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

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Canada's National Energy Board (NEB) announced today that it is stopping the clock on the review of Kinder Morgan’s Trans Mountain oil pipeline expansion due to the company’s new proposed corridor through Burnaby, B.C. — which will push a decision on the project back to after the 2015 federal election.

The board will take a seven-month timeout from its 15-month timeline between July 11, 2014, and Februrary 3, 2015, to allow Kinder Morgan time to file studies for its new corridor through Burnaby Mountain, according to a letter to intervenors sent today.

That pushes the board’s deadline to file its report on the project with cabinet back seven months from July 2, 2015, to Jan. 25, 2016.

“The significant thing is that this decision now won’t be made until after the next federal election. It’ll be up to the next Prime Minister to make that call,” says Karen Campbell, staff lawyer with Ecojustice.

“From a campaign perspective, it certainly gives some wind in the sails of those who want to make sure this isn’t a fait accompli before the next election,” she says.

But Campbell also cautioned that there are still a lot of shortcomings in the process that the energy board has not addressed.  

That’s a concern echoed by Gregory McDade, legal counsel for the City of Burnaby.

“There are so many other incomplete items that need work,” McDade says. “We’ve been pushing all along for a proper public hearing with cross-examination and evidence and the NEB said they couldn’t do that because of the tight timeline. Now that we have the time, why aren’t we doing a proper public hearing?”

McDade says that without cross-examination, the energy board’s review is not legitimate. He noted how Kinder Morgan failed to answer many of the questions put to them through the “information request” process, which he described as a “colossal joke.”

“Stalling it seven months doesn’t help at all if you’re not going to properly examine the evidence,” he said. “It just puts the decision off.”

Chris Tollefson, executive director of the Environmental Law Centre at the University of Victoria, says this ruling is just a small step toward fixing the problem and that the entire process needs to be put on hold until Kinder Morgan’s application is complete.

As of right now, the rest of the hearings are scheduled to move forward more or less as per the previous schedule.

“The board has now recognized that this process was not working and that the timelines were unrealistic,” Tollefson says. “What we would call upon the board now to do is to revisit its decision to eliminate cross-examination from this process.”

Any which way, the Conservatives will be in the limelight over their support for heavy oil projects on B.C.'s coast in the 2015 election, according to Kai Nagata, energy and democracy director at Dogwood Initiative, a B.C. democracy group.

"It'll be a live issue for sure," Nagata says. "The way Kinder Morgan is going, the more time the NEB gives them to alienate landowners and First Nations, the more likely they are to remind people of Enbridge."

Kinder Morgan’s proposed expansion would ship 590,000 barrels of oilsands bitumen to Burnaby each day, where it would be loaded onto 400 oil tankers each year.

— With files from Carol Linnitt

Photo: Rod Raglin via Flickr

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A lawyer representing the City of Burnaby says the National Energy Board (NEB) has turned its review of Kinder Morgan’s Trans Mountain pipeline into a “mere paperwork exercise” by cutting all cross-examination from the process.

“We were expecting that there would be public hearings and cross-examination of the evidence,” Gregory McDade said at a City of Burnaby information session last week. “There are no hearings … There will be no public examination of Kinder Morgan’s evidence whatsoever.”

In a YouTube video from the information session, McDade deconstructs the NEB’s April 2nd “hearing order,” noting that the only way for the City of Burnaby to raise concerns is now by submitting written “information requests.” This applies to all intervenors, including the Province of B.C. and the Department of Fisheries and Oceans.

“They call it a hearing order, but it should be called a ‘no hearing’ order,” McDade quipped.

“What we have here is a mere paperwork exercise. It is not a hearing and it is not public. It is not independent. All three panelists on the National Energy Board are from the oil and gas industry.”

Kinder Morgan’s Trans Mountain proposal would triple the amount of oil the company ships to Burnaby and increase the number of oil tankers travelling through Vancouver Harbour and the Gulf Islands seven-fold.

McDade said he’d planned on calling citizens of affected Burnaby neighbourhoods to testify, but now that won’t be possible.

“Our chances to represent your voices and your questions are no longer there,” he told Burnaby residents at the information session. “It’s going to have to go through information requests.”

On Saturday, hundreds of citizens turned out for a rally against the Kinder Morgan pipeline in Burnaby. Photo: Jennifer Castro via Flickr.

The only true oral hearing segment of the process is for the presentation, and questioning of, aboriginal traditional evidence. The NEB calls the final summary arguments "oral hearings," but they are near the end of the process and no new evidence can be presented at that time.

Karen Campbell, a staff lawyer for Ecojustice, told DeSmog Canada the information request process is no substitute for cross-examination.

“A virtual exchange of documents online, which is what this process primarily is, will not allow intervenors to really get to the bottom of the issues around this proposal," Campbell said. “Given how utterly contentious this project is, providing an opportunity for oral cross-examination is a critical piece of the puzzle.”

"Radical change" to process

During the Enbridge Northern Gateway pipeline hearings, there were more than 90 days of cross-examination. Chris Tollefson spent 26 hours cross-examining Enbridge witnesses as legal counsel for Nature Canada and BC Nature — groups he’s also representing during the Kinder Morgan review.

“It’s a radical change. It’s a fundamental change,” Tollefson told DeSmog Canada about the Trans Mountain review. “I’m not sure what’s left of the hearing process to the Trans Mountain hearing. The exchange of the written questions and answers is the prelude to the main event, but now there’s no main event.”

He added: “In any process where you’re trying to get at the truth, trying to test the evidence, it’s absolutely essential that you be able to pose questions to live witnesses who are under oath and who are required to answer the questions.”

