Pipelines and the Erosion of the National Energy Board’s Credibility

This is a guest post by Karen Campbell, Ecojustice staff lawyer.

The dramatic events unfolding on Burnaby Mountain — where more than 100 protestors have been arrested and charged with civil contempt — has turned a white-hot spotlight on Kinder Morgan’s proposed Trans Mountain pipeline expansion and the National Energy Board (NEB). And both parties are looking a little worse for wear.

Between injunctions and arrests, the furor over Kinder Morgan’s Trans Mountain pipeline expansion project has suddenly surpassed that other pipeline, Enbridge’s Northern Gateway pipeline, in terms of controversy. You will recall that despite vociferous opposition from most First Nations and northern B.C. communities, the federal government approved Northern Gateway in June 2014. That approval is now the subject of dozens of legal challenges, including three applications filed by Ecojustice lawyers on behalf of our clients.

We are just one-third of the way through the Kinder Morgan project review, and frustration with the NEB’s stripped-down process — a product of federal environmental law rollbacks tucked into the 2012 budget bill — is steadily mounting, and may have serious implications for other projects, namely TransCanada’s Energy East pipeline.

To accommodate the new 15-month time limit imposed on pipeline reviews the NEB opted to forego cross-examination and community hearings in the Kinder Morgan review. This means intervenors, including municipal governments, affected citizens, First Nations, and environmental and community groups, can’t directly challenge Kinder Morgan’s experts the way they did during Northern Gateway hearings.

Instead, the NEB is relying on two rounds of written questions and answers as a means to test evidence. This “paper hearing” process has already proven to be a poor substitute for oral cross-examination.

Of the 253 responses Ecojustice’s clients received from the company during the first round of information requests, at least 77 — approximately 30 per cent — were inadequate or simply not answered.

All in, the NEB has issued 46 rulings to date in response to various motions and procedural matters in the review, virtually all of which favour Kinder Morgan’s interests. These rulings include upholding Kinder Morgan’s refusal to answer questions from intervenors about its project application (such as a question from Living Oceans Society, one of Ecojustice’s clients, about the makes and models of its oil spill response equipment), and allowing the company to undertake exploratory routing activities on Burnaby Mountain over objections from the City of Burnaby on behalf of its residents. 

Climate change is notably absent from the list of issues the NEB will consider. The NEB’s steadfast refusal to consider the pipeline’s climate impacts — from upstream extraction of bitumen to its downstream use — is inexplicable given the steady thrum of scientists warning us about the need to curtail global greenhouse gas emissions. The omission of climate impacts is even more problematic given the federal government’s continuing failure to take meaningful action on climate change.

The erosion of the NEB’s review process certainly appears to stack the deck in favour of industry. But while the federal government’s gutting of environmental laws in 2012 may have made approving a pipeline easier, if what’s happening on Burnaby Mountain is any indication, it may have also made building a pipeline more difficult. 

Those participating inside the NEB process can tell you that things are not working. Until the NEB addresses the systemic failures of its regulatory process — at minimum, adopting more flexible timelines, restoring cross-examinations and considering climate change — intervenors in the process will continue to be frustrated in their attempts to participate meaningfully, and protests like the one on Burnaby Mountain will likely continue and only get more heated. At this point, Kinder Morgan’s exploratory drilling activity is taking place with RCMP protection.

In addition to the more than 70 people arrested on Burnaby Mountain, six legal challenges have already been filed over the Kinder Morgan Trans Mountain pipeline project. Conversely, the first Northern Gateway case was not filed until after the Joint Review Panel had made its recommendation to approve the project.

The longer that the NEB ignores the public’s legitimate concerns about the Kinder Morgan project, the more it undermines its own credibility and ability to regulate in the public interest. With yet another major proposal on the horizon in TransCanada’s Energy East pipeline, the NEB would be wise to get its house in order — and quickly.

Image Credit: Zack Embree