EDMONTON — Jason Kenney, the soon-to-be premier of Alberta, rode to victory vowing to implement policies that would empower the province to fight back against its foes.Among them was Kenney’s promise to “turn off the taps” to British Columbia. He vowed to proclaim legislation into law that would enable him to squeeze the supply of oil and gas going into B.C., as part of a larger United Conservative strategy to exert pressure on the province and the federal government in order to get the Trans Mountain pipeline built. The stalled pipeline is widely seen as a key component of Alberta’s economic recovery.But the question remains: How would “turning off the taps” work? Is it even constitutional?The UCP isn’t yet prepared to discuss these issues. Christine Myatt, a party spokeswoman, sent an emailed statement that said the “transition team is working closely with the Alberta Public Service to assess our options when it comes to the practical applications of Bill 12. We will have more to say about this in the near future.”Instead, the National Post spoke to experts to get some insight into how all this could play out and if, rhetoric aside, it would even work.So, are there literal taps?Sorry, no. If you’d harboured fantasies of watching Kenney take a novelty-sized crescent wrench to pipelines running from Alberta, that’s unlikely to happen. (There are valves on pipelines that can halt or control flow, but the vow to “turn off the taps” isn’t just about that.)This is far more bureaucratic. Then how do you turn off the taps?Well, what Bill 12 does is it gives the provincial government power to impose licences on companies exporting petroleum products. It then gives the government power to impose restrictions upon those licence holders.Those restrictions could be to limit the allowable daily quantities of petroleum products shipped, the method of shipment and point of export, and length of time a licence is in effect, among a few others. The minister of energy could also level fines for non-compliance.So, basically, the UCP would pass Bill 12 and then they would be able to refuse permission to send oil and gas to B.C. — or at least severely limit how much travels there. Government estimates from December 2017 suggest that all total, about 80,000 barrels of refined fuels (diesel, jet fuel, gasoline) go to B.C. each day; about 44,000 of them travel via the current Trans Mountain pipeline. As for crude oil and blended bitumen, about 258,000 barrels per day pass through that pipeline.How long would it take to make this happen?Bill 12 was actually introduced under the NDP government, in April 2018. It was passed in the legislature the following month, but it hasn’t been proclaimed yet.Once proclaimed — which Kenney has promised to do posthaste — things could get moving pretty quickly.
Don’t expect to see Jason Kenney literally turning off the pipeline taps, like this guy did.
Wojtek Laski/AFP/Getty Images
Wait, if it’s an NDP bill, why is Kenney getting the credit?The NDP, in its time in government, adopted ideas that originated publicly with the UCP. Curtailment of oil production is one; this is another.And Kenney certainly was louder about it than the New Democrats, specifically when it came to lambasting British Columbia and vowing to punish them.What was the NDP’s plan?There are a few factors to consider when it comes to determining how to hurt B.C. the most.The overall idea is if you cut shipments of fuel — gasoline, diesel — to B.C., the market will crank up the prices — hurting holiday-makers, soccer moms and cab drivers who are already paying an average $1.55 per litre, according to GasBuddy.com.But the NDP knew there would likely be a court challenge and then an injunction to get fuel flowing again.So the plan would have been two-fold: pick a time when gas prices are already high and alternative sources of fuel — refineries in Washington — are shut down for maintenance, so there is no back-up supply.The idea would be to strike fast and hard, and hope the effects linger for some time.Does that mean Kenney could run into legal trouble?Yes. There has already been one court case, from when the NDP was in power. In May 2018, the B.C. government filed a suit against the bill. But since it hadn’t yet been proclaimed into law, a Calgary judge tossed it out in February 2019.The minute the bill’s proclaimed, this could kick off again.There are a few main legal issues the Alberta government will have to sort out if it wants to win in court.First, Bill 12 relies on Section 92A(2) of the constitution. This is the part where provinces get the ability to regulate natural resources.
Alberta Premier-Designate Jason Kenney
But it’s not clear that this section gives Alberta the constitutional power to restrict shipments of refined fuels, according to an analysis by University of Calgary law professor Nigel Bankes that was published on the faculty’s law blog. Crude oil, for example, is fine, but gasoline may not be.Those fuels could fall under regulation of trade and commerce — a federal power.The second is another legal twist wherein a province isn’t supposed to discriminate against specific provinces. The New Democrats say they were careful on this point, not to single out B.C. The United Conservatives have had no such qualms, which could weaken their legal position.The Canadian Association of Petroleum Producers declined to comment specifically on the industry’s views on this plan, saying they need time to analyze what Kenney would do, but said they are supportive of getting access to new markets. However, when it was first announced, the Vancouver Sun reported some unease among energy associations. University of Alberta economist Andrew Leach said there could be some impacts to industry, but that the talk of tap-throttling doesn’t necessarily reduce energy exports overall, just exports to B.C., so perhaps the bottom line for energy companies wouldn’t change dramatically.At the end of the day, though, asking whether it would work or what the effect would be is missing the point of whether or not the whole thing is legal.“We’re having a conversation about whether or not our horse trailers can get enough unicorns to Montana without addressing the fact that there aren’t unicorns,” Leach said.• Email: firstname.lastname@example.org | Twitter: tylerrdawson