NEB rules that Trans Mountain pipeline is in public interest, despite marine dangers and ignoring climate impacts

NEB reconsideration reportIn headline news on February 22,  Canada’s National Energy Board released the Report of its Reconsideration process (here in French), and for the second time, approved construction of the Trans Mountain Pipeline.  The NEB states: “…Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern resident killer whale and on Indigenous cultural use associated with the Southern resident killer whale. The NEB also found that greenhouse gas emissions from Project-related marine vessels would likely be significant. While a credible worst-case spill from the Project or a Project-related marine vessel is not likely, if it were to occur the environmental effects would be significant. While these effects weighed heavily in the NEB’s consideration of Project-related marine shipping, the NEB recommends that the Government of Canada find that they can be justified in the circumstances, in light of the considerable benefits of the Project and measures to minimize the effects.”

The decision was expected, and reaction was immediate:  From The Energy MixNEB Sidesteps ‘Significant’ Impacts, Recommends Trans Mountain Pipeline Approval”  , which summarizes reaction;  from the National Observer in  “For a second time, NEB recommends approval of Trans Mountain pipeline expansion” (Feb. 22)  and  “NEB ruling sparks new vows to stop the Trans Mountain pipeline”.  An Opinion piece by Andrew Nikoforuk in The Tyee  is titled, “NEB ‘Reconsideration Report’ a New Low for Failing Agency” and from the Council of Canadians, “The fight to #StopTMX Continues as feds approve their own pipeline” .  From British Columbia, where the government has appeared as an intervenor against the pipeline , the Sierra Club reaction is here ; the Dogwood Institute pledged opposition (including a rally against the decision in Vancouver)  and pledged to  make the Trans Mountain project a major part of the federal election scheduled for Fall 2019;  and West Coast Environmental Law press release   also pledged continued opposition.  Albertans see it differently, with Premier Rachel Notley releasing a statement which sees the decision as progress, but not enough to be a victory, and states: “We believe these recommendations and conditions are sound, achievable, and will improve marine safety for all shipping, not just for the one additional tanker a day that results from Trans-Mountain.” It is important to note that not all Albertans are pro-pipeline: Climate Justice Edmonton is protesting with a  “People on the Path” installation along the route, and Extinction Rebellion Edmonton  actively protests fossil fuel development.

Meaningful Indigenous consultation still needed :  The NEB Reconsideration process was triggered by an August 2018 decision of the Federal Court of Appeal, which ordered the NEB to re-examine especially the potential impacts of marine shipping on marine life, and the potential damages of an oil spill. The Reconsideration report has resulted in 16 new recommendations on those issues, along with the existing 156 conditions.   Although the final decision on the project rests with Cabinet, the issue of meaningful Indigenous consultation is still outstanding from the order of the Court of Appeal.  According to the CBC, “Ottawa has met already with three-quarters of Indigenous communities during Trans Mountain consultation reboot” as of Feb. 20, but also according to the CBC, the Union of B.C. Indian Chiefs says “We still say no to the project. tiny house warriorsEven if one nation, one community says no, that project is not happening”  . And the Tiny House Warriors  continue to occupy buildings along the pipeline path, to assert their authority over the land.

Canada ignores GHG impacts while Australia rules against a coal mine on GHG grounds….  A motion was brought by the environmental group Stand.earth, demanding that the NEB reconsideration of Trans Mountain include consideration of its upstream and downstream greenhouse gas emissions, as had been done in the Energy East consultation. Stand.earth stated: “The board cannot possibly fulfill its mandate of determining whether the project is in the public interest without considering whether the project is reconcilable with Canada’s international obligations to substantially reduce GHG emissions.” An article in the National Observer,   “IPCC authors urge NEB to consider climate impacts of Trans Mountain pipeline expansion” summarizes the situation and quotes Tzeporah Berman, international program director at Stand.earth, as well as Marc Jaccard and Kirsten Zickfeld, two professors from Simon Fraser University.  On February 19, the National Energy Board ruled on the Stand.earth motion, refusing to expand the scope of their reconsideration. Council of Canadians reacted with  “NEB climate denial another Trudeau broken promise”  .

