Band-aid solutions cannot fix deeply flawed pipeline reviews, environmental assessments

The Harper government’s 2012 environmental law rollbacks were a blunt-force trauma to the environmental assessment of pipelines. And last week, the new federal Liberal government prescribed band-aids for an ailing patient that needed more.

On January 27, the federal government announced interim measures for the Kinder Morgan Trans Mountain Expansion Project Review process and the upcoming TransCanada Energy East Pipeline Project Review process. These measures are a welcome first step, but unfortunately still fall short of what is required to restore public faith in National Energy Board (NEB) reviews and environmental assessments in Canada.

The interim measures are part of the Liberal government’s mandate to “regain public trust” and deal with the broken process left behind by the Harper government’s repeal and replacement of the Canadian Environmental Assessment Act and amendments to the National Energy Board Act. These efforts to fast track approvals for proposed pipeline projects backfired and have brought public confidence in project reviews to an all-time low. Public trust in these reviews is so diminished that communities from coast to coast — Burnaby, Kenora, Montreal and Saint John, to name a few — have organized against proposed projects and regulators. This is unprecedented.

The federal government has indicated that it intends to overhaul the legislation that governs both the NEB and federal environmental assessment processes. The interim measures introduced last week — some immediate short-term measures for the Trans Mountain and Energy East processes and a set of five principles for other environmental assessments — will take effect before those promised legislative reforms are made.

Too little, too late for Trans Mountain, missed opportunity on Energy East

The interim measures include: additional consultation with First Nations outside of the NEB process, additional consultation with affected communities, and an assessment of the greenhouse gases from the oil projects supplying the pipelines. To achieve this, the government extended the review processes for the Trans Mountain pipeline by four months and for the Energy East pipeline by nine months. But even with these extended timelines, it is hard to imagine how these interim measures will do anything more than simply gloss over the systemic procedural flaws that undermine the NEB’s legitimacy as a regulator.

“What the federal government didn’t do — but could have done — was stop and reform the entire Energy East review before it begins.”

In the case of Kinder Morgan’s Trans Mountain project, these measures come as too little, too late. Last week, our colleague Dyna Tuytel stood before the National Energy Board and laid out how Kinder Morgan’s application, riddled with flaws and weak evidence, make it clear that the Board has no choice but to recommend against the project. The new measures will not remedy the fact that Kinder Morgan’s application does not address sinking dilbit, threats to the survival of Southern Resident Killer Whales, or the ecological and health risks of a massive marine oil spill. Given these flaws, the NEB cannot reasonably or lawfully recommend that Cabinet approve this project.

The process is somewhat less clear for Energy East. The federal government will expand its consultation with First Nations and will assess the additional upstream greenhouse gas emissions caused by the project. It is directing the NEB to expand its public and community engagement activities and will appoint up to three new members to the Board to help. It remains to be seen if the NEB will react to the government’s direction and use the additional time wisely and correct the flaws that occurred in the Trans Mountain process. For instance, the additional time could be considered by the NEB as an invitation to require cross-examination.

What the federal government didn’t do — but could have done — was stop and reform the entire Energy East review before it begins. TransCanada submitted its revised application in December and the NEB has not yet determined if the application is complete. Intervenors in the process have not been selected and the NEB has not issued a hearing order setting out the review process. The government’s new measures leave it to the NEB to decide whether the Energy East review becomes a rerun of the Trans Mountain process. Here, the government missed a golden opportunity to put the entire process on hold until legislative amendments could effectively repair the damage done by the Harper government’s rollbacks.

For other projects already under review or new projects that enter the environmental assessment process before legislative reforms are made, the government announced five principles that will apply:

  • Projects which have already started in the environmental assessment process will continue in that process;
  • Decisions will be based on science, traditional knowledge of Indigenous peoples and other relevant evidence;
  • The views of the public and affected communities will be sought and considered;
  • Indigenous peoples will be meaningfully consulted; and
  • Direct and upstream greenhouse gas emissions (GHGs) will be assessed.

These are a welcome start, but they do not address key underlying problems. For example, the restrictive timelines set by the Harper government’s 2012 reforms remain in place. This means intervenors will still be rushed to retain experts, gather evidence, and present it to the regulator. For major projects, there may be inadequate time for oral cross-examination of expert witnesses.

Prescribed climate test misses half the picture

The interim measures falter further when it comes to capturing climate impacts related to major projects. While upstream greenhouse gas emissions will be assessed and reported (also note: It’s not clear how this information would be applied in a regulatory context), this climate test does not consider downstream greenhouse gas emissions.

In the case of a pipeline, this means carbon pollution associated with producing oil for transport will be assessed (upstream impacts), but carbon pollution emitted once that oil is burned (downstream impacts) will not. Furthermore, this test will not determine whether a project’s total climate impact is consistent with the carbon reduction targets set in Paris.

There is no time to get this climate test wrong. To that end, here are three refinements we propose:

  • It must consider downstream and upstream GHGs. To look at upstream impacts is to only consider part of the equation. At least half of project emissions will come from the downstream side of things. This cannot be overlooked.
  • It must do more than simply assess and make public the GHGs. There must be a meaningful commitment to reduce, mitigate, adapt — or otherwise cut emissions if Canada is to take its commitment to keeping global warming below 1.5 degrees seriously.
  • These GHG emissions must be considered within the broader Canadian energy context. This means that instead of looking at project emissions in isolation, ideally, we should consider them in concert with Canada’s overall emissions. This would be fairer to Canadians and industry, and it could enable a meaningful dialogue about how reductions can most effectively and quickly occur. While this conversation rightfully lies outside project review processes, it is one that needs to happen.

Looking ahead

While they could be improved, these interim measures still count as steps in the right direction. We urge the government to honour its commitment to consult with Canadians and move quickly to heal the trauma of the Harper government’s environmental law rollbacks.

Ecojustice will continue to contribute to that discussion to ensure that Canada’s environmental assessment processes are inclusive of all Canadians, make robust use of the available scientific and Indigenous knowledge, have adequate time for thorough review and cross-examination, and align with Canada’s carbon reduction targets.