Market News

 March 14, 2018
Kinder Morgan wants money from anyone who gets in the way of Trans Mountain expansion

 The Canadian division of Texas-based multinational energy giant Kinder Morgan is seeking to get some money from anyone who gets in the way of its Trans Mountain pipeline expansion project, the company indicated in legal papers to be reviewed on Wednesday by B.C.'s Supreme Court.

The company has been trying to get construction underway on the west coast oil pipeline expansion project, despite fierce opposition from First Nations, local governments and others in British Columbia. But it says that recent protest activity has been blocking access to construction sites in Burnaby B.C. "almost every day" since Nov. 30, 2017, causing the company to "suffer significant harm."

The claims made by Kinder Morgan in court contrast starkly with the message that the company's executives have been giving shareholders in recent months.

If built, the Trans Mountain expansion would triple the capacity of an existing pipeline network, allowing the company to ship up to 890,000 barrels of crude oil per day from Edmonton to a Burnaby terminal in the metro Vancouver region.

Supporters, including the Alberta and federal governments say the multibillion dollar project is key to jobs and new expansion in the oilpatch, while opponents, such as the B.C. government and local First Nations communities say it would push Canada's climate change targets out of reach and lead to dangerous spills.

Kinder Morgan asked the court on March 8 to issue an injunction that would stop a group of Canadian activists from interfering with construction. It has also asked the court to require the protesters to pay for the company's losses and legal fees, arguing that ongoing blockades have been designed to "cause delay and financial harm... with the ultimate goal of stopping the project entirely."

Justice Kenneth Affleck agreed to an interim injunction on March 9 in response to the company's statement of claim, which names 15 different people who are opposed to the project, along with John and Jane Doe and other "persons unknown." The injunction would last until Wednesday's hearing.

But despite the temporary ruling, thousands of people descended on Burnaby on Saturday to march against the project. They also erected an Indigenous "Watch House" to symbolically keep an eye on the energy company's activities.

Casey Leggett, a lawyer for one of the defendants, told The Canadian Press in an interview last week that the company's claim, which included a proposed 50-metre exclusion zone for protests, was "arbitrary" and "going too far."

Bina Salimath, one of the people named in the claim, said she is taking action to support the community, while she accuses Kinder Morgan of proceeding with its plans for a "very limited number of shareholders."

"Kinder Morgan has got the political clout, the backing from the system, and the money to go after a working class mom with a kid," she said. "If they want to go after me it speaks more about Kinder Morgan than it does about me. And if the courts allow it, that says more about the system than it does about me."

Salimath added that she had deeply personal reasons for taking the position she has taken against the company.

"My family walks a lot in the forests around B.C., and even in the last 10 years we have noticed a lot being cut down," she said. "We can still hear some frogs croaking and the migrating birds are coming back in the spring. But Kinder Morgan is threatening to cut these trees down. Imagine coming back after work, and your home is gone. For me that is a very strong reason."

In its statement submitted in court, Trans Mountain said it had exhausted all reasonable means of minimizing the effects of the blockades. It also alleged that blockade participants physically obstructed workers by occupying work-zones and forcing work stoppages.

"The Defendants agreed amongst themselves and have acted in combination for the predominant purpose of injuring Trans Mountain through unlawful and/or lawful means," the company said in its claim. "The Defendants either knew, or certainly ought to have known, that their actions, including their participation in and creation of blockades... would injure Trans Mountain. Trans Mountain has suffered injury and loss due to the Defendants' misconduct."

Kinder Morgan's message from company executives to shareholders has been different in its recent quarterly conference calls last October and in January. In October, executives cheerfully touted progress in securing provincial and municipal permits, noting that progress was "slower than we expected it to be."

One month later, the company filed legal papers with the National Energy Board that frantically warned of massive losses of more than $90 million per month, due to delays that it alleged were provoked by the City of Burnaby.

Then in a Jan. 17 conference call, Kinder Morgan president and CEO Steve Kean told investors that the company was watching for upcoming court and permitting decisions which might interfere with its planning and schedule. But despite some delays, he noted that there was some "good progress" on the file.

This was followed, less than two months later by the company's March 8 statement of claim, listing its warnings about losses caused by protests.

The company made these complaints even though Kean failed to tell investors about any major concerns about protests causing losses, damage or delays. Instead, Kean said that the main thing on his mind in January was getting through National Energy Board hearings to determine the exact route of the pipeline, allowing the company to seize control of the land it needed, in exchange for monetary compensation offered to affected landowners.

"Those are the places where we deal with route objections," Kean told investors on the call. "If we get objections on the route, we get a right of entry first. And then the question becomes what's the level of compensation involved? But first, we need to have the right of entry and then we can determine or reach an arrangement on the compensation level. But the main thing in my mind is we need to see the route hearings progress. And they are."

Economist Robyn Allan, an opponent of the project who has been tracking developments, said that the mixed messages from the company appear to be part of a pattern.

"The construction schedule with the in-service date of December 2019 was totally unattainable and they knew it," said Allan, a former president and CEO from the Insurance Corporation of British Columbia, in an interview with National Observer. "We know they won't start pipeline construction until next summer, so to suggest there is this huge cost because protectors of the public interest have been standing in front of the entrance to the marine terminal is not consistent with the facts."

When asked to explain the apparent discrepancy between its statements to investors that tout progress and its legal filings which warn of losses, Kinder Morgan didn't immediately respond.