Bold recommendations from the Expert Panel on Modernization of the National Energy Board – but experts call for more

NEB_banner1-eIn November 2016, Canada’s  Minister of Natural Resources commissioned an  5-person Expert Panel on the Modernization of the National Energy Board , mandated “ to position the NEB as a modern, efficient, and effective energy regulator and regain public trust”. After public hearings and submissions, the results are in, in the form of 26 recommendations released on May 15, in their report:  Forward,Together: Enabling Canada’s Clean, Safe, and Secure Energy Future .   Chief among the recommendations:  replace the current Board  with a new organization called the Canadian Energy Transmission Commission, to be based in Ottawa rather than Calgary, with radically increased scale and scope of stakeholder engagement, and especially with an increased role for Indigenous people.  The report also calls for a new, independent Canadian Energy Information Agency to provide energy data, information, and analysis. The Panel lays out a detailed vision of a new process, based on 5 core principles of: Living the Nation-to-Nation Relationship with Indigenous Peoples; Alignment of Regulatory Activities to National Policy Goals; Transparency of Decision-Making & Restoring Confidence ; Public Engagement Throughout the Lifecycle; and Regulatory Efficiency and Effectiveness.

For summaries and a range of immediate  response to the Panel’s recommendations, see : “Trudeau- appointed panel recommends replacement of the National Energy Board” in the National Observer , which provides summary, reaction, and background based on its ground-breaking, sustained investigations into the NEB process;  “Scrap NEB and replace it with 2 separate agencies, expert panel recommends” from CBC Calgary, with a sense of Alberta’s reaction; “National Energy Board needs major overhaul, Panel says”   in the Globe and Mail, which seems to greet the news with a yawn. 

For substantive response, see “NEB Modernization Panel report: The good, the workable and the ugly”   from West Coast Environmental Law, which states: “environmental lawyers say that the report completely misses the mark when it comes to how projects like oil pipelines should be assessed, and disagree with the Panel’s approach to determining whether individual energy projects are in the national interest.”

The “Statement by Environmental Defence’s Patrick DeRochie on the report from the Expert Panel on National Energy Board Modernization”   says:   “the Panel’s proposal for the Federal Cabinet to determine whether a project is in the national interest before it undergoes an environmental assessment is problematic. Responsibility for environmental assessments must be removed from the energy regulator and be completed before a Cabinet decision.” Environmental Defence also states that the NEB’s review of the Energy East pipeline must be put on hold until NEB modernization is complete.

From DeSmog Canada, “Trudeau promised to fix the National Energy Board. Here’s what his Panel Recommends” summarizes the contents.  In “Will a Repackaged National Energy Board Be Able to Meet Canada’s 21st Century Challenges? ”  Chris Tollefson of the Pacific Centre for Environmental Law and Litigation  frames the report in its larger context, and states: “What the Expert Panel fails to address, however, is the need fundamentally to reform the assessment that major energy projects must undergo before we, as a society, allow them to proceed. These assessments must be capable of supporting informed, transparent and defensible social choices about future development.  This is quite different from regulatory processes that are principally aimed at mitigating anticipated harms. …. where this Expert Panel has failed, and where the CEAA, 2012 Expert Report adds enduring value, is in confronting the legitimacy crisis that pervades decision making around fossil fuel infrastructure development. ”

From the Pembina Institute:  “NEB Expert Panel report two steps forward, one step back on climate” :  “The Expert Panel’s recommendations are only as good as the federal government’s next steps. It’s up to Prime Minister Trudeau and his Cabinet to seize this once-in-a-generation opportunity to reform Canada’s energy project review landscape by ensuring NEB modernization works in sync with other elements of the federal environmental law reform process. … now is the time to outline a credible pathway that builds upon recommendations from the EA and NEB expert panels to ensure this outcome is achieved.”

A  public comment period on the Expert Panel report is open until June 14th; click here to participate in French or English. You can read research reports and position papers already submitted to the Expert Panel here.  The submissions already received are not available – only Panel-generated summaries of the engagement sessions, which are here.

What next for the recommendations of this Expert Panel, and the other regulatory reviews in process (for example, the Report of the Expert Panel on Environmental Assessment , released on April 5 )?  According to the Natural Resources Canada press release: “Over the next few months, the Government of Canada will review the expert panel’s report in depth along with the reports from the other three environmental and regulatory reviews to inform the development of next steps.”

Reports re environmental regulation arrive to positive response – next up in May: the Expert Panel on modernizing the National Energy Board

The Government of Canada launched four reviews of government environmental and regulatory processes in June 2016, and recently, the appointed Expert Panels have begun to deliver their reports.  The Report of the Parliamentary Standing Committee on Fisheries and Oceans  was released on February 24   – to a welcoming review by West Coast Environmental Law:  “We are pleased that the Committee has listened – to First Nations, to conservation and community groups, to scientists and concerned citizens across the country – and has recommended reinstating the Fisheries Act’s key prohibition on habitat alteration, disruption and disturbance .

