The National Energy Board (NEB) recommended a conditional approval of the Kinder Morgan Trans Mountain pipeline expansion today after a years-long review process many participants criticized as inadequate, rushed and lacking in transparency.

In a filing posted Thursday the NEB recommended cabinet approve the project, subject to 157 conditions.

“Taking into account all the evidence, considering all relevant factors, and given that there are considerable benefits nationally, regionally and to some degree locally, the Board found that the benefits of the Project would outweigh the residual burdens,” the filing states.

Yet many individuals and organizations involved in the process say today’s recommendation comes on the heels of a beleaguered review process that did not consider many of the risks of the project.

“Today’s recommendation is exactly as we expected given the way this panel approached the review,” Robyn Allan, former CEO of ICBC and economic risk expert, told DeSmog Canada. “It was simply set up as a way to get to yes.”

Allan publicly withdrew from the Kinder Morgan review process, saying she could no longer “endorse a process that is not working.”

“The NEB we all know is not credible, but somehow today we’re behaving as if it means something,” Allan said, adding the 157 conditions the board placed on the project are “predicated on a false scope of the issue.”

“The scope that the board reviewed is so limited it doesn’t look at risk or cost for our society from this pipeline system,” she said. “From that view it’s very easy to say the benefits outweigh the costs.”

The expansion project involves twinning the existing pipeline that runs from near Edmonton to the Burrard Inlet in Burnaby B.C. The project will nearly triple the pipeline capacity from 300,000 to 890,000 barrels of oilsands crude and other fuels per day.

The NEB recommendation will be taken under review by the federal government and cabinet is expected to make a final decision on the project by December.

Recommendation Made Under Broken Process

The NEB-led review process was plagued with credibility issues from the outset.

Restrictive participation guidelines meant hundreds of applicants were denied the opportunity to give oral or written testimony in the hearings. In total, 468 citizens had their intervenor applications rejected, including a group of 27 climate experts.

The board also deemed climate impacts of the project irrelevant to the hearings and on that basis excluded information on upstream environmental impacts of oilsands extraction. The panel eventually excluded oral testimony and cross-examination from the process altogether.

Chris Tollefson, law professor and counsel for B.C. Nature and Nature Canada in the hearings, said today’s recommendation reflects the inadequacy of the review process.

“What this process and report today underscores is how urgent the need is for restructuring the review of these projects,” Tollefson said.

“This panel never secured a credible, scientific record upon which to make a decision for a variety of reasons.”

“At the end of the day what a process like this needs to be asking is, will this project make a net contribution to a sustainable economy, will this projects put us on a path to meeting our international climate commitments?”

“Neither of those questions are asked or answered in this report,” he said.

Canada's currently regulatory structure has "outlived it's usefulness," Tollefson said.

"We need to have a process that is multi-governmental, that brings together all levels of government, including First Nations government in the review. We need to have a process that is informed by independent science and allows for a true ability to challenge science put forward by the proponent.

"We need a process that integrates as opposed to fractures the spheres of responsibility."

Trudeau’s Broken Promise

On the campaign trail prior to the last federal election, the Liberal party and Prime Minister Justin Trudeau promised to overhaul Canada’s pipeline review process in order to restore public faith in the process.

During a campaign stop on the west coast in August 2015, Prime Minister Trudeau told Kai Nagata, communications director with the Dogwood Initiative, the NEB overhaul would apply to the Kinder Morgan review process.

“That process needs to be redone,” Trudeau said, but later backed down from that promise and allowed the review process to continue on as it had begun.

“I think it’s disappointing the Liberal government did not follow through with its campaign promise to overhaul the NEB,” Nagata told DeSmog Canada

“What they have is a shell that has lost all democratic accountability, that is 90 per funded by industry and has said yes to every pipeline that has come their way. That’s a 100 per cent track record, so good for them.”

This week the Liberals established a three-person panel to conduct consultations with First Nations and communities along the pipeline route, something Natural Resources Minister Jim Carr said will help restore credibility to the pipeline approval process.

The creation of the panel, however, has been roundly criticized as a smokescreen meant to placate a public frustrated with an inadequate review process.

In the House of Commons Burnaby South NDP MP Kennedy Stewart said the Prime Minister promised to fix the broken review system, “and the people of B.C. believed him.”

Questioning the Minister on Kinder Morgan

Today in Parliament, I asked the Liberal Government why it broke its promise to British Columbians on Kinder Morgan. Check out the clip below…

Posted by Kennedy Stewart on Tuesday, May 17, 2016

“But this week the National Energy Board will report on Kinder Morgan using the exact same broken process as the Conservatives,” he said.

“The Liberals’ new ad-on process,” Kennedy added, “little more than a smokescreen, actually does nothing to fix the NEB review process.”

Nagata said Minister Carr’s defense of the consultation panel was troubling.

“Minister Carr came very close to promising an approval by this December, making fun of the previous government for not successfully approving a pipeline and ensuring industry the advisory panel he appointed will not get in the way.”

“Ultimately we think these decisions are too important to leave up to politicians. These people are in office for four years, their timelines are short, whereas the First Nations and citizens who live here have to live with the costs for decades.”

