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Regulations For Tar Sands Proposed in Vt.

Canadian Pipeline Should Follow Act 250 Permits Lawmakers Say

Vermont legislators are proposing two bills aimed at regulating the potential piping of Canadian tar sands oil through Vermont’s Northeast Kingdom.

The bills — one already introduced in the House and another coming through the Senate this week — clarify that state approval would be necessary for physically changing an oil pipeline for purposes other than repair, and governing on the basis of safety falls under the strict purview of the federal government.

In November, Enbridge Oil applied to the Canadian National Energy Board to reverse the flow of oil along a stretch of pipeline between Ontario and Montreal. The company wants to pump oil from Alberta tar sands to Montreal refineries.

Enbridge representatives have repeatedly denied plans to continue piping oil through Vermont along the Portland Pipeline Corporation’s Portland-Montreal Pipe Line for export, but a range of Canadian and U.S. environmentalists say the company intends to do just that.

Westminster Rep. David Deen — who chairs the House Committee on Fish, Wildlife and Water Resources — began an investigation months ago with assistance from Legislative Council to better understand what power the state has to regulate tar sands oil flowing through the Vermont stretch of the pipeline. He found the state has “very limited authority.”

Furthermore, Deen says, Enbridge previously sought to test state regulatory waters.

“Proposers of the original change, asked for a jurisdiction opinion of the district environmental commission for Act 250, and that opinion said a 250 permit was not needed,” said Deen. “The (company) never consummated that jurisdictional opinion so it doesn’t exist as a matter of case law.”

The Portland-Montreal pipeline opened in 1941 — almost 30 years before the state’s governing land-use law, Act 250, was adopted. To ensure that Vermont has some say over a change of use to this grandfathered line, Deen introduced legislation that requires Act 250 review for any alteration to an existing pipeline for any reason “that is not solely for the purpose of repair.”

The bill also forbids a district Act 250 commission from considering or regulating “the safety of the pipeline” when issuing a permit. That responsibility belongs to the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration.

The state has been embroiled in a legal battle with Entergy Corp. over the Vermont Yankee Nuclear Plant for allegedly trying to regulate the plant for safety reasons, which fall under the jurisdiction of the federal government via the Atomic Energy Act. Deen’s bill is aimed at preventing any such similar legal disputes with the owner of the Northeast Kingdom pipeline.

While Deen was conducting his investigation, Sen. Ginny Lyons, D-Chittenden, who formerly chaired the Senate Committee on Natural Resources and Energy, carried out her own research with help from Legislative Council. She came up with essentially the same bill, which she plans to introduce this week.

“I’m pleased we came to the same conclusion,” she said.

Oddly enough, representatives for the petroleum industry and state environmental groups also actually agree on something: That this legislation isn’t really necessary.

Joe Choquette, a Vermont lobbyist for the American Petroleum Institute, said: “It’s already covered by Act 250 and certainly any development proposal ought to meet the criteria of Act 250.”

Jim Murphy, senior counsel for the National Wildlife Federation, agrees.

“Our view is that with or without this bill, there is still pretty clear Act 250 jurisdiction over the pipeline because changing the material would be a substantial change of use, which is the trigger for Act 250 jurisdiction for an existing development,” he said. “Additional clarity would be great, but it’s not necessarily needed.”

Sandy Levine takes a slightly different stance. The senior attorney for the Conservation Law Foundation said the legislation is not completely redundant.

“I wouldn’t say it’s superfluous,” she said, “I think it just adds a measure of protection to ensure any change in the pipeline will be reviewed by Act 250. Based on the experience of other states, it’s important to have strong state oversight of pipeline activity. These are materials that have the potential for a significant impact to the environment.”

Choquette said the legislation doesn’t raise any red flags as it stands. But if a bill attempted to impede the flow of petroleum through the state, his organization would take issue.

“We would be opposed to any prohibition of moving any sort of petroleum through the state, whether it was a pipeline or a truck or anything else,” he said. “Canada is our No. 1 foreign source of oil, so we would be concerned about anything that would interrupt the flow of oil from Canada.”

Enbridge spokesman Graham White said his company is not concerned with the legislation.

“We have no plans at this time to go past Montreal,” he said. “We have no infrastructure. We have no proposals. We have no filings … It’s actually in our application that we say we’re not doing that.”

But Murphy doesn’t buy this claim.

“Basically, they’ve got an active plan in Canada to bring tar sands to Montreal in excess of the refining capacity that Montreal has,” he said. “With the difficulty of shipping tar sands out of Montreal by ship or other means, the only other way to get it to ports for export is by shipping it through the pipeline to Portland.”

Murphy is concerned that if Enbridge were permitted to pump oil across the Northeast Kingdom, it would pose a serious risk to state forests and exacerbate climate change.

“Climate change is a huge concern, and tar sands is an immense climate time bomb,” he said.