Energy board review approves TMX pipeline

Approval comes despite acknowledgement that pipeline expansion would result in adverse environmental impacts on marine life

Canada’s National Energy Board (NEB) has ruled that the contested Transmountain Pipeline expansion should be approved as it is “in the Canadian public interest.”

The energy board was ordered to reconsider its approval by the federal government after a court ruled it was wrong to exclude the impact of increased tanker traffic in its initial approval.

The review concluded that the expansion would impact tanker traffic and the environment along the coast, but not so much as to warrant backing off the project.

“Project-related marine shipping is likely to cause significant adverse environmental effects on the southern resident killer whale an on Indigenous cultural use associated with the southern resident killer whale,” the report found.

It also said greenhouse gas emissions from ships associated with the project would likely be “significant.” In the unlikely event a worst-case spill was to occur, the NEB said, “environmental effects would be significant.”

Still, the NEB said, the project should go through.

“While these effects weighted heavily in the NEB’s consideration of project-related marine shipping, the NEB recommends … that they can be justified in the circumstances, in light of the considerable benefits of the project and measures to minimize the effects.”

Those benefits include increased access to diverse markets, job creation, the development of the capacity of local and Indigenous communities and businesses, direct spending on pipeline materials and “considerable revenues” to various levels of government.

It added that effects from shipping related to the pipeline expansion will be a “small fraction of the total cumulative effects,” and that “the level of marine traffic is expected to increase regardless of whether the project is approved.”

The NEB imposed 156 conditions and made 16 new recommendations. Those recommendations, which mostly deal with impacts on sea mammals and fish as well as consultation with Indigenous peoples, are outside of the NEB’s jurisdiction but are within the scope of the federal government.

The 16 new recommendations include measures aimed at reducing the cumulative effects on the Salish sea, measures to offset increased underwater noise, marine oil spill response, ship safety, reduction of emissions and Indigenous advisory and monitoring of the project.

During its review, the NEB heard from 118 intervenors, including 52 Indigenous groups and individuals, and participated in 15 “oral tradition evidence sessions in Calgary, Victoria and Nanaimo. Interventions allowed parties to comment on the environmental assessment and the design of the hearing process, file evidence, present Indigenous oral traditional evidence, question the evidence of other parties, comment on draft conditions and present a final argument.

“The reconsideration hearing offered a fair and meaningful opportunity to parties to participate and fully present their case and represent their diverse points of view,” the NEB said.

The report quoted a comment from Elder George Harris from the Stz’uminus First Nation imploring the panel to listen and to hear the words of those who participated beyond just the room.

“The board has endeavoured to do this – to listen, hear and share the evidence and views of the parties with the (government) and Canadians,” the report said.

It noted that the benefits and burdens of the project and related shipping will not be distributed evenly across Canada, which may lead to dissent.

“In light of these circumstances, reasonable people can and will disagree on what the best balance and outcome is for Canadians. Sometimes, Parties disagree on the evidence and facts, while other times, Parties agree on the facts but differ in their opinions, perspectives, or values,” the NEB wrote.

“In carrying out the Reconsideration, the Board has listened carefully and taken into account diverse views. The Board has remained cognizant that the public interest is not regionally based, but is inclusive of all Canadians. It must also be responsive to Canadians’ interests and values as they change over time.”

The NEB continued by adding that a “lack of full scientific certainty” should not be used as a reason to avoid implementing measures preventing harm. Adaptive management, they said, can be an important part of a project to allow for “uncertainties” in an environmental assessment.

Actions can be taken, for example, to make changes to the operation of all boat traffic, including that related to the project, and address other issues outside of the project, to offset the added impacts the project would make on the coast, the board wrote.

“The Board is of the view that certain activities may be permitted despite a lack of full scientific certainty regarding their effects, provided the activity and its effects can be effectively monitored and adaptively managed.”