Nagata said Dogwood is campaigning for a provincial vote on tankers off the B.C. coast. “Luckily we have this mechanism in B.C. to put the decision to citizens directly.”

Rueben George, chief of the Tsliel-Waututh First Nation, which lies directly across the Burrard Inlet from Kinder Morgan’s facilities, said he is not at all surprised by today’s NEB recommendation.

“My reaction….I barely had a reaction,” George told DeSmog Canada. “I had no faith in the process. The process historically approves pipelines. I’m not surprised in the least.”

George said the news comes as he is attending a Burrard Inlet Science Symposium at Stanley Park.

“We’re going to clean up the Burrard Inlet and eat shellfish from here for the first time in 30 years,” George said. His nation is currently leading a legal challenge against the Kinder Morgan review, saying the process failed to adequately involve First Nations.

“We’ve been implementing our plan for how we’re going to stop Kinder Morgan and we’re going to continue on with that, being stewards of the land. What we’re really doing here when we stand up against Kinder Morgan we’re looking out for the best interest of the land and waters but it’s truly for the best interests of Canadians.”

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The next round of the National Energy Board’s (NEB) hearings for the Kinder Morgan Trans Mountain pipeline are scheduled to begin January 19 in Vancouver, B.C.

Climate advocates and critics of the National Energy Board are disappointed the review process will continue on under rules established by the previous federal government, especially since Prime Minister Justin Trudeau campaigned on a promise to make the process more credible and evidence-based.

The Liberal party platform promised to immediately review the process, restoring “robust oversight and thorough environmental assessments” as well as restoring “lost protections” eliminated during the former government’s sweeping changes to environmental law. 

At a campaign stop in August 2015, Trudeau told Kai Nagata, energy and democracy director at the Dogwood Initiative, that the NEB overhaul would apply to the Kinder Morgan Trans Mountain pipeline.

“Yes. Yes,” Trudeau said. “It applies to existing projects, existing pipelines as well.”

“Okay,” Nagata said. “So if they approve Kinder Morgan in January, you’re saying…”

“No, they’re not going to approve it in January. Because we’re going to change the government,” Trudeau responded. “And that process needs to be redone.”

Trudeau on Kinder Morgan

Justin Trudeau says if he's Prime Minister, Kinder Morgan will have to go back to the drawing board, saying "the process needs to be redone." Find out where candidates in your riding stand: http://votebc.ca/

Posted by Dogwood Initiative on Friday, August 21, 2015

However in November, Natural Resources Minister Jim Carr announced ongoing pipeline reviews will continue on while the federal government considers new rules.

“There will be a transition as we amend the ways in which the National Energy Board goes about the process of evaluating these projects,” Minister Carr said in November, “and we will announce those changes as soon as we can, but the process continues.”

Nagata said Trudeau’s promise is not being upheld.

“Clearly something has happened between the dying days of the election and today to give the government pause with regard to its promise to revamp the Kinder Morgan process,” he said.

“What’s difficult to stomach is everyone, including the Liberals, agrees there is a problem with the process.”

Nagata said this week’s decision by the B.C. Supreme Court that the province failed to uphold its duty to consult First Nations regarding the Enbridge Northern Gateway pipeline only adds to the feeling of frustration.

“The circumstances are exactly the same for Trans Mountain,” he said. “In this context we have these hearings going on that everyone agrees is a sham, but the First Nations, municipalities, and intervenors are expected to continue on, basically doffing their cap to the panel as they present their final evidence.”

“It’s humiliating for the province, for First Nations, intervenors and the taxpayers who supported the scientific work done in this review,” he said.

Clayton Thomas Muller, climate campaigner with 350.org, said the Trans Mountain hearings should not go ahead.

“By letting these reviews proceed the Prime Minister is breaking the promise he made on the campaign trail to stop reviewing pipelines using Stephen Harper’s rules,” he said.

“This government can’t meet its commitments on climate or Indigenous rights and push forward with pipeline reviews that ignore climate change, community voices and the duty to consult with Indigenous peoples,” Thomas Muller, Stop it at the Source Campaigner with 350.org, said.

Thomas Muller spent the morning in the office of Minister Jim Carr as part of a People’s Injunction action organized by 350.org. Campaigners said they were performing a “people’s search and seizure” for new pipeline review rules.

“If they don’t have a new process here today, they should cancel these projects before the Kinder Morgan hearings start on Monday,” Thomas Muller said.

“Without considering climate change or listening to community voices, especially First Nations, these reviews are still little more than a rubber stamp for unnecessary, dangerous fossil fuel projects.”

The climate advocacy organization is planning actions across Canada as part of the People’s Injunction to ask for a cancellation or suspension of pipeline reviews until new rules are put in place. 

Peter McCartney, climate campaigner with the Wilderness Committee said the organization is “very disappointed” the review will continue on under the current regime.

“There was a promise made to restore credibility to these hearings,” he said. “If these hearings aren't good enough for future projects, they're not good enough now.”

The Wilderness Committee publicly withdrew as an intervenor from the Trans Mountain review in August, criticising the process as unfair and biased with a predetermined outcome. The Canadian Parks and Wilderness Society as well as 33 other individuals also abandoned their position as intervenors in the process in August, following other high-profile withdrawals from for CEO of ICBC, Robyn Allan, and former CEO of BC Hydro, Marc Elisen.

