British Columbia court rejects appeal of coal storage permit

The British Columbia Supreme Court on March 26 upheld the right of a provincial agency to permit a coal storage area.

The petitioner, Voters Taking Action on Climate Change (VTACC), had challenged two decisions regarding the proposed expansion of Texada Quarrying Ltd.’s (TQL’s) coal handling and storage operation on Texada Island. TQL is a subsidiary of Lafarge Canada Inc.

The two decisions under review were: a March 2014 decision of Al Hoffman, Chief Inspector of Mines-Minister of Energy and Mines (MEM) to issue a permit amendment to TQL approving increase in coal storage and amalgamating permit M-66 under the provincial Mines Act; and the January 2014 determination of the Minister of Environment (MOE) not to exercise a statutory power of decision requiring TQL to obtain a permit under the Environmental Management Act (EMA) for its operations.

VTACC in part asserted that the Chief Inspector breached his duty of procedural fairness when he received and considered new materials from TQL that were relevant to the issues of concern raised by the public, without making that information publicly available. VTACC described its primary argument as jurisdictional. It said the Chief Inspector does not have jurisdiction under the Mines Act to authorize TQL’s coal storage and handling operations because these activities have no connection to a mine and, thus, no connection to the purposes of the Mines Act. It argues that TQL does not operate a coal mine on Texada Island but handles coal as a commodity for storage and handling. The Mines Act does not regulate bulk coal storage and handling operations and, therefore, the Chief Inspector does not have the power to authorize such operations.

VTACC asserts that jurisdiction over TQL’s coal operation lies with the MOE under the EMA which explicitly applies to and regulates “activities and operations for the storage and handling of…coal” as a bulk solid.

Said the March 26 ruling from Justice J. Gropper: “Applying my discretion in the manner directed by the Supreme Court of Canada, I find that the defined issue does not raise a sustainable constitutional issue or one of such public importance that it transcends the interests of those directly affected. It does not address the area of advocacy that VTACC says it represents: urging governments to take meaningful action to address climate change, including through reduced reliance on carbon intensive fuels such as coal or its position that TQL’s facility will significantly increase thermal coal exports from British Columbia, which, in turn, will cause a significant increase in greenhouse gas emissions when coal is burned, contributing to greenhouse gas emissions that drive climate change.”

Justice Gropper said that VTACC has no standing to bring this case, and that no party with obvious standing had opposed the permitting, but did address the heart of this case anyway. The justice wrote: “The standard of review is reasonableness. The decision of the Chief Inspector and the determination of the MOE were reasonable. There was no breach of procedural fairness.”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.