The National Energy Board (NEB) review of TransCanada’s Energy East pipeline has kicked off. On June 16th 2016, the NEB started the regulatory clock. The NEB will now have 21 months to review project application documents, listen to Intervenors and Commentors and make a recommendation to the Minister of Natural Resources. The deadline for this recommendation is March 16th 2018.
On July 6th 2016, Blake, Cassels & Graydon LLP (Blakes Law) – legal counsel for Energy East – submitted a letter to the NEB regarding public participation in the process. What they attempted to do was limit the voice of Intervenors in an already challenged regulatory process. Energy East requested the following outline for the 2017 review process:
- One round of information requests from Intervenors to the Applicants;
- Written evidence of Intervenors;
- One round of information requests to Intervenors from the Applicants and parties adverse in interest to the Intervenors that file evidence;
- Written reply evidence of the Applicants;
- Limited oral hearing, including cross-examination; and
- Written final argument.
Now, this may not raise any red flags for the general public or an Intervenor / Commentor who’s new to the NEB process. However, I was appalled at the attempt by TransCanada Energy East to further silence voices in the hearing and encouraged by a filing from the Ontario Rivers Alliance where they expressed the same sentiment.
Here a few points why Blakes submission on behalf of Energy East was just downright insulting to Intervenors:
Single Round of Information Requests
In request #1, Energy East specifies “one” round of information requests. Information requests are an extremely important opportunity for Intervenors to ask questions to the proponent and if not carefully worded, the proponent almost always finds a way to avoid the question. This is why a minimum of two information requests in integral to the fairness of the process. The second information request gives the Intervenor the opportunity to re-phrase, better explain, or otherwise notify the NEB that the proponent failed to respond appropriately. By requesting only one round of information requests, Energy East attempted to limit Intervenor’s ability to receive clear answers about their concerns.
Limited Oral Hearing and Cross Examination
From August to December, 2016, the NEB will be holding Panel Sessions in ten locations across the proposed project route. These panel sessions are an initial opportunity for Intervenors to identify high level questions and concerns and meet Energy East representatives face to face. In request #5, Energy East asked for a “limited” oral hearing and cross-examination. Further in the Blakes letter, Energy East suggests that the NEB should limit the issues available for discussion in cross-examination and the oral hearing to those raised by Intervenors in the panel sessions. On an opposite note later in the letter, Blakes writes that “it is essential for the maintenance of procedural fairness that the Applicants (Energy East) be provided with an opportunity to direct information requests to Intervenors; and to cross examine Intervenors on all aspects of their filed testimony“. WHAT? So Energy East wants to limit what Intervenors can ask Energy East, but wants full autonomy for Energy East to to cross examine Intervenors? Multiple red flags go up here.
First of all, the panel sessions are already restricted to high level discussions and come months before Intervenors are able to submit local, individual information requests to Energy East. If issues in the final hearing were restricted to those raised during the panel sessions, important concerns raised over the next year are likely to be out of bounds.
Second, the panel sessions come at a time when numerous Intervenors have yet to apply and/or receive NEB Participant Funding. Finding the time to participate in these sessions is already difficult for many Intervenors. Without funding to cover travel expenses, many Intervenors may be limited from participating at all. Therefore, their concerns with the project may not be recorded and if Energy East got their way, these Intervenor issues would be excluded all together from future discussion. This is intentional. Energy East is well aware that the panel sessions are a new addition to the NEB’s regulatory procedure and that being so early in the process, many Intervenors will be too new / overwhelmed to know what the panel sessions are all about and how to participate.
Third, Energy East will continue to file project amendments. As we saw with the cancellation of their proposed Cacouna Marine Terminal, lack of a plan to traverse several major river crossings and ongoing route changes, they really still don’t have a clue what this project will look like.
Energy East Doesn’t Want to Hear You
By requesting to have only one round of information requests and limit the oral hearing and cross examination to issues raised in the panel sessions, TransCanada Energy East is sending a strong message – they don’t want to hear what Intervenors have to say. The Blakes submission quotes the “size of the application” and “established time constraints” as justification for this proposed muzzling.
I’ve been following this project and working on behalf of communities along the pipeline for more than two years now and I have to call bull shit when I see it.
- Yes, the Energy East Application is huge. The new, “easier to read” application is 38,885 pages and fits into a mere 12 boxes in hard copy. Quite impressive wouldn’t you think? Well, it is until you start reading it and realize every section begins with the same intro to the project, multiple blank pages are used to fill space and boxes of maps sit next to boxes of the same maps at a different scale. Ultimately, TransCanada will play up the size of the application to make it seem overwhelming and out of reach for the average person to understand. Again – an attempt to silence the masses. That said, I’m not afraid to take on the “size of the application” and neither are the people and communities I’m working with from Alberta right through to Nova Scotia.
- Yes, there are established time constraints. However, the 21 month period the NEB now has to review the proposed project is 6 months longer than the 15 months mandated during the Harper regime. Allowing at least two rounds of information requests and encouraging Intervenors to address issues as they arise will not keep the NEB from meeting this deadline. How dare Energy East try to use the ticking clock to minimize review of their project – the largest oil pipeline in Canadian history. It just goes to show how they care more about their pocketbooks and getting the green light than full socio-economic and environmental review of the impact on communities hit by their fossil fuel mega project.
Here’s the Good News
In the end, the National Energy Board ruled – in part – against the requests of Energy East. The NEB released the Hearing Order for Energy East on July 20th, 2016 with several favourable outcomes for Intervenors. First, there will be two rounds of information requests, which will give Intervenors a better opportunity to receive appropriate answers to their concerns. Next, the NEB will place some limits on oral cross-examination, but those limits will be detailed in the future. Considering panel sessions are set to begin next week, it is highly unlikely that the NEB will choose to limit issues in the final hearing to those raised at the panel sessions.
The NEB’s rejection of Energy East’s unfair requests was a big win for procedural fairness for Intervenors. However, the attempts by TransCanada Energy East to undermine the regulatory process definitely sets the stage for what kind of tricks we should expect to see from them moving forward.
I’m working hard to assist those impacted by the Energy East project.