“Canadians deserve an environmental review process they can trust, that takes into account climate impacts and properly consults with First Nations,” McCartney said.

“It looks like we made the right decision in pulling out of the hearings and taking our message straight to the Prime Minister.”

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image: Twitter

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Lis Stannus remembers how serious the problem of acid rain was in Ontario when she lived on a farm near Lake Huron as a child. So when Rio Tinto Alcan informed Kitimat residents of its plans to increase sulphur dioxide pollution — a key contributor to acid rain —she couldn’t understand why no one fought back.

“Nobody was speaking out,” Stannus said, “and I found it amazing that those people who should have been speaking out weren’t.”

Rio Tinto Alcan received a permit from the B.C. government in 2013 that allowed the company to increase production of aluminum at its smelter in Kitimat, leading to a 56 per cent increase in sulphur dioxide emissions. Currently, both the government and Rio Tinto Alcan are defending that permit in front of a tribunal acting for the B.C. Environmental Appeals Board in Kitimat.

Rio Tinto Alcan says its ‘modernization’ of the smelter is now 94 per cent complete although the tribunal has the power to rescind the province’s permit, putting the immediate future of the plant in question.

The Muzzle Effect: Small Town, Big Company

Stannus said when she first heard about the emissions increase she contacted the city, the Kitimat health authority and local environmental groups to push back against the company’s plans, to no avail.

But it didn’t take long for Stannus to realize “there was a lot of muzzling” going on, she said. “We are all muzzled here.”

Part of the problem, Stannus said, is that the aluminum plant is a major job provider for Kitimat.

“Without Alcan, Kitimat would be nothing,” she said. “Kitimat literally wouldn’t be here.”

Alcan, now owned by multi-national mining magnate Rio Tinto, used to be fondly referred to as “Uncle Al” by Kitimat residents.

The company created Kitimat as an artificial township in the 1950s to support a growing workforce. Although the planned city was originally created with 150,000 residents in mind, its current population is between 8,000 and 9,000 — about 1,400 of which rely on the smelter for employment.

“It’s like nobody would speak out if they worked for Rio Tinto Alcan,” she said. “You just wouldn’t speak up.”

Stannus said she recently spoke to an employee of Rio Tinto Alcan who said he was reprimanded by company officials for posting about sulphur dioxide emissions on his Facebook page.

Morris Amos from the Haisla First Nation said his band council and Rio Tinto Alcan entered into a $22 million “Legacy Agreement” that acts as a gag order on Haisla officials.

“Part of the language of the agreement, which is really more of a contract, includes a clause that talks about the Haisla Nation never coming forward to question anything that Alcan does as long as the agreement is in effect,” he said.

The Legacy Agreement, signed in 2010, guarantees employment, business opportunities and a trust fund for the Haisla Nation as an outcome of Rio Tinto Alcan’s modernization project.

Amos, brother of former elected Haisla chief Gerald Amos, said the agreement means his nation can’t officially question the increase of Rio Tinto Alcan’s sulphur dioxide emissions.

“I take that as a muzzling clause,” he said. “It remains to be seen if that has any force or effect legally — it hasn’t been challenged yet.”

Amos says the Legacy Agreement explains why the Haisla Nation hasn’t played a role in fighting for pollution reductions.

The Legacy Agreement, “is part of the reason why there’s no band council presence in this Environmental Appeals Board hearing,” he said.

Amos said he can speak out about the Legacy Agreement and Rio Tinto Alcan’s sulphur dioxide emissions because he’s not a part of the band council.

“I work for a heredity chief, so that’s another thing altogether.”

Rio Tinto Alcan’s Permit to Pollute

B.C. approved a permit in April 2013 that granted Rio Tinto Alcan the right to increase its sulphur dioxide emissions by 56 per cent.

Stannus, along with fellow Kitimat resident Emily Toews, is appealing that permit approval in the Environmental Appeals Board hearing, arguing the increase in sulphur dioxide emissions unnecessarily threatens human health.

“I was really mad,” Stannus said. “Because it seemed like an infringement of our rights and it went against everything the government told us we were working towards: reducing emissions, keeping the air clean.”

Stannus realized she needed to speak out. “ I thought, ‘I can do it. I don’t have anything to lose.’”

Pollution Reduction Measures Not Required by Province

Rio Tinto Alcan’s ability to reduce its sulphur dioxide emissions is central to the appeal hearings.

Giving testimony before the appeal panel, Ian Sharpe, director of environmental protection with the B.C. Ministry of Environment, said before granting the permit he required evidence Rio Tinto Alcan “could and would” install pollution reduction technology called scrubbers “should there be a need to have emissions lower than what they applied for.”

But rather than require the company to install scrubbers, which would prevent the increase of sulphur dioxide emissions, the province granted Rio Tinto Alcan a permit to increase its emissions for an indefinite amount of time.

Sharpe told the panel he decided not to impose sulphur dioxide limits on Rio Tinto Alcan because both B.C. and the federal government are considering updating their own standards in coming years.

Stannus said she doesn’t understand why the province will allow emissions to go up if the company has already prepared for the installation of scrubbers.

