Federal Regulator Acting “Impermissibly in Favour” of TransCanada’s Energy East Pipeline, Says Lawyer

The National Energy Board (NEB), the federal regulator responsible for inter-provincial pipelines, appears to have jumped the gun on TransCanada’s Energy East pipeline proposal by releasing a 'list of issues' to be considered for the project's approval, before the company submitted an official application for the project. If approved, Energy East will transport 1.1 million barrels of oil and oilsands bitumen 4,600 kilometres across the country from Hardisty, Alberta to Saint John, New Brunswick each day.

“It is highly irregular and, as far as I know, unprecedented," Jason MacLean, an assistant professor of law, and specialist in environmental law, at Lakehead University, said. "Releasing the list of issues in advance is acting impermissibly in favour of the proponent of the pipeline project.”

MacLean is also acting counsel for a legal challenge announced Thursday against the NEB as a result of the 'list of issues' release. In the past the NEB has waited for pipeline companies to apply for projects before deciding what issues are relevant to their approval.

“The NEB is acting in bad faith and demonstrating how biased it is in favour of the oil industry by tailoring the list of issues to be considered to the company’s advantage,” Andrea Harden-Donahue, Energy and Climate Justice Campaigner with the Council of Canadians, said. The Council of Canadians – one of Canada’s largest civil society organizations – is spearheading the legal challenge.

The legal challenge states the NEB rigged the list of issues to favour TransCanada and the oil industry. According to the suit, issues disadvantageous to the project, such as impacts to climate change and First Nations living downstream from the oilsands, are absent from the list.

“This raises serious concerns of how under the Harper government the NEB, a federal body with a history of ruling in favour of industry, has been given more authority to limit the public’s voice in major pipeline decisions,” Harden-Donahue told DeSmog Canada. 

The NEB claims it “does not have regulatory authority over upstream or downstream activities associated with the development of oilsands, or the end use of the oil to be transported by the Project. Therefore, the Board will not consider these issues.”

MacLean argues the NEB's position is "hypocritical" since the board will consider upstream (how it affects the oil industry) and downstream (how it affects oil refineries) economic impacts of the Energy East pipeline project.

“It is inconsistent, improper, and to a certain extent, hypocritical to consider the upstream and downstream economic and commercial impacts of a pipeline – which should definitely be considered – and then ignore the upstream and downstream environmental impacts,” MacLean told DeSmog Canada.

MacLean also points out that by not considering environmental issues connected to pipelines the Board is in contravention of its own mandate. According to the NEB, the Board exists to promote “safety and security, environmental protection and economic efficiency in the Canadian public interest within the mandate set by the Parliament of Canada.”

“It's impossible to square it – that it is not 'in the public interest' to consider the adverse effects of climate change. The relationship between increased greenhouse gas emissions and climate change is quite clear,” MacLean said from Thunder Bay, Ontario.

When polled last November 84 per cent of Canadians said they wanted action on climate change. It is estimated the greenhouse gas emissions associated with the Energy East pipeline project will be the equivalent of Ontario deciding to maintain all their coal-fired power plants instead of shutting them down. Ontario’s successful phase out of coal plants has been heralded as the single most significant GHG emissions reduction initiative in North America.

“Canadians believe the federal government and its federal pipeline regulator should act neutrally and in the public interest, not govern for special interests,” MacLean told DeSmog Canada.

The Federal Court of Appeal will decide after the NEB and federal government respond to the legal challenge whether the it will move through to appeals court. This is the second legal challenge in less than year against an NEB list of issues for a pipeline project. ForestEthics Advocacy also has an ongoing case against the Line 9 pipeline project.

ForestEthics argues limiting the Line 9 issues the public can comment on and restricting members of the public from participating in the decision making process is a violation of freedom of expression under the Canadian Charter of Rights and Freedoms. The NEB approved Line 9 last March. 

Image Credit: University of Alberta

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