The National Energy Board cannot be allowed to review any projects until it’s completely reformed, pleaded 50 organizations in a letter sent to the Prime Minister on Wednesday. Signatories argue that the NEB has lost the legitimacy to approve massive pipelines like TransCanada’s Energy East or Kinder Morgan’s Trans Mountain.
“We are calling on you to put aside the fundamentally flawed work that has been done by the NEB to date. Overhaul the NEB, renew the confidence of Canadians in the federal government’s pipeline review process and, only after this has been accomplished, assess these projects in an atmosphere that is not plagued by the legacy of the Harper era.”
The letter is signed by multiple environmental activist groups, as well as the WestCoast Environmental Law Agency and the Aboriginal People’s Council.
Last week, the NEB was forced to suspend consultations on the Energy East Pipeline when it became clear that the concerns over the neutrality of its commission board were not about to die down. The National Observer had previously revealed that two of the three commissioners on the board had covertly met with Jean Charest, then acting as a lobbyist for TransCanada.
The NEB first denied that it happened, then apologized for it but allowed the review to continue with all commissioners still on board. Last week, after protesters successfully disrupted the consultation in Montreal, the NEB agreed to suspend the Energy East consultations while they decide what to do with the two problematic commissioners.
A Band-aid over a bullet hole, claim the harsher critics of the NEB.
“Of course the board members who acted inappropriately should recuse themselves, but this will not solve the credibility gap that is plaguing the pipeline review process in Canada,” argues the letter.
The Problematic History of the NEB
Misconduct of commissioners is not the NEB’s biggest problem; its entire history is. The National Energy Board Act is a 1985 reworking of legislation from the early sixties. It was meant to evaluate the safety and the practical matters of energy infrastructures. This only changed four years ago when Stephen Harper abolished the Environmental Assessment Agency and assigned the NEB to take over part of its duties.
It’s now clear that the NEB’s structure has failed to adapt to its new mission.
Commissioners of the NEB are politically appointed and many of them have been employed by oil businesses at some point in their careers.
Their public consultations are often criticized for their lack of accessibility. Anyone who wants to be heard must prove that they are directly affected by the project in question and register several months in advance.
The scope of their assessment is limited to direct consequences, which is in itself an archaic concept. Modern environmental assessments cannot refuse to consider impacts of oil production or tar sands development or of an increasingly oil-dependant national economy. All these matters are classified as upstream activities or downstream effects and as such, they are not considered by the NEB.
All of this might explain why the National Energy Board only rarely rejects a project. It had even approved (under 200 or so conditions) the Northern Gateway Pipeline, despite overwhelming opposition from the communities near its path. In fact, the appeals court later reversed their decision, judging that aboriginal communities had not been adequately consulted.
The NEB’s credibility is more than a little compromised. A CBC poll from last march suggests that 51% of Canadians have little or no confidence in the National Energy Board. People from Quebec and British Columbia, respectively affected by the Northern Gateway and Energy East, were most skeptical.
Just a couple of days ago, Ipolitics’ Chris Wood published a particularly scathing opinion piece on the matter: “The NEB is obsolete, an anachronism, a captive service agency for one particularly toxic, last-century industry, rather than a police force for the public interest. Increasingly, it’s also a laughingstock.”
“Modernization” in progress
The government recognized that the National Energy Board review process was facing a crisis of confidence long before the mess of the Energy East consultations. In fact, “restoring the population’s trust in the National Energy Board” was a key promise of the Liberal electoral platform.
An expert panel is already mandated to examine the National Energy Board’s functioning as part of a large review of environmental regulations launched this summer. They should provide the Ministry of Natural Resources with a report full of recommendations about how to modernize the NEB by January. These recommendations, if the government decides to listen to them (which is not a sure thing, history tells us), should be implemented by June 2018. Interim measures have been defined, but they do not seem to alter much of the process.
Meanwhile, the assessments of Energy East, Trans Mountain and other projects mostly piloted by NOVA Gas Transmission and Enbridge are allowed to go on unimpeded.
Environmental groups are pressing Trudeau to be consistent. Now that he has recognized that the NEB needs to be modernized, he should not allow it to take such major decisions until it is.
* Featured image from More Canada! Twitter
