Two lines of defence the municipality raises to its indefensible position of going ahead with rezoning the asphalt plant — the legal opinion(s) they have and the “anything but the status quo” argument.

The status quo argument goes like this: The zoning bylaw doesn’t allow asphalt plants. The municipality goes to court. The judge is asleep, the municipality’s lawyers do a lousy job, it’s Tuesday — for whatever reason, the Hall loses. The plant stays where it is, spewing carcinogens on Cheakamus Crossing.

Instead of the status quo, the municipality says it has an agreement with the plant to, among other things, improve the air at Cheakamus Crossing. In fact, chest-thumping as they speak, “we’ll have the best air quality in B.C.”

Really?

The proposed air-quality bylaw substitutes urban pollution standards for the plant for the rural standards now in place. The plant still has its own consultant test its pollution levels once a year. It isn’t required to immediately report to anyone if it’s polluting more than allowed.

The other change is the plant sends its results to the municipality (as well as the Province as it always did). If they are bad, the bylaw allows the municipality to cancel the plant’s permit and fine it thousands of dollars.

Sounds good, but it’s not going to happen — the enforcement part, that is.

Municipalities in B.C. have those powers the Province gives to them. If the Province decides to keep a particular area of jurisdiction for itself and not give it to cities, any action taken by a town in that subject matter is ultra vires. In English, unenforceable.

That’s what’s happened here. The Province has set the air-quality regulations for asphalt plants. Whistler and Alpine Paving may have agreed to a different standard, but in the end an agreement to obey a law that’s unenforceable is nothing more than a gentlemen’s agreement.

Great — more unenforceable regulations for the asphalt plant.

And all the hoopla about monitoring air quality in the neighbourhood is just that: hoopla. There’s nothing about that monitoring in the air-quality bylaw. No linkage to the stuff coming out of the plant’s stack.

Paul Matthews’s letter last week described the asphalt plant issue as “tiresome.” I agree. In all the years I have observed and participated in municipal politics, I have never seen a story like this one.

Which raises the other tiresome municipal justification for rezoning — their legal opinions.

But wait — finally, an opinion on the topic has been published. West Coast Enviornmental Law’s (WCEL) letter is clear, concise and correct, in my view. It says the plant shouldn’t be where it is and the municipality would win if it went to court on that point.

It’s not one of the municipality’s opinions and you have to know unless it was written by God, the ultimate lawmaker, the Hall would not accept it. As predicted, the municipality has responded and says based on “confidential background information” known only to them, the WCEL opinion is wrong .

How can there be “relevant factual information” which hasn’t yet been disclosed — a week before the public hearing?

The issue the WCEL opinion does not address is the Hall’s fear that if it sued Alpine Paving to get it to move, AP would have some kind of counterclaim against them which could result in millions being awarded to AP. Although not discussed with any kind of clarity at any of the meetings I’ve attended, AP’s claim must be based on some kind of misrepresentation from 13 years ago, when it first moved to the area.

The risk of such a claim being successful is negligible in my view and even if it was, what are the damages? The plant is only being required to do now what it should have done years ago.

All in the lead-up to the public hearing on Tuesday (Sept. 7). The mess continues.