“I learned there was a place put at the plant for wet scrubbers. That was a backup plan,” she said. “I thought, ‘if scrubbers aren’t feasible, why would they do that?’”

Stannus thinks it comes down to penny pinching. Rio Tinto Alcan initially announced its modernization project would cost just over $2 billion but that number has recently skyrocketed to nearly $5 billion.

The Environmental Appeal Board hearings are currently taking place in Kitimat and are now in their third week. The panel could rescind Rio Tinto Alcan’s permit or order the company to install scrubbers.

Image Credit: Lis Stannus courtesy of Doug Keech.

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Economist and former ICBC president  Robyn Allan withdrew from the National Energy Board’s (NEB) review of the Kinder Morgan Trans Mountain pipeline expansion project Tuesday, saying she can no longer “endorse a process that is not working.”

In a letter addressed to Sherri Young, secretary of the NEB, Allan said the “review is not conducted on a level playing field” and that because the panel is “not an impartial referee…the game is rigged.”

Allan said she began to seriously question the process when oral cross-examination was removed from the process.

“I had concerns with what that would do to the overall calibre of the process,” she said.

Allan said she wanted to “participate in good faith through the process of information requests” but now that it has been completed “it’s very clear it has been an exercise in futility.”

“I wanted to see the process through enough to unequivocally conclude that it’s broken,” she said. “ Now I see it’s beyond repair.”

Allan said the limited scope of the board’s review of the process is an “unconscionable betrayal of Canadians.” 

“The board does not include the very serious issues the Canadian public expects the scope to include. And that’s not just the absence of greenhouse gasses in the review and the very serious implications of those for climate change — we don’t even have a classical economic scope of issues,” Allan said.

Allan said the review does not give full consideration to the impact the added Trans Mountain pipeline will have on the whole system, including the increase of tanker traffic in the Burrard Inlet.

Concerns are running high in the Vancouver area after the accidental release of bunker fuel from a cargo vessel in English Bay called the city’s oil spill response capabilities into question.

“You’ve see even just from the bunker C fuel spill in the Burrard Inlet that they were totally incompetent in their ability to deal with [a spill],” she said, adding that the board will only consider the incremental rise in tanker traffic in Vancouver’s waters resulting from the Trans Mountain expansion, but not the impact on tanker traffic as a whole.

“They’re not looking at the whole system,” she said. “This is a deception being perpetrated on the public.”

Allan also said the board relies too heavily on Kinder Morgan’s assessment of risk. Recently the City of Vancouver, City of Burnaby and Tsleil-Waututh Nation commissioned an oil spill assessment by modelling experts Genwest Systems that found two key faults with Kinder Morgan’s oil spill assessment.

Allan said she expects the board to support Kinder Morgan’s risk assessment over those submitted by third parties and downplay the significance of spill risks for the project as a whole.

“The board will say — because Kinder Morgan says — that a spill is ‘not likely’ and therefore we don’t have to consider the cost or the implications.”

Recently NEB chair and CEO Peter Watson addressed public concern over the review process in British Columbia where opposition parties, several major environmental organizations and municipal leaders are calling on the provincial government to pull out of the federal process.   

Allan called the public outreach “duplicitous.”

“The public relations activities that Mr. Watson has been involved in are media spin,” she said. “It’s part of a strategy to lull the Canadian public into a sense of safety when none exists.”

Allan said intelligent Canadians don’t necessarily have the time to investigate the federal government’s review process. She felt she might be able to help: “from the beginning with my expertise and ability and concern I felt that was an effective role I could play.”

Now, after a year of pro bono engagement with the process, Allan says she can no longer participate in good faith.

“What I’ve concluded is the game is rigged, the National Energy Board is a captured regulator and their actions are putting the healthy and safety of the economy, society and environment at risk.” 

Robyn Allan Withdrawal Letter NEB May 19, 2015

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The way tensions between pipeline opponents and Kinder Morgan contractors have escalated during the last week should come as a surprise to no one.

The mishandling of the National Energy Board review of Kinder Morgan’s Trans Mountain pipeline and tanker proposal has created the conditions for the situation now unfolding on the mountainside.

And with the continuing loss of faith in these federal reviews — which even before being refigured to “expedite” energy proposals were already ill-equipped to grapple with the larger societal issues, such as climate change, related to energy proposals — we can expect to see more controversy across B.C. and likely along the route of TransCanada’s Energy East.

How did it come to this?

In 2012, the federal government passed omnibus budget bill C-38 — despite significant upheaval in Parliament — which overhauled Canada’s environmental assessment process.

The changes contained in that bill condensed project review timelines, seriously restricted public participation in the assessment process and limited what environmental concerns are deemed relevant to projects such as pipelines.

Now, during the Kinder Morgan Trans Mountain pipeline review process, these changes are coming into effect.

It began with climate change impacts being overlooked in the terms of reference for the review — just as they had been in the Enbridge Northern Gateway review. But then it got worse. 

Hundreds of concerned citizens who considered themselves directly affected by the project were denied intervener status by the National Energy Board, the federal body overseeing the pipeline review process.

