Kinder Morgan Trans Mountain may be in violation of a condition laid out by the National Energy Board, Canada’s federal pipeline regulator, after ordering nearly 300,000 tonnes of pipeline for the expansion project without submitting a quality management plan.

According to regulatory documents filed by the National Energy Board in September, Trans Mountain was required to file a quality management plan “at least four months prior to manufacturing any pipe and major components for the project.”

The quality management plan requires Trans Mountain to supply documentation regarding the qualifications of pipeline contractors, vendors and suppliers, quality auditing of manufactured pipe and the preservation of pipe during shipping and storage.

Yet in documents submitted to the NEB, Trans Mountain confirmed pipeline manufacturing contracts were awarded between May and July of 2017 and manufacturing of the pipeline began in October with no plan in place.

In 2012, TransCanada came under fire for failing to comply with NEB rules regarding pipeline inspections. Since 1999 the NEB has required companies to provide independent inspections of contracted pipeline manufacturers. Whistleblower Evan Vokes raised the alarm about faulty pipeline welding practices, bringing his complaint to the NEB after TransCanada refused to acknowledge his concerns.

Peter McCartney, campaigner with the Wilderness Committee, said the company’s actions are evidence of a disregard for Canada’s regulatory process.

“They think the rules don’t apply to them and yet there are 157 conditions the federal government placed on this project’s approval,” McCartney told DeSmog Canada.

The NEB has indicated it will review Trans Mountain’s potential non-compliance in an “upcoming compliance verification activity.”

In early February 2017 Trans Mountain submitted a filing to the NEB that included “incomplete process documentation” on 13 specific aspects of Condition 9, which applies to the quality management plan.

#KinderMorgan At Risk of Violating NEB Condition With Premature 300,000-Tonne Pipeline Order https://t.co/evYw3E3eaW #transmountain #bcpoli

— DeSmog Canada (@DeSmogCanada) November 3, 2017

Trans Mountain notified the NEB it would submit completed documentation to the NEB by August 15, 2017, but by September none of the requested document has been submitted.

In a response to the NEB, Trans Mountain confirmed it had procured pipe, fitting and other major components for the pipeline, prior to the completion of its quality management plan.

A spokesperson with the NEB told DeSmog Canada that an assessment of Trans Mountain’s “condition related filings is ongoing.”

“Throughout construction oversight, the NEB undertakes assessment of company documentation to ensure pipe and components meet regulations and standards,” the spokesperson said. “The company is accountable for meeting these regulations and standards.”

Trans Mountain did not respond to a written request for comment.

McCartney said these revelations add to growing concerns Trans Mountain is not interested in following rules laid out by the federal government.

Last month the NEB ordered Trans Mountain to remove unapproved anti-spawning mats a company biologist placed in B.C. and Alberta rivers along the proposed pipeline route. In an October 12 letter, the NEB told Trans Mountain the use of such installations “prior to approval of relevant conditions for commencement of construction and approval” of the pipeline was non-compliant.

Trans Mountain recently appealed to the NEB to help keep the project on schedule by expediting ongoing reviews of project conditions. The request came as the city of Burnaby, which vocally opposes the project, refused to issue construction permits to the company.

According to previous NEB filings, Trans Mountain plans to stockpile pipeline in New Westminster, Chilliwack, Hope, Merritt, Kamloops, Vavenby and Valemount.

Those piles could begin appearing as early as this month.

Kinder Morgan released an IPO in May, seeking $1.75 billion from investors. In a prospectus filed with security regulators the company warned delays in construction of the Trans Mountain pipeline posed a significant risk to the project.

“Should any number of risks arise, [Trans Mountain] may be inhibited, delayed or stopped altogether,” the document warned.

NEB Letter to Trans Mountain re Condition 9 September 2017 by DeSmog Canada on Scribd

Trans Mountain Response to NEB Letter – Condition 9 September 2017 by DeSmog Canada on Scribd

Image: Kinder Morgan Trans Mountain pipeline sign in Burnaby. Photo: Carol Linnitt | DeSmog Canada

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Canada’s National Energy Board (NEB) has quietly stopped requiring pipeline companies to post the geographic coordinates of repairs, DeSmog Canada has learned.

The federal pipeline regulator cites “public safety” as the reason for deciding to limit information on the specific location of “integrity digs” to examine cracks, corrosion or dents — but critics argue the decision compromises the ability of Canadians to access information about the safety of pipelines.

Often times, hundreds of integrity digs will take place in certain areas of pipeline, raising questions about the quality of that section of line, said Emily Ferguson, an environmental consultant and founder of Line 9 Communities.

“When you see integrity data on a map, you can see these clusters of where there might be issues,” Ferguson said. “I think that’s something that is obviously in the best interest of the pipeline companies not to have that publicly released.”

Integrity Digs Used to Patch and Repair Faulty Pipelines

Integrity digs are conducted by pipeline companies when their “in-line inspection” tool — often a “smart pig” that travels inside the pipe without disrupting flow — flags an anomaly.

An integrity dig exposes the pipeline and allows for maintenance such as patching and other repairs.

Until recently, the National Energy Board published the GPS coordinates of these digs — but sometime in the last few months, the board quietly began allowing companies to keep that information secret.

