On January 9, the National Energy Board (NEB) finally announced the new panel members that will review TransCanada’s proposed Energy East pipeline, replacing the trio that recused themselves in September 2016 after revelations that panel members had secretly met with a TransCanada consultant.

But within hours of news breaking about the new panel members, a notice of motion was filed by the environmental law firm Ecojustice on behalf of Transition Initiative Kenora, calling for the complete cancellation of the entire Energy East review based on an unresolved “reasonable apprehension of bias.”

“The original panel presided over the review for years,” says Charles Hatt, one of the two Ecojustice lawyers representing Transition Initiative Kenora, in an interview with DeSmog Canada.

“All of those important decisions that they made along the way occurred after the conduct that gave rise to the reasonable apprehension of bias, after those meetings with the interested stakeholders.”

Hatt says it is clear the entire proceeding had been tainted by the reasonable apprehension of bias.

“There’d be no way for this new panel to look back and try to determine which of those many decisions were tainted and which were not.”

For Hatt and representatives from Transition Initiative Kenora, it simply isn’t enough for the former panel members to recuse themselves. The original panel’s work is tainted by a the apprehension of bias which Hatt describes as “the idea that there’s been some conduct that in the eyes of a ‘reasonable person’ gives rise to the perception of bias.”

These lingering concerns have led the petitioners to request the National Energy Board void the entire proceedings, leaving TransCanada with the option of starting from scratch.

‘Tainted’ Panel Made Dozens of Preliminary Rulings and Requests

The original Energy East review panel was announced in December 2014.

Only the following month, the two review panel members and NEB chair/CEO Peter Watson met privately with former Quebec premier Jean Charest, who was then working as a consultant for TransCanada.

While the NEB denied it at first, the meeting did in fact include specific discussions about Energy East including suggestions of “using the ‘Lac Megantic example’ to show that pipelines are safer than rail.”

Other private meetings took place that Watson and the panel members didn’t publicly disclose.

At least a year-and-a-half of preliminary work was completed by the panel prior to the beginning of the formal review in June 2016. This work was completed without any acknowledgment that members of the review panel had secretly communicated with the project proponent.

The new notice of motion by Transition Initiative Kenora, submitted to the NEB on Jan. 10, reports that the previous panel decided “dozens of procedural and substantive matters that have shaped the Board’s review of Energy East,” including 27 rulings, six procedural directions and nine information requests to TransCanada.

It notes the original panel also determined when TransCanada’s project application was complete and decided who could or could not participate as intervenors in the National Energy Board’s review of Energy East.

“It’s a continuation of work that we had started earlier,” says Teika Newton, executive director of Transition Initiative Kenora.

“We filed the notice of motion back in August that resulted in the original review panel recusing themselves in September. This is a natural progression on that.”

NEB Has to Respond to Notice of Motion or Refer It to Federal Court

Newton’s organization has specific concerns about the proposed construction of Energy East, especially the impacts of a potential oil spill on water sources, wetlands and marshes.

But she emphasizes the notice of motion is something that should concern any participating group given the need to ensure a fair regulatory process and review: “I don’t think we’re any different or have any unique concerns just because of who we are or where we are.”

“I think it’s an issue that applies universally to all participants,” she says.

Transition Initiative Kenora must now wait for the new panel to formally issue a response to the motion.

Hatt says the NEB will have to hear from all interested parties, which will include TransCanada and many intervenors. It could take weeks or longer to hear from all parties, after which the panel will have to make a decision.

The National Energy Board can refer the matter to the Federal Court of Appeal or could refuse to grant relief.

Hatt says “if and when that happens we will advise our client about challenging that decision in court.”

He adds that the motion provides the federal government with the opportunity to restart the process under a renewed National Energy Board Act and Canadian Environmental Assessment Act, both of which are currently under federal review.

Strengthened environmental laws could result in “a totally different type of review of these important pipeline projects,” Hatt says.

“They’ve put bandaids on the existing legislation but it’s still the legislation that was reformed by the previous government.”

It was also announced on Jan. 9 that Ginoogaming and Aroland First Nations had filed a lawsuit and injunction against TransCanada to ensure proper consultation for pipeline maintenance and prevent “integrity digs” that some fear are actually preliminary work connected to Energy East.

