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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The government of Ontario is holding community discussions in northern Ontario to hear opinions on TransCanada’s proposed Energy East oil pipeline project. Part of the $12 billion pipeline project involves converting 1,900 kilometres of pipeline from natural gas to oil in northern Ontario and constructing one hundred kilometers of new pipeline in southeastern Ontario.

Ontario’s public forum on Energy East may be the first of its kind in the country. Provinces do not usually hold community meetings on oil pipelines that cross provincial boundaries such as Energy East. The National Energy Board (NEB) – Canada’s energy regulator – has jurisdiction over interprovincial pipelines, not the provinces.  

The forum appears to be the result of public outcry in Ontario over Enbridge’s Line 9 oil pipeline project and restrictions the National Energy Board (NEB) placed on public participation in the project's review process. Last March, the NEB approved Line 9 despite public safety concerns about transporting oilsands bitumen through the pipeline.

“The erosion of the National Energy Board process, in both accessibility and scope, has left a void in need of being filled. That is why the Ontario government stepping in is so commendable and needed. The Ontario Energy Board process is much more inclusive to the broad range of concerns the public has,” says Yan Roberts of North Bay, Ontario. North Bay’s community discussion took place on April 2nd.   

The Ontario Energy Board – Ontario's energy regulator – has been instructed by the province to consult the public, First Nations and Metis, a wide range of provincial organizations, and technical experts on what they believe the impacts of the Energy East pipeline will be. All Ontarians regardless if they live along the proposed pipeline’s route are invited to participate in the community discussions and send in written comments to the Board.

The schedule of Ontario's Energy East public forum.

Even though the NEB must decide whether pipeline projects are “in the public interest,” the NEB relies on pipeline companies to inform communities on new projects. In recent years, the NEB has limited public hearing participation to only those members of the public that can demonstrate they are “directly affected” by pipeline projects or have “relevant expertise.”

“Visiting the towns along Energy East’s route for their community discussions and allowing testimony to be submitted easily really shows that the Ontario government is sincere about listening to and representing the many concerns Ontario has with Energy East,” Roberts told DeSmog Canada. Roberts, who has been following the Energy East project closely, is a farmer and community organizer for North Bay’s local citizens’ group. 

All Issues Including Climate Change and the Expansion of the Oilsands Are Heard

“I feel quite confident that citizens’ comments and concerns are being properly heard and reported to the OEB (Ontario Energy Board), and that the OEB is listening,” says Teika Newton of Kenora, Ontario.

Kenora in northwestern Ontario was the Ontario Energy Board’s first stop in its community discussions that began last week. Newton says the community meeting was well attended and all issues pertaining to the pipeline could be discussed. Unlike the NEB process on pipelines, residents were permitted to express concerns of Energy East’s impacts on climate change and the expansion of the oilsands (also called tar sands) in Alberta. The NEB no longer considers ‘upstream’ impacts of pipelines in its decisions.

TransCanada's Energy East's prosposed route in Ontario

“The OEB process involves engaging directly with communities, hearing concerns from citizens, and dutifully recording what has been heard, even if it is not flattering to government or the project proponents. It is unbiased and objective, as a regulator should be,” says Newton, who is a project manager of a university research project in Kenora and co-founder of Transition Kenora, a local sustainability group.

Feedback From Ontarians Will be the Basis of a Provincial Report

“Only time will tell if the OEB’s final report to the Minister of Energy will be as clear in articulating citizen opposition and concerns,” Newton told DeSmog Canada.

The Ontario Energy Board will file a report based on the feedback it receives over the coming months with Ontario’s Ministry of Energy. The Ministry will use the report in shaping Ontario’s position on the pipeline project, which will be presented to the NEB in the upcoming Energy East hearings. The hearings will be scheduled once TransCanada has submitted an official project application to the NEB. TransCanada is expected to apply this summer.

The current round of community discussions will wrap up in Cornwall, near Quebec on April 8th, but this is by no means the end of Ontario’s Energy East public forum. A second round of discussions will take place after TransCanada submits its application for the pipeline with the NEB. A conference for provincial organizations – from oil industry advocacy groups to environmental organizations – to present evidence on Energy East will also take place this summer.

“The OEB has created an avenue for people to have their concerns represented, whereas the NEB increasingly seems to have the public's concerns rejected. It will now be for the people of Ontario to come out and make their voices heard,” Roberts told DeSmog Canada. Roberts is also a local tourism operator in North Bay, Ontario.

Involvment in Pipeline Process Easy

The Ontario Energy Board’s consideration of the Energy East project questions what the loss of a natural gas pipeline will mean for the province’s natural gas supply and investigates the pipeline’s safety, economic impacts and the impacts on the local environment, communities, and First Nations and Metis.

“I am hopeful that through this careful and comprehensive process of engagement, they will obtain a clear picture of how Ontarians feel with regard to Energy East,” says Newton of Kenora, Ontario.

The Ontario Energy Board has created an easy to navigate website for the public forum, complete with information backgrounders on Energy East and ‘toolkits’ for Ontarians to start and record discussions on the pipeline with friends, family and co-workers. Written comments on Energy East will accepted until April 30th. A second round of written submissions will take place in the summer.

Neither the Ontario Energy Board nor the province have the legal power to stop the project. But neither does the NEB. The federal government assumed final decision-making power over all pipeline projects after the passage of the 2012 federal omnibus bill c-38. NEB decisions on pipeline projects are now considered 'recommendations.' 

If approved, Energy East will be the largest pipeline in North America stretching some 4,600-kilometers from Hardisty, Alberta to Saint John, New Brunswick.

TransCanada claims Energy East will transport 1.1 millions barrels of oil and oilsands bitumen a day. DeSmog Canada reported last month the majority of Energy East’s oil and bitumen will be exported overseas, and will not be refined domestically.

Image Credit: Ontario Energy Board, TransCanada

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