“There are places where the drinking water is only a couple of feet deep under the surface, where the pipe is, depending on the time of year, actually lying below the water table,” said Ian Stephen, campaign director of the Chilliwack-based WaterWealth Project.

“I think it’s a very legitimate concern for the public to want to be able to verify that best practices are used in any kind of maintenance work that goes on around here.”

In 2015 DeSmog Canada revealed that the National Energy Board allowed Kinder Morgan to keep its oil spill response plans for the Trans Mountain pipeline secret, while the response plan for the same pipeline was publicly available across the border in Washington state. At the time, the NEB claimed “security concerns” prevented the company from making the plan publicly available. After a media storm, the NEB announced last year that it will now require companies to disclose their oil spill response plans publicly.

NEB and Kinder Morgan Point to Alleged Safety Risks

A spokesperson from the NEB told DeSmog Canada via e-mail that it “removed the coordinates of this type of work from its information to avoid a safety risk of the public accessing worksites.”

The spokesperson noted that “companies are expected to notify nearby landowners, indigenous groups and other affected parties” when activities such as integrity digs are being conducted.

In response to a query about its requests for confidential operations and maintenance filings, a spokesperson for Kinder Morgan told DeSmog Canada, “the safety and security of our of our pipeline, staff and the communities we operate in is our top priority.”

Neither the NEB nor Kinder Morgan provided examples of recent safety risks due to posting geographic coordinates of integrity digs.

EXCLUSIVE: NEB Quietly Grants #Pipeline Companies Permission to Keep Repair Locations Secret https://t.co/ST4CpyUNlv #cdnpoli #KinderMorgan

— DeSmog Canada (@DeSmogCanada) July 11, 2017

Stephen noted the decision by the NEB to no longer require geographic coordinates for integrity digs happened shortly after Kinder Morgan filed two requests for “confidential treatment of filings related to proposed Operations and Maintenance (O&M) activities to be undertaken along the Trans Mountain Pipeline System.”

While the specific requests were denied by the NEB, Stephen suggests it’s a case of “tail wags dog with our industry-captured regulator.” A federal panel recently recommended that the National Energy Board be replaced by a new commission and be moved from Calgary, home to the majority of Canada’s oil and gas industry headquarters, to Ottawa.

“In our consultations we heard of a National Energy Board that has fundamentally lost the confidence of many Canadians,” the five-member panel wrote. “We heard that Canadians have serious concerns that the NEB has been ‘captured’ by the oil and gas industry.”

Geographic Coordinates Allow Public to Track Pipeline Problems

It’s still possible to track down information on when the digs are scheduled to happen, as well as the location based on mileposts, girth welds and legal subdivisions — but not via specific coordinates.

Companies will sometimes provide maps, some with street names and others without.

“It’s not always presented in a way that anybody could understand,” Ferguson said.

Stephen suggests this matters more than ever, especially given the current push to expand the Kinder Morgan Trans Mountain Pipeline system.

“Trust goes two ways: if you want us to trust you then show us, because their past maintenance history is the best indicator I think of how much weight their claims that the new pipe will be safe will be given,” he said.

Integrity Digs Only Posted If Near Residences, Schools, Water Bodies

The geographic coordinates issue is only one of many issues the NEB has with transparency around integrity digs, Ferguson said.

Integrity digs are only required to be posted under certain parameters, including when the “exposure of the pipe” occurs within 200 metres of residences, schools, hospitals, prisons or “other institutions where people “routinely congregate in large groups” of 50 people or more, or within 30 metres of a wetland or waterbody.

That means there’s likely a whole lot more happening than we know about. After all, Canada is a large country with great swathes of low-density occupation, meaning that many integrity digs would be unreported.

Ferguson adds that any pipeline replacement less than 40 kilometres in length can proceed without a public hearing; she says that she’s seen hillsides of 10 or more integrity digs in a row, suggesting the company is patching the pipeline instead of replacing a section that would require a public hearing.

“I wish that there was change in the rules where if you had a certain amount of digs within a certain distance, it would open up to more of a public hearing,” she said.

“There’s so much that flies under the radar.”

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Want to modernize Canada’s National Energy Board (NEB)?

Bring the regulatory agency — first founded way back in 1959 when the realities of climate change weren’t readily known — into alignment with our carbon-constrained present.

That recommendation, coming from the Pembina Institute, comes in a report released Friday to coincide with the end of a federal review of the National Energy Board that brought an expert panel into halls and meeting rooms of 10 cities across the nation.

In the report, “Good Governance in the Era of Low Carbon,” the Pembina Institute states the review is an important opportunity to not only bring the mandate of the NEB into the 21st century, but also to restore public trust in what many see as a broken process.

The National Energy Board has been called a “captured regulator” that has “lost touch with what it means to protect the public interest,” by Marc Eliesen, former head of BC Hydro and former deputy minister of energy in Ontario and Manitoba.

Eliesen was one of many groups and individuals to publicly pull out of the NEB review of the Kinder Morgan Trans Mountain pipeline after the process was called “fraudulent” and an act of "public deception."

