The National Energy Board is fundamentally broken.
That was a point repeatedly highlighted by Prime Minister Justin Trudeau during the 2015 federal election — and one confirmed for many with recent revelations that former Quebec premier Jean Charest had privately met with senior NEB officials while on the payroll of TransCanada.
Trudeau and his federal cabinet have the chance to change that: in June, the government announced dual review panels to assess the mandates and operations of the NEB and the country’s oft-criticized post-2012 environmental assessment processes (it also announced five interim principles until those reviews are completed, including a requirement to assess upstream greenhouse gas emissions although it’s unclear how that information is being used).
But for those to serve as anything more than symbolic gestures of goodwill, the pause button must be hit on the reviews of Kinder Morgan’s Trans Mountain and TransCanada’s Energy East pipeline proposals.
Those review processes need to be completely redone once recommendations from the two review panels have been implemented.
If it sounds demanding, that’s probably because it is. But that’s the price of real change.
‘To Govern is to Choose’
If built, the Trans Mountain pipeline and Energy East pipeline would add a combined 1.79 million barrels per day of export capacity from the Alberta oilsands (690,000 and 1.1 million barrels/day, respectively).
Let’s put that in context.
The Canadian Association of Petroleum Producers has projected that heavy oil production will increase 1.45 million barrels per day by 2030, to a total of 3.99 million barrels per day. In other words, the two massive projects currently under review would lock in more than enough export capacity for the oilsands to maximize its growth to 2030.
If paired with the construction of a single LNG export facility in British Columbia, this situation would require the rest of the Canadian economy to contract by 47 per cent from 2014 levels by 2030 in order to meet the country’s Paris Agreement targets (an impossibility “barring an economic collapse” according to David Hughes, who calculated those numbers in a Canadian Centre for Policy Alternatives report).
In other words, approving the two projects would completely botch the country’s chances of meeting international climate commitments.
“When you’re in opposition, you can be strongly committed to contradictory things,” says Keith Stewart, climate and energy campaigner for Greenpeace Canada.
“But to govern is to choose. And the Liberals have been very clear they want to meet our international climate commitments, implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and get a pipeline built. The problem is you can have, at most, two of those.”
— DeSmog Canada (@DeSmogCanada) August 24, 2016
Opportunity for Canada to Enact ‘Visionary Environmental Laws’
The review of the process has great potential, especially given the impacts of the gutting of environmental assessments in 2012 under former prime minister Stephen Harper.
Anna Johnston, staff counsel at West Coast Environmental Law Centre, describes the review as a “once-in-a-generation opportunity for Canada to enact really visionary new environmental laws and processes.”
Johnston says a key component is to hold projects to a higher standard — requiring companies to prove net benefits as opposed to not simply posing a “significant adverse impact” — as well as measuring total cumulative impacts. Such an approach would result in a threshold of potential greenhouse emissions, meaning some projects simply wouldn’t be considered due to impacts on meeting climate targets.
“Those are just going to a red light and won’t even need to go through an environmental assessment process as we know this huge project is going to take up way more of its fair share of greenhouse gas emission allocations,” she says.
The panel members for reviewing environmental assessment processes were announced on August 15: it will be chaired by Johanne Gélinas of consulting firm Raymond Chabot Grant Thornton, Renee Pelletier of the Aboriginal law firm Olthuis, Kleer, Townshend LLP, Rod Northey of law firm Gowling WLG and Doug Horswill, senior vice president of Teck Resources and “honorary life director” of the Mining Association of Canada. (Interestingly, Bob Rae is a senior partner at Olthuis, Kleer, Townshend and Rod Notley has donated $17,000 to the Liberals since 2004).
Erin Flanagan, director of federal policy at the Pembina Institute, says the panel has “a solid balance of perspectives and experience on the file.”
The panel members for the NEB review haven’t been announced yet. The executive summaries of the final reports will be published on January 31, 2017; Flanagan emphasizes “the clock is ticking – it’s a huge mandate to execute on by early 2017.”
There’s plenty of ground to cover.
Trans Mountain, Energy East Remain Exempt
But even if the review panels produce progressive recommendations — for instance, calling for the revamping the Canadian Environmental Assessment Act, returning the responsibility for federal environmental assessments of interprovincial and international pipelines to the Canadian Environmental Assessment Agency and treating Indigenous nations as much more than an afterthought — they wouldn’t apply to the two biggest pipeline projects in recent Canadian history.
The federal cabinet will be making a decision on the Trans Mountain pipeline before Christmas, a full month before the review panels deliver their recommendations (the NEB approved the project in May with 157 conditions). This occurs in contradiction to a promise Trudeau made during the election that the NEB review would apply to the project.
The government’s ad-hoc supplementary review panel, intended to improve public consultations, has come under serious fire for conflict-of-interest allegations and failures to offer translation services or livestreaming, in many ways pointing out the massive flaws of the existing process.
Those meetings have, by and large, been an opportunity for communities to voice their majority opposition to Trans Mountain and the review process. In the case of Vancouver and Victoria, the overwhelming number of public participants voiced opposition to the pipeline project.
The NEB’s review process for Energy East is already underway via panel sessions in communities. The bulk of the work won’t start until 2017.
But if the federal government is serious about addressing concerns about the NEB, why not hold off on the panel sessions until community members are fully aware of the stakes? Currently, intervenors are operating under the expectation that the NEB will be responsible for conducting the environmental assessment of Energy East, a reality that could very well change if the dual review panels recommend serious alterations to processes.
Canadians Still Without Restored Environmental Laws
In February, Ecojustice argued in regards to the TransCanada project that “the government missed a golden opportunity to put the entire process on hold until legislative amendments could effectively repair the damage done by the Harper government’s rollbacks.”
Green Party leader Elizabeth May has also voiced concern, stating in June 20 press release that “I vigorously opposed the idea of a drawn-out consultation without first repealing the devastating changes made to environmental assessment in omnibus budget bills of 2012” and “the government is choosing to continue with a broken system while it consults stakeholders.”
The future changes may be hugely beneficial, barring carbon-intensive LNG facilities, oilsands upgraders and other industrial emitters from ever entering the review process. But the Trans Mountain pipeline and Energy East could very well be on the path to construction and export, further jeopardizing Canada’s environmental reputation.
Government Hanging onto ‘Deeply Flawed’ Process
The Liberals have already established an unfortunate track record of blaming the previous government for politically unsavoury decisions they could have very well stopped: think the controversial sale of light-armoured vehicles to Saudi Arabia, the government’s decision to withdraw an appeal to force the Catholic Church to pay reparations for its significant role in running residential schools or the approval of permits for construction on the controversial Site C dam in B.C.
It’s a bit of a sunk costs fallacy, but one shaded by an obvious desire to keep the real political mechanisms and motives under wraps.
The same appears to be occurring with the two major pipeline approvals. The government made the powerful and convincing argument during the election that the review process was broken. Yet it has allowed the NEB to continue reviewing Trans Mountain and Energy East.
“You had Trudeau say that this process isn’t credible,” Stewart says.
“So what are you actually going to do about that? How can you approve a major controversial project based on a process that you’ve already said is deeply flawed and is proved once again that it’s deeply flawed? I just don’t understand how they think they can move that forward.”
Image: Prime Minister Justin Trudeau and B.C. Premier Christy Clark meet in Burnaby, B.C., site of the Kinder Morgan Trans Mountain export terminal. Photo: Prime Minister's Photo Gallery