The New “Interim” Pipeline and Energy Project Approval Process: Bill C-38 Redux? (January 2016)

On Wednesday of this week Environment and Climate Change Minister Catherine McKenna and Natural Resources Minister Gary Carr announced a new “interim” approval process for certain pipeline and energy resource development projects that were already in or approaching the National Energy Board (NEB) approval process. These are reported to include the Alberta to BC Trans Mountain Kinder-Morgan Pipeline Project, the Alberta to New Brunswick Energy East Pipeline, Prince Rupert Liquid Natural Gas Terminal and crude-to-rail terminals.

The new process is based on five principles:
• No project proponent will be asked to return to the starting line — project reviews will continue within the current legislative framework and in accordance with treaty provisions, under the auspices of relevant responsible authorities and Northern regulatory boards;
• 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 where appropriate, impacts on their rights and interests will be accommodated; and
• Direct and upstream greenhouse gas emissions linked to the projects under review will be assessed.

The announcement brought immediate negative responses from First Nations and leaders of communities in British Columbia affected by the proposed energy projects to be covered by the “interim” process. Their response was not surprising given that the implication of Wednesday’s announcement is that the reviews of the pipelines and other projects will effectively continue under the Canadian Environmental Assessment Act and NEB rules established by the Conservative Government in 2012 though its notorious Bill C-38. Bill C-38 drastically narrowed the scope of federal environmental assessment and NEB reviews, and established a series of barriers to public participation in the review processes.

The only apparent legislative foundations for the “interim” process are the provisions of Bill C-38 assigning final decision-making authority under CEAA and the NEB Act to the cabinet. The new process appears to add a separate consultation and climate change impact assessment process to the existing approval process. The consultation and climate change process would apparently function as inputs into the cabinet’s final decision-making process. There is no clarity about how these processes will work in practice, and the only indication of the basis on which the cabinet would make final decisions, is that its choices will be in the “national interest.” Legal basis for an answer of “no” to a project under the “interim” process could be very thin, particularly if it relies on evidence gathered outside of the formal review process. Those with concerns about the projects covered by the “interim” process may realize this and see it as adding some steps on the road to a yes, not a process for the real review of how these projects affect sustainability, climate change or the future direction of Canada’s economy and environment.

The Liberal platform, Mandate Letters to the Ministers of Environment and Climate Change, Natural Resources, Fisheries and Oceans and others, and December 4, Speech from the Throne all seemed to recognized that Bill C-38 had streamlined the CEAA and NEB processes to the point that they had lost their capacity to establish the legitimacy of decisions. The platform, mandate letters and Throne Speech all promised substantial reform to the CEAA and NEB processes to restore their status and meaningful processes for consultation, the gathering and assessment of evidence and decision-making. Those promises are now postponed, potentially for years.

Beyond the disappointment of voters concerned about the environment and climate change flowing from the deferral of one of the central features of the Liberal’s environmental platform, the government’s approach carries with it other, very high political risks. The “interim” process means that the cabinet will be taking full and direct ownership of any decisions regarding the pipelines and other energy projects. There will be no political cover in the form of NEB or environmental assessment decision that the cabinet might later intervene to “modify” to address regional or public concerns. This is a dangerous situation given that the regions were opposition to new pipelines and energy projects is strongest – BC, Quebec and Ontario, were key factors in the Liberal government’s electoral success on October 19, 2015.

Environmental assessment processes have the potential to function as mechanisms for the evidence-based examination and resolution of significant societal disputes over the distribution of costs, benefits and risks associated with major projects. It was precisely that potential which Prime Minister Trudeau’s father recognized forty years ago when he established what was effectively Canada’s first major environmental assessment process – the Mackenzie Valley Pipeline Inquiry (a.k.a. the Berger Commission) – in 1974. The current situation of intensifying regional divisions over the future direction of energy resource and infrastructure development, and its implications for the environment, climate change and Canada’s economy, requires as substantive a response as was the case then. “Interim” measures will not do.