“Over the last decade, energy infrastructure proposals — including fossil fuel projects like oilsands pipelines and renewable energy development like wind farms — have become increasingly contentious across Canada,” the Pembina report states.

Modernize the National Energy Board? Here’s How https://t.co/CUp1RVOETT @Pembina #cdnpoli #NEBreview

— DeSmog Canada (@DeSmogCanada) March 31, 2017

“Public trust in energy decision making is at an all-time low, brought on by rapidly changing realities in, and expectations of, the energy sector.”

Erin Flanagan, federal policy director with Pembina and lead author of the report said changes to the NEB could help temper public skepticism by bringing the activities of the agency into alignment with Canada’s climate commitments.

“Canadians need an unbiased and trusted energy regulator capable of supporting Canada’s clean growth agenda,” Flanagan said.

Under the Paris Agreement Canada has committed to reduce emissions 30 per cent below 2005 levels by 2030.

Yet the approval of major fossil fuel projects and infrastructure by the federal government have many wondering how growth in Canada’s energy sector will square with low-carbon commitments.

“National Energy Board modernization is Canada’s opportunity to turn the corner on frustrated project reviews, and instead build processes that work for all interested parties and ultimately deliver credible recommendations to government.”

The report recommends the NEB consider the climate impacts of projects as well as the impact of new projects on Canada’s climate commitments.

“In its current function the NEB…fails to assess climate change impacts in its activities, from project reviews to data production and monitoring,” the report states.

A modernized NEB would apply best-available climate science to project reviews, keep project approvals in line with low-carbon goals and protect the long-term interest of Canadians by quantifying the climate risk associated with projects. 

Currently the NEB does not incorporate an analysis of how energy projects will impact Canada's climate committments, nor does it define what is meant by "public interest."

“The federal government has an opportunity to build on the NEB’s core competencies by ensuring it has a mandate to produce energy data consistent with successful implementation of the Paris Agreement," Lindsay Wiginton, analyst with the Pembina Institute and co-author of the report, said. 

"This is an essential requirement for Canada: data produced by the NEB is widely used for energy policy development and planning across the country, and it should reflect our climate commitments.”

The report also recommends reforms to how and what projects are submitted to the NEB for assessment.

“National and sub-national governments must implement and enforce climate policy commensurate with achieving Canada’s domestic and international climate commitments. This will encourage (though not guarantee) the selection of projects that support Canada’s transition to a decarbonized economy before they arrive at the regulator.”

In addition to addressing climate impacts, the NEB should also operate in a manner that supports Canada’s commitment to respect the rights and title of indigenous peoples, including facilitating the 94 “Calls to Action" intoned in the findings of the Truth and Reconciliation Commission.

Federal project approvals of the Site C dam, the Kinder Morgan Trans Mountain pipeline and the Pacific Northwest LNG terminal in B.C. have each been met with legal challenges from local First Nations who argue the approvals violated aboriginal rights and title or the principle of free, prior and informed consent.

“Modern regulators should conduct their work in the spirit of reconciliation with Indigenous peoples,” the report states, adding changes to legislation made in 2012 unnecessarily limited public participation in project assessments.

A lack of public participation and perceived transparency has also damaged the NEB’s reputation and the credibility of its processes, the report finds.

Pembina recommends a revised energy project review “support systems for the full and meaningful participation of the public and any interested parties” and ensure “provisions for ensuring the independence of commissioners, participating experts and project documents are in place.”

In September a three-member NEB panel recused itself from the review of TransCanada's Energy East pipeline, after the National Observer revealed the panelists quietly met with former Quebec Premier Jean Charest who at the time was working for TransCanada. 

“Public trust in the NEB is at an all-time low because of its perceived (and/or real) state of industry capture and the politicization of its decision-making," the report states, recommending energy regulators be "independent of bias and interferences from government and non-government stakeholders."

The Pembina Institute submitted the report to the expert panel charged with reviewing the NEB. The panel will make recommendations to Natural Resources Minister Jim Carr by May 15, 2017. 

Image: Prime Minister Justin Trudeau and Natural Resources Minister Jim Carr. Photo: Government of Canada

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Kinder Morgan’s Trans Mountain pipeline proposal cannot proceed without a serious reassessment of its impacts on climate change commitments, indigenous rights and marine mammal safety.

That was the conclusion of the “Report from the Ministerial Panel for the Trans Mountain Pipeline Expansion Project,” released to the public on Nov. 3 by the three members of the self-described “omissions panel” that was formed to make up for perceived flaws in the National Energy Board review process.

“Surprisingly, I think it did do its job,” says Patrick DeRochie, climate and energy program manager at Environmental Defence.

“It’s kind of the icing on the cake of a fatally flawed Kinder Morgan review process. It shows the social, environmental and economic rationale for approving this pipeline simply doesn’t exist. The only viable option coming from this report is the rejection of Kinder Morgan by the federal government.”

The report — produced by the trio of Kim Baird, Annette Trimbee and Tony Penikett — was the culmination of 44 public meetings conducted during the summer, which included 650 direct presentations and 35,259 responses to an associated online questionnaire.

