The National Energy Board ruled in favour of Kinder Morgan Friday, allowing the company to keep its emergency response plans for the expanded Trans Mountain pipeline secret.

Kinder Morgan fought the province of British Columbia’s demands to disclose its emergency response plans for the $6.5 billion pipeline expansion that will triple the amount of oilsands crude moving from Alberta to the Burrard Inlet, arguing the information is too “sensitive.”

In a statement Kinder Morgan argued “it is not appropriate to file security sensitive information about facility operations and countermeasures.”

Eoin Madden with the Wilderness Committee, an intervenor in the Trans Mountain hearing process, said he wished this ruling came as more of a surprise.

“I’d love for it to be news, but basically for the last year or so we’ve watched more and more information be denied to us intervenors in the National Energy Board process.”

Madden said the entire project review process has been threatened by regulatory capture, a concern he said was confirmed at the highest level with the outspoken disavowal of the proceedings by former BC Hydro CEO Mark Eliesen.

Last fall Eliesen became a vocal critic of the Trans Mountain review, criticizing the National Energy Board’s activity as “fraudulent” and a “public deception.”

Madden said the NEB’s recent ruling falls into a trend of information being withheld from participants in the public hearings. “You’ve got to look at the trend. The trend started in 2012 where, through increased lobbying, the federal government changed the laws on how we engage in processes like this. They made it less democratic.”

“At this point you have to wonder whether the process should proceed at all,” he said, adding many participants lack a fundamental faith in the hearings.

“Breach of due process”

“I’m disappointed in the ruling,” Chris Tollefson, legal counsel with the Environmental Law Centre at the University of Victoria, said. “I think the tribunal made an error when it concluded it didn’t need the documents at this stage.”

Tollefson said the tribunal should have considered not whether it needed the information, but whether the information was necessary for the process and “necessary for procedural fairness to be ensured for the intervenors.”

Tollefson said intervenors needed to see Kinder Morgan’s emergency plan to prepare questions for the second and final round of 'information requests' or questioning.

“Without those documents in my view they’ve been denied the ability to make their case and that amounts to a breach of due process.” He added that there was a marked drop in participation during the final round of questioning.

“Certainly you hear – loudly – frustration being voiced by lawyers, by clients who are involved in this process,” he said.

Tollefson said his clients, BC Nature and Nature Canada, are committed to carrying through with the NEB process “despite the failings we see,” but adds a separate province-led environmental review could address some of the growing concerns with the adequacy of the current review.

“The notion of having a parallel provincial process at this point makes a lot of sense. There are many issues and questions that are not being dealt with in this process that British Columbians want and need to be addressed.”

Intervenors involved in the process have found themselves without the necessary information needed to present their case, they’ve been denied the opportunity to question officials outside a written ‘information request’ process, and are prevented from discussing issues – like climate change – that the NEB finds outside the scope of the hearings.

“I think British Columbians also want to cross-examine company officials and experts to get answers to these questions and that could happen through a parallel provincial process,” Tollefson said.

“That doesn’t mean this federal process will come to an end. It will carry on. But together hopefully the two processes will provide us with a basis for making a wise decision about the future of this project.”

Made-in-B.C. environmental review the answer?

Other on-lookers, however, are less convinced the process should continue.

Spencer Chandra Herbert, NDP MLA and environment critic, said the NEB ruling strongly supports the argument for a separate province-led environmental review.

“I think the NEB’s ruling that Kinder Morgan doesn’t have to provide their full emergency management plan, the plan to deal with oil spills and fires and the like, is wrong. It’s outrageous.”

Chandra said the NEB review process has “been so drastically altered by the Harper Government” that it has become “a fraud and a sham.”

“What it means for B.C. – the province that moved the motion to ask for this information – is that this process is a sham and B.C. should get out of it. B.C. should withdraw.”

Chandra argued a review process tailored to B.C.’s specific concerns is the only thing that makes sense in light of the project and failed federal review.

“We should have a made-in-B.C. process where we can demand the answers that we want whether they are about oil spills or climate change. It’s our coast.”

“What other recourse do we have? I’m not willing to roll over and trust Kinder Morgan as B.C. seems willing to do,” he said.

In November the Green Party of B.C. launched a petition to call for a “made-in-B.C. review” of the pipeline project.

“The B.C. Government has the option to pull out of the existing process and launch its own separate environmental assessment by giving the National Energy Board 30 days notice,” the petition page states.

Around the launch of the petition Green Party MLA and climate scientist Andrew Weaver said, “enough is enough.”