Mark Winfield, Linked-in, January 29, 2016,


New pipeline rules to be unveiled today (January 2016)

New pipeline rules to be unveiled today
By Elizabeth Thompson | Jan 27, 2016 10:48 am

Natural Resources Minister Jim Carr scrums with media in Ottawa on Monday, January 25, 2016. iPolitics/Matthew Usherwood

After nearly a week of heated political debate over the benefits of the Energy East pipeline, the federal government will announce its long awaited transition rules for existing pipeline proposals later today, says Natural Resources Minister Jim Carr.

“People want to know that the process is up and running and fair,” said Carr, speaking to reporters on his way into a caucus meeting.

A technical briefing for journalists will begin under embargo at 4 p.m, followed by a press conference with Carr and Environment Minister Catherine McKenna.

The announcement comes after days of argument over pipelines in general and Energy East in particular following Montreal Mayor Denis Coderre’s public criticism of the proposed project last Thursday and the subsequent backlash, particularly from Alberta politicians touting the economic benefits of the project. Coderre softened his rhetoric Tuesday following a meeting in Montreal with Prime Minister Justin Trudeau.

Carr said he has consulted widely across the country while developing the rules to be announced today.

“We have had round tables in Winnipeg and in Halifax, with industry leaders, environmental groups, indigenous leaders, community leaders, union leaders. So the consultation has been wide and broad and it will deepen over time.”

The new rules will also benefit the economy, he said.

“If the question is what it will mean for the economy, if major energy projects have the confidence of Canadians, the answer is that it will be good news for the Canadian economy.”

As for what those new rules would be, Carr remained tight lipped. The rules are likely to affect several proposed projects.

The Energy East pipeline, which would carry 1.1 million barrels of oil a day from Alberta to refineries in eastern Canada, has had a record of controversy. Critically, the project includes connecting the oil sands to Irving’s Oil refinery in Saint John, New Brunswick, where crude could be put on the world market.

The 4,600-kilometer project sparked a backlash around certain communities in Quebec and Ontario after it was first proposed in late 2014. Both the Quebec and Ontario provincial governments issued criteria for the construction of the pipeline, despite only being able to act as intervenors in an application process managed by the federal National Energy Board.

One of those criteria was having the climate change impacts of the pipeline evaluated as part of the permitting process, though media reports suggested the governments latter dropped the requirement. Carr’s changes today could re-introduce the idea at the federal level.

The impact of today’s announcement will also be felt on the other side of the country, where US firm Kinder Morgan has applied to expand its Trans Mountain pipeline in southern B.C. Hearings on the project have opened the pipeline to sharp criticisms from environmentalists, First Nations and municipalities.

Like Energy East, the transition process announced by Carr would apply to the Trans Mountain project.

Enbridge Inc.’s Northern Gateway pipeline in northern B.C. has also drawn criticism in recent years but it has long finished the federal segment of its approval process, meaning today’s changes won’t likely affect its permit. However, a plan by Trudeau to ban tanker traffic on the B.C. coast could imperil that project.

With files from James Munson.

Ottawa to mandate climate tests for proposed pipelines, LNG terminal

Ottawa to mandate climate tests for proposed pipelines, LNG terminal


OTTAWA — The Globe and Mail

Published Monday, Jan. 25, 2016 9:46PM EST

Last updated Monday, Jan. 25, 2016 10:02PM EST


federal government plans to require a separate climate test for proposed pipelines and a planned LNG export terminal, which are now under regulatory review, to determine their impact on Canada’s greenhouse-gas emissions, a move that could impose new delays on billion-dollar projects.


climate analyses are part of proposed measures – which include additional First Nations consultations – that Ottawa will impose on Kinder Morgan’s Trans Mountain expansion and TransCanada Corp.’s Energy East, both currently before the National Energy Board, a government source confirmed Monday. The measures will also apply to Pacific NorthWest’s planned LNG export terminal, currently in front of the Canadian Environmental Assessment Agency.


Liberal government is facing angry pipeline politics that are creating regional divisions in the country as political leaders in Quebec and British Columbia vehemently oppose projects that Alberta’s government and industry insist are critical to their economy. That fight spilled into the House of Commons Monday as Parliament resumed, with battle lines being drawn over the government’s energy and environmental agenda.