It was published on the same day that Kinder Morgan Canada president Ian Anderson appeared to question climate change by stating: “I’ve read the science on both sides and don’t pretend to be smart enough to know which is right.”

Review Panel Criticized For Lack of Clear Mandate, Hastily Organized Meetings

Critics had suggested the “review of the review” lacked a clear mandate, repeating the flaws of the original NEB process.

Such alleged faults included a lack of clarity on how the cabinet would use the report, a failure to conduct proper outreach to key participants including municipal and First Nations leaders, a lack of proper note taking and an alleged conflict of interest due to Baird’s previous business relationship with Kinder Morgan.

“And yet, their report reinforced what we’ve been hearing from British Columbians about this project,” Sierra Club BC campaigns director Caitlyn Vernon says. “How do you do this in the face of First Nations opposition and the UN Declaration on the Rights of Indigenous Peoples. You don’t. How do you do this in the face of Canada’s climate change commitments? You don’t.”

Report Pointed Out Major Concerns About Climate Change, Spills, Killer Whales

The 58-page report, submitted on Nov. 1 to Minister of Natural Resources Jim Carr, outlined concerns about the potential impacts of the new pipeline on upstream greenhouse gas emissions, oil spills, reconciliation with indigenous peoples and the endangered southern resident killer whales; it noted that “as the panel moved west, opposition increased markedly.”

It concluded by posing six incisive questions to cabinet, including “can construction of a new Trans Mountain Pipeline be reconciled with Canada’s climate change commitments?” and “how might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of ‘free, prior, and informed consent’?”

“The part that gave me real delight was the six questions that they framed, and seeing that, rather than attempting to gloss over or evade the issues, they addressed them square on,” says Karen Wristen, executive director of Living Oceans.

Ministerial Panel on #KinderMorgan Pipeline Actually Nails It https://t.co/GMcRh9LW7f #bcpoli #cdnpoli #Burnaby #TankerBan

— DeSmog Canada (@DeSmogCanada) November 7, 2016

Trudeau Promised Review of Environmental Assessments Would Include Kinder Morgan

During the federal election, Prime Minister Justin Trudeau said that the “modernization” of the National Energy Board and Canadian Environmental Assessment Agency “applies to existing projects, existing pipelines as well.” In addition, the Liberal platform pledged to “restore robust oversight and thorough environmental assessments of areas under federal jurisdiction.”

Yet the National Energy Board recommended a conditional approval of the Trans Mountain pipeline — which would triple the amount of oil flowing to Vancouver — relying on the same processes that were implemented by former Prime Minister Stephen Harper and the Conservative Party.

That review didn’t include an assessment of upstream greenhouse emissions associated with the new pipeline or impacts on marine environments, and denied intervenor or commenter status to over 460 people. Serious concerns have been raised by indigenous communities including Tsleil-Waututh Nation and Squamish Nation over the quality and scope of consultations.

The review panel was formed as an ad-hoc substitute.

Vernon emphasizes the panel “did not remedy the flaws of the original NEB process.”

‘If Cabinet Takes the Questions Seriously, There’s No Way This Pipeline Can Be Built.’

The federal cabinet must issue its final verdict on the project by Dec. 19. Recent reports indicate Trudeau is leaning toward an approval.

Carr has suggested the new review panel will lend “credibility” to the environmental assessment process. However, there’s no clear understanding of if and how the report will be used by cabinet as it isn’t legally binding.

DeRochie says the review asked “key questions about the fundamental future of this country [that] have not been answered yet,” noting that his organization has been calling for a suspension of the process until the National Energy Board and Canadian Environmental Assessment Act have been “modernized” as promised.

He also emphasizes the conversation isn’t just about British Columbia, but pertains to national issues around credible review processes, commitments to reconciliation and the future of pipelines in Canada.

It appears that this review panel’s report will be the final assessment conducted prior to cabinet’s verdict. Many agree it poses questions that undermine the possibility of the Trans Mountain pipeline in its current form.

“If cabinet doesn’t take these questions seriously, approving this project would be abandoning any commitment to climate action, abandoning a commitment to reconciliation with indigenous peoples, imposing a death sentence on the endangered killer whale and inviting the economic and ecological disaster,” Vernon says.

“If cabinet takes the questions seriously, there’s no way this pipeline can be built.”

Image: Justin Trudeau via Prime Minister’s Photo Gallery

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This op-ed originally appeared on the National Observer.

After more than a year I decided to withdraw as an expert Intervenor at the National Energy Board hearing into Trans Mountain’s Expansion Project. I came to the discouraging conclusion that the Board was on a predetermined course of action to recommend approval of the Project. The Board did this by narrowly scoping its list of issues, removing cross-examination, and refusing to compel answers to information requests made by myself and most other Intervenors.

Corporations cannot regulate themselves. Their first priority is to maximize returns for their shareholders. Regulation is an accepted method in Canada to ensure private interest is not achieved at the expense of the public interest. Government steps in and establishes a regulatory framework to protect public health, safety and the environment as well as to attain objectives related to the nation’s economic and social goals.

Regulatory capture takes place when the regulator ceases to be independent and advances the commercial interests of the industry it is charged with regulating. The Board’s behaviour during the Trans Mountain hearing not only turned the process into a farce, it exposed the Board as a captured regulator.