It is doubly disappointing that Canada’s National Energy Board declined to include climate change impacts in its assessment, in the same month that the Land & Environment Court of New South Wales, Australia upheld the government’s previous denial of a permit for an open cut coal mine.   According to a report in The Guardian,     the decision explicitly cited the project’s potential impact on climate change, writing that an open-cut coalmine in the Gloucester Valley “would be in the wrong place at the wrong time.… Wrong time because the GHG [greenhouse gas] emissions of the coal mine and its coal product will increase global total concentrations of GHGs at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in GHG emissions.”  The decision was also covered in: “Court rules out Hunter Valley coal mine on climate change grounds” (Feb. 8) in the Sydney Morning Herald, and from the  Law Blog of Columbia University: “Big Climate Win Down Under: Australian Court Blocks Coal Mine Citing Negative Impacts of Greenhouse Gas Emissions”.

National Energy Board is a casualty of Canada’s new legislation for environmental assessment

On February 8, following 14 months of consultation and review, the Minister of Environment and Climate Change introduced the mammoth Bill C-69 An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts  . The government press release from Environment and Climate Change Canada highlights these talking points about the proposed legislation-  It will:  Restore public trust through increased public participation; Included transparent, science-based decisions; Achieve more comprehensive impact assessments by expanding the types of impacts studied to include health, social and economic impacts, as well as impacts on Indigenous Peoples, over the long-term. Also, it promises  “One project, one review” – through a new Impact Assessment Agency, (replacing the Canadian Environmental Assessment Agency) which will be the lead agency, working with a new Canadian Energy Regulator (replacing the National Energy Board), as well as the Canadian Nuclear Safety Commission and Offshore Boards.  Further, it will make decisions timely; Revise the project list; Protect water, fish and navigation ; and Increase funding.  The detailed government  explanation of the changes  is here ; other summaries appeared in the National Observer in “ McKenna unveils massive plan to overhaul Harper environmental regime”  ; “Ottawa to scrap National Energy Board, overhaul environmental assessment process for major projects”   in CBC News; and in the reaction by The Council of Canadians, which expresses reservations about the protection of navigable waters, and these “Quick Observations”:
“1- the current industry-friendly Calgary-based National Energy Board would be replaced by a proposed Calgary-based (and likely industry-friendly) Canadian Energy Regulator
2- it includes the ‘one project, one review’ principle as demanded by industry
3- assessments of major projects must be completed within two years, a ‘predictable timeline’ also demanded by industry
4- the bill notes the ‘traditional knowledge of the Indigenous Peoples of Canada’ but does not include the words ‘free, prior and informed consent’, a key principle of the United Nations Declaration on the Rights of Indigenous Peoples
5- McKenna said that no current projects (including the Kinder Morgan pipeline which crosses more than 1,300 water courses) would be sent back to ‘the starting line’
6- the government is seeking to implement the law by mid-2019.”

An overview of other reaction appears in   “New Federal Environmental Assessment Law Earns Praise from Climate Hawks, Cautious Acceptance from Fossils” from the Energy Mix.  Reaction from West Coast Environmental Law (WCEL) is here ; and from  Environmental Defence here .  The Canadian Environmental Law Association sees some forward progress but warns that “the Impact Assessment Act is marred by a number of serious flaws that must be fixed in the coming months.”    Reaction from the Pembina Institute says “Today’s legislation improves the federal assessment process by centralizing authority for impact assessment under a single agency; providing a broader set of criteria for assessing projects including impacts to social and health outcomes; and removing the limitations on public participation that were put in place in 2012…. Building on today’s legislation, we would like to see progress towards the establishment of an independent Canadian Energy Information Agency to ensure that project reviews include Paris Agreement-compliant supply and demand scenarios for coal, oil and gas.”

