Ecojustice Blog – Climate change Posted on May 1, 2014 (updated: February 17, 2015)

Reality bites under the new NEB Act

Karen CampbellLawyer

It was only two years ago that the federal government dismantled some of Canada’s most important environmental laws and rewrote key parts of the National Energy Board Act in an effort to speed up regulatory review processes and fast-track major pipeline projects.

When these dramatic changes — buried in a pair of omnibus budget bills — were first introduced, details were sparse, but we interpreted them as a clear signal of the federal government’s stubborn commitment to squeezing every last drop out of the Alberta tar sands as quickly as possible.

Two years later, the details have come into focus. Unfortunately, if you’re someone who believes in the value of a fair and democratic society, it’s not a pretty picture.

Take for instance, the review process for Kinder Morgan’s Trans Mountain pipeline expansion project, where valuable opportunities for public input have been stripped away to ensure that the entire review process takes no more than 15 months. Unlike the review process for the proposed Northern Gateway, there will be no cross-examination of evidence or oral hearings in affected communities.

This so-called efficiency comes at a heavy cost. Intervenors, including municipal governments, affected citizens, First Nations and environmental and community groups, will not have the opportunity to ask questions or present and defend their evidence in person. Instead, the National Energy Board (NEB) will rely on an information request process — essentially an exercise in paperwork — that will likely make an already onerous process even more challenging for those without legal representation.

Paper submissions are a poor substitute for oral cross-examination, which would have given our clients Living Oceans Society and Raincoast Conservation Foundation, and many other intervenors, the opportunity to directly challenge Kinder Morgan’s evidence.

This begs the question: How can the NEB effectively fulfil its mandate to regulate in the public interest relying only on paper evidence testing, a process that makes it possible for parties to omit inconvenient facts and focus replies on more favourable information?

During Northern Gateway pipeline hearings, intervenors cross-examined Enbridge, probing serious gaps in the company’s spill response plans and questioning its weak safety record. While the Northern Gateway panel’s recommendation that the pipeline be approved was certainly a disappointment, the panel also attached 209 conditions — many of which echo concerns that emerged during cross-examination — that must be met in order for the project to go ahead.  Had there been no cross-examination, major environmental and safety concerns may have simply been swept under the rug.

Even after a gruelling 18-month review process that included public hearings and cross-examination, many substantive questions related to the Northern Gateway pipeline (subject of this lawsuit) remain unanswered. That questions still remain suggests that further shortening the review process and excluding opportunities for meaningful public engagement cannot possibly result in a fully-informed decision. The Trans Mountain expansion, like Northern Gateway, is a project with major economic, social and environmental implications that must be carefully and thoughtfully considered.

That’s why, earlier this month, Ecojustice lawyers filed a motion with the NEB seeking a 45-day extension of the deadline to make information requests on Kinder Morgan’s application. The NEB has since granted our clients a 10-day extension.

The move came after intervenors were given a mere 30 days to review and submit questions — not nearly enough time review the 15,000-page application. This is a prime example of how the truncated review process is suppressing Canadians’ ability to meaningfully weigh in on the proposed expansion.

Meanwhile, the NEB has yet to respond to economist Robyn Allan’s motion to change the hearing order to include cross-examination. Since she filed her motion on April 14, dozens of intervenors — including the City of Vancouver and our clients — have sent letters of comment in support of Allan’s motion.

Consider what’s at stake with this project. The Trans Mountain expansion would see Kinder Morgan twin an existing pipeline and triple its capacity to 890,000 barrels per day — significantly more than Northern Gateway’s proposed 525,000 barrels per day. Tanker traffic through the Burrard Inlet and the Strait of Georgia would increase nearly seven-fold.

With more tankers transporting heavy crude to markets in Asia comes an increased threat of a catastrophic oil spill in the waters surrounding B.C.’s most densely-populated regions. These waters are a critical habitat for an abundance of wildlife, including the iconic killer whale.

Given the scope of this project, the NEB must do all it can to ensure it makes the right call. Giving intervenors the opportunity to voice their concerns and hold companies like Kinder Morgan to account would be a good place to start.

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