Feds new pipeline rules show some promise, but the devil is in the details

Natural Resources Minister Carr and Environment and Climate Change Minister McKenna just concluded a press conference announcing new rules for pipeline projects.

Today’s much anticipated announcement comes amid a tumultuous two weeks where Kinder Morgan’s proposed Trans Mountain pipeline expansion and TransCanada’s Energy East project were capitulated onto a national news stage, unlike anything we’ve seen before.

Earlier today, I wrote a blog outlining what we wanted to see in today’s announcement.

Here are some details about the new rules and an assessment based on what we want to see in pipeline reviews. Details included here are informed by a government backgrounder, and in viewing today’s press conference.

Today’s announcement confirms both a transition process for existing projects and a longer term overhaul of environmental assessments and the National Energy Board (NEB) that will reportedly happen over the course of two years.

The principles guiding the transition process are:

  1. Project proponent are not forced to start over
  2. Process is science-based, employs traditional ecological knowledge and other relevant evidence
  3. Views of affected communities are sought and considered
  4. Process supports First Nation consultation and accommodation 
  5. Process includes direct and upstream greenhouse gas emissions linked to project 

Status of the Energy East project:

Energy East will fall under an interim review based on 5 principles. 

This interim review for Energy East means (directly from the government backgrounder):

Energy East Pipeline

  • Natural Resources Canada will undertake deeper consultations with Indigenous peoples potentially affected by the project and provide funding to support these consultations;
  • To help facilitate expanded public input into the National Energy Board review process, including public and community engagement activities, the Minister of Natural Resources intends to recommend the appointment of three temporary members to the National Energy Board; and,
  • The Government of Canada will assess the upstream greenhouse gas emissions associated with this project and make this information public.”

The press conference revealed that it will take 27 months to make the final decision on Energy East, which translates (if we take now as the starting point) into April 2019. This is another significant delay for TransCanada, that already had to push back its proposed project timeline in light of cancelling the controversial proposed Cacouna port. 

Status of the Kinder Morgan Trans Mountain project:

Kinder Morgan’s proposal will also fall under the interim system. In addition to the above principles, more specifically (also from the government backgrounder):

The Government of Canada will:

  • Undertake deeper consultation with Indigenous peoples and provide additional funding to support participation in these consultations;
  • Assess the upstream greenhouse gas emissions associated with this project and make this information public; and,
  • Appoint a Ministerial Representative to engage communities, including Indigenous communities potentially affected by the project, to seek their views and report back to the Minister of Natural Resources.

Overall, it is clear that the clear criticisms of communities, groups, individuals, First Nations and experts have with the current NEB process are being recognized and heard. 

There will be a climate test for pipelines.

There are efforts around improved consultation with First Nations and communities.

There is a longer term goal of modernizing the NEB and environmental assessments given how weakened they have become (particularly under Harper changes).

It remains to be seen how rigorous these changes will really be. First off, Energy East should not be under a transition process, but rather then new NEB and Environmental Assessment process. As argued earlier, the Energy East review really hasn’t begun yet (no announced intervenors or timeline for hearings) so why allow it to proceed under an admittedly flawed process? 

The details around what public engagement will actually be remain vague and its hard to envision a transition or supplementary process that will actually redress the clear flaws exhibited in the Kinder Morgan Trans Mountain and TransCanada Energy East reviews.

Assessment based on the deficiencies and needed actions we’ve outlined for pipeline reviews:

Address the clear deficiencies highlighted in the most recent audit http://canadians.org/blog/audit-national-energy-board-reveals-ongoing-incompetence by the federal commissioner of the environment and sustainable development.

ANSWER: It was suggested in the press conference that the NEB modernization will happen over the course of 2 years and that the interim process will inform it. No direct response to the deficiencies highlighted in the most recent audit.

Fix the broken consultation process with First Nations along pipeline paths. This must be consistent with the government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) including obtaining  the free, prior and informed consent before issuing federal permits.  It must ensure that the process includes the ability of Indigenous peoples to exercise their decision making authority according to their respective laws and governance systems.

ANSWER: The government, in these principles, is committing to ‘deeper consultations.’ When asked a direct question about whether this will include respecting ‘free prior and informed consent’ as outlined in the United Nations Declaration on the Rights on Indigenous Peoples (UNDRIP), Minister Carr dodged a direct answer. Instead he referred to recent Supreme Court decisions and their ambition to engage in a way that factors in their cultural background and includes this in federal decision making.

Implement a new process to ensure all proposed projects are subject to a climate test that includes the upstream emissions from filling the pipeline and is consistent with Canada’s stated support for a 1.5 degree limit on global warming.  

ANSWER: The government is committed to applying a climate test for pipelines. It appears that this will fall not under the NEB, but will be a responsibility of the Canadian Environmental Assessment Agency.  It was suggested that the government would do the assessment, there would be an opportunity for public input, and then this would be presented to Cabinet alongside the NEB recommendations and other supplementary information, for the Cabinet’s final decision on projects.

Interestingly, McKenna does confirm that projects will be assessed based on their ‘upstream’ (filling the pipeline, so including oil production) and ‘direct’ (construction) greenhouse gas emissions. McKenna dodged a question about whether these assessments will include downstream emissions (emissions from burning the oil).

There was no mention of the 1.5 degree global warming limit Canada supported in Paris during the climate negotiations. This will be key to evaluating whether this climate test does what it needs to do.

Ensure there is meaningful public consultation on pipeline reviews, including both Kinder Morgan and TransCanada’s pipeline projects. Currently participants need to demonstrate they are “directly affected” by a pipeline or have “relevant expertise.” We’ve seen participants apply to the Kinder Morgan review with clear concerns including around oil spills in their community and the climate impacts of the project, that were rejected. While the list of approved intervenors for Energy East has yet to be announced, without intervention it is set up for the same fate. All concerned Canadians should be allowed to meaningfully participate.  

ANSWER:  The responsibility to ‘engage communities’ further on Trans Mountain is falling largely to the Ministry of Natural Resources and on Energy East, the principles are meant to inform the NEB process and where this isn’t possible, it will be the responsibility of the Ministry of Natural Resources. We definitely need more details here, on first blush, this threatens to not be the type of comprehensive consultation we need and want.

What of the many voices rejected from the Kinder Morgan review, will they be reached out to?

Further, it’s no small irony that Minister Carr keeps saying extensive consultations with a range of environmental, labour and industry groups led to these five principles (mentioning Winnipeg and Halifax). We certainly weren’t aware of this opportunity, is he talking about the budget consultations? This foreshadows badly for meaningful consultation.

Based on the principles and actions outlined in the backgrounder, it does not appear that the lack of oral cross examination in the Kinder Morgan review will be addressed, it is unclear for Energy East. Since the NEB process is near complete on the Kinder Morgan review, presumably additional funding will not be available for applicants, it is unclear whether this will change for Energy East. It is also unclear whether the proposed