Energy East dust-up more than just an East-West tiff

Quebec's attempt to slap an injunction on TransCanada's construction of the Energy East pipeline was, to say the least, unpopular in various points west.

• TransCanada's Energy East pipeline target of Quebec injunction
• Quebec's legal action on Energy East mischaracterized, Notley says

Saskatchewan Premier Brad Wall said he was "disappointed" with Quebec, hinting vaguely at reprisals.

Alberta's opposition leader, Brian Jean, demanded the province return itsshare of equalization payments.

The Conservative MP for Regina, Andrew Scheer, called on the prime minister to stand up to Quebec's meddling. Neither could his Calgary colleague Jason Kenny resist the pile on.

But some observers are noting that important points about Quebec's position are being left out of the debate.

No less an advocate for the pipeline than Alberta Premier Rachel Notley pointed out in a news conference on Tuesday that Quebec wasn't using the injunction to block the pipeline outright.

She said it appears to be using the injunction to force TransCanada to submit to aprovincial environmental review.

"It's an opportunity for local people to engage with whatever environmental concerns they might have and it informs the provincial government's submissions to the NEB," Notley said.

Environment 'not even mentioned'

Quebec's environmental concerns are being forgotten amid the heated political rhetoric,said University of Alberta political scientist JulianCastro-Rea.

"The environment is not even mentioned," Castro-Rea said of the Saskatchewan premier's arguments.

"He thinks the Quebec government is acting out of pettiness."

Competing regional interests are an important factor in the pipeline debate, but ideological differences are also at play, added Castro-Rea, an expert in Quebec politics and North American federalism.Small c-conservative politicians are less likely to take at face value Quebec's professed desire for an environmental review.

"In their minds, I suppose, the environment is not as important as economic growth," Castro-Rea said. "That's why I say this confrontation is also ideological."

Alberta's NDP government may share an economic interest with Saskatchewan in building the pipeline. At the same time, it may be more sympathetic than others to thepotential environmental concerns about the project.

Federal-provincial relations

Another much-discussed, but little understood, element of the debate is the issue of federal-provincial relations.

Notley and other supporters of the pipeline don't want Quebec to use its environmental review process to wander into an area of federal jurisdiction. They want the National Energy Board (NEB) to have final say about whether the pipeline gets built.

Federal legislation stipulates that the NEB has authority over pipelines that cross provincial boundaries.A 2010 Supreme Court ruling Quebec (Attorney General) v. Canadian Owners and Pilots Association reiterated a legal principle that holds provincial governments can't pass a law that interferes with a "vital part" of a trans-provincial pipeline.

"A provincial law that makes an interprovincial pipeline practically impossible to construct would likely affect a 'vital part' of it," reads a 2013 research note by the Library of Parliament.

"If the provincial law were challenged on that basis, a court would likely rule that the law did not apply to the pipeline."

But even here, the politics may not be so clear cut. The NEB should be wary of rendering decisions that fly in the face of provincial concerns, warned Castro-Rea.

"A decision by the National Energy Board at the end of the day might be legal from the technical point of view, but it would be illegitimate because there would be opposition from a provincial government," he said.