Historically, the NEB had been an effective energy regulator, mindful of its obligations to the public interest. Significant erosion began to take place when Prime Minister Mulroney’s government altered NEB legislation in 1991. Among other changes, it required that the Board’s head office be relocated to Calgary and that its members be required to live in and around that city. The NEB became the only federal regulatory agency to be situated outside Ottawa.

Moving the NEB to Calgary dramatically altered the working of the Board. A large number of staff elected not to leave Ottawa and these were replaced by largely Alberta-based employees coming directly from the oil and natural gas industry. A close interaction between Board staff and industry representatives over the years has created a petro culture at the NEB — the goals and the aspirations of the industry became closely intertwined with those of the Board. The NEB has referred publicly to the industry as its partner.

Board members came from the Canadian energy industry, primarily from Alberta. There have been very few appointments that reflect other regions, professions, or interests outside Alberta and its pro-pipeline stance. Because of the Board members’ backgrounds, their objectivity and credibility is compromised. Past Board Chairs having been inducted into the Canadian Petroleum Hall of Fame and one acted as a consultant for Enbridge at Northern Gateway.

Deregulation of the oil and gas sector under the Mulroney government also transferred funding responsibility. Ninety per cent of Board funding is through cost recovery from the industry the Board is supposed to regulate.

The funding of the agency by industry and close proximity, both geographically and professionally, with industry interests has compromised the Board’s logic.

The NEB replaced the federal Department of Energy, Mines and Resources (now Natural Resources Canada) as the energy policy advisor to government. It is not in the national interest that policy advice come from an agency so closely tied to industry.

Last year, Prime Minister Trudeau promised to conduct the Trans Mountain and Energy East reviews under a credible process because the NEB cannot be trusted to do so. The Charest affair has brought that message once again to the forefront. Canadians want the prime minister to make good on his promise, since it looks like Minister Carr didn’t receive the memo.

Canada deserves a new Board, relocated to Ottawa, with a wide representation that reflects the interests of Canada and Canadians. It should be publicly funded with its policy advisory function transferred to the Ministry of Natural Resources. Until the overhaul that was promised is in effect industry capture will continue and communities will withhold permission for any new pipelines to be built.

Image: National Energy Board panel members, Roland George, Lyne Mercier and Jacques Gauthier. Photo: NEB

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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 National Energy Board, Canada’s federal pipeline regulator, will now require pipeline operators to make emergency response plans publicly available online, according to an order issued this week.   The new rules require all pipeline companies to post emergency plans on their websites by September 30, 2016. The increased transparency measure is part of a larger effort by the National Energy Board to regain credibility with the Canadian public.

“We’ve always reviewed manuals, we’ve always reviewed companies’ emergency management systems to make sure they’re robust, but Canadians are now saying they want more information and we’re just acting on what Canadians are telling us,” National Energy Board chairman Peter Watson told Global News. 

“This is an example where I felt quite strongly that we could put more information out about companies’ emergency response plans and help people understand what’s at play and how these things work. And that will, I think, give them more confidence that we know what we’re doing around these systems for emergency response.”

The issue of pipeline transparency made headlines last summer after operator Kinder Morgan refused to disclose emergency plans for the Trans Mountain pipeline to the province of B.C., even though the company was in the process of applying for a permit to triple the capacity of the pipeline. 

As DeSmog Canada first revealed, Kinder Morgan made those same emergency response plans publicly available in Washington State yet claimed they could not be disclosed in Canada for safety reasons.   The province, acting as an intervenor in the NEB review of Kinder Morgan’s expansion plans, was left to wonder if the company did in fact have emergency plans in place.   The plans Kinder Morgan willingly disclosed in Washington State included detailed information about every unique segment of the pipeline, worst case scenario discharge maps, names, contact information and instructions for spill responders, and detailed spill response timelines for each zone of the pipeline.   In a motion to the National Energy Board, B.C. said Kinder Morgan’s secrecy was “excessive, unjustified and prohibitive.” The province argued the withheld emergency response plans thwarted a full review of the project and prevented intervenors from a thorough understanding of the project. The National Energy Board upheld Kinder Morgan's decision to keep the plans secret.   Kinder Morgan’s refusal to release full plan put a spotlight on the lack of transparency surrounding pipeline management in Canada, leading the National Energy Board to rethink disclosure rules.   In April of last year the board announced they were launching a public consultation campaign which concluded in June 2015.

“There may indeed be some specific information that should be kept confidential,” Watson said while announcing the public consultation program in Vancouver last April. “But I believe that we have been too conservative in our approach to this issue to date.”

“And to tell you the truth,” he added, “I haven't been happy with the amount of emergency response information that pipeline companies or the NEB has been sharing with the public.”

The Canadian Energy Pipeline Association also responded to public concerns, saying a number of their members had “faced significant public pressure to disclose all information contained in emergency response plans.”   The new rules allow companies to exclude some information, such as personal details or location of sensitive indigenous site, from disclosure. Information relevant to a potential oil spill and disaster management, however, will be readily available to the public.   Should the Kinder Morgan expansion be approved — a final cabinet decision is expected in December — the disclosure rules will apply retroactively, Watson said.   Adam Scott, with Environmental Defence, told Global: “I don’t think it’s going to solve all of their problems, but I think it’s a really positive step.”