“For months now we’ve seen mounting evidence that the National Energy Board hearings on the Trans Mountain pipeline are seriously flawed.”

“Our provincial government must reclaim British Columbia’s right to have our own, made-in-B.C., hearing process,” he added. “It’s time for the government to step up and protect our interests for it’s clear that the National Energy Board is not doing so.”

Last week Weaver submitted nearly 100 additional questions to Kinder Morgan in the second and final round of the NEB hearings.

“I continue to engage in the this process because I believe it’s important to give a voice to my constituents and to British Columbians who worry that their concerns are being ignored,” he said in a statement.

Around 400 intervenors submitted 10,000 questions to Kinder Morgan and 2000 of the company’s answers were challenged as inadequate. The NEB provided support for those challenges less than 5 per cent of the time.

According to Metro News, the B.C. Ministry of Environment submitted requests for additional information to “seek more information about the Emergency Management Plan.”

Christy Clark has outlined seven conditions for the pipeline to go forward, one of which is a comprehensive spill plan.

Image Credit: Chamber of Shipping

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

The Alberta government has barred the Oilsands Environmental Coalition from hearings on a proposed new oilsands development by Southern Pacific Resource Corp., even after a similar decision last fall was overturned by a judge.

Conservationists say the decision only makes clearer the Alberta government's tendency to shut down public dialogue on resource development. "The government hasn't learned its lesson from last time," said Simon Dyer of the Pembina Institute, one of the groups in the coalition.

Dyer said the coalition will be appealing the second ruling, reports the Canadian Press.

Alberta Environment first denied the coalition standing to participate in hearings about a development on the MacKay River in northern Alberta in 2012, which would expand an existing steam-assisted gravity drainage (SAGD) project. The expansion would result in the extraction of an additional 24,000 barrels per day (bpd) of bitumen.

The Alberta government argued that the group was not directly affected by the project, even though members of the Pembina Institute have a recreational lease in the area, and 45 others live nearby in Fort McMurray.

The coalition applied for a judicial review of the decision. During the process, a 2009 Alberta Environment memo was discovered that singled out the coalition, which includes Pembina and the Fort McMurray Environmental Association, as "not simple to work with" and as having published "negative media on the oil sands."

Justice Richard Marceau invalidated the government's decision on the basis of the 2009 memo, writing in his statement that the law does not permit the Alberta government to "reject statements of concern from those persons or groups who voice negative statements about proposed oil sands development."

"The process of identifying who is 'directly affected' should not be decided by the application of rigid rules," Marceau wrote, noting that there would be no environmentalist voices present at the Southern Pacific hearing if the coalition were barred.

Regardless, in a March 27 letter to the coalition, Alberta Environment official Kevin Wilkinson repeated the very reasoning that got the 2012 decision overturned.

Wilkinson wrote that the coalition is not a legal entity and cannot therefore be considered directly affected, saying that the recreational lease "is no more compelling than the ability for any Albertan to recreate on public land." He added that homes in Fort McMurray, 45 kilometres from the development, were too distant for residents to be considered directly affected.

Wilkinson also assured coalition members that their concerns would be "considered by the designated director, even if the person who submitted the concern is found not to be directly affected."

Dyer noted that the coalition has participated in many other provincial hearings before, and continues to be granted standing at joint federal-provincial hearings. He said that the government's decision is indicative of a pattern of tighter restrictions on who gets to voice concern to regulators about the oilsands.

Earlier this year, the Alberta Energy Regulator (AER) cancelled the public hearing on the Canadian Natural Resources Ltd.'s proposed Kirby Expansion Project after none of the groups that applied to participate were allowed standing. Statements of concern were filed by the Oilsands Environmental Coalition and several First Nations, all of whom were denied. The Kirby Expansion Project, another SAGD project, was subsequently "referred by the hearing panel AER staff for further review and dispensation without hearing."

Nigel Bankes, professor of resource law at the University of Calgary, called the government's tests for deciding standing at hearings "narrow and stringent."

Spokeswoman Katrina Bluetchen said that there has been no regulatory change at Alberta Environment. "Nothing has changed," she said. "It was deemed (the coalition) was not directly affected."

The government has kept information on how many groups have been denied standing in hearings restricted. An access to information request put in by the Canadian Press has been at Alberta Environment for six months without any result.

Dyer thinks Alberta Environment's actions harm the ability of the province to evaluate the impact of resource development, saying that "the government should err on the side of allowing people to speak and collecting input" to help make responsible decisions.

Image Credit: Kris Krug via Flickr

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.