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Modernize the National Energy Board? Here’s How

Want to modernize Canada’s National Energy Board (NEB)?

Bring the regulatory agency — first founded way back in 1959 when the realities of climate change weren’t readily known — into alignment with our carbon-constrained present.

That recommendation, coming from the Pembina Institute, comes in a report released Friday to coincide with the end of a federal review of the National Energy Board that brought an expert panel into halls and meeting rooms of 10 cities across the nation.

In the report, “Good Governance in the Era of Low Carbon,” the Pembina Institute states the review is an important opportunity to not only bring the mandate of the NEB into the 21st century, but also to restore public trust in what many see as a broken process.

The National Energy Board has been called a “captured regulator” that has “lost touch with what it means to protect the public interest,” by Marc Eliesen, former head of BC Hydro and former deputy minister of energy in Ontario and Manitoba.

Eliesen was one of many groups and individuals to publicly pull out of the NEB review of the Kinder Morgan Trans Mountain pipeline after the process was called “fraudulent” and an act of "public deception."

“Over the last decade, energy infrastructure proposals — including fossil fuel projects like oilsands pipelines and renewable energy development like wind farms — have become increasingly contentious across Canada,” the Pembina report states.

“Public trust in energy decision making is at an all-time low, brought on by rapidly changing realities in, and expectations of, the energy sector.”

Erin Flanagan, federal policy director with Pembina and lead author of the report said changes to the NEB could help temper public skepticism by bringing the activities of the agency into alignment with Canada’s climate commitments.

Tweet: “Canadians need an unbiased & trusted energy regulator capable of supporting Canada’s clean growth agenda.” http://bit.ly/2owTfdo #cdnpoli“Canadians need an unbiased and trusted energy regulator capable of supporting Canada’s clean growth agenda,” Flanagan said.

Under the Paris Agreement Canada has committed to reduce emissions 30 per cent below 2005 levels by 2030.

Yet the approval of major fossil fuel projects and infrastructure by the federal government have many wondering how growth in Canada’s energy sector will square with low-carbon commitments.

“National Energy Board modernization is Canada’s opportunity to turn the corner on frustrated project reviews, and instead build processes that work for all interested parties and ultimately deliver credible recommendations to government.”

The report recommends the NEB consider the climate impacts of projects as well as the impact of new projects on Canada’s climate commitments.

“In its current function the NEB…fails to assess climate change impacts in its activities, from project reviews to data production and monitoring,” the report states.

A modernized NEB would apply best-available climate science to project reviews, keep project approvals in line with low-carbon goals and protect the long-term interest of Canadians by quantifying the climate risk associated with projects. 

Currently the NEB does not incorporate an analysis of how energy projects will impact Canada's climate committments, nor does it define what is meant by "public interest."

“The federal government has an opportunity to build on the NEB’s core competencies by ensuring it has a mandate to produce energy data consistent with successful implementation of the Paris Agreement," Lindsay Wiginton, analyst with the Pembina Institute and co-author of the report, said. 

"This is an essential requirement for Canada: data produced by the NEB is widely used for energy policy development and planning across the country, and it should reflect our climate commitments.”

The report also recommends reforms to how and what projects are submitted to the NEB for assessment.

“National and sub-national governments must implement and enforce climate policy commensurate with achieving Canada’s domestic and international climate commitments. This will encourage (though not guarantee) the selection of projects that support Canada’s transition to a decarbonized economy before they arrive at the regulator.”

In addition to addressing climate impacts, the NEB should also operate in a manner that supports Canada’s commitment to respect the rights and title of indigenous peoples, including facilitating the 94 “Calls to Action" intoned in the findings of the Truth and Reconciliation Commission.

Federal project approvals of the Site C dam, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG terminal in B.C. have each been met with legal challenges from local First Nations who argue the approvals violated aboriginal rights and title or the principle of free, prior and informed consent.

“Modern regulators should conduct their work in the spirit of reconciliation with Indigenous peoples,” the report states, adding changes to legislation made in 2012 unnecessarily limited public participation in project assessments.

A lack of public participation and perceived transparency has also damaged the NEB’s reputation and the credibility of its processes, the report finds.

Pembina recommends a revised energy project review “support systems for the full and meaningful participation of the public and any interested parties” and ensure “provisions for ensuring the independence of commissioners, participating experts and project documents are in place.”

In September a three-member NEB panel recused itself from the review of TransCanada's Energy East pipeline, after the National Observer revealed the panelists quietly met with former Quebec Premier Jean Charest who at the time was working for TransCanada. 

“Public trust in the NEB is at an all-time low because of its perceived (and/or real) state of industry capture and the politicization of its decision-making," the report states, recommending energy regulators be "independent of bias and interferences from government and non-government stakeholders."

The Pembina Institute submitted the report to the expert panel charged with reviewing the NEB. The panel will make recommendations to Natural Resources Minister Jim Carr by May 15, 2017. 

Image: Prime Minister Justin Trudeau and Natural Resources Minister Jim Carr. Photo: Government of Canada

Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?
Like a kid in a candy store
When those boxes of heavily redacted documents start to pile in, reporters at The Narwhal waste no time in looking for kernels of news that matter the most. Just ask our Prairies reporter Drew Anderson, who gleefully scanned through freedom of information files like a kid in a candy store, leading to pretty damning revelations in Alberta. Long story short: the government wasn’t being forthright when it claimed its pause on new renewable energy projects wasn’t political. Just like that, our small team was again leading the charge on a pretty big story

In an oil-rich province like Alberta, that kind of reporting is crucial. But look at our investigative work on TC Energy’s Coastal GasLink pipeline to the west, or our Greenbelt reporting out in Ontario. They all highlight one thing: those with power over our shared natural world don’t want you to know how — or why — they call the shots. And we try to disrupt that.

Our journalism is powered by people just like you. We never take corporate ad dollars, or put this public-interest information behind a paywall. Will you join the pod of Narwhals that make a difference by helping us uncover some of the most important stories of our time?

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