Now that the report is complete, the decision again falls to the Liberal government whether or not to move forward with the project.

The government is also undergoing an additional round of consultation with impacted Indigenous groups after a court decision deemed the initial consultation insufficient.

It is expected that, at some point, the government will move forward with construction of the project, especially since the Liberals purchased the pipeline project from the private sector for $4.5 billion.

Conservative natural resources critic Shannon Stubbs also called the NEB decision positive, though she added that it does not get the nation any closer to building the pipeline.

“All it does is put the decision back in the hands of the same Liberal cabinet that failed to start construction in the first place,” she said.

“The bottom line is Justin Trudeau’s Liberal cabinet is still months away from making a decision with no timeline for when consultations with first nations will conclude or when a final decision on the project will be made.”

Stubbs said the review process was unnecessary. Instead, she said, within a week of the Aug. 30 federal court of appeal ruling, the federal government should have restarted Indigenous consultation and introduced emergency legislation affirming Transport Canada as the appropriate department to assess the impact of marine traffic.

“Conservatives would also have immediately used the constitutional powers of the federal government to declare the Trans Mountain Expansion project in the national interest, removing the threats from provincial and municipal leaders to block to the project,” she said.

“Instead, the Liberals picked the lengthiest, costliest, and most uncertain option by directing the NEB to undertake a 22-week reconsideration, further delaying progress on the Trans Mountain Expansion. Nothing has changed. The opponents of the project simply used this time to prepare their next wave of legal challenges.”

According to media reports, the federal government called the approval an “important milestone” and said they would follow the conditions for approval. They didn’t give a timeline for when construction would begin.

Moe calls for more regulatory certainty

MP Randy Hoback praised the decision as a positive step forward towards the construction of the pipeline but cautioned against too much federal uncertainty. Premier Scott Moe also spoke against regulatory uncertainty.

Premier Scott Moe speaks at a Prince Albert and District Chamber of Commerce breakfast on June 18, 2018. (Peter Lozinski/Daily Herald)

Neither of the men had an opportunity to review the decision in detail. Moe spoke to reporters from Washington, where he is meeting with American governors to enhance trade between Canada and the US. Hoback boarded a flight to Saskatoon shortly after the decision was announced.

“I just have glanced at it between meetings and I understand there are 16 more recommendations put forward by the National Energy Board,” Moe said.

“Potentially, the Government of Canada could choose to act on them.”

Moe described the current regulatory environment, both in terms of energy but also for broader industry, as “challenging.

“This particular project, it was six or seven years ago Kinder Morgan decided to move forward, and here we are six-seven years later not a lot closer to seeing the project being constructed,” he said.

“We need to have the broader conversation around a regulatory framework that works for our environment, works for our economy and actually allows private investment in and look at these projects and move forward in a reasonable period of time.”

Moe said that there were some challenges in the existing environmental act, and said options would be to amend it so that it works better, or to introduce a new piece of legislation.

“The federal government has chosen to introduce a new piece of legislation known as Bill C-69, and Bill C-69 in our opinion and many in industry’s opinion is not the answer because it moves those goalposts further away and continues to vibrate them around.”

Hoback also had harsh words for Bill C-69, but on the whole, was more positive about the news Friday.

“that’s good news,” he said of the approval.

“If there’s something they need to do to make (the project) better, that’s what it has to be.”

What concerns Hoback is that instead of moving forward on the project with the recommendations, he foresees more uncertainty from Ottawa.

“The problem a lot of companies found with C-69 is the final veto is given by the government at the end. They could spend a billion dollars or even more, trying to get through the whole regulatory process, only to have politicians saying … we don’t like it. That’s not how things should work.”

Hoback did say he’s hopeful Friday’s approval means the project would move forward.

“There are just too many jobs at stake for it to not move forward,” he said.

“Our reputation around the world is at stake, and our (ability) to build big projects and complete big projects and provide our resources to the world in a timely matter and safe matter.”