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Judge grants motion by state of Michigan to appeal key decision in Line 5 dispute

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By James McCarten in Washington

The U.S. judge presiding over Michigan’s bid to shut down the Line 5 pipeline has given her blessing to the state to appeal one of her key findings, breathing new life into a strategy that hinges on getting the dispute heard by a lower court.

Back in August, District Court Judge Janet Neff rejected a motion from Michigan Attorney General Dana Nessel to send the case back to state court, where Nessel has acknowledged they have a better chance of winning.

But earlier this week, Neff granted Nessel’s request to certify that August decision, clearing the way for what’s known as an interlocutory appeal — formally asking an appeals court to reverse a judge’s order before a final decision in the case has been made.

Such certifications, rare in U.S. law, must meet certain conditions, Neff wrote in a decision Tuesday: that they involve a “controlling question of law” that’s likely to generate a difference of opinion, and that an appeal could expedite a resolution.

“Having reviewed the record, the court concludes that this dispute is one of the exceptional situations that compels certification,” the order reads.

“Each of the three issues identified by (the) plaintiff involve a controlling question of law, there is substantial ground for difference of opinion, and an immediate appeal will materially advance the ultimate termination of the litigation.”

Neff has also ordered that the current case — just one of several open files involving Enbridge Inc., Line 5 and the state of Michigan — remain stayed and administratively closed until the appeal is resolved.

Michigan has been in court for years with Calgary-based Enbridge in an effort to shut down Line 5, fearing a disaster in the Straits of Mackinac, the ecologically sensitive region where the pipeline crosses the Great Lakes.

Enbridge and its allies, which include the federal Liberal government in Ottawa, insist the pipeline is safe, that planned upgrades will make it even safer, and that a shutdown would impart too great a cost for the North American economy to bear.

The legal saga, however, has been dominated almost from the start by arcane procedural questions about jurisdiction and precedent, with Tuesday’s decision likely to deepen that morass even more.

Nessel has made three central arguments: that Enbridge flouted a 30-day window to move the case to district court; that Neff relied too heavily on her own earlier decision to reject Nessel’s motion in a separate but nearly identical Line 5 case; and that the question of jurisdiction has not been properly settled.

“The attorney general believes that the federal trial court clearly erred when it refused to send the case back to state court,” Nessel’s office said in a statement. “The order allows (Nessel) to ask the federal court of appeals to step in and right this wrong.”

Environmental groups in Michigan that back the state’s efforts against Line 5 also cheered the decision.

“This ruling is good news for the Great Lakes. Enbridge’s use of the federal courts to delay the state’s ability to protect the Great Lakes is unconscionable,” National Wildlife Federation counsel Andy Buchsbaum said in a statement.

“We hope that this will get the case back on track quickly so the Great Lakes doesn’t suffer from a massive oil spill.”

Enbridge, for its part, sees things differently.

A statement from the company cited Neff’s own words from the August 2022 decision in which she accused Nessel of seeking “a race to judgment and a collision course between the state and federal forum.”

“The attorney general seeks to undermine these considerations and promote gamesmanship and forum shopping,” Enbridge said, “while ignoring the substantial federal issues that are properly decided in federal court and not state court.”

This report by The Canadian Press was first published Feb. 23, 2023.

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Alberta

New children’s book demonstrates how the everyday world is connected to natural resources

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From the Canadian Energy Centre

‘Today’s youth have the opportunity to lead us into the future with innovative solutions for environmental challenges’

After a 24-year career in oil sands land reclamation, author Tanya Richens is sharing her knowledge with young minds.

Her new book, From the Earth to Us: Discovering the Origins of Everyday Things, explores the relationship between natural resources and the things we use in everyday life, from computers and water bottles to batteries and solar panels.

“There is a gap in society’s understanding of where things come from. We are a society driven by consumerism and immediate gratification. We order something online, and it arrives on our doorstep the next day. We don’t stop to think about where it really came from or how it was made,” Richens says.

“There’s an ever-increasing societal position that mining is bad, and oil is even worse… But there’s a simple hypocrisy in those beliefs, since so many things in our lives are made from the raw materials that come from mining and oil and natural gas,” she says.

The book, illustrated by reclamation artist Shannon Carla King, follows young Hennessy Rose and her Cavalier King Charles Spaniel Riley on a trip to a children’s summer camp.

Hennessy’s mom is a guest speaker on the origin of everyday items and the relationship between humans and the earth. Through detailed explanations of items surrounding her, Hennessy’s mom teaches the kids how rocks, minerals, oil and gas from the earth are used to power and aid our lives, creating items such as building supplies, food and hair products, camping and sports equipment, and cell phones.

Author Tanya Richens poses with her two books for children about natural resources. Photo for Canadian Energy Centre

“I thought a simple and fun book explaining the raw materials needed to make everyday items would be valuable for all ages,” Richens says.

“When people feel personally connected to natural resources, they are more likely to promote sustainable practices. Today’s youth will have the opportunity to lead us into the future with innovative solutions for environmental challenges.”

Richens‘ career began with Alberta Environment, where she was a coordinator of reclamation approvals in the oil sands. She oversaw technical reviews of oil sands reclamation applications, communicated with statement of concern filers, coordinated public hearings and provided support for legislative changes.

She moved from government to Suncor Energy, ensuring the company’s compliance on reclamation projects and led initiatives to obtain reclamation certificates. She now works as an independent consultant.

