy economy and our atmosphere are inexorably intertwined.  Barret-Brown: Impact on USA

[ Commentary by Walter Sorochan: ]

The oil extracted from Alberta oil sands is of a very low grade quality. It cannot be handled by current refineries in the USA. Refineries would have to retool, at considerable expense, in order to use Alberta sands oil.

The need to retool refineries and meet new pollution standards is thwarting the sale of sands oil to the USA. And this concern over the poor quality of sands oil, in turn, has sparked controversy about the marketability of crude oil coming from the Alberta oil sands projects in general. Such concerns are also sparking big debates in Alberta and Canada about the real pay-off of mining oil sands for dirty oil when the rest of the world is shying away from investing money in oil. Speculators and investors, like Warren Buffet, are viewing alternative clean sources of energy, like solar and wind, as safer, more practical and more profitable alternatives in the long run to the oil sand projects in Alberta.

Ecojustice lawyer Sean Nixon was in court in January on behalf of the Pembina Institute, Sierra Club of Canada, the Toxics Watch Society of Alberta and the Prairie Acid Rain Coalition.

“This is a huge victory,” said Nixon. “The Court accepted our position that the environmental assessment was flawed, and that the Joint Panel failed to explain why it thought the Kearl Project’s environmental effects were insignificant. We will now consider whether to bring another lawsuit to challenge the project’s federal permit that was granted without legal authority.”

Ecojustice (formerly Sierra Legal Defense Fund) filed the lawsuit in Federal Court in March 2007 challenging a Federal-Provincial Joint Panel report that concluded the $5 to 8 billion project is not likely to result in significant adverse environmental effects. Evidence in the case showed that the Kearl Project will result in greenhouse gas emissions equivalent to the annual emissions from 800,000 passenger vehicles over the 50 year life of the project. The Alberta government proposed to address these emissions through “intensity-based” emissions targets. The Court held as follows (para.78-79):

The evidence shows that intensity-based targets place limits on the amount of greenhouse gas emissions per barrel of bitumen produced. The absolute amount of greenhouse gas pollution from oil sands development will continue to rise under intensity-based targets because of the planned increase in total production of bitumen. The Panel dismissed as insignificant the greenhouse gas emissions without any rationale as to why the intensity-based mitigation would be effective …… given the amount of greenhouse gases that will be emitted to the atmosphere and given the evidence presented that the intensity based targets will not address the problem of greenhouse gas emissions, it was incumbent upon the Panel to provide a justification for its recommendation on this particular issue.

“The tar sands are the fastest growing source of greenhouse gas pollution in Canada,” said Simon Dyer from the Pembina Institute. “This decision highlights that intensity-based targets that allow pollution to grow do not protect the environment. We need real action by the Federal Government to reduce greenhouse gas emissions.”

The decision follows internal government warnings that environmental assessments were not being properly conducted for tar sands projects, and that cumulative impacts of tar sands development are being ignored.

&“The judgment means that climate change impacts need to be taken seriously in environmental assessments of the tar sands” said Stephen Hazell, executive director of Sierra Club Canada. “For too long, our governments have professed concern about growing greenhouse gas emissions while taking no action to reduce those emissions from projects that they regulate. In effect, the Federal Court is saying that this hypocrisy has to stop.”

References

BBarratt-Brown Liz, "One tar sands project = 800,000 cars = significant, Canadian Court says," Reenergize America, March 6, 2008.  Barret-Brown: Impact on USA

Briggeman Kim, "Imperial Oil makes changes on Kearl project, still plans super-sized loads," The Missoulian, November 1, 2010.  Briggeman: Changes in oil sands project

Boswell Randy, "U.S. court could put roadblock in bid to move oilsands equipment," The Vancouver Sun, September 28, 2010.  Boswell: More problems for tar sands

California Pollution: In the January 2007 State of the State, Governor Schwarzenegger asserted California's leadership in clean energy and environmental policy by establishing a Low-Carbon Fuel Standard (LCFS) by Executive Order. This first-in-the-world greenhouse gas (GHG) standard for transportation fuels will spark research in alternatives to oil and reduce GHG emissions. California auto emission new law

CCanadian Press, "Imperial Oil hits halfway mark on first phase of Kearl oilsands project," Daily Commercial News, February 2, 2011.  Canuck Press: Oil sands production dates

Mira Leslie Moore, "Idaho gives ConocoPhillips permits to move coker drums on Jan 24," Platts New York, January 19, 2011.  Mira: Permits to move big machines

Roberts Jode, "Environmentalists win landmark Kearl Tar Sands lawsuit," EcoJustice, [Edmonton Journal], March 5, 2008.
Groups win huge victory against Tar Sands project [March 5, 2008] | Canada environmentalists win huge oil sands victory

For further information please contact:

Sean Nixon, Staff Lawyer, Ecojustice (604) 685-5618 ext. 241
Simon Dyer, Pembina Institute (403) 322 3937
Stephen Hazell, Sierra Club of Canada (613) 241-4611 or (613) 724-1908 (cell)
Martha Kostuch, Prairie Acid Rain Coalition (403) 845-9720
Myles Kitagawa.Toxics Watch Society of Alberta (780) 439 1912 or (780) 907 1231 (cell)

Photographs and B-roll video of oil sands mine development are available at: | for photos & videos