The result? A lose-lose-lose situation for the National Energy Board, Kinder Morgan, and Canadians.
Consider Kinder Morgans proposed Trans Mountain expansion. Three months into the review of the project, it is becoming clear that an inadequate regulatory process may well lead to flawed recommendations. In the case of the Enbridge Northern Gateway Joint Review Panel process, groups and individuals granted the right to participate had 112 days to review the companys application and submit written questions. Further, in Enbridge, there were public hearings in communities all along the pipeline route.
In the Kinder Morgan review, intervenors had just 40 days (30 days, plus a 10-day extension) to review Kinder Morgans 15,000-page application and file information requests. Even Kinder Morgan has struggled with the timelines. The company asked for a 23-day extension so it could respond to the more than 10,000 questions it received from intervenors during the first round of questions and answers in the review process. The NEB gave the company just 14 days, making it abundantly clear that Canadians should be worried about whether this review can meaningfully evaluate the Kinder Morgan proposal given the unrealistic timelines and the massive volumes of information that intervenors are expected to analyze.
To accommodate the new 15-month time limit imposed on pipeline reviewsa centerpiece of the federal governments re-write of Canadian environmental laws in 2012the NEB has elected to completely forego cross-examination and community hearings in the Kinder Morgan review. This means intervenors, including municipal governments, affected citizens, First Nations, and environmental and community groups, cant directly challenge Kinder Morgans experts.
Instead, the NEB is relying on two rounds of written questions and answers as a means to test evidence. This paper hearing process has already proven to be a poor substitute for oral cross-examination. Kinder Morgan has responded to the first round of information requests, which includes over 10,000 questions from over 100 intervenors with concerns about the project and, so far, the written responses are vague, inadequate, and in some cases, non-existent. For example, Kinder Morgan has refused to answer questions asking for specific makes and models of its oil spill response equipment. In response to another question, Kinder Morgan refused to say whether the oil shipped by the pipeline would be exported by Chinese state-controlled entities to North Korea. Both questions are important, and warrant a reply, yet we will not be able to cross-examine on these issues which would enable us to gather partial answers.
By comparison, Ecojustice lawyers were among the many who cross-examined Enbridge during the Northern Gateway hearings, probing serious gaps in the companys spill response plan and questioning its weak safety record. Weeks of cross-examination likely contributed to the development of the 209 conditions that Northern Gateway is required to meet.
The ironic result of the new time limits is that reviews of less contentious projects are more likely to include cross-examination. For example, the hearing order on the NEBs website for NOVA Gas Transmission Ltd.’s North Montney Project indicates that the review will include cross-examination. That review process involves 38 intervenors, all but one of whom represents industry, government, or First Nations. The reason that cross-examination can take place is precisely because there is no broad cross-section of interest in this much smaller project so a full review can be completed within the shortened, inflexible timeline.
All of this doesnt even touch on the fact that Kinder Morgans application is still missing critical information such as feasibility reports for drilling at several water crossings and detailed seismic assessment studies for the proposed pipeline corridor, the latter of which the company has said will not be completed until March 2015 when final arguments will have already finished.
On top of all of these concerns about timelines, the lack of cross-examination and community hearings, the environmental and climate impacts of extracting the bitumen from the tar sands and then burning the bitumen after it is exported are explicitly excluded from the review process.
The Kinder Morgan expansion would twin an existing pipeline, nearly tripling the projects capacity from 300,000 barrels per day to 890,000for those keeping score at home, thats greater than the proposed capacity of Enbridges Northern Gatewayand see a seven-fold increase in tanker traffic through the Burrard Inlet and Strait of Georgia. With a project of this scope, in a province where pipeline opposition is higher than its ever been, bad process and bad science just arent going to cut it.
The fracas over the Enbridge project may be a harbinger of whats to come on Kinder Morgan. While the Northern Gateway process seems robust in comparison with the Kinder Morgan review, it still had flaws, with five lawsuits filed to date, and more expected soon.
These legal challenges, coupled with unprecedented opposition from First Nations, and now buttressed by the historic Tsilhqotin ruling from the Supreme Court of Canada last week, cast great doubt over whether that pipeline will ever be built.
The great irony is that although the changes to environmental laws the federal government forced through in 2012 were done in the name of “efficiency”, they may well have the opposite effect.
The weak process unfolding around Kinder Morgan may cripple the National Energy Boards ability regulate in the public interest, and undermine its credibility with a Canadian public increasingly reluctant to give these major pipeline projects any social licence.
In short? No one wins.
Karen Campbell is a staff lawyer at Ecojustice.