By Chris Tollefson, Executive Director Pacific Centre for Environmental Law and Litigation.

Early on in its remarkably candid treatise released today, the Expert Panel tasked with advising the Trudeau government on how to modernize the National Energy Board (NEB) observes that the issue it was asked to grapple with “is much larger than simply the performance of the NEB in and of itself”: read the panel report here.

Indeed.

Since the 2013 Northern Gateway pipeline hearings, our national energy regulator has been buffeted by one controversy after another.  The NEB must bear some of the blame for this.  Its work on the Northern Gateway, Kinder Morgan and Energy East files underscore that its expertise does not lie in the realm of environmental assessment.  But it is also a victim of history — an institution conceived and born in an era (almost 60 years ago) long before Indigenous rights, climate change and decarbonization had political, let alone legal, salience.

A key question confronted in this review was what role, if any, should be played by the NEB (or its potential progeny) going forward. Historically, the core role of the NEB was regulating the construction and operation of interprovincial and international energy infrastructure, particularly oil and natural gas pipelines.  

Yet, while the NEB has been legally responsible for reviewing proposed new infrastructure projects on a broad public interest-based test, it has been reluctant to grapple with broader, more policy-infused questions — including climate change, environmental impacts and Indigenous rights. 

The NEB’s reluctance and failure to grapple effectively with these questions has led to substantial delays, conflict and litigation.

In a breathtaking understatement, the Expert Panel observes: “The current process is frustrating for everyone.”

Will a Repackaged National Energy Board Be Able to Meet Canada’s 21st Century Challenges? https://t.co/mUOLZBeWMM @pcell_law #cdnpoli pic.twitter.com/jvpfOpB7vp

— DeSmog Canada (@DeSmogCanada) May 16, 2017

Ultimately, the Expert Panel concludes that the NEB should pass the torch to a newly created body: the Canadian Energy Transmission Commission (CETC). Though the NEB would cease to exist, the CETC would continue to carry on many of the NEB’s core technical and regulatory functions.  

A key challenge for the CETC will be to restore the trust of Canadians through a suite of recommended reforms aimed at “living the nation-to-nation relationship,” aligning energy infrastructure decision making with “national policy goals,” promoting public engagement, and improving regulatory efficacy.

Going forward, the Expert Panel recommends that new pipelines and other significant energy infrastructure should initially be assessed for their “alignment with the national interest.” This would be where climate impacts, cumulative effects, and Indigenous rights implications are considered. This process would conclude with a determination by Cabinet. 

If Cabinet gives its blessing, the CETC and the Canadian Environmental Assessment Agency would then jointly turn their minds to what the Report refers to as “licencing issues,” essentially ways to ensure that the various adverse impacts of the project under review are mitigated.

Stage one of the process would conclude within one year. Stage two, which could include public hearings and would culminate in a decision by the Joint CETC/CEAA panel, could take up to two years.  This bifurcation of the process, with an upfront ‘political’ decision by Cabinet followed by a technical review focussed on implementation issues, closely tracks what various business interests involved in the EA and NEB Modernization processes have been calling for.

Can a repackaged (yet not repurposed) NEB meet the array of 21st century challenges that await?  The approach recommended by the Expert Panel does not inspire confidence.

Nobody is arguing that the technical, safety and data collection functions currently vested in the NEB should be eliminated. These regulatory functions are important and need to be assigned to an appropriate government agency.

What the Expert Panel fails to address, however, is the need fundamentally to reform the assessment that major energy projects must undergo before we, as a society, allow them to proceed. These assessments must be capable of supporting informed, transparent and defensible social choices about future development.  This is quite different from regulatory processes that are principally aimed at mitigating anticipated harms.

For well over a generation, we have adopted an approach that allows projects, even quite ill-advised ones, to go ahead unless it can be shown that they will likely cause significant adverse effects, or if those effects can be justified on a vague “justified in the circumstances” rationale. 

One of the most noteworthy contributions of the Expert Panel report on reforming CEAA, 2012 was its recommendation that we move beyond this significance-based model, towards one that tethers project-level decisions to a rigorous assessment of whether the project will entail a net contribution to sustainability.

Pivoting from an approach that focusses on whether a project’s opponents can prove it will cause significant harms towards one that calls upon a project’s proponents to show it can be sustainable is an elegant reframing of what is often a dead-end debate. And a move that just might be a game changer.

