Regulatory Process/National Energy Board

In Canada all proposed federal pipeline projects are evaluated by the National Energy Board (NEB).

Under current NEB rules, Energy East constitutes a Section 52 application and will thus automatically trigger a hearing as well as federal environmental assessment (EA). TransCanada filed their initial project description to the NEB in March 2014 and their full project application in October 2014. It is now the responsibility of The NEB to determine timelines and schedule a hearing on the proposal. The EA will have to meet regulatory requirements of both the NEB Act and CEAA 2012. Normally, Environmental Impact Statement guidelines are posted on the NEB website after a full project application is filed, as is information about participant funding available to help cover costs of those participating in a hearing. After analyzing the proposal the NEB is to provide a written report to the federal government setting out recommendations and conditions regarding the project.

While the NEB claims to be an independent federal regulator of energy projects responsible for protecting public safety, the environments, and rights of landowners, it should be noted that board members of the NEB are drawn entirely from the energy industry and the NEB gets 90% of its money from industry levies from approximately 160 energy companies. This raises serious questions about how the NEB can possibly act independently or in the public interest.

Bill C-38, passed in 2012, also changed the NEB’s rules for participation in public hearings. Interested participants now have to fill out a 10-page application explaining why the project affects them, and only those directly affected or who have particular expertise related to the project will be considered. The new rules have been called undemocratic and exclusionary, and designed to streamline the approval of energy projects.

Bill C-38 also streamlined the approval process for pipelines by giving Cabinet final say on their approval.

A good legal article on the effects of Bill C-38 on NEB powers and pipeline projects is here.

In April 2014, the NEB streamline the approval process for Energy East by releasing a preliminary ‘list of issues’ to be considered in their approval of the Energy East pipeline. The Council of Canadians is challenging the release in court on the grounds that it is premature, as the full project application had not been filed yet, and it thus shows the NEB’s bias in favor of the energy industry.

In B.C., the NEB was found to have collaborated with CSIS and the RCMP in spying on environmental groups and indigenous rights activists.

Also in B.C., the NEB has just recently issued an order allowing Kinder Morgan access to Burnaby Mountain for work related to its Trans Mountain pipeline expansion. This decision by the NEB has overruled Burnaby’s municipal bylaws.

The oversight of the NEB (or lack thereof) has been connected to the Kalamazoo spill in Marshall, Michigan in 2010.

Leave a Reply

Your email address will not be published. Required fields are marked *