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The Canadian Coast Guard has also acknowledged the uncertainty around the effectiveness of spill response for the diluted bitumen that Kinder Morgan plans to transport, declaring it is “not aware of a scientific consensus regarding how these products will behave once introduced into the marine environment or the effects over time of the products being in the water.”

The coast guard’s fear that diluted bitumen could submerge or sink was reinforced by a U.S. National Academy of Sciences study considered the most authoritative assessment on diluted bitumen ever undertaken. However, the study was refused into evidence for the Trans Mountain review by the NEB, which questionably deemed the probative value as limited. The U.S. study concluded that diluted bitumen behaves very differently than other crude oils when spilled, therefore requiring a different, but undetermined, spill response.

If Trans Mountain had been subjected to an impartial and comprehensive assessment, the current dispute might have been avoided. The legal challenge Ecojustice lawyers have argued on behalf of Raincoast and Living Oceans Society contends the federal cabinet broke the law when it relied on the NEB’s report that used an overly narrow interpretation of the law to avoid addressing harm to endangered southern resident killer whales and their critical habitat, i.e. within the marine environment the NEB neglected to address.

Recognizing the serious limitations of the current assessment process, the federal government has just announced an overhaul, so why let the NEB’s knowingly faulty Trans Mountain review stand? And if the federal environment minister sincerely believes the Trans Mountain expansion would have been approved under her government’s proposed new review process, then that impending assessment scheme would, sadly, appear to be dead in the water.

Chris Genovali is executive director of Raincoast Conservation Foundation. Dr. Paul C. Paquet is Raincoast’s senior scientist.