Canada 2017 expert panel report building-common-ground-pdfThe Report of the Expert Panel on Environmental Assessment was released on April 5, and is open for public comment – only until May 5 at www.letstalkea.ca/.  The report, Building Common Ground: A New Vision for Impact Assessment in Canada   incorporates a fundamental idea in its title:   what is now “environmental assessment” should become “impact assessment”.  The Panel recommends that:  an Impact Assessment Commission should be established as an independent, arm’s length government agency, “with a broad leadership mandate to conduct project, region-based and strategic-level assessments.  …. The Commission would also be mandated to generate its own independent science so that assessments are evidence-based and agency-led… and the Panel should commit to  ensuring that the projects are not developed without the early involvement of potentially affected Indigenous peoples and the public. ”

One  of the first responses to the Expert Panel comes from Chris Toellofson at the Pacific Centre for Environmental Law and Litigation (CELL) , who states: “the Panel deserves kudos for both for its ambitious commitment to process, and the innovative and balanced way it has charted the law reform road ahead.” The article continues with a thorough summary and analysis of the report, including: “Our biggest concern with the Report is that it has mainly focused on procedures, values and governance – and has therefore not engaged with some of the substantive legal tests that must be embedded in a federal assessment law to give it real traction. For example, the Report does not address the need for assessments to include “worst case scenario” modeling, and only briefly touches on the need for “alternatives” assessment. These legal requirements, as our experience in the Northern Gateway, Kinder Morgan, and Pacific NorthWest LNG reviews underscore, can be of critical importance, both scientifically and legally.”

WCEL env assessment summit coverWest Coast Environmental Law (WCEL) also responded positively though briefly, calling the report “not perfect but a step in the right direction”, and calling on the government to translate the recommendations into law quickly.  WCEL had convened a Federal Environmental Assessment Reform Summit meeting in Ottawa in May 2016, attended by approximately 30 of Canada’s leading environmental assessment experts, academics, lawyers and practitioners.  The summary of those discussions  was published in August 2016, and offers a context for any review of the recommendations of the government`s Expert Panel report.

Next up in May:  the Report of the Expert Panel regarding the Modernization of the National Energy Board , scheduled to be delivered to the Minister of Natural Resources on or around May 15, 2017.   Anticipating that release,  Ecojustice published a blog,  Modernizing the National Energy Board : Let’s get it right  on April 4, which states : “Today, the NEB is riddled with systemic failures. Some of the most glaring problems include, no flexible timelines for reviews, lack of inclusive public participation, and limitations on public hearings such as no cross-examination and no meaningful consideration of climate change impacts…The NEB, as we’ve come to know it, is dominated by industry insiders and conventional industry perspectives. As a result, it fails to objectively evaluate the need for, and the consequences of, new oil and gas projects. As we transition to a decarbonized energy system in which we are less likely to build new oil and gas infrastructure, the NEB’s role — chiefly concerned with regulating oil and gas and in particular interprovincial and international pipelines — should diminish. In other words, the NEB should get out of the business of environmental assessment….  The NEB’s function should be limited to technical matters traditionally within its regulatory expertise (related to pipeline safety, for instance). It could also turn its attention to technical plans for decommissioning and remediating energy infrastructure, such as pipelines, that are redundant in a decarbonizing economy.”

Environmental Rights in Alberta and in Canada: do we have the rights we need? A legal discussion and some practical examples

In December 2016, the Environmental Law Centre in  Alberta  published a series of reports to review the current state of environmental rights in the province, drawing on examples and information from other jurisdictions.  These reports are intended as educational materials;  the website  is open for comments and input.  The first report,    Do we have the rights we need? , identifies deficiencies:   “Narrow standing tests for legal reviews and hearings; gaps and insufficiency in cost awards to support participation and informed decision making; failures to adequately recognize and manage cumulative environmental effects;  insufficient review or hearing options for policies, regulation and administration of environmental decision making; and insufficient tools for engaging public participation in enforcement.”

While most Environmental Rights discussions are about procedures for establishing and enforcing rights, the report Substantive Environmental Rights relates to the right to a specific environmental condition, such as a “healthy”, “healthful” or “clean” environment.  This report discusses definitions, which can be set in statutes or regulations.  The report includes a helpful comparative table of language from other Canadian jurisdictions.

Third Party Oversight and Environmental Rights reviews and analyzes the use of administrative third party oversight bodies in various frameworks and other jurisdictions. The report makes recommendations for the design of a third party environmental oversight system for Alberta, where currently the provincial Auditor General does not have a specific environmental mandate, but conducts financial audits or process/system audits of various environmental matters.