Unfortunately, on this key point, the NEB Modernization Expert Panel report and the CEAA, 2012 Expert Panel report are like ships in the night. While regrettable, this failure to engage is not all that surprising.

The complexities of social choice have never been the NEB’s forté. The NEB Modernization Panel was assigned a triage mission whose overarching aim was to identify a set of core functions that can be properly assigned to Canada’s energy regulator.  In rolling back the NEB’s role to focus on regulatory issues, the Expert Panel’s report does precisely this.  

However, where this Expert Panel has failed, and where the CEAA, 2012 Expert Report adds enduring value, is in confronting the legitimacy crisis that pervades decision making around fossil fuel infrastructure development. In determining what advice to follow, the Trudeau government should bear this in mind.

Image credit: Zack Embree

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Reconcile with Indigenous peoples. Make elections fairer. Invest many more billions in public transit and green infrastructure. Take climate change seriously.

Those are just a few of the things that Prime Minister Justin Trudeau and his Liberal Party committed to in the lead-up to the 2015 election, offering up a fairly stark contrast to the decade of reign by Stephen Harper’s Conservatives. And on Oct. 19, 2015, almost seven million Canadians voted for that Liberal platform. In his victory speech, Trudeau spoke of “real change” and “sunny ways” and “positive politics.”

Fast forward almost 500 days.

Many major promises have been broken, and sentiments seemingly abandoned. Frankly, it’s getting rather difficult to keep up with the amount of backtracking and shapeshifting happening in Ottawa.

Most recently, Trudeau formally abandoned his repeated commitment that “2015 will be the last federal election conducted under the first-past-the-post voting system” by issuing a mandate letter to the new minister of democratic reform that included the statement that “changing the electoral system will not be in your mandate."

What follows is a breakdown of some of the other stunning reversals made by Trudeau and the Liberals in recent months, with a specific focus on commitments made to climate change, environment and Indigenous rights.

Modernizing Environment Assessment Processes Prior to Approving New Pipelines

In 2012, Harper and the Conservatives overhauled the way that major resource projects are assessed in Canada, gutting the Canadian Environmental Assessment Act, Fisheries Act and Navigable Waters Protection Act.

Among many other things, those changes resulted in the National Energy Board (NEB) being assigned exclusive responsibility to conduct federal environmental assessments for major pipeline projects.

It’s something that many voiced serious concern about: the NEB has been often accused of being a “captured regulator,” with a high concentration of staff members having worked in the oil and gas industry due to its head office being located in Calgary and legislation from the early 1990s requiring all permanent members to live in the area.

The Liberals pledged in its platform to “make environmental assessments credible again” and “ensure that decisions are based on science, facts, and evidence, and serve the public’s interest.”

And in August 2015, during a campaign stop in Esquimalt, Trudeau specifically stated the Kinder Morgan Trans-Mountain project wouldn’t proceed under existing processes.

The list of criticisms of the NEB review of the Kinder Morgan project is long: there was an absence of oral cross-examination of evidence, many people were arbitrarily denied intervenor status and potential climate impacts of the project weren’t considered.

Dozens of municipalities and Indigenous communities voiced serious opposition to the project.

But the Liberals didn’t call the review off. Instead, it created an ad-hoc environmental review panel, which was explicitly intended “to ‘complement’ rather than review or redo the NEB process.” Despite allegations of serious conflict of interest in its members, the panel produced a report posing six major questions about the proposed project that should be answered before making a verdict.

But none of those questions were answered.

As a result, the cabinet decision made on Dec. 29 to approve Trans Mountain and Enbridge’s Line 3 was ultimately based on an NEB recommendation made under Harper-era processes (the B.C. government also oddly accepted the flawed environmental assessment as its own, despite having the opportunity to order its own).

The path forward was clear: modernize the NEB, and repair the trio of acts that were gutted by Harper in 2012 prior to proceeding with new projects that will have major impacts on climate and local environment. Maybe that would have been just too “positive.”

Phasing Out Fossil Fuel Subsidies

Between 2013 and 2015, oil and gas producers in Canada received an annual average of $3.31 billion in subsidies, with $1 billion via the Canadian Development Expense and $1.2 billion from Alberta's Crown Royalty Reductions. This arguably makes the impacts of climate policies less effective.

That’s possibly why the Liberals pledged: “We will fulfill our G20 commitment and phase out subsidies for the fossil fuel industry over the medium-term.”

No further details were given about what “medium-term” means in the context of a four-year mandate.