Drawing on her wealth of experience in the field, Richens’ first book, Adventures in Land Reclamation: Exploring Jobs for a Greener Future, seeks to excite kids aged 9-12 years about jobs related to the environment and land reclamation.

Hoping to get From the Earth to Us into the hands of teachers, Richens is heading to the Edmonton Teachers Convention in late February. She says the book supports multiple learning outcomes in Alberta’s new science curriculum for grades 3, 4, 5 and 6.

“Ultimately, I’d like people to understand and acknowledge their individual part in the need for mining and oil and natural gas development. Until the naivety and hypocrisy in the world is addressed, I’m not sure that real environmental change is possible.”

Richens’ books can be purchased on her website at tcrenvironmental.com.

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Energy

Federal Government Suddenly Reverses on Critical Minerals – Over Three Years Too Late – MP Greg McLean

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From Energy Now

By Calgary MP Greg McLean

Government in Full Reverse

Canada-U.S. Trade Relations is obviously the most pressing issue facing Canadians today.

It’s important to remember how we arrived at this point, but also to question the sincerity of the Liberal Ministers and leadership contenders who are now posing solutions, such as:

  • We need to diversify our resource trade
  • We need to build pipelines and infrastructure to get our exports to tidewater
  • We need to streamline our regulatory burden that stands in the way of development
  • We need to halt the escalating carbon tax
  • We need to reverse the capital gains tax increase

The Liberals are turning themselves inside out on the policy choices they have made over nine years, and put Canada in a precarious economic position vis-à-vis our trade position.

If you believe what they are saying now, these Liberal Ministers and leadership contenders are saying that Canada needs EXACTLY THE OPPOSITE of what they have delivered over these past nine years.

I can’t comment on whether these NEW Liberal policy positions completely lack sincerity, or whether they are the result of a ‘deathbed conversion’, but nine years of moving in the exact opposite direction to their new words has led Canada to where it is today – and that is nine lost years for Canadians, our prosperity, and our role in a complex world.

Below is another example of a specific morphing of a Liberal policy – to the one I helped put forth – 3 ½ years ago – regarding Canada’s policy on critical minerals.


Minister Late to Critical Mineral Strategy

Here’s a gem of wisdom from December’s Fall Economic Statement:

Canada will work with the United States and other likeminded partners to address the impacts of non-market policies and practices that unduly distort critical mineral prices.  This includes ensuring that market participants recognize the value of critical minerals produced responsibly, with due regard for high environmental standards and labour practices.

Then, on January 16th, the following from Canada’s Natural Resource Minister, Jonathan Wilkinson:

During a panel discussion in Washington on Wednesday, Natural Resources Minister Jonathan Wilkinson proposed that enforcing a floor on metals prices could be “one of the centerpieces of the conversations we would then be having at the G7” summit later this year.

Western nations have long warned that China’s dominance in everything from nickel to lithium has let the country’s producers flood the market with supply, thereby keeping prices artificially low for competitors. Wilkinson has touted price floors as a way to combat that market control.

What a great idea!

Here’s the relevant excerpt from June, 2021, from a dissenting report on the Natural Resources Committee, when I served as my party’s critic, in contrast to the government’s critical minerals approach at that time:

Recommendation 4: Coordinate with our allies to establish a dedicated supply stock of critical minerals, possibly through a physical storage and floor pricing mechanism for visibility and pricing purposes.

Excerpt: Canada is too small of a market to undertake this effort on its own, but it can play a key role with its longstanding leadership as the mining jurisdiction of choice in the world. Canada’s pre-eminent role as a financing jurisdiction for international mining is well understood. Although we are at the early stages of losing this historical leadership to Australia, acting quickly to solidify Canada’s leadership will be a strong signal. Australia and Europe have already established critical mineral strategies to offset the dominance of the market that China has exerted. At the very least, Canada’s coordination needs to include the United States, and probably Mexico (through CUSMA), as the ongoing funding of a critical mineral supply may require backstopping developments with a price amelioration mechanism. In essence, a floor price to ensure the protection of critical mineral developments from manipulating price volatility – and which has held back developments, or caused the insolvency of several of these developments, due to non-transparent world market pricing mechanisms. … Establishing a steady supply of these critical minerals will lead to more value-added opportunities, in conjunction with our trade partners.

FULL REPORT

Conservative Dissenting Recommendations

My question to the Minister:  ‘What took you so long?’

This approach was presented three and a half years ago – and the Government chose to ignore it then.  

No surprise now, perhaps, as we’ve seen this Minister flip-flop on so many of the nonsense policies he’s put forth or acquiesced in at Cabinet:

  • The Clean Electricity Regulations (still opaque)
  • Canada’ role in shipping hydrocarbons to the world
  • Building energy infrastructure

To say nothing of the various Cabinet decisions he has been a part of that have led to Canada’s current weak negotiating position with our allies.  We effectively have not had a Minister of Natural Resources under his tenure.

Nothing topped it off more succinctly than his speech at the World Petroleum Show, held in Calgary in September 2023, when his remarks on behalf of the Government of Canada left industry participants around the world questioning whether the Minister was ‘tone-deaf’ or if, in fact, he knew anything about natural resources.

It seems his move to the position I promoted – three and a half years ago – shows that he’s finally listening and learning (or un-learning his previous narratives, perhaps)– but it’s quite late in the day.  Time and our future have been wasted.

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