“I think it will be very interesting to see what the companies post.”

Image: Mychaylo Prystupa/Vancouver Observer

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For the second time in two days Prime Minister Justin Trudeau has been called on to suspend the regulatory review process for Kinder Morgan’s Trans Mountain pipeline project in British Columbia. Final hearings for the project begin next week.

“You are going to break your campaign promise to overhaul Canada environmental regulatory regime because of your refusal to suspend or cancel the reviews of the Kinder Morgan Trans-Mountain pipeline and TransCanada’s Energy East pipeline,” Cam Fenton, 350.org’s Canadian tarsands campaigner, said in a letter sent to Trudeau Wednesday.

“If you will not show the necessary leadership to stop these reviews, people will.”

Yesterday, Burnaby, B.C. Mayor Derek Corrigan made headlines with his letter to Trudeau requesting the review of the Trans Mountain project be suspended on the grounds the current federal regulatory framework is “deeply flawed” and “inadequate.”

Trudeau’s Liberals campaigned on restoring public faith in the National Energy Board (NEB), Canada’s pipeline regulator, during last year’s federal election. Under the previous federal government, the board went through extensive changes that resulted in limited public participation in regulatory hearings and restrictions on what public concerns were considered relevant to the process.  

The federal government insists it still plans on overhauling the NEB to ensure “robust oversight and thorough environmental assessments,” but pipeline projects like Trans Mountain and Energy East will continue to proceed under the ‘old rules’ established by the Harper government.

“….You are asking us to accept a broken, illegitimate pipeline review process," Fenton stated in his letter. "You are asking us to accept a process that ignores climate change, community voices and the rights of Indigenous peoples."

Adding to the frustration of the City of Burnaby, and groups like 350.org is a statement from Trudeau during a campaign stop in Esquimalt, B.C. last August where he claimed on camera the NEB overhaul would apply to “existing projects” currently under review like Trans Mountain.

“No, they’re not going to approve it in January. Because we’re going to change the government,” Trudeau told Kai Nagata from the Dogwood Initiative in response to questions about the Trans Mountain pipeline project. “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

Increasing public calls for immediate NEB reform could bring an end to Trudeau’s ‘honeymoon period,’ at least on the environment profile.

The Trudeau government’s performance in Paris at the UN climate summit in December far outshone any showing by the previous federal government. Trudeau has also pledged to meet with premiers to hammer out a national framework for reducing greenhouse gas emissions within the next two months.  

Failing to quickly overhaul the National Energy Board could undermine the Trudeau government’s intentions of rebuilding the strained relationship with indigenous peoples in Canada.

The influential Assemblies of First Nations in Quebec and Labrador, Manitoba and British Columbia have all requested the Trudeau government cancel the current reviews of Trans Mountain, Energy East and the Line 3 pipeline.  

“Our First Nations in British Columbia, Manitoba and Quebec call for the establishment of a new pipeline review and assessment process, to be developed and implemented in collaboration with First Nations, that will enable a thorough and objective environmental assessment of these pipelines,” a letter signed by all three assemblies states.

The 350.org letter is part request, part ultimatum. The organization says it will use a “People’s Injunction” if the reviews of Trans Mountain and Energy East are not cancelled or at least suspended by this Friday, January 15.

According to the group’s website, a People’s Injunction is a “plan to use creative, non-violent means to ensure that the Prime Minister and the new federal government keep their promises to overhaul pipeline reviews to include climate change and community voices.” 

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

Image Credit: Mark Klotz via flickr

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Natural Resources Minister Jim Carr told reporters Wednesday that ongoing oil pipeline reviews will continue on as usual, despite a promise by the Liberal government to make the environmental assessment process more robust.

“They have not stopped,” Carr said. “The process continues.”

Ongoing National Energy Board reviews will continue for projects like the Kinder Morgan Trans Mountain pipeline expansion even though the Liberal party platform promised an immediate review of the process, saying the renewed assessments will “restore robust oversight and thorough environmental assessments” and “restore lost protections” resulting from weakened environmental laws under the Stephen Harper government.

Minister Carr indicated the National Energy Board review process will undergo a transition but until that time, project reviews will remain unchanged.

“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, “and we will announce those changes as soon as we can, but the process continues.”

The announcement has some wondering what to make of Prime Minister Justin Trudeau’s assertion that a more robust process would apply to the to Kinder Morgan Trans Mountain pipeline.

In August, Dogwood Initiative’s Energy and Democracy Director Kai Nagata pressed Trudeau to confirm if an NEB overhaul would apply to the Kinder Morgan project.

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

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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

“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.”

After the Obama administration's recent refusal of the Keystone XL pipeline through the U.S. and a nearly dead Northern Gateway on B.C. northern coast, Kinder Morgan is upping its efforts to ensure the Kinder Morgan Trans Mountain expansion goes ahead.

On Friday Trudeau publicly released ministerial mandate letters, including one to Minister Carr that instructed him to “immediately review Canada’s environmental assessment processes to regain public trust and introduce new, fair processes” as well as “modernize the National Energy Board.”

