Can the Liberals have their NEB Modernization and Pipelines Too?

Hurry!  Friday, March 31, 2017 is the last day to submit comments to the NEB modernization panel.  You can do so online here.  See below for some suggestions for comments.  


On an icy evening in  early February I made my way to a hotel conference room in Mississauga to deliver my two cents to the panel appointed to “modernize” the National Energy Board, the body that assesses federal energy infrastructure such as pipelines.

To jog your memory, NEB reform was a key part of our Prime Minister’s  environmental campaign platform, which gave a detailed commitment to “ensuring [the NEB’s] composition reflects regional views and has sufficient expertise in fields like environmental science, community development and Indigenous traditional knowledge” and that a Liberal government would "ensure that environmental assessments include an analysis of upstream impacts and greenhouse gas emissions resulting from projects" and "will undertake, in full partnership and consultation with First Nations, Inuit and the Métis Nation, a full review of laws, policies and operational practices."  This was prompted by an unprecedented low in public trust of the NEB, as well as the rise of pipeline politics as a point of debate in the federal election.

In what has become the Trudeau Liberal’s M.O, the panel appointed to carry off thes feat of regulatory modernization promptly scheduled public consultations across the country.  As someone who spent the summer attending local MP “climate consultations” throughout the GTA, to seemingly no results, I admit I approached this consultation with a healthy amount of scepticism.  But participate we must, if only to avoid the charge of not having participated.   Warning signals to the legitimacy of the modernization process came right on cue.  First, 3 out of 5 members appointed to the supposed neutral “expert” panel proved to have ties to the fossil fuel industry, including many of the same companies with recent or current pipeline proposals.  This sort of “too close for comfort”, industry-captured bias is exactly one of the crises of public confidence the modernization is meant to address.  Second, very little notice was given for the Toronto consultation, as well as a somewhat inaccessible venue and times.  Third, while the 2nd day of consultation (in all parts of the country) is meant to hear input from Indigenous groups, when I contacted the Chippewa of the Thames, whose appeal to the approval of the Line 9 pipeline reversal based on failure to consult was heard by the Supreme Court in November,  they had not been invited to speak to the panel, nor had they heard of the consultation.  It seems to me like if you’re doing a consultation to look into a lack of consultation, you might want to consult with those who have brought forward charges of failure to consult.  But hey, that’s just my consultation.  

Perhaps most suspect about the modernization process is that it was not initiated in advance of or applied to recently approved pipelines TransMountain, Line 3 and Line 9, nor will it be applied to currently re-started Energy East pipeline NEB hearings (which was re-started after NEB members recused themselves upon accusation of conflict of interest--again, just the sort of the thing causing the crisis of confidence).  Given that these pipelines alone would increase the capacity of tarsands expansion beyond the GHG cap already imposed by the Alberta government, it would seem that the purpose of exempting these projects from modernization, means that the Liberal government wants to have it’s NEB modernization and its pipelines too.

Nevertheless, the expert consultation panel that February night seemed open to input and critique by the small number of people who braved the weather to make it out.  Earlier that day, as in previous consultations in several organizations made more formal presentations, most of them environmental groups calling for more and better funded public participation and access to information, Nation to Nation consultation with Indigenous communities, and alignment between NEB assessment and Canada’s climate change commitments.  The individual citizens at the consultation (including me!)  mostly reflected these points as well.  From my research, industry reps have been mostly absent at the consultation, suggesting, perhaps, that industry is not overly worried about their voices being heard in the NEB modernization process.  Perhaps they have another venue to be heard?

Doubt about the process aside, I do think that my trip out there was worth it, if only to learn, be involved, and assert my belief in the democratic process.  I do encourage everyone to submit written testimony before the March 31st closing date.  Here are some of the main points I made, which you are free to use (as I mostly borrowed them from other orgs/people anyway (See this Pembina Report)

Energy and Climate Policy should be Inseparable:  Our government made commitments to mitigate climate change by ratifying the Paris climate agreement, setting greenhouse gas emissions reduction targets for 2020 and 2030.  Energy regulators need to catch up to these policy trends.  Energy regulation could play a role in enabling  Canada’s road to decarbonization.   Currently the NEB fails to assess climate change impacts in its activities, from project reviews, to data production and monitoring. Modernizing the NEB should be about applying best available climate science to reviews of major infrastructure projects, ensuring projects are consistent with Canada’s climate commitments, and protecting Canada’s long-term public interest in moving towards decarbonization and renewable energy.

The NEB needs a mechanism to monitor for and prevent against industry capture, bias and conflict of interest.  The energy regulator must make decisions based on independent evidence that is freely available to the public. Independence should be established by avoiding conflict of interest between industry, consultants and the energy regulator in the selection criteria of its members that review energy project. Regular reviews of potential conflicts of interest should be made by an independent reviewer.  The requirement that permanent NEB commissioners reside in Calgary should be removed to ensure diverse regional representation.


Needs Assessment based on Up-to-date Forecasting Data:project needs assessments should draw on up-to-date, independent energy forecasting data that examines the implications of domestic and international climate action on the economic viability of proposed projects. This includes scenarios where all parties to the Paris Agreement, including Canada, respect commitments to limit global warming to 1.5 degrees and to achieve greenhouse gas emissions neutrality by the second half of the century.  

Full Integration of Indigenous Rights:  the legitimacy of the NEB modernization process hinges on the extent to which it can ensure the participation of diverse Indigenous groups, and should apply principles of reconciliation and Nation to Nation relationship .  Regulators should take steps to uphold the principles and obligations as outlined in the United Nations Declaration on the Rights of Indigenous Peoples, including the right to free, prior and informed consent. Indigenous groups and peoples must be enabled to participate fully in all stages of regulation, decision-making, monitoring, management and governance of energy projects that affect their traditional lands


Public Participation:  the public should have the right to participate in all aspects of the regulatory process and have access to, funding,  all evidence, information and expertise involved in the decision-making process, including the right to cross-examine project proponents and their information.   


Modernization recommendations should be applied to current project applications, such as Energy East, and recent project approvals such as Transmountain Pipeline Expansion, Line 3 Expansion, Line 9 reversal and Keystone XL should be subjected to further review once the modernization recommendations are in place.  

March 31st is the last day to submit online comments to the modernization.  Feel free to use some of mine or your own and provide your 2 cents today!  

You can see all the notes published from the Toronto consultation here

Read the Pembina Institute’s detailed recommendations for NEB modernization

Find out more about the modernization review process