The reaction to the Federal Court of Appeal's decision on the Trans Mountain pipeline on Thursday was fast and furious, much of it wrongheaded and certainly didn't consider what was actually in the decision just some headlines that didn't tell the full story.  On the one side was the triumphalist declarations of environmentalists and those First Nations who opposed the project, while on the other side were the anguished apocalyptic cries of doom from those who insist that this was the death knell for our resource economy.  As more details emerged we got a bit more nuance in the responses, but for the most part, the suggested remedies were out to lunch.

To recap, the decision stated that the government's approval of the project was not legal because they accepted a flawed National Energy Board report at face value when that report was not properly scoped and ignored the environmental concerns of the increased shipping off the BC coast.  More damning, perhaps, was the fact that the consultations that they had with affected First Nations were not meaningful or even adequate to the job at hand, but were mere note-taking exercises that did nothing to engage on the substance of the complaints, which was not adequate to fulfil the constitutional duty to consult.

Finance Minister Bill Morneau was sent out to react, and he basically offered a spoonful of pabulum in true Morneau fashion saying that they're still reading through the decision, but that they plan to keep going ahead with the project.  Oh, and blaming the Conservatives for the flawed process that they put into place, but that blame can only go so far.  Yes, some of it stems to the 2012 changes to the Canadian Environmental Assessment Act, but that's only the first half of the decision.  It's worthwhile noting that hours after the decision was handed down by the Court, Kinder Morgan's shareholders approved the sale of the pipeline to the Canadian government, but it needs to be repeated that this purchase is of the existing pipeline.  It's not a $4.5 billion purchase of a theoretical pipeline that will never be built, as many people have stated incorrectly.  The existing pipeline is a revenue-generating asset, and the expansion is being funded right now through loans by Crown corporations like Export Development Canada.

While the NDP and Greens were quick to cheer, insisting that the government should abandon the plans to continue with the expansion or even the sale of the existing pipeline, but it's a bit late for that.  The Conservatives have placed the blame squarely on Trudeau, but in Scheer's press release, he incorrectly identifies the sale of the pipeline as for the expansion rather than the existing revenue generating infrastructure, wrongly describes how Energy East was withdrawn by its proponent, and offers this gem about consultation with Indigenous peoples:

"First Nations consultation is an evolving but critical component of completing major projects in Canada.  Despite his rhetoric, Justin Trudeau has failed to properly adapt to the changing legal landscape."

It's not really proper to say that it's a changing legal landscape because the courts have been applying Section 35 consultation for a while, and the previous Conservative government utterly failed in its duty to consult, particularly around Northern Gateway.  The Liberals did put in place a more robust consultation process in response to the Gateway decision, but that obviously was not enough because it was one-sided and didn't respond to the "specific and focused concerns" of those First Nations, which the current government will have to wear.  But it's not like Scheer can point to a Conservative record of doing better.

Scheer also tweeted that this was somehow a failure by Trudeau to champion "the cleanest, most ethical, environmentally-friendly energy in the world," which is one of the most ridiculous statements to make and has absolutely nothing to do with what was in the ruling.

Which brings us to the demands that have been made since the ruling that the government appeal this to the Supreme Court of Canada, and some have even suggested that the government use the notwithstanding clause which they can't actually do, because it doesn't apply to Section 35.  But for an appeal to the SCC, they will have to show that there is an error in law with this decision, which will be difficult to do, particularly how thoroughly the FCA schooled them in the decision.  And it's important to remember that the decision didn't kill the project entirely it even offered a roadmap as to how the deficiencies can be remedied, which amounts to delay as opposed to death (which blows the narrative of the environmentalists out of the water).  In fact, some of the work around the environmental impacts of the tanker traffic is being addressed by the government's Ocean Protections Plan, particularly with the concerns around the killer whales in the area. The ruling was also careful to say that meaningful consultation with First Nations is not a veto, but that their concerns must be meaningfully addressed not just writing down their grievances and putting them in a file to never see the light of day.

But there will be delay, and that can be costly.  Trudeau's critics have posited that his plan all along was death by delay, but he's expended far too much political capital on this pipeline for that to be a remotely plausible scenario.  The demands that they take this to the Supreme Court (which could add years more delay), recalling Parliament, or that they simply play hard ball with environmentalists won't solve anything.  Getting a bigger bulldozer won't build the pipeline any faster in fact, it would only make matters worse.  The best, and fastest, thing the government can do is follow the map provided to them by the court, redo the portions of the NEB assessment related to the impact of tanker traffic, and to put into place a renewed consultation process with those affected First Nations that has Cabinet-level authority, that can impose new conditions on the construction of the pipeline, and show that they have listened to those specific and focused concerns.  This can be solved by doing the things that should have been done in the first place but doing the hard work is just that, hard, and it's less satisfying than screaming and throwing a tantrum.