“You can't slap some new paint on the Conservative review process and call it credible after campaigning against it,” Keith Stewart, energy and climate campaigner with Greenpeace Canada, said.

“I don’t see how the Trudeau government can continue with the review of a pipeline under rules that Trudeau has denounced for ignoring climate impacts, failing to respect Indigenous rights, and lacking a grounding in sound science.”

This week marks the passing of one year since hundreds of protesters gathered on Vancouver’s Burnaby Mountain to disrupt crews performing exploratory drilling for the Trans Mountain pipeline.

A massive loss of faith in the NEB process was on full display on Burnaby Mountain after nearly 500 citizens were prevented from participating as intervenors in the Trans Mountain hearings.

This included a group of 27 climate experts, including economists, scientists and academics.

The National Energy Board also quietly removed oral hearings from the process, which means oral cross-examination and testimony under oath are no longer part of the review.

These procedural deficits have made it easy for Kinder Morgan to refuse to answer questions from expert interveners, such as lawyers from Ecojustice.

Even the province of B.C. has been put in a position where it must fight Kinder Morgan for basic information about the expansion project. In early 2015, DeSmog Canada revealed that the company was refusing to release spill response plans to the B.C. government, even though the same spill response plans had been made available to the public in Washington State.

Beyond that, the review process has excluded local First Nations to such an extent the Tsleil-Waututh Nation, which is located directly across the Burrard Inlet from Kinder Morgan’s facilities, launched a legal action to challenge the credibility of the review process.

Last fall, energy executive Marc Eliesen publicly abandoned his role as an intervenor in the review process, calling it “fraudulent” and an act of “public deception.” Eliesen accused the board of engaging in a process that was rigged with a “pre-determined outcome.”

The current pipeline review process also considers upstream oilsands impacts to the environment and climate outside the scope of a relevant environmental assessment.

Terry Beech, Liberal MP in Burnaby North-Seymour, told the Burnaby NOW no decision on the Kinder Morgan pipeline would be made under the current system.

“We are going to redo the National Energy Board process,” Beech said. “We’re going to broaden the scope. We’re going to make sure it’s objective, fair and based on science.

“We’re going to make sure proponents of any major energy projects, including Kinder Morgan, have to work towards getting community support and support from partner First Nations,” he said.

“We’ve already said there will be no decision on Kinder Morgan in January. Kinder Morgan will have to go through a new, revised process.”

Image: Burnaby Mountain protest by Zack Embree

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The National Energy Board (NEB) ordered high-pressure testing of a segment of Enbridge’s Line 9 pipeline before the line, a west-to-east oil pipeline, can begin operating according to a press release issued Thursday.

“Before Line 9B becomes operational, hydrostatic testing results of three segments of the pipeline must be provided to and approved by the NEB,” the National Energy Board — Canada’s federal pipeline regulator — said.

Enbridge requested permission to reverse the flow of a 639-kilometre portion of the Line 9B pipeline between North Westover, Ontario and Montreal. Line 9B is part of the larger Line 9, which Enbridge hopes will carry diluted bitumen from the Alberta oilsands to Eastern Canada.

Community groups, particularly in Quebec, have long requested the high-pressure, hydrostatic test. A hydrotest or hydrostatic test is a commonly used method of determining if a pipeline can operate safely at its expected operating pressure. Recently a number of groups demanded the NEB explain why it would not order a hydrotest of Line 9.

Map of Enbridge's Line 9.

The NEB’s recent announcement appears to be in response to public concern.

“Line 9B is located in a heavily urbanized area with a large number of waterways; any released would travel rapidly to the water systems and affect a large number of people,” the NEB press release stated. “A higher degree of confidence in the integrity, or condition, of the pipeline is required to show that the pipeline is safe to operate.”

The public has expressed concern over the age of the pipeline, its out-of-date design features and the possible effects of transporting diluted oilsands (also called tarsands) bitumen on the pipeline’s integrity.

The entire pipeline will not be hydrostatically tested. Three small sections of the pipeline have been selected for testing by the NEB. In Ontario, the sections between Kingston and Brockville and around Hilton will be tested. One section in Mirabel, Quebec near Montreal will also undergo a hydrotest. 

Little detail is given as to why these three sections were chosen for the safety test.

“The number and location of the segments to be tested were identified by NEB professional engineers to provide the best results to validate existing data. The learnings gained will be applied, as appropriate, to the entire pipeline,” the NEB stated.

The NEB also gave the go-ahead or “leave to open” for the 39-year old pipeline to begin pumping oil to Montreal via southern Ontario. Enbridge must comply with the regulator’s conditions first.

“Enbridge is granted leave to open the North Westover ‘B’, Hilton ‘A’, Cardinal ‘A’ and Montreal ‘A’ facilities for the transmission of crude oil,” states an NEB regulatory order dated June 18th. The “facilities” are the pipeline’s pumping stations.  

First Nation Requests Delay While Line 9 Legal Challenge Underway

If Enbridge meets the board’s conditions, the Calgary-based pipeline company is free to put Line 9 back into operation despite an unresolved First Nation legal challenge against the project.  The Chippewas of the Thames or Deshkaan Ziibing in the Anishinaabe language had their first day in federal court this week.