Environmental Defence has also called for the NEB to “pull the plug on the Energy East review and restart it only when an overhauled review process with a credible climate test is in place.”

Newton says her group is “content to just see what happens next in this ongoing saga.”

Image: Environmental Defence poster outlining risks of TransCanada's Energy East pipeline. Photo: Environmental Defence via Flickr (CC BY-NC 2.0)

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Restoring oversight. Meaningful participation. Rebuilding trust.

Such phrases sounded just so good when the federal Liberal Party first detailed its plan to address the environmental assessment and consultation process for major projects like interprovincial pipelines and LNG export terminals.

But such rhetoric may already be critically undermined thanks to way the government has approached public consultations in its environmental review of Kinder Morgan’s Trans Mountain Expansion Project, which would almost triple the Edmonton-to-Burnaby pipeline’s capacity to 890,000 barrels/day.

Such missteps include but are certainly not limited to: appointing a former LNG lobbyist and partner with Kinder Morgan to sit on the panel, providing inadequate notice to the public and First Nations of the actual hearings, and failing to mandate that the consultations actually have any bearing on the final decision by cabinet.

The Trans Mountain Expansion will be the first major resource project to receive a decision by Prime Minister Justin Trudeau and his cabinet, with a decision expected by just before Christmas.

As a result, the way the government handles criticism of its panel review process may set the tone for the remainder of its efforts to reverse the previous government’s dismembering of the environmental review process. At this point, it’s not looking good.

Panel to Rebuild Public Trust in Federal Assessment Process

In late May, the National Energy Board (NEB) granted the Trans Mountain Expansion a partial approval, subject to 157 conditions.

(Technically, and thanks to the same changes in 2012 that handed the NEB responsibility for conducting reviews of pipeline projects, the federal cabinet didn’t even need to listen to the NEB’s verdict and could have okayed the project even if it hadn’t received approval.)

But the NEB is arguably ill-suited to perform environmental reviews given its technical focus, so the federal government appointed a three-person panel to conduct an additional review of the project in order to help restore some of that evaporated public trust.

Natural Resources Minister Jim Carr appointed to the panel: Kim Baird (former chief of Tsawwassen First Nation, lobbyist for Woodfibre LNG and partner with Kinder Morgan), Tony Penikett (former premier of Yukon) and Annette Trimbee (president of the University of Winnipeg and member of the Alberta government’s recent non-renewable resource royalty review panel).

The panel was tasked with consulting citizens, First Nations and local governments in ten cities during July and August: Calgary, Edmonton, Jasper, Kamloops, Chilliwack, Abbotsford, Langley, Burnaby, Vancouver and Victoria.

#KinderMorgan Review Panel Slammed for Perceived Conflict of Interest https://t.co/28WwWsfGoq #cdnpoli #bcpoli

— DeSmog Canada (@DeSmogCanada) August 8, 2016

Panel Member's Relationship With Kinder Morgan Questioned

But problems started almost immediately. Baird was quickly flagged as carrying a perceived conflict of interest given her former ties to the company that she was supposed to be reviewing with an unbiased lens.

A video posted by the Dogwood Initiative showed that Baird had a working relationship with Kinder Morgan Canada’s president Ian Anderson, having previously shared staff expertise with the company and stating “our perspectives were more similar than not.”

“Of all of the people in British Columbia that you could possibly find to take the job, why not pick somebody who doesn’t have an online video of them visiting the Kinder Morgan facilities and boardroom in Calgary and talking about how similar they are and sharing staff?” says Kai Nagata, the Dogwood Initiative’s director of energy and democracy.

“There four-and-a-half million people in the province: just pick somebody who’s not directly involved with the proponent,” he adds.

Hearings Consistently Accused of Being Poorly Publicized and Scheduled

The Kamloops hearing was a disaster. The event’s organization was criticized throughout the day, with many reporting that citizens weren’t given enough notice.

At one point, Penikett interrupted one of the citizens speaking to ask how they got to the university campus, implying their assumed reliance on fossil fuels makes them an unsuitable critic of the project. The incident, Nagata says, “betrays a complete ignorance about the purpose of the pipeline” as the heavy crude will be bound for export not direct usage in domestic cars.

“Why didn’t they just get Ezra Levant to run the panel?” Nagata quips.

Many of the same concerns have been voiced in other communities: the Chilliwack Times reported the consultations were slammed by local First Nations for a lack of invitations, while the Langley Times observed the hearings were considered “poorly publicized and badly scheduled.”