A group of 27 climate experts, including economists, scientists and political and social scientists, were rejected from participating in the hearings because they wanted to discuss the project’s significance to Canada’s climate targets.

In total, 468 citizens had their application for intervenor status rejected, leading stultified onlookers to call the process “Kafkaesque.”

To add insult to injury, the National Energy Board then quietly removed oral hearings from the review process, meaning oral cross-examination — during which live witnesses are questioned under oath — will play no role in the Trans Mountain pipeline review.

This step reduced the Kinder Morgan “review” to a mere paperwork exercise.

Participants are allowed to pose questions via writing to Kinder Morgan about the impacts of its proposal to triple the amount of oilsands bitumen it ships via pipeline to Burnaby — but the company has failed to treat these questions seriously.

For instance, Ecojustice lawyers asked the company to explain the potential effect of an oil spill on marine fish.

Kinder Morgan’s response? “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That was one of the better answers compared to the 20 Ecojustice questions Kinder Morgan refused to answer on the basis they were “not relevant” or the company simply didn’t know the answer.

Even the Province of British Columbia had to ask the National Energy Board to compel Kinder Morgan to answer dozens of questions the company had skirted — including failing to provide emergency response documents.

The review process has been so incomplete the Tsleil-Waututh Nation, whose territory overlooks the Burrard Inlet and Kinder Morgan tanker facilities, launched a legal action to challenge the review process on the basis of failed consultation and a fundamental mischaracterization of the project, which includes not just an expanded pipeline but terminals, storage facilities and increased tanker traffic.

Energy executive Marc Eliesen quit the review process amongst much fanfare earlier this month, saying it was “fraudulent” and an act of “public deception.” He accused the NEB of jury-rigging the process with a “pre-determined outcome.” (Read more about Eliesen’s crippling reasons for leaving.)

What’s more, a new report from SFU and The Goodman Group Ltd. shows Kinder Morgan exaggerated the jobs associated with the pipeline construction while seriously underplaying the risk of a potential pipeline rupture. And remember, this pipeline has already ruptured on several occasions, including once in 2007, sending 250,000 litres of crude into the community and 70,000 into the Burrard Inlet.

So with a community on edge and unconvinced of the benefits of the pipeline, and with the local municipality officially opposed to the project, Kinder Morgan perhaps made a critical error sending survey crews to conservation areas on Burnaby Mountain with chainsaws in September.

The city of Burnaby responded with issuing a stop work order claiming the company did not have the right to damage property protected by city bylaws. The National Energy Board, however, told the company to continue on with its legally allowable work, even if that meant cutting down trees on the mountainside.

It’s within the minutia of that legal interpretation — the tension between community self-determination and the energy board’s ruling on allowable survey work — that the Burnaby Mountain protest movement was born.

And for all the reasons above — not to mention the upstream impacts of oilsands development on climate, local ecosystems and First Nations’ territorial rights — this fight should surprise no one.

There has been no credible and democratic way for residents of Burnaby, or citizens in B.C. for that matter, to weigh in on the Trans Mountain pipeline expansion. There has been no legitimate forum for the concerns of the community, of local First Nations and of a variety of climate and environmental experts.

Although Burnaby Mayor Derek Corrigan has promised to fight the pipeline by every available legal means, the federal government has made it virtually impossible for citizens to register their opposition to this project in any way other than protest.

And that’s a problem. Because with similar opposition foreseeable for TransCanada’s Energy East pipeline (especially after the company’s downright dirty PR tactics were leaked in documents from Edelman last week), Canada can expect more of these conflicts in our future.

And we should not have to stand for that.

This set of circumstances is fair to no one: not to locally elected municipal leaders looking to represent their constituents, not to communities looking to protect their environments and personal well-being and not to companies looking for stable operating conditions.

The act of proposing a pipeline is a legitimate thing to do in our society. Businesses should have the opportunity to pursue economic opportunities just as communities should have the opportunity to say no if a proposal doesn’t fit in with their long-term plans.

But with a government working in the interests of industry, citizens have been left out of the decision-making process, where the only way to register their voice is from behind the blockade line where they are marginalized, or worse, criminalized as radicals.

Our federal government is failing to lead on one of the biggest issues of our time. What Canada really needs is a grownup national conversation about an energy strategy that meets Canada’s international climate commitments. Until that happens, these debates will continue to play out dysfunctionally during technical review processes that were never designed to answer such large societal questions.

So as the saga of Burnaby Mountain continues to unfold, we should all be asking: who really is acting in the public interest? 

Image Credit: Zack Embree

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The National Energy Board (NEB) raised some eyebrows two weeks ago when it rejected 468 citizens — including 27 climate experts and the MP for Burnaby — from weighing in on the Kinder Morgan’s Trans Mountain oil pipeline proposal, which would triple the amount of oilsands bitumen shipped from Alberta to the B.C. coast.

The ruling — plus the revelation that the oral hearings have been nixed altogether — has raised questions about the legitimacy of the environmental assessment and the rationale for the NEB’s decision. The removal of oral hearings prompted several environmental organizations to formally request an extension of the process while others have hired legal counsel to represent rejected participants.

DeSmog Canada decided to take a closer look at the legal changes that allow the NEB to deny many British Columbians a say over a project that puts hundreds of watersheds and B.C.’s coastline at risk of an oil spill.   