In November 2015, B.C. Premier Christy Clark announced that the Liberals had assured they would be maintaining Harper’s tax breaks of $50-million over five years to the province’s struggling liquified natural gas (LNG) sector. In March 2016, Carr said it’s “not the moment” to phase out subsidies.

An August 2016 report by the International Institute for Sustainable Development noted: “So far, the government has been quiet about the details of its plan. As part of its G20 commitment, Canada has said that it will eliminate “inefficient” subsidies. But that hasn’t been clarified—nobody knows which subsidies will or won’t be considered inefficient.”

That’s still the case.

Grant Indigenous Nations “Veto” Power Over Resource Projects

One of the most compelling elements of Trudeau’s pre-election rhetoric was his repeated emphasis on establishing a “nation-to-nation” relationship with Indigenous peoples, and working towards the lofty goal of “reconciliation.”

Specifically, the Liberals pledged to "enact the recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples."

It was also a significant pledge, given that Article 32 of the UN Declaration (which is commonly referred to as UNDRIP) stated “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources” and require states to obtain “free, prior and informed consent” from Indigenous peoples “prior to the approval of any project affecting their lands or territories.”

Many people interpret that article as acknowledging the “veto” power of Indigenous nations, meaning they could refuse projects including pipelines, oil and gas extraction and mineral mining. And when asked on the campaign trail if “no means no” in reference to veto power, Trudeau said “absolutely.”

After winning the election, Trudeau emphasized in mandate letters to ministers that “no relationship is more important to me and to Canada than the one with Indigenous Peoples.” In May 2016, Canada formally removed its objector status to UNDRIP, with Indigenous Affairs Minister Carolyn Bennett stating: “We intend nothing less than to adopt and implement the declaration in accordance with the Canadian Constitution.”

That was about as clear as you could get. Or so you would think.

Less than two months later, Bennett said the Liberals “do not believe this is an outright veto.” Then Justice Minister Jody Wilson-Raybould stated that implementing UNDRIP was “unworkable.” Trudeau rounded out the betrayals by stating in December 2016 that “no, they don’t have a veto” in reference to three Indigenous nations who vehemently oppose the Kinder Morgan project.

The Liberals have also been criticized for approving the Pacific Northwest LNG export terminal, Site C dam and the Enbridge Line 3 pipeline without the free, prior and informed consent of Indigenous peoples. In a recent video for CBC News, Mi'kmaq lawyer and professor Pam Palmater told Trudeau that "you betrayed us."

It would be difficult to draw much of a different conclusion.

Justin Trudeau participates in a town hall meeting in New Brunswick. Image: Prime Minister's Photo Gallery

Repeal ‘Problematic Elements’ of Surveillance Bill C-51

Remember Bill C-51? That controversial “anti-terrorism” legislation that resulted in massive protests, petitions and condemnation from academics?

Well, it’s still very much law.

That includes the powers to arrest people without a warrant if someone "may" commit a terrorist attack, increases data sharing among government departments, grants significant powers to the Canadian Security Intelligence Service (CSIS) and expands the definition of “security” to include anything that undermines “the economic or financial stability of Canada.”

The latter point led especially to fears among environmental activists and Indigenous defenders, given the potential arbitrary use of state power to suppress protesting.

The Liberals unanimously voted for C-51. During the election, they promised to “repeal the problematic elements of Bill C-51, and introduce new legislation that better balances our collective security with our rights and freedoms.” The new legislation would “guarantee that all Canadian Security Intelligence Service warrants respect the Charter of Rights and Freedoms” and “ensure that Canadians are not limited from lawful protests and advocacy.”

Maybe you can guess what happened next.

Trudeau and the Liberals haven’t kept their promise.

The proposed bill to establish an all-party National Security and Intelligence Committee is still only in the report stage. CSIS is under serious fire for a decade-long storage of illegal metadata. Natural Resources Minister Jim Carr was recently slammed for implying that pipeline protesters would face the “rule of law,” which was interpreted by some as a veiled threat to use police and military against protesters in a similar way to the Oka Crisis.

Take Climate Targets Seriously

Credit where it’s due: the Liberals did manage to pull off the Pan-Canadian Framework.

That included national $50/tonne carbon pricing by 2022, regulations to cut methane and HFC emissions, a phase-out of coal-fired power by 2030, new building codes and the "intention to develop a zero emissions vehicle strategy and a Clean Fuels Standard."

