On January 9, the National Energy Board (NEB) finally announced the new panel members that will review TransCanada’s proposed Energy East pipeline, replacing the trio that recused themselves in September 2016 after revelations that panel members had secretly met with a TransCanada consultant.

But within hours of news breaking about the new panel members, a notice of motion was filed by the environmental law firm Ecojustice on behalf of Transition Initiative Kenora, calling for the complete cancellation of the entire Energy East review based on an unresolved “reasonable apprehension of bias.”

“The original panel presided over the review for years,” says Charles Hatt, one of the two Ecojustice lawyers representing Transition Initiative Kenora, in an interview with DeSmog Canada.

“All of those important decisions that they made along the way occurred after the conduct that gave rise to the reasonable apprehension of bias, after those meetings with the interested stakeholders.”

Hatt says it is clear the entire proceeding had been tainted by the reasonable apprehension of bias.

“There’d be no way for this new panel to look back and try to determine which of those many decisions were tainted and which were not.”

For Hatt and representatives from Transition Initiative Kenora, it simply isn’t enough for the former panel members to recuse themselves. The original panel’s work is tainted by a the apprehension of bias which Hatt describes as “the idea that there’s been some conduct that in the eyes of a ‘reasonable person’ gives rise to the perception of bias.”

These lingering concerns have led the petitioners to request the National Energy Board void the entire proceedings, leaving TransCanada with the option of starting from scratch.

‘Tainted’ Panel Made Dozens of Preliminary Rulings and Requests

The original Energy East review panel was announced in December 2014.

Only the following month, the two review panel members and NEB chair/CEO Peter Watson met privately with former Quebec premier Jean Charest, who was then working as a consultant for TransCanada.

While the NEB denied it at first, the meeting did in fact include specific discussions about Energy East including suggestions of “using the ‘Lac Megantic example’ to show that pipelines are safer than rail.”

Other private meetings took place that Watson and the panel members didn’t publicly disclose.

At least a year-and-a-half of preliminary work was completed by the panel prior to the beginning of the formal review in June 2016. This work was completed without any acknowledgment that members of the review panel had secretly communicated with the project proponent.

The new notice of motion by Transition Initiative Kenora, submitted to the NEB on Jan. 10, reports that the previous panel decided “dozens of procedural and substantive matters that have shaped the Board’s review of Energy East,” including 27 rulings, six procedural directions and nine information requests to TransCanada.

It notes the original panel also determined when TransCanada’s project application was complete and decided who could or could not participate as intervenors in the National Energy Board’s review of Energy East.

“It’s a continuation of work that we had started earlier,” says Teika Newton, executive director of Transition Initiative Kenora.

“We filed the notice of motion back in August that resulted in the original review panel recusing themselves in September. This is a natural progression on that.”

NEB Has to Respond to Notice of Motion or Refer It to Federal Court

Newton’s organization has specific concerns about the proposed construction of Energy East, especially the impacts of a potential oil spill on water sources, wetlands and marshes.

But she emphasizes the notice of motion is something that should concern any participating group given the need to ensure a fair regulatory process and review: “I don’t think we’re any different or have any unique concerns just because of who we are or where we are.”

“I think it’s an issue that applies universally to all participants,” she says.

Transition Initiative Kenora must now wait for the new panel to formally issue a response to the motion.

Hatt says the NEB will have to hear from all interested parties, which will include TransCanada and many intervenors. It could take weeks or longer to hear from all parties, after which the panel will have to make a decision.

The National Energy Board can refer the matter to the Federal Court of Appeal or could refuse to grant relief.

Hatt says “if and when that happens we will advise our client about challenging that decision in court.”

He adds that the motion provides the federal government with the opportunity to restart the process under a renewed National Energy Board Act and Canadian Environmental Assessment Act, both of which are currently under federal review.

Strengthened environmental laws could result in “a totally different type of review of these important pipeline projects,” Hatt says.

“They’ve put bandaids on the existing legislation but it’s still the legislation that was reformed by the previous government.”

It was also announced on Jan. 9 that Ginoogaming and Aroland First Nations had filed a lawsuit and injunction against TransCanada to ensure proper consultation for pipeline maintenance and prevent “integrity digs” that some fear are actually preliminary work connected to Energy East.

Environmental Defence has also called for the NEB to “pull the plug on the Energy East review and restart it only when an overhauled review process with a credible climate test is in place.”

Newton says her group is “content to just see what happens next in this ongoing saga.”

Image: Environmental Defence poster outlining risks of TransCanada's Energy East pipeline. Photo: Environmental Defence via Flickr (CC BY-NC 2.0)

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Quebec Environment Minister David Heurtel announced Tuesday the province is filing a legal injunction against TransCanada’s proposed Energy East oil pipeline with Quebec’s Superior Court.

"Today's motion is very simple and very clear. It signifies that whoever seeks to build a project in Quebec must comply with all Quebec laws and regulations," Heurtel said at a press conference.

"This is not only a matter of respect, but equally a question of fairness towards all companies that wish to do business in Quebec."

The announcement left oil-patch politicians like Saskatchewan Premier Brad Wall once again bitter with Quebec for not fully supporting the west-to-east pipeline project. 