Companion legislation, also the product of the lengthy Environmental Regulation Review, was introduced on February 6, Bill C-68 An Act to amend the Fisheries Act and other Acts in consequence  (Press release is here ; there is also a Backgrounder comparing the old and new legislation). Most importantly, Bill C-68 restores a stronger protection of fish and fish habitat – the HADD provision – to the definition used before the 2012 amendments by the Harper government. (HADD = the harmful alteration, disruption or destruction of fish habitat).  Reaction is generally very favourable:   The David Suzuki Foundation says : “The most important changes we were looking for are part of these amendments” and West Coast Environmental Law says that the proposed legislation   “meets the mark”.  Reaction is also favourable from the Ecology Action Centre in Halifax . And from the Alberta Environmental Law Centre, some background in “Back to what we once HADD: Fisheries Act Amendments are Introduced” .

no consentAnd finally, where does the new environmental assessment process leave Canada’s Indigenous people?  The new legislation includes the creation of an Indigenous Advisory Committee and requires that an expert on Indigenous rights be included on the board of  the new Canadian Energy Regulator body, according to a CBC report, “Indigenous rights question remains in Ottawa’s planned environmental assessment overhaul” . Minister McKenna is also quoted as saying the government will “try really hard” to conform to the principles of the UN Declaration on the Rights of Indigenous Peoples   – a statement that is not satisfactory to some Indigenous leaders.    See “Indigenous consultation and environmental assessments” (Feb. 7)  in Policy Options for a discussion of the issue of “free, prior and informed consent”.  On February 7, Private member’s Bill C-262, an Act to Harmonize Canada’s Laws with the United Nations Declaration on the Rights of Indigenous Peoples passed 2nd reading in the House of Commons.

Activists celebrate as the Energy East Pipeline is cancelled

energy east mapOn October 5, TransCanada Pipelines issued a press release , announcing that it would no longer proceed with the proposed Energy East pipeline and Eastern Mainline projects.  Accordingly, the National Energy Board Hearing Process has been closed, although documents remain on its website.  Below is some of the reaction that has poured forth, including: “TransCanada terminates Energy East pipeline” and  “Disappointment and delight mark the end of Energy East Pipeline”  in the National Observer (Oct. 5); “Climate Hawks celebrate as TransCanada abandons Energy East pipeline” from Energy Mix.   The Council of Canadians had conducted a 5-year campaign against Energy East: their reactions and those of their allies appear in “WIN! Energy East tar sands pipeline defeated!”  ;  “Voices from the Energy East Resistance”  (Oct. 6)  and “Diverse Groups Opposed to Energy East Celebrate Project’s Cancellation” .  The common message is exemplified by Grand Chief Serge Simon of the Mohawk Council of Kanesatake on behalf of the 150 First Nations and Tribes who have signed the Treaty Alliance Against Tar Sands Expansion, who is quoted as saying: “Both the Northern Gateway fight and this Energy East one show that when First Nations stand together, supported by non-Indigenous allies, we win …. “So that’s two tar sands expanding mega-pipelines stopped in their tracks but it will be a hollow victory if either Kinder Morgan, Line 3 or Keystone XL are allowed to steamroll over Indigenous opposition and serve as an outlet for even more climate-killing tar sands production.”  (and for more on that, read “Energy East cancellation resonates for opponents of Trans Mountain expansion in B.C.”  in the National Observer.

Commentators trying to explain TransCanada’s decision focus on three principle reasons: the economics of falling oil prices, regional political forces, or the regulatory burden of pipeline approvals in Canada (especially since the Energy East review was  required to account for upstream and downstream emissions).  From the Globe and Mail, an editorial:  “The death of Energy East was a Business Decision – Swimming in Politics” , which attributes the decision to  Quebec opposition to Energy East, and the likely go-ahead of the Keystone XL pipeline in the U.S.  The Editorial states: “Mr. Trump appears to have solved most of the Canadian oil industry’s pipeline shortage, making Energy East no longer economically necessary. The American President…. has also temporarily solved one of the Trudeau government’s, and Canada’s, most challenging political problems.” For a view of the political dimensions within Canada, read  “Energy East pipeline is dead, fallout in Alberta will be measurable” in Rabble (Oct. 6) . Finally, three overviews of the issues:”Regulations alone didn’t sink the Energy East pipeline” by Warren Mabee,Queen’s University and ACW Co-Investigator in The Conversation (Oct. 15);  “Five Things you need to know about the Cancellation of the Energy East Oilsands Pipeline” from DeSmog Canada, and “Energy East’s cause of death: Business, politics or climate?“, from CBC News, which describes the regional differences via reaction from Canadian provincial premiers.

 

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.”