But the federal approvals of the Pacific Northwest LNG export terminal, Enbridge Line 3 pipeline and Kinder Morgan Trans Mountain pipeline seriously undermine the already underwhelming federal commitments to cut emissions by 30 per cent below 2005 levels by 2030, and 80 per cent below 2005 levels by 2050.

Sure, commodity prices may never rebound thanks to President Donald Trump’s plan to massively expand domestic oil and gas development. But everything could also change if he decides to start dropping bombs on Iran and takes four million barrels of oil production off the table. Either way, it’s a big gamble.

But one thing is known for sure: if the newly approved projects are indeed constructed, they will result in “carbon lock-in” for decades to come that will make it extremely difficult for Canada to meet its climate targets due to increased political pressures on future governments to avoid introducing legislation that seriously impacts profit-making abilities.

There’s a quiet push by the federal government to use international emissions trading to help it reach its 2030 target. Solid economic arguments accompany this option. However, some fear the required capital outflow associated with the mechanism will make it more difficult for Canada to reach its 2050 target, to say nothing of the lofty goal of phasing out all fossil fuels by 2100 (both of which will require fairly radical transformations in transportation, industry, electricity, agriculture and buildings).

There’s also little evidence for the math behind the government’s plan to reduce a massive 44 megatonnes of emissions reductions (which represents more than half of all the emissions from oilsands extraction and refining in 2015) from “public transit, green infrastructure, technology and innovation and stored carbon.”

The Pembina Institute’s Erin Flanagan kindly put it that “additional policy work is required to close [that gap].”

Trudeau’s got his rhetoric down when it comes to this subject, often referencing the need to “balance” the economy and environment. Frankly, there’s little evidence that his government is taking 2030, 2050 and 2100 climate targets seriously.

Can’t Stop, Won’t Stop: 500 Days of Trudeau’s Broken Promises https://t.co/j4yt4xabv5 #cdnpoli #bcpoli @ClimateVoters @dogwoodbc @350Canada pic.twitter.com/o9wQXMrmBX

— DeSmog Canada (@DeSmogCanada) February 11, 2017

Big-League Investments in Public Transit and Green Infrastructure

It was supposed to be the “largest new infrastructure investment in Canadian history.”

Specifically, the Liberals pledged $125 billion in public transit, climate change mitigation and adaptation projects, social housing and water and wastewater infrastructure. The big problem?

That $125 billion would be invested over the course of a decade, well beyond the four-year mandate the Liberals won in 2015. Between 2016/17 and 2019/20 — you know, the party’s actual mandate — the Liberals only pledged a total of $17 billion. That was broken down into $5.65 billion for each of the three categories: 1) green infrastructure; 2) social infrastructure; and 3) public transit.

It might sound like a lot.

But the infrastructure deficit in Canada is staggeringly large — one estimate pegs it as high as $570 billion — which is the symptom of decades of serious underinvestment by the federal government in its cities. So how have the Liberals lived up to their measly platform pledge?

They didn’t even meet it.

The funding commitment to public transit is $1.1 billion less than what was promised ($3.4 billion over three years, instead of $4.5 billion). Meanwhile, the commitment to green infrastructure is short, with the budget allocating $5 billion over five years (instead of $5.65 billion over four years). It’s only in 2021/22 that investments are predicted to increase to levels promised in 2015/16.

There’s been no explanation for this.

Instead, the government pitched a private infrastructure bank, which will attempt to “leverage” four to five dollars from the private sector for every single dollar invested by the government. The $15 billion for the latter will be “sourced from the announced funding” for infrastructure, so subtract that amount from the original total.

Sure, the Liberal platform did outline the idea of a Canada Infrastructure Bank “to provide low-cost financing for new infrastructure projects.” But there was no mention of privatizing it.

This fact has resulted in serious concern voiced by some economists given the possibility of privatization doubling the cost of projects over 30 years than if built and operated by the government.

In addition, Finance Minister Bill Morneau has indicated that private investors won’t be interested in investing in smaller municipalities given their desire for high returns. All this led Laurentian University’s Louis-Philippe Rochon to recently dub Trudeau a “privatization czar” and note that he “has gone places even Mr. Harper never dared to go.”

Given the Liberal pledge to reduce the federal debt-to-GDP ratio to 27 per cent by 2019-20 — and the fact it’s currently predicted to hit almost 32 per cent by that time — it seems doubtful the Liberals will even pretend to meet this promise.

Sunny, sunny ways.

Image: Prime Minister Justin Trudeau enters a town hall meeting. Image: Prime Minister's Photo Gallery

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.