Posted on April 17, 2014 (updated: June 20, 2019)

Environmental groups challenge tight timelines in National Energy Board review of Trans Mountain pipeline expansion

Vancouver- Lawyers for Living Oceans Society and Raincoast Conservation Foundation filed a motion with the National Energy Board today, seeking an extension of the deadline to make information requests related to the Trans Mountain pipeline review. The motion comes amidst concerns that the National Energy Board has turned its review of Kinder Morgan’s Trans Mountain pipeline expansion into a hollow exercise by cutting all oral cross-examination from the process.

Living Oceans Society and Raincoast Conservation Foundation were each granted intervenor status at the National Energy Board’s hearing into the proposed twinning of the Trans Mountain pipeline. Now the groups, represented by Ecojustice lawyers, believe that they, and other intervenors, will not be able to fully engage in the review given the unrealistic timelines established by the Board.

The motion asks the Board to extend the timeline for the first round of information requests, and to stop the clock until Kinder Morgan files Human Health Risk Assessments, which were to be filed with the Board in early 2014. At this point, the 400 intervenors have just 30 days to review the 15,000-page application and submit their first round of questions about the application to Kinder Morgan.

Changes to the National Energy Board Act in 2012 truncated the hearing process to 15 months. “The changes to the National Energy Board Act looked bad on paper, but are even more troubling in practice, now that we are embarking on another major pipeline review with the Trans Mountain expansion,” said Karen Campbell, staff lawyer at Ecojustice. “It will be a real problem for our clients to fully critique the application and present expert evidence within the current hearing timelines and structure,” she added.

What was not expected was the Board’s decision to opt for a “paper hearing,” which consists of an online exchange of documents, rather than a full oral hearing of the evidence. Lawyers will have no opportunity to cross-examine Kinder Morgan’s experts on the information that they have provided about their proposed project.

The process set by the Board for the hearing into the Trans Mountain pipeline expansion is a radical departure from the Enbridge Northern Gateway pipeline hearings. The latter included more than 90 days of cross-examination, and an opportunity for more than 1,000 people to make statements to the Board. Ecojustice lawyers hoped the Trans Mountain pipeline expansion would be subject to an equally robust process.

“There are high-stakes, contentious issues that are being addressed in this hearing,” Campbell said. “The decision to disallow oral cross examination means that critical questions will go unasked and unanswered. There will be very little opportunity to test the information in Kinder Morgan’s application, which is why the opportunities that we have must be as robust and meaningful as possible.”

The Trans Mountain expansion proposal may triple the amount of oil and diluted bitumen shipped through the pipeline. If approved, the number of tankers carrying oil and bitumen through Vancouver Harbour and the Gulf Islands each year may increase from about 60 to more than 400.

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