So many errors with the Trans Mountain pipeline to redo. How long until we return to court?

Let me know if you've heard of it before: the National Energy Board (NEB) is looking forward to a pipeline review with a tight timeline and narrow scope, in which it most often falls within the scope of the pipeline. promoter (despite strong opposition from stakeholders), and excludes the public from "public" hearings. The promoter is depositing huge amounts of evidence in what appears to be an attempt to overwhelm and paralyze participation within an already limited time frame.

For those interested in the Trans Mountain saga, this sounds like an immediate rehearsal of the latest NEB review of the project, which was completed in 2016. This review, as well as the Approval by the federal cabinet of the pipeline and tanker project, resulted in 15 legal challenges that led a two-week hearing at the Federal Court of Appeal (FCA).

The result? The court overruled the federal approval, due to inadequate consultation with First Nations and the illegal exclusion of shipping that invalidated the NEB report.

In response to the CAF decision in Tsleil-Waututh Nation and others v. Canada, the federal cabinet has given the NEB a directive to redo (or more accurately, to proceed for the first time) an environmental badessment of shipping for the project with an emphasis on orcas residing in the south . The government gave the NEB 22 weeks to produce its report. At the announcement, Natural Resources Minister Amarjeet Sohi also said, "We are confident that the Trans Mountain Pipeline Expansion Project is an investment in the future of Canada. […] He must move in the right way. "

ONE has taken this directive and launched its new Merchant Navy Review by unilaterally announcing its process and giving interested parties a one week delay in applying to participate. He also requested information on the proposed scope of the review on the Friday of the extended Thanksgiving weekend, with comments being expected by the following Tuesday.

Despite a very short schedule (during the long weekend), thousands and thousands of letters were sent to the NEB by fax regarding the limited scope of the exam. Side note: Did you know that the ONE will not take letters by e-mail, but only by fax or in person? Because we are in 2018.

Indeed, more than 66,400 letters of comment were faxed to the NEB during the last comment period which ended on November 20th.^th, 2018. This followed more than 11,000 letters of comment on the scope of the review that took place during Thanksgiving, which resulted in the Commission's fax machine "having difficulty coping with the volume of use ".

Repeating story

Unfortunately, it appears that the NEB is repeating exactly the same mistakes that led the government to appear in court last time: rushing into a process of narrow scope that ignores important topics and blocks the public .

As we have said before, the NEB's (and Canada's) approach continues to rest on a mindset that tries to do as little as possible, and that reads court cases like Tsleil Waututh through a lens that interprets decisions with an eye to the legal minimum.

For example, although the court stated that the exclusion of shipping was a "fatal error" in Trans Mountain's initial review, it also found that the other alleged misconduct by the parties (eg , excluding cross-examination or not tackling climate change) were not unreasonable. as some would like to believe, approval of the ONE process is not.

Therefore, as part of the review, the NEB is focused on marine shipping and continues to ignore unresolved climate, economic and salmon issues that have not been addressed. taken into account in the Crown's insufficient legal consultation with First Nations. This approach may leave Canada with outdated evidence of the resumption of the Aboriginal consultation process, which is yet to come.

Thus, informed by the "bare minimum" approach, the ONE has begun its new examination of maritime transport. Almost immediately, we see the same patterns emerge.

Narrow sights

The example of the NEB that opted for a minimal approach is the geographic scope of the marine review. The ONE asked stakeholders to clarify whether or not to consider impacts within the 12 nautical mile (NM) territorial boundary or the 200 NM Exclusive Economic Zone (EEZ) in which only Canada has the ability to regulate.

Only the Government of Canada, Alberta and Trans Mountain supported the 12 NM limit, while the vast majority of stakeholders, including First Nations, Washington State, community groups 39 and others supported the 200 NM threshold – but the NEB decided to limit its review. at 12 NM. Despite the obvious fact that the project's approximately 400 tankers per year will not stop at 12 NM, an oil spill will not meet this arbitrary line or that the killer whale's critical habitat Southern resident extends beyond 12 NM.

Economic need based on outdated evidence

The NEB also denied stakeholder calls to re-examine the underlying need or economic case for the pipeline. Many things have changed since the project was first filed by Kinder Morgan in 2013, when oil was well over $ 100 a barrel.

The economy of oil transportation has been or will be soon disturbed. The very large crude oil carriers (VLCCs) installed in Louisiana's new LOOP terminal will amplify market forces that hinder Canadian producers; The new fuel regulations will reduce the demand (and hence the price) of products containing high sulfur oil sands; and climate commitments in Canada and around the world will also have an impact on demand.

Finally, Canada's overpayment of at least $ 1.2 billion for the pipeline has never been scrutinized by the public and the cost of construction has been estimated to nine billion (or more), only goes up, without any control on the part of the public. Note: The Canadian Development Corporation (CDEV), the parent company of Trans Mountain Corporation, is expected to release certain cost updates at the end of November.