The latest report, published on December 19,  Citizen Enforcement considers the question of who can enforce environmental laws and what types of enforcement mechanisms are available to them – in Alberta, but also Ontario, Quebec, Yukon Territory, the Northwest Territories and Nunavut, and the U.S.    The  report concludes that citizen enforcement  in Alberta relies primarily on the use of private prosecutions and the ability to request an investigation of an alleged violation, and  recommends additional citizen-based enforcement tools to bolster  enforcement capacity and to ensure accountability.

As for practical examples of the need for citizen involvement in environmental assessments and decision-making, Canadians need look no further than the federal government’s  current review of the Environmental Assessment Processes .  “EA Review – Report back from a public workshop” at Evidence for Democracy describes one person’s experience at the Environmental Assessment public consultations and summarizes the main concerns of attendees – including the need for transparency, community and traditional knowledge, and open and independent science.  In two recent articles in DeSmog Blog,  scientists describe how their input has been ignored in past environmental assessments and decisions, including the TransMountain pipeline expansion decision.  Read  “Canadian Scientists Say They’re Unsure What Trudeau Means When He Says ‘Science’ ”  (Dec. 15)  and “Open Science: Can Canada Turn the Tide on Transparency in Decision-Making?”  (Dec. 20) .  Yet there is an eagerness amongst young Canadian scientists to become involved;  an Open Letter  to the Prime Minister in November, signed by 1,800 young scientists and researchers, calls on the government to return scientific integrity to the environmental assessment process, and outlines five ways to do that, including the use of best available evidence, making information and data available to the public, evaluating cumulative impacts of projects and eliminating conflicts of interest. See “Five Ways to Fix Environmental Reviews: Young Scientists to Trudeau” in DeSmog Blog (Nov. 15 2016) .

Feds issue Interim Rules for Environmental Assessment, including Climate considerations

In one of the first concrete actions of the Trudeau government, interim changes to the environmental assessment process were announced on January 27, 2016  . Interim Measures for Pipeline Reviews  applies specifically to the Kinder Morgan Trans Mountain and Energy East Pipeline projects, extending the deadlines for the National Energy Board reviews to allow for greater consultation with First Nations and the public, and to “Assess the upstream greenhouse gas emissions associated with this project and make this information public”. Some reaction was favourable, for example, Environmental Defence . Ecojustice states “Liberals’ Interim Pipeline Measures fall Short” ; the Pembina Institute is supportive but asks “4 Key Questions for the Canadian Government’s New Climate Test ” , as it might apply to Petronas’s Pacific NorthWest LNG project in British Columbia. And David Suzuki asks, “Paris changed everything, so why are we still talking pipelines?” .

Canada will miss 2020 Copenhagen Emissions Target, says Environment Commissioner

The Report from the Canadian Commissioner of the Environment and Sustainable Development states that, in addition to failing to develop a national framework, enact any legislation that targets climate change, or release long-awaited oil and gas regulations, Canada’s tar sands monitoring is inadequate, neglects cumulative impacts, and lacks a plan beyond next year. The tar sands are Canada’s fastest growing source of emissions. Commissioner Gelfand also highlighted uncertainty surrounding which projects are subject to an environmental assessment and inadequate public and aboriginal consultation following the introduction of Bill-C45 in 2012, which profoundly altered environmental legislation in Canada. She also noted the dire need to improve planning in the Arctic, as shipping increases in the absence of updated navigation information or emergency response strategies.

Read the 2014 Fall Report of Commissioner of the Environment and Sustainable Development at: http://www.oag-bvg.gc.ca/internet/English/parl_cesd_201410_e_39845.html (English), and http://www.oag-bvg.gc.ca/internet/Francais/parl_cesd_201410_f_39845.html (French). The Commissioner appeared before the House of Commons Standing Committee on the Environment and Sustainable Development to discuss her report on October 8; see the transcript at:
http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6723122&Language=e&Mode=1&Parl=41&Ses=2(English), and http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=6723122&Mode=1&Parl=41&Ses=2&Language=F (French). See “Highlights of the Environment Commissioner’s Fall Report” from the CBC at: http://www.cbc.ca/news/politics/highlights-of-environment-commissioner-s-fall-report-1.2790164.

For reaction see “Commissioner’s report shows Canada must do more for environment” from the David Suzuki Foundation at: http://www.davidsuzuki.org/blogs/science-matters/2014/10/commissioners-report-shows-canada-must-do-more-for-environment/; “Treading Water on Climate Change: Sierra reacts to Environment Commissioner’s Report” from Sierra Club Canada at: http://www.sierraclub.ca/en/report-fail; and “No Overall Vision:” Scathing New Audit from Environment Commissioner Exposes Canada’s Utter Climate Failure” from Desmog Canada at: http://www.desmog.ca/2014/10/07/no-overall-vision-scathing-new-audit-environment-commissioner-exposes-canada-s-utter-climate-failure.