Resources Minister Jim Carr and Environment Minister Catherine McKenna are expected to announce the measures next month. During the election campaign and in his publicly released mandate letters to ministers, Prime Minister Justin Trudeau promised more robust environmental review of resource projects, including assessing their impacts on the country’s greenhouse-gas (GHG) emissions.


Carr’s spokeswoman would not confirm the measures, saying cabinet had not made any decisions. “We are working intensely on a transition process for pipeline projects currently under NEB review that is consistent with our mandate and our commitment that no project will need to return to square one,” Micheline Joanisse said Monday. “We will have more to say in the near future.”


ministers have said projects currently under review by regulators will not be forced to go back to square one with rewritten rules, but will face additional hurdles that will be outside the quasi-judicial regulatory process. The former Conservative government enacted sweeping changes to that process that have been condemned by project opponents, including environmentalists, municipal officials and First Nations.


economy-wide carbon plan will be an important part of the review of the upstream GHG impacts of pipelines, notably the cap on emissions from the oil sands, the federal source said. An industry official who was briefed on the federal measures said the oil and gas sector is being hammered by low prices and worries that delays on export infrastructure will dampen prospects for renewed investment when prices rebound.


the House Monday, Conservative MPs criticized the Liberal government for failing to support the economically battered, resource-based provinces against critics who would deny landlocked producers access to markets. “Does [Mr. Trudeau] understand his lack of leadership on this issue is creating divisions in the country?” Conservative interim leader Rona Ambrose said.


Prime Minister said the government supports the notion that Canadian resources need to reach new overseas markets, but added the public needs to be assured that projects are being done in an environmentally sustainable manner and accused the previous government of failing to win public support for pipelines.


are working very, very hard right across the country with municipal leaders, with provincial leaders to make sure we’re creating the social licence, the oversight, the environmental responsibility, [and] the partnership with communities to get our resources to market in a responsible way,” he said in the House. “Because that’s what it takes in the 21st century.”

A political firestorm erupted last week when Montreal-area mayors, led by Montreal’s Denis Coderre – himself a former Liberal MP – rejected TransCanada’s $15.7-billion Energy East project even before the National Energy Board has begun public hearings on it.


of Vancouver and Burnaby, meanwhile, are opposing Kinder Morgan’s $6.8-billion expansion of the existing Trans Mountain pipeline from Alberta to Vancouver harbour, while Liberal Premier Christy Clark said the company has not provided enough information on spill prevention and response. The NEB is in the final stages of oral arguments on the project review and will report in May to federal cabinet, which has the power to approve or reject the board’s recommendations.


has already signalled it believes more consultations with First Nations over the Trans Mountain project are required. On Friday, a federal court in B.C. agreed to a Justice Department motion to adjourn a challenge by the Tsleil-Waututh First Nations against the NEB hearings. The Justice Department acknowledged that Ottawa had not adequately consulted with the Tsleil-Waututh First Nations, which agreed to engage with government on “nation-to-nation” consultations. The community, however, is still scheduled to appear at the NEB hearing on Tuesday to oppose the Trans Mountain project.


Liberal government is eager to conclude the additional reviews and consultations on Trans Mountain within the three-month timeline prescribed in the National Energy Board Act for cabinet to deliberate, sources said, though the act also gives the government the power to grant itself limitless extensions. “We would be concerned with any additional process that would add to the [approval] timeline significantly,” Kinder Morgan spokeswoman Ali Hounsell said.


NEB chair Gaétan Caron said the board has long refused to consider what impact a specific pipeline would have on GHG emissions in the producing or refining sectors because there are too many uncertain variables. “The NEB has determined in the past that the upstream and downstream climate-change effects of a pipeline are not relevant because that pipeline in and of itself has no bearing on the rate of production of hydrocarbons in Alberta or the rate of consumption at the other end of the pipeline,” he said.


have warned that the expansion of liquified natural gas export terminals on the coast will drive up greenhouse-gas emissions in the province by encouraging the production of shale gas in northeast B.C., while the industry argues the gas will help drive down global emissions by replacing coal in Asian power grids. Pacific NorthWest LNG – which is controlled by Malaysia’s state-owned Petronas – wants to build an $11.4-billion terminal on Lelu Island in the Port of Prince Rupert.