The climate again excluded

The climate impacts are also again excluded from the Board's review, despite the fact that the Board had decided to review emissions upstream and downstream of the Energy East Pipeline before Trans Canada is abandoning the project because it was not profitable. Trans Mountain was not profitable, even without a climate test, but Kinder Morgan managed to make a quick hit on Canada and saved his losses by selling the project.

It is hoped that the NEB will take the opportunity to correct these other deficiencies while retrying its review.

Salmon

The exclusion of salmon spawning habitat is another example of the NEB's flawed approach, particularly as the review also addresses the plight of southern resident killer whales threatened with extinction. Scientists agree that one of the main threats to this iconic species is the lack of its main food, chinook salmon. The noise of tanker traffic also prevents whales from hunting these salmon (a spill would obviously be detrimental), but upstream spawning grounds are also inextricably linked to salmon health.

It is in some of these same spawning grounds that Kinder Morgan was caught illegally installing anti-spawning mats. The interconnected nature of rivers and streams flowing into the ocean, as well as the salmon that rely on these networks to reproduce, underscore the folly of segmenting the examination sections as if they were independent. The reality is that what happens in these water courses has consequences for whales because it affects salmon. As a result, any review that does not take into account does not provide a complete picture of the consequences for residents of the South.

These are just three examples of the problems that arise when you plan to revise a project as narrowly as possible.

Tight schedule

Despite repeated calls for a longer review, the NEB Hearing Order set an extremely tight schedule for its process. This is partly explained by the fact that the Office does not have the same powers to start and stop the time as during the initial examination. This means that the federal cabinet is the only party that can extend the process.

Many stakeholders were dismayed that the court order gave them only five weeks to file evidence (until November 20). For many, this requires finding and using available experts to produce a report and review existing evidence – a task almost impossible.

After contacting several experts who were unable to write a proposal in less than a month, the Committee of Nature eventually cut participant funding by $ 25,000 due to unreasonable delays Office.

To be fair, the federal government and Trans Mountain have also been subject to the tight schedule of the NEB. On October 31, they filed evidence and statements totaling 8,033 pages. This puts stakeholders and their experts in an even more difficult position – experts will now have to look at all this evidence before they even start their own reports.

In addition to the obvious disparity in financial and human resources available to the federal government and Trans Mountain over stakeholders (including First Nations, community groups and affected individuals), the former also have a distinct advantage.

Do not forget that it is the Cabinet that set the exam schedule and the Cabinet who knew when they were going to make the announcement. Ministers would have known that their 22-week schedule would result in a reduced schedule, so it is possible, and even likely, that the work of preparing the evidence was ongoing well before the NEB made its decision to proceed. Hearing on 12 October. Similarly, Trans Mountain Corporation, which now belongs to the federal government, may be aware of the schedule and began work earlier.

It is not illegal to start work early, but this example highlights the major complexity of the current review: now that the proponent of the pipeline is indeed the federal government, how can this same government objectively review, regulate and to apply he owns and has already invested so much public money and political capital in?

With so many opportunities for conflict of interest and system gambling, this will only complicate an already complex decision for the Cabinet. The federal government will have to comply with the legal obligation to make a new decision, while relying on outdated evidence and continuing to suggest that the decision is already made.

Squamish Nation Motion to the NEB

On November 5, the Squamish Nation filed a petition with the NEB requesting an extension of time to file expert testimony. Squamish requested a 15-day extension which, if not granted, would prevent it from participating fully in the process, but maintained its main complaint that the NEB's full review process was too short.

On November 13, the ONE decided to grant the extension and compress the rest of its process. But, as we said earlier, the cabinet will always stick to the schedule. Only the Cabinet may extend the deadline beyond February 22, 2019.

Tsleil-Waututh Nation Review Request

On November 16, the Tsleil-Waututh Nation filed an application to review the NEB Hearing Order. The application challenged the decision to exclude the exclusive economic zone from the review of maritime transport, as well as the exclusion of socio-economic effects from the scope of the review. Tsleil-Waututh also argued that the NEB process violated a fundamental principle of administrative law ("those who hear must decide") by adding members of the board who had not heard the previous evidence directly, while asking them to reconsider and decide on the issues raised by this evidence. .

As we prepared to share this message, the NEB defined a comment process on Tsleil-Waututh's request, with a two-week turnaround time to allow stakeholders to provide input.

Same problem, same result?

The NEB has therefore taken another bumpy start; something we have seen before. With the recent oil spill in Newfoundland, which is now considered impossible to clean due to weather conditions, it has never been more important to have comprehensive processes to badess the risks of shipping.

We still do not know how the federal government will respond to this NEB review with additional consultations with Aboriginal people before making a new decision. But for now, the main question is: how long will it take before we go to court?