"I'm very disappointed," Wall said in response to the province's push for an injunction. "It seems of late that we seem to be forgetting what's best about Canada."   “The Minister himself was quite clear in pointing out it is not a position for or against the pipeline,” Karine Peloffy, executive director of Centre Québécois du Droit de l’Environnement (Quebec Environmental Law Center), said. “It is more an issue of insisting on the proper application of the law.”    Under Quebec’s Environment Quality Act, any pipeline longer than two kilometers must undergo a provincial environmental assessment and review prior to shovels going into the ground. If approved, 1,600 kilometres of the 4,600-kilometre Energy East pipeline will be built in Quebec and New Brunswick.   “We have laws quite specific to Quebec that take into account environmental risks and local health issues and concerns not necessarily considered at the federal level,” Peloffy told DeSmog Canada.

Peloffy points to the province’s adherence to legal concepts like protecting water as a collective resource and the fundamental right to live in a healthy environment as areas where Quebec’s environmental law differs from its federal equivalent.

Legacy Of Weakened Federal Environmental Protections 

Much of Canada's federal environmental legislation related to the protection of at risk species, fish and water protection was weakened or eliminated under the previous federal government, leaving some to wonder if provincial law is the last best defence for the environment.

The the Species At Risk Act, the Navigable Waters Protection Act and the Canadian Environmental Assessment Act were significantly altered through two omnibus bills in 2012. In the wake of the legislative changes, hundreds of environmental assessments of energy projects were cancelled outright, eroding public trust in the ability of the National Energy Board, Canada's pipeline regulator, to adequately assess the environmental risk of new major pipeline projects.

“In 2012, the Harper government set out to scale back federal environmental legislation to the minimum amount required to satisfy its jurisdiction,” Ecojustice staff lawyer Charles Hatt told DeSmog Canada.   “Provincial environmental assessment legislation can sometimes fill gaps left by this narrow view the previous federal government took of environmental assessment,” Hatt said.   Prime Minister Justin Trudeau's government promised to review the national pipeline assessment process but indicated pipeline review processes already underway — for both the Kinder Morgan Trans Mountain pipeline expanstion and Energy East — will continue on under the current regime. 

Quebec to Avoid Same Legal Ruling as British Columbia

Comments made by Quebec Premier Philippe Couillard earlier this week indicate the province is trying to avoid legal obstacles faced by British Columbia in the construction of the Enbridge Northern Gateway pipeline.

The B.C. Supreme Court found last January that the provincial government failed to fulfill its legal duty to consult with First Nations about Northern Gateway when it handed over its responsibility to conduct an environmental assessment of the project to the National Energy Board. 

“Essentially the courts ruled the B.C. government acted illegally by abdicating its responsibility to review Northern Gateway to the National Energy Board,” Peloffy said.

"I want to point out that this [injunction] should not be interpreted as us being for or against the project," Environment Minister Hurtel said Tuesday. "Rather, as in other provinces, it is an attempt to have our laws and regulations respected." 

TransCanada Refuses To Supply Quebec With An Environmental Impact Study of Energy East 

TransCanada may have also played a role in provoking the Quebec injunction.   “I clearly informed TransCanada Pipelines that it needed to table a project notice for Energy East," Environment Minister Heurtel stated in a media release. "In the face of its inaction, the government has taken action. This is not only a matter of respect, but equally a question of fairness towards all companies that wish to do business in Quebec."

Under normal circumstances in Quebec, when a company wishes to undertake a major project it must submit a notice with the ministry of environment. This in turn triggers a review by a provincial agency called the Bureau d’audiences publiques sur l’environnement or BAPE and leads to the issuance of a governmental authorization of and conditions for the project.   The province asked TransCanada in 2014 to provide an environmental impact study of the Quebec portion of Energy East for purposes of conducting a provincial review and the Calgary-based pipeline company has yet to respond.   Despite TransCanada not following proper Quebec procedure, the province decided to go ahead with a review of Energy East regardless. The review is scheduled to begin next week.   Quebec environmental organizations have concerns about the provincial review in its current form.   “A big issue with the current review is the minister has been able to carve out pieces of the mandate they didn’t want to be studied,” Peloffy said. “Normally in a provincial review all aspects of the environment are looked at, including economic aspects and Indigenous rights. The Minister decided both are outside the purview of the review.”   TransCanada’s non-compliance with Quebec law has given Heurtel the legal leeway to cater the review of Energy East to a more limited set of criteria than is standard in the province. The review’s findings will only serve to inform Quebec’s position during National Energy Board hearings and not result a provincial government decision on Energy East.   Quebec Environmental Law Centre, Equiterre, Nature Quebec and Fondation Coule pas chez nous are calling on the Quebec government to suspend its Energy East review until the province’s Superior Court delivers a ruling on whether TransCanada has breached Quebec law. All four organizations filed a joint motion with the Superior Court against the Energy East project on February 18th.   If built, the $15.7 billion dollar Energy East pipeline will transport 1.1 million barrels of western Canadian oil and oilsands crude 4,600 kilometres to New Brunswick every day. To date, TransCanada has submitted over 30,000-pages of documents as part of its Energy East application to the National Energy Board. The Board has not determined if the application is complete. 

Image Credit: David Heurtel via Twitter

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