It wasn’t always this way

To put the Trans Mountain review in perspective, first you need to look back — way back to Justice Thomas Berger’s 1973 Mackenzie Valley Pipeline inquiry. That inquiry took more than three years to hear submissions from dozens of communities and analyze the environmental and social effects of the pipeline. The consultation process encouraged participation and diligently included local knowledge and expertise.

The Berger Inquiry served as a guiding light for subsequent environmental assessments of national resource development projects, which were designed to emulate this practice — that is, until 2012. That was the year the federal government’s Jobs, Growth and Long-term Prosperity Act or omnibus budget bill C-38 changed many laws that determine the scope of environmental assessments — including who can participate and who cannot.

Drastic changes to environmental law shut door on participation

The new Canadian Environmental Assessment Act 2012 states that citizens can participate in an environmental assessment if a person is an “interested party.”  “Interested party” is then defined as those who are “directly affected” by the project or those who have “relevant information or expertise.” Further, the NEB need only be “of the opinion” that the individual or organization in question is either directly affected or has relevant expertise.

It’s this vague terminology — and the NEB’s discretionary application of these terms — that has been used to exclude citizens from the Trans Mountain pipeline review.

Given that a pipeline spill could affect hundreds of B.C. streams and rivers and a tanker spill could affect much of the coastline of B.C., it appears the NEB used an extremely narrow view of “directly affected.” That brings us to another piece of legislation that is notable only for its arcane language: the National Energy Board Act.

The NEB Act reduces the definition of “directly affected” to a person with a “detailed interest” in the project. The NEB takes into account the “likelihood and severity of harm a person is exposed to” and “the frequency and duration of a person’s use of the area near the project” to determine if a person is “directly affected.” 

Who’s in and who’s out? Reading the tea leaves

Perhaps not all that unsurprisingly, the NEB has not made public how it measures the “severity of harm” or “frequency and duration of person’s use of area,” nor does it explain what it considers to be “near” the project. So, would a statement like “I use the local river to fish and fear that a spill would prevent me from fishing” meet the thresholds for “severe harm” and “frequent use?” It is unclear and the NEB provides no rationale as to why each applicant was denied status.

The one useful piece of information the NEB offered to help us read the tea leaves was that a person’s address was a consideration — presumably the board required a participant to live very “near” a pipeline or tanker route and may have used postal codes to cull participants.

In a letter to applicants, “Ruling on Participation,” the NEB says citizens needed to “have a specific and detailed interest that was sufficiently affected.” The NEB leaves rejected applicants in the dark as to why their concerns were not “specific,” “detailed” or “sufficient” enough. The NEB could have interpreted these terms narrowly in order to cull participants from the process.

Further, the pipeline terminates and reaches tidewater in the federal riding of Burnaby Douglas. For people who live in that community, the possible environmental and economic impacts of this national infrastructure project are huge — yet the NEB has ruled local MP Kennedy Stewart ineligible to participate. 

Downgrading

In addition to outright rejecting 468 people from participating, the NEB also downgraded 452 applicants from “intervenors” to “commenters.” Commenters, who had to fill out an arduous 10-page application to participate, cannot ask questions or file evidence — they’re only allowed to submit a single written comment to the review panel.  

Relevant expertise?

Notably, the environmental impacts of the development of the oilsands and climate change are not part of this environmental assessment’s scope — 27 B.C. climate experts were rejected from the hearings.

Economists from the Canadian Centre of Policy Alternatives and the president of the Business Council of British Columbia were also rejected. For an assessment whose scope does include the “socio-economic effects of the proposed project” and the “economic feasibility of the project,” it is difficult to justify the refusal of expertise that can speak to the negative and positive economic impacts of the proposed project.

The NEB’s decisions determining who can participate in the Trans Mountain Expansion assessment are unclear, lack transparency and limit democratic participation. Denying standing to those who are affected or have relevant information “streamlines” the process but makes the process far less effective and accountable. The NEB calls its is own ruling on participation “generous,” although it could also be called a smokescreen, meant to legitimate the Review Panel’s final decision.

Feds following in Alberta’s footsteps on environmental laws

CEAA 2012 has been used to exclude participants from other assessments. The joint review panel looking into Shell’s Jackpine mine expansion in the oilsands determined that people living downstream from the proposed project are not “interested parties.” Indeed, the “directly affected” language used in CEAA 2012 is similar to that of Alberta’s old Energy Resources Conservation Act that states regulators must consider how a development might “directly and adversely affect the rights of a person.”

The new Responsible Energy Development Act (2012) in Alberta includes the same language. Alberta regulators have ruled that residents living near proposed sour gas wells and people living three kilometres downwind from flaring are not “directly or adversely affected.” It appears the federal government is writing and interpreting legislation in the same way Alberta has done — making way for the construction of oil and gas infrastructure at the expense of environmental protection.

Shortened timeline means a less rigorous process

The entire Trans Mountain environmental assessment will take 18 months — not enough time to conduct proper scientific research into impacts, according to federal scientists.  

Although environmental assessments should allow for debate and determine if a project is in the public interest, federal assessments have merely become rubber stamps for pipeline and oilsands projects.