Nagata says Dogwood has been hearing the same thing from all of the communities: he says if the government really wants to find out what people think, they should have panel that has “at least the appearance of being impartial,” give more than 48 hours notice that a panel hearing is happening and host it at a time when people aren’t vacationing or working.

He adds that all the problems with the NEB process are present in these panel hearings: the proponent doesn’t have to appear, there’s no cross-examination or testing of evidence, and there’s no real mechanism to introduce scientific evidence other than attaching a PDF to an email with a staggeringly long address.

“That’s just not how you conduct a public infrastructure review process in the developed world,” Nagata says.

“It does not meet the basic test for procedural fairness or natural justice. If that’s the basis on which they plan to approve this pipeline, they’re setting themselves up for political fallout and legal challenges. And that’s really sad given the very clear promises made during the election.”

Trimbee Also Under Fire For Stance on Fossil Fuel Divestment

And Baird isn’t the only member on the review panel with a questionable history.

Trimbee, the president of the University of Winnipeg and member of Alberta’s criticized royalty review panel, has come under fire from students for the way the university’s administration handled a June 27 vote on fossil fuel divestment, with the outcome marked by similar problems as the federal review panel.

Andrew Vineberg, a student at the University of Winnipeg and community liaison for its students’ association, says the call for divestment started in the fall of 2014, with the school’s administration and board of regents agreeing to do a risk assessment of divestment in May of 2015 (which he admits was an admiringly fast response, noting that some campuses push for divestment for years without any success).

Vineberg describes the risk assessment phase as “very open and transparent and public,” with administration seeming open to considering the issue.

Trimbee attended every related meeting.

Underpublicized Vote Did Not Explicitly Address Divestment

But the lofty rhetoric, which Vineberg describes as attempting to “make it seem like they were bolstering their environmental policy,” was quickly undermined by the out-of-nowhere vote on the issue that took place after the school year was done and with some student representatives unable to attend.

The agenda was released only a few days before the meeting, with the phrase “responsible investment” replacing “fossil fuel divestment” even though the risk assessment had spoken explicitly about the latter.

Vineberg says many of the regents didn’t know what they were voting on coming in, and that the wording was vague and toothless (the proposal being “a responsible investment policy that applies Environmental, Social and Governance (ESG) criteria and a separate fund option that is 100 per cent fossil fuel free and geared towards ‘green’ innovation.”)

“The university went in a direction that, to me, suggests they like the PR value that publically claiming a support of sustainability and environmentalism and social justice and indigenization brings to them but they do not actually want to do the work and change their manner of business to align themselves with those values,” he says. “They do not want to compromise the way they do business.”

Vineberg says they’re now gearing up for the next phase of organizing and mass mobilizing for September.

Environmental Review Panel Serves as Predominant Interim Intervention

In late June, the federal government announced a review of the NEB and environmental assessment process. Both review panels will be presenting their recommendations in January 2017, after cabinet is expected to have made a decision on the Trans Mountain Expansion Project.

In other words, this environment review panel serves as the predominant interim intervention by the federal government into what’s otherwise considered a hopelessly flawed assessment process for one of the biggest pipeline projects in the foreseeable future.

And the government appointed a former Kinder Morgan partner, a panelist who attempts to undermine criticisms by accusing them of relying on fossil fuels to get to the public consultation, and a university president who has circumvented pushes for fossil divestment on her campus.

In addition, the consultations have been arguably underpublicized, while the perspectives from citizens who manage to book a babysitter and take the day off work to attend them have no actual legal bearing on the decision.

Nagata suggests it fits into the broader pattern of action not meeting rhetoric, with the federal government granting Site C dam permits only being the most recent example. And now the panelists are heading to Burnaby (August 9 to 11) and Vancouver (August 16 to 18), spots of fierce opposition to the proposed pipeline.

“They think they’ve had a rough ride so far from the Interior and Fraser Valley communities,” Nagata says.

“I think people are pretty pissed off. The whole idea was the Liberals campaigned on the glaring inadequacies of the National Energy Board process. They were very forceful in denouncing the Harper government’s approach to pipeline approvals. And what they’ve done is arguably made the entire process worse.”

Image: Pipeline review meeting via Kai Nagata

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