Council of Canadians seeks to appeal Energy East ruling

I signed my first affidavit earlier this week. I’m proud to be part of the Council of Canadians effort to appeal the National Energy Board’s pre-mature and flawed list of issues for the Energy East pipeline.

So what’s this all about?

On April 14, the National Energy Board issued two Lists of Issues that will be used to judge the Energy East project.

The first problem with the List of Issues is pretty straight forward. The list was issued before TransCanada has filed its full project description to the Board creating a classic ‘put the cart before the horse’ scenario.

More problematic is the limiting nature of the list. The NEB is happy to hear evidence about the commercial, economic, supply and market impacts of the project, such as tax revenues, royalties and job creation. But it refuses to consider the upstream and downstream activities associated with the development of ‘oil sands’ or the end use of the oil to be transported.

In other words, the NEB doesn’t want to consider evidence indicating that filling Energy East would increase our climate change emissions by 32 million tonnes per year. This is more emissions then any one Atlantic province. It is enough emissions to undo the emission reductions in Ontario’s phase out of coal – what has been referred to as the most effective climate change policy in Canada. 

It doesn’t want to hear evidence that this is first and foremost an export pipeline. Or what the impacts on downstream First Nation communities would be of the close to 40% increase in the tar sands production that could be spurred by this project’s approval.

We believe this is in conflict with the NEB’s mandate to promote “safety and security, environmental protection and efficient energy infrastructure and markets in the Canadian public interest within the mandate set by Parliament in the regulation of pipelines, energy development and trade.”

In light of these serious flaws, we’re calling the list procedurally unfair, biased, and contrary to law.

As Maude Barlow, National Chairperson of the Council of Canadians, stated back in April, reacting to the list, “the NEB is acting in bad faith and demonstrating yet again how biased it is towards the oil industry. This is another attempt to abdicate their authority over energy development in Canada, turning it into a free-for-all.”

Working with Jason MacLean, assistant professor of law at Lakehead University who conducts research and practices in the area of environmental law, we’ve submitted a motion seeking leave to appeal the list before the Federal Court of Appeal.  You can read our press release here.

The NEB and the federal government must now respond to our application to appeal before the court decides whether the case can go forward.

Our application to appeal adds to a growing list of legal challenges involving the NEB. This includes challenges to the new rules significantly restricting public participation and the NEB's recommendations for Enbridge’s proposed Gateway pipeline

The Harper government’s infamous 2012 federal omnibudget bills gutted the Fisheries Act, removed protections from 99 per cent of lakes and rivers under the former Navigable Waters Protection Act and amended the Canadian Environmental Assessment Act to cancel 3,000 environmental assessments. At the request of industry, the changes to the Navigable Waters Protection Act specifically exempt pipelines from review under the act.

The omnibudget bills also included provisions preventing people from commenting at NEB hearings or giving written submissions to the Board. The controversial changes force people wanting to participate to submit a 9 page application on why they have a right to speak on the issue. The NEB then chooses who gets the right to speak and limiting participation to those they consider to be ‘directly affected’ by the project.’  They also gave Cabinet the final veto power on pipeline projects based on the NEB’s recommendations.

I will continue to provide updates as this appeal procedures.

For more about our campaign: Energy East: Our Risk - Their Reward