"Canada has never consulted us on this project and it's their constitutional obligation to do so. They can't appoint a third party. It should be a nation-to-nation discussion," Myeengun Henry, Deshkaan Ziibing band councilor, told VICE. 

The southwestern Ontario First Nation argues in their case before the Federal Court of Appeal the Line 9 project could negatively impact their constitutionally protected aboriginal and treaty rights. The federal government has the legal duty to consult with First Nations, Metis, and Inuit when projects may infringe upon their rights.

No consultations between the federal government and any of the First Nations along Line 9 have taken place to date.

Deshkaan Ziibing asked the NEB earlier this month to delay Line 9’s start up until their legal challenge had reached its conclusion.

“Chippewa of the Thames First Nation is requesting they be granted a stay until after the issue is heard in court. If the NEB moves forward before the legal questions are settled, the legal process will hold no validity and the chance to properly consult and accommodate will be lost forever,” Ontario Regional Chief Stan Beardy said in defense of Deshkaan Ziibing’s request.

“The NEB can grant the stay order and avoid causing irreparable harm.”

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Environmental and citizen groups in Quebec are demanding the National Energy Board (NEB) explain why it refuses to order a hydrostatic safety test of Enbridge's Line 9 pipeline, a west-to-east oil pipeline that could come online as early as next month.

A hydrostatic test or hydrotest is a commonly used method to determine whether a pipeline can operate safely at its maximum operating pressure. The test involves pumping water at through the pipeline at levels higher than average operating pressures. Enbridge is reversing the flow of the 39-year old Line 9 pipeline, which previously carried imported oil inland from Canada's east coast, and will increase its capacity from 240,000 to 300,000 barrels of oil per day.

“[The NEB] claims to be transparent and to listen to what the public is saying, yet despite having all the required information in their possession for over six months, it refuses to render a written and reasoned decision on whether or not it will impose hydrostatic tests on the length of Line 9B,” Lorraine Caron, spokesperson for the citizen group Citoyens au Courant, said.

When the NEB, Canada’s federal pipeline regulator, approved the Enbridge pipeline project in March 2014, the board stated it could order a hydrostatic test of Line 9 if it felt the integrity of the 39-year old pipeline was in question. So far the board has chosen not to exercise this option and has said very little as to why.

“Refusing to make a decision public means the NEB wants to keep the public in a state of ignorance. This only contributes to diminishing public confidence in the NEB,” Steven Guilbeault, executive director of Equiterre, said.

Citoyens au Courant, Equiterre, l’Association Québécoise de Lutte Contre la Pollution Atmosphérique, Environnement Jeunesse, Climate Justice Montréal, Nature Québec, Sierra Club Québec and Environmental Defence jointly filed a request for clarification with the NEB on its hydrotest position Tuesday.  

The half dozen Quebec-based groups are concerned the untested pipeline could have disastrous consequences for residents of southern Ontario and southern Quebec, especially if the line leaks or ruptures while transporting oilsands (also called tarsands) bitumen.

Recent bitumen spills in Canada and the U.S. have proven extremely difficult and costly to cleanup.

''The NEB as a quasi-judicial court has the responsibility and obligation to divulge an official decision so that its motives can be analysed and weighed by the public,” Karine Péloffy, director of the Centre québécois du droit de l'environnement, said.

The province of Ontario asked the NEB to require a hydrotest of Line 9 during the regulatory hearings on the project in 2013. A provincial commission authorized by Quebec to investigate Line 9 also recommended a hydrotest.

Earlier this month, the Greater Montreal Area passed a resolution also asking the NEB to order a hydrostatic test of the pipeline.

This Southern California Gas Company explains the basics of hydrostatic testing.

“Our municipal officials have done their job by asking for these tests,” Caron previously told DeSmog Canada.

Line 9 runs though a densely populated corridor from Sarnia, Ontario through Toronto and on to Montreal. The pipeline is of similar age and design to the Enbridge pipeline that ruptured in 2010 near the Kalamazoo River in Michigan.

The Kalamazoo spill, as it is known, was one of the largest inland spills in the U.S. history and cleanup costs have exceeded $1 billion.

An international pipeline safety expert told DeSmog Canada in 2013 Line 9 is “high risk” for a rupture due to extensive stress corrosion cracking on the pipeline, as outlined in an Enbridge engineering assessment of the line.

U.S. investigators concluded pipeline stress corrosion cracking most likely caused the Kalamazoo pipeline spill.

“I do not make the statement ‘high risk for a rupture’ lightly or often,” Richard Kuprewicz, a pipeline safety expert with over forty years of experience in the energy sector, said in an interview with DeSmog Canada. "There are serious problems with Line 9 that need to be addressed."

Kuprewicz predicted there was a “90 per cent” probability of Line 9 rupturing if a hydrostatic test of the pipeline was not conducted.   

Enbridge expressed concerns during the regulatory hearings a hydrotest could potentially damage Line 9. The Calgary-based pipeline company also claims its inline inspection tool can detect serious stress corrosion cracking threats.

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