Image Credit: screenshot from TransMountain.com

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This week a group of climate experts published a letter detailing the climate impacts of the proposed tripling of the Trans Mountain pipeline which carries oilsands diluted bitumen and other fuels from Alberta to the Port of Vancouver. The group represents 27 climate experts – a mix of economists, scientists and political and social scientists – from major British Columbian universities who were recently rejected from the pipeline hearing process because they proposed to discuss the project’s significance for global climate change.

According to Simon Donner, associate professor from the University of British Columbia and climate variability expert, “the government is ignoring the expertise of not just scientists, but policy analysts and economists.”

“You'd have an easier time finding a seat at Game 7 of the Stanley Cup Finals than an expert who thinks the energy policy is consistent with Canada meeting this government's own promised emissions target,” he told DeSmog Canada.

For Donner, the exclusion of climate experts from National Energy Board (NEB) pipeline hearings throws the legitimacy of the environmental assessment process into question.

“The NEB and the federal government want to make a decision about the environmental and social impact of the pipeline expansion without considering one of the biggest long-term threats to the environment and society – climate change,” he said.

In the letter the group of experts said the Trans Mountain pipeline “alone is expected to lead to 50 per cent more carbon dioxide (CO2) emissions each year than all of British Columbia currently produces.”

They also pointed out that “the purpose of the Trans Mountain Pipeline expansion is to increase the oil sands’ access to global markets…additional bitumen production needed to meet the pipeline capacity would increase Canada’s annual CO2 emissions by over 27 million tonnes.”

To meet our 2020 target – to reduce emissions 17 per cent below 2005 levels – Canada must significantly reduce its greenhouse gas emissions. Oilsands represent the fastest growing source of greenhouse gas emissions in Canada and are expected to account for a full 78 per cent of emissions growth by 2020, the letter states.

Increases in oilsands production are canceling out the emissions gains made in other sectors, including the transportation sector. The authors point out that, despite repeated promises, the Canadian government has failed to regulate emissions from the oil and gas sector.

“The problem is that Canada has no system to deal with greenhouse gas emissions from the oil and gas sector,” Donner said, putting greater pressure on the need to account for climate impacts on a project-by-project basis. 

“If we had a system for evaluating if proposed carbon-intensive projects are compatible with our federal emissions target, then the National Energy Board's decision [to reject climate experts] would be reasonable. But with no federal policy, these hearings are the only option.”

Full list of ousted climate experts and letter signatories:

• Simon Donner, Associate Professor, Department of Geography, University of British Columbia;
• Kathryn Harrison, Professor, Department of Political Science, University of British Columbia;
• George Hoberg, Professor, Department of Forest Resources Management, University of British Columbia;
• Laurie Adkin, Associate Professor, Department of Political Science and Environmental Studies Programme, University of Alberta;
• Phil Austin, Associate Professor, Department of Earth, Ocean and Atmospheric Sciences, University of British Columbia;
• Kai Chan, Associate Professor and Canada Research Chair, Institute for Resources, Environment and Sustainability, University of British Columbia;
• Jay Cullen, Associate Professor, School of Earth and Ocean Sciences, University of Victoria;
• Lori Daniels, Associate Professor, Department of Forest and Conservation Sciences, University of British Columbia;
• Peter Dauvergne, Director, Liu Institute for Global Issues and Professor of International Relations, University of British Columbia;
• Ken Denman, Professor, School of Earth and Ocean Sciences, University of Victoria;
• Erica Frank, Professor and Canada Research Chair, School of Population and Public Health, University of British Columbia; 
• David Green, Professor, Vancouver School of Economics, University of British Columbia;
• Kevin Hanna, Associate Professor of Sustainability, I.K. Barber School of Arts and Sciences, University of British Columbia;
• Sara Harris, Senior Instructor, Department of Earth, Ocean and Atmospheric Sciences, University of British Columbia;
• Milind Kandlikar, Professor, Liu Institute for Global Issues and Institute for Resources, Environment and Sustainability, University of British Columbia;
• Karen Kohfeld, Associate Professor and Canada Research Chair, School of Resource and Environmental Management, Simon Fraser University;
• Ken Lertzman, Professor and Director of The Hakai Network for Coastal People, Ecosystems and Management, School of Resource and Environmental Management, Simon Fraser University;
• Alan Lewis, Professor Emeritus, Department of Zoology and Department of Earth, Ocean and Atmospheric Sciences, University of British Columbia;
• Jane Lister, Senior Research Fellow, Liu Institute for Global Issues, University of British Columbia;
• Ian McKendry, Professor, Department of Geography and Atmospheric Science Program, University of British Columbia;
• Karin Mickelson, Associate Professor, Faculty of Law, University of British Columbia;
• R. Dan Moore, Professor, Department of Geography and Department of Forest Resources Management, University of British Columbia;
• Rashid Sumalia, Professor and Director of the Fisheries Economics Research Unit, University of British Columbia;
• Douw Steyn, Professor, Department of Earth, Ocean and Atmospheric Sciences, University of British Columbia;
• David Tindall, Associate Professor, Department of Sociology and Department of Forest Resource Management, University of British Columbia;
• Hisham Zerriffi, Assistant Professor and Ivan Head South/North Research Chair, Liu Institute for Global Issues, University of British Columbia;
• Kirsten Zickfeld, Assistant Professor, Department of Geography, Simon Fraser University.