Follow Shawn McCarthy on

Twitter: @smccarthy55

Natural Resources Minister Will Not “Rush” NEB Overhaul (January 2016)

Natural Resources Minister Jim Carr has reiterated the federal
government’s pledge to overhaul the National Energy Board in order to
restore public confidence in Canada’s pipeline review process. But the
promised legislative changes will not come quickly.

“You don’t rush your way into decisions that affect not only today, but
generationally in Canada in the new world of sustainably moving
resources to market,” Carr said Monday while attending the federal
cabinet’s retreat in New Brunswick.

Over the last month, the Union of B.C. Indian Chiefs and Burnaby Mayor
Derek Corrigan requested Carr and Prime Minister Justin Trudeau suspend
the review of Kinder Morgan’s Trans Mountain pipeline to avoid a
decision being pushed through a process they claim is “deeply flawed.”
Trans Mountain’s final hearings began as scheduled on January 19 in
Burnaby, British Columbia.

“The minister is correct, we shouldn’t rush the creation of a new
process,” Andrea Harden-Donahue, energy and climate justice campaigner
with the Council of Canadians, said. “But continuing with the flawed
Kinder Morgan and Energy East reviews is entirely inconsistent with
Liberal promises. How can a ‘transition strategy’ rectify the failings
around public participation and Indigenous consultation for these
projects. I don’t see how this can happen.”

“We are not saying pipeline companies have to go back to square one,”
Harden-Donahue told DeSmog Canada. “All evidence submitted goes on hold
and this can be supplemented with additional evidence after the changes
are made.”

Trudeau’s government has been clear on several occasions pipeline
projects currently under National Energy Board review will not be forced
to go back to “square one,” that is, begin their application process
completely from scratch.

The legislative changes during the Harper government’s 2012 omnibus bill
frenzy severely weakened key pieces of environmental protection
legislative like the Navigable Waters Protection Act and the Species At
Risk Act. The National Energy Board Act and the Canadian Environmental
Assessment Act were also altered to ensure proposed pipelines made it
through the regulatory process within 15-months, no matter how complex
those projects may be.

“Some pipeline reviews may fall into that time limit. On the other hand,
large projects with clear risks like Energy East or Kinder Morgan may
not and this is problematic,” Harden-Donahue told DeSmog Canada.

There is little doubt the massive surge of public participation in the
Northern Gateway pipeline hearings in B.C. served as the impetus for the
Harper government to slap time limits on project reviews. With the
exception of the Mackenzie Gas Project, the Board took less than 15
months to make its decisions on project applications between 2004 and 2012.

The controversial Northern Gateway proposal to pipe oilsands (also
called tar sands) bitumen to B.C.’s northern coast drew records numbers
of public participants for regulatory hearings and took four years to
complete. The Board approved the project, albeit with over 200
conditions, in 2014.

By allowing pipeline reviews to proceed under the previous federal
government’s rules, the Liberal government may be condemning projects to
go back to ‘square one’ regardless. First Nations, and environmental
organizations over the last four years have not been hesitant to take
pipeline reviews to court over violations of ‘aboriginal’ rights or the
freedom of expression.

In some cases, pipeline opponents are winning these legal battles,
particularly those launched by First Nations.

Last week, the B.C. Supreme Court ruled in favour of coastal First
Nations who argued in their case against Northern Gateway that the B.C.
government fail to consult them about the pipeline proposal. The
provincial government is now required to meaningfully consult coastal
First Nations on the project, which many believe to be dead already.

Similar scenarios could play out for other pipeline projects.

The Board’s review of Trans Mountain faces a legal challenge by
Tsleil-Waututh First Nation. Energy East has not come up against a legal
case yet, but Treaty 3 First Nations in Ontario have vowed not to allow
the pipeline to go through their territory without their free, prior and
informed consent.

Line 9 pipeline, one of the first pipelines to be approved by the Board
in the post-2012 omnibus bill era, is also being challenge by Deshkaan
Ziibing (Chippewas of the Thames). The Ontario First Nation plans on
taking their case all the way to the Supreme Court of Canada.

By Derek Leahy • Tuesday, January 19, 2016 – 16:50