Cross-examination crucial during Enbridge Northern Gateway hearings

Tollefson said that during the Enbridge hearings, cross-examination highlighted some of the most contentious issues, which were ultimately used to challenge the panel’s ruling in the federal court of appeal. He suspects the panel reviewing Kinder Morgan’s Trans Mountain proposal will be called upon to revisit this decision.

“If they don’t, the concern is that the evidence that they’re going to be relying on to make their recommendation will have not have been properly tested,” he said. “I think it cuts both ways, because not only is the proponent’s evidence not being put to the test, but neither is the evidence of any other party. The panel, in my view, is going to be hampered in doing its job.”

Tollefson said in a process restricted to written answers, it’s very easy to avoid directly and completely answering questions.

Timeline condensed by federal government

The Trans Mountain review has been condensed after the federal government’s 2012 budget bill overhauled environmental assessments and put a new 18-month timeline on reviews conducted by the National Energy Board.

“It has been put under a completely unrealistic timeline,” Tollefson said.

Burnaby Mayor Derek Corrigan has said he would be willing to stand in front of a bulldozer to stop Kinder Morgan’s project from going ahead.

“I’m prepared to fight this up until the bitter end,” he told Global News. “I’m incensed over the way we’ve been treated.”

On Saturday, hundreds of citizens rallied against the project in Burnaby, B.C.’s third largest city and the site of Kinder Morgan’s oil storage tanks and at least two major Kinder Morgan oil spills.

Community information sessions on the project have turned into rallying cries, with city officials frustrated with the NEB process.

“What we really need to do is let the government know that no public hearings is not an acceptable approach to this matter,” McDade said at last week’s information session.

Photo: Caffeinehit via Flickr

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Environmental groups, including ForestEthics Advocacy, Living Oceans Society and Raincoast Conservation Foundation, filed a lawsuit today to block cabinet approval of the proposed Northern Gateway pipeline.  

Ecojustice lawyers representing the three groups filed the lawsuit at the federal court level, saying that the Joint Review Panel's (JRP) final report on the pipeline is based on insufficient evidence and does not satisfy the legislated requirements of the environmental assessment process.

"The JRP did not have enough evidence to support its conclusion that the Northern Gateway pipeline would not have significant adverse effects on certain aspects of the environment," said Karen Campbell, Ecojustice staff lawyer.

The panel, a joint effort of the National Energy Board and the Canadian Environmental Assessment Agency, held an 18-month review of the proposed $6.3 million Enbridge pipeline, which would ship 520,000 barrels per day of diluted oilsands bitumen to the B.C. coast for export on tankers.

The three groups behind the lawsuit were participants in the review process.

Campbell said that the panel made its recommendation "despite known gaps in the evidence, particularly missing information about the risk of geohazards along the pipeline route and what happens to diluted bitumen when it is spilled in the marine environment."

For example, the panel's conclusion that diluted bitumen is unlikely to sink in an ocean environment was refuted by a federal report released last week. This suggests that potential spills could have more serious environmental impacts and be more difficult to clean up than the panel's report makes evident.

Karen Wristen, executive director of Living Oceans Society, said that they "have no choice but to go to court and challenge the JRP's final report."

"The panel's recommendation was made without considering important evidence that highlights the threat Northern Gateway poses to the B.C. Coast," Wristen said.

The panel also failed to consider the final recovery strategy for humpback whales or identify mitigation measures to reduce the impacts on caribou, as required by sec. 79(2) of the Species at Risk Act.

"The proposed tanker route travels directly through humpback whale critical habitat identified in the recovery strategy. Yet the panel refused to consider this potential conflict when making its recommendation," said Dr. Paul Paquet, senior scientist at Raincoast Conservation Foundation.

Paquet said that "the panel's failure to consider the project's likely adverse impact on the whales makes no sense," considering that "the federal government will be required to legally protect the humpbacks and their habitat beginning in April."

Although the panel's final report concluded that 35 per cent of the Northern Gateway's economic benefit would come from upstream oilsands development, it did not address the environmental impacts associated with oilsands development, despite a clear request to do so.

Nikki Skuce, senior energy campaigner with ForestEthics Advocacy, said that the panel "cannot consider the so-called economic benefits of oilsands expansion tied to this pipeline but ignore the adverse impacts that expansion will have on climate change, endangered wildlife and ecosystems."

"The environmental assessment process is supposed to consider both sides of the coin, and in this instance the panel failed," Skuce said.

The panel's environmental assessment found the oil tanker and pipeline project was unlikely to have adverse environmental effects, aside from cumulative impacts on some grizzly bear and caribou populations. Campbell said this conclusion was reached "without considering all the necessary and available science."

Campbell added that the report "only tells part of the story, and we are asking the court to ensure that this flawed report doesn't stand as the final word on whether Northern Gateway is in the national interest."    

The lawsuit seeks a federal court ruling to prevent the government from relying on the flawed report to approve Northern Gateway.

A spokeswoman for Natural Resources Minister Joe Oliver said the government would not comment on the lawsuit, reports the Globe and Mail.

"As the minister said before, we will thoroughly review the report, consult with affected First Nations, and then make our decision," said Melissa Lantsman, Oliver's director of communications. "Our government will continue to take action to improve the transportation safety of energy products across Canada."

Cabinet is set to make a decision based on the panel's recommendation in the following six months. Under the new environmental assessment framework forced through in the 2012 spring omnibus budget, cabinet has final decision-making power over Northern Gateway, bound by the 209 conditions laid out in the panel's report.

Image Credit: Pembina Institute / Flickr

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