Image Credit: TransMountain

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The Canadian National Energy Board (NEB) rejected a request this month from the U.S. Environmental Protection Agency (EPA) to extend the deadline to apply as a participant in the public hearings on Kinder Morgan’s Trans Mountain oil pipeline expansion.

The EPA was unaware of a February 12 deadline to apply as a participant in hearings on the proposed $5.4 million expansion of the Vancouver-to-Edmonton Trans Mountain pipeline, which would increase its capacity from 300,000 barrels per day (bpd) of diluted bitumen to 890,000 bpd.

The pipeline expansion, which is supported by 13 oil companies, will free the flow of landlocked Albertan oil to Asian markets overseas.

The EPA reportedly needed more time to “follow through with agency protocols and procedures” before applying to take part in the hearings, according to a notice filed with the NEB. Media relations and communications advisor Hanady Aisha Kader said in an e-mail that the EPA is “reviewing information and considering any appropriate next steps in reviewing potential transboundary environmental impacts posed by the Trans Mountain Pipeline Expansion.>

Kader added that the agency “has been in touch with individuals, groups and government agencies in Washington State; Environment Canada; and Canada’s National Energy Board,” but could not give any further information.

Kinder Morgan Trans Mountain pipeline route.

Ben West, tar sands campaign director at ForestEthics Advocacy Association said that “it seems that the EPA didn’t have sufficient time to do their own internal process in order to apply within the short window the NEB put forward,” but found it “mind-boggling…that Harper would so publicly slap the U.S. government in the face in regards to this proposed pipeline project.”

This wouldn’t be the first time the U.S. and Canada have faced tensions over pipelines. Prime Minister Harper has criticized President Obama for “punting” the decision on whether to approve the proposed cross-border TransCanada Keystone XL pipeline. The pipeline’s development remains in limbo until the U.S. approves it.

Sven Biggs, campaign organizer for ForestEthics, observed that not only has the window to apply for NEB hearings been getting “smaller and smaller,” going from five months for the Enbridge hearings to twenty-eight days for Kinder Morgan, but “adding to the confusion, initially the NEB were telling folks that this comment period would start in April.”

Environmental groups on the Canadian side see the EPA being shut out of the hearings as an inevitable result of sweeping changes to environmental laws made by the Harper government in 2012. These changes included repealing the Canada Environment Assessment Act and replacing it with the CEAA 2012.

“CEAA 2012 replaced the CEA Agency with the NEB as the responsible authority for certain projects, such as pipelines, and imposed tight timelines on the completion of the review process,” Eugene Kung, a lawyer at West Coast Environmental Law, told DeSmog Canada.

Harper’s reform of environmental law has resulted in a review process that is “less democratic, less transparent, less thorough and less accountable,” said Kung.

After the changes made by the federal government, members of the public can only register to comment or intervene in an NEB hearing if they are ‘directly affected’ by the project being assessed, rather than an ‘interested party,’ as was the case prior to 2012. Whether or not the NEB will consider the EPA as ‘directly affected’ remains to be seen.

West thinks there is ample reason to see the EPA as a ‘directly affected’ party, since “there are clearly implications for the environment along [the] west coast of the U.S. if there was an oil spill from the tankers passing by Puget Sound and down the coast.”

Map of tanker route along the Washington border from Living Oceans Society.

“Furthermore, the EPA has expressed concerns regarding the carbon footprint of tar sands oil and should have the ability to submit evidence to the government of Canada in regards to these concerns,” West added.

Kung agreed that the impact of the Trans Mountain expansion is not limited by international borders, with “the dramatic nearly 700% increase in tanker traffic through the Salish Sea and the corresponding increase in a catastrophic oil spill[s]” ensuring lasting effects both in Canada and the U.S. The fact that the NEB is not considering the upstream or downstream impacts of the project on emissions from oilsands expansion and burning oilsands crude abroad “further demonstrates the shortcomings of the proposed environmental assessment,” said Kung.

According to Kung, the EPA now has the option of filing a judicial review to the Federal Court or Federal Court of Appeal about the NEB decision. The Harper government’s changes to the NEB Act means NEB decisions on whether it will consider the representation of a person (including the EPA) are final.

“As this situation demonstrates, the new Environmental Assessment regime places very strict limitations on public process to the point where the EPA may not be able to contribute their wealth of knowledge and experience in regulating Kinder Morgan with the NEB,” said Kung.

Kung explained that West Coast Environmental Law, along with ForestEthics and the Sierra Club, hosted two webinars to explain the NEB application process because of public confusion over the new rules.

“Many people reported difficulties navigating the complex application system,” said Kung, but “despite all the hurdles and challenges, 2,134 people, organizations and institutions had filed applications, including over 50 First Nations, municipal governments, concerned citizens groups, businesses and homeowners.”

Image Credit: ForestEthics Advocacy Association / Who Writes the Rules? A Report on Oil Industry Influence, Government Law, and the Corrosion of Public Process

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