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Judge strikes motion to kill case against Vancouver area coal terminal

A Canadian federal court judge this week dismissed a motion tostrike a court challenge against the construction of a new coal export terminalin the Vancouver area.

Communities and Coal, an activist group from British Columbiathat opposes the export of U.S. thermal coal through the province, and Voters TakingAction on Climate Change challenged the approvalby Port Metro Vancouvergave to Fraser Surrey Docks LPto build a new coal export facility to serve coal producers from the Powder RiverBasin.

Port Metro originally granted Fraser Surrey Docks a permit toload coal onto barges which would take the material to Texada Island in the Straitof Georgia for loading, but later approved a permit change for coal to be loadeddirectly onto Panamax class ocean-going vessels in the Fraser River.

The new facility plansto ship 4 million tonnes annually, according to Fraser Surrey Docks. Coal wouldbe shipped via BNSF Railway Co.

The project has seen opposition from health professionals, the mayor of Vancouver and the environmental activists who filedthe challenge to the permit.

The cities of Surrey, where the export terminal will be built,and New Westminster, just across the river from the port, were granted interveningstatus in the case.

"They're coming in with a perspective that will be consistentwith the arguments that we're making," said Karen Campbell, an Ecojustice lawyerrepresenting the activists.

But Port Metro Vancouver said at the time of the initial permitapproval that the new terminal would operate "within acceptable health andenvironmental standards."

"The decision to permit the proposed coal transfer facilityat Fraser Surrey Docks was not one we took lightly," said Peter Xotta, thevice president of planning and operations at Port Metro Vancouver, in a releasewhen the initial permit was approved. "Through our comprehensive project reviewprocess, stakeholder consultation, as well as third-party validated environmentaland health studies, it was determined there are no unacceptable risks and the projectcould be permitted."

Fraser Surrey Docks and Port Metro Vancouver filed motions tostrike the court challenge against the new terminal in February and March, respectively,according to Campbell.

But a judge ruled against the objections on April 25.

"The respondents' motion to strike the application for judicialreview is dismissed without prejudice to the Respondents to renew their argumentson the application for judicial review," ordered Justice Catherine Kane.

Campbell says that her clients are pleased with the results."The ruling that just came down is essentially preserving our day in court,"she said.

The larger issue at stake is that her clients believe the portauthority was biased in issuing its approval.

"Port decision makers tasked with assessing the environmental impacts of theproject also stand to gain financially from the project's approval through thePort'scompensation program which is based on the Port's overall economic performance" she said. "That the decision-makerstands to gain financially from the project's approval is particularly importantin this case because the Port finds itself in a conflict of interest by virtue ofthe applicable legislation. Under the current system, the Port has responsibilityto decide whether to approve the project while at the same time undertaking theenvironmental assessment. In these circumstances the Port ought to have ensuredthat the decision-makers did not receive any additional benefits in the form ofbonuses for approving the project."

Port Metro Vancouver said they could not provide any response to this statement,or to the judicial order, as they do not comment on matters before the court.

Paula Williams, a director and co-founder of Communities andCoal, said that they want an independent assessment of health and environmentalimpacts. "Instead of outright opposing the project, when we started we wereasking for a different process to make it more fair," she said.

If an independent assessment showed a low health and environmentalimpact, then the communities would have less reason to oppose the terminal, evenif they did not like it based on climate concerns, she added.

The challenge against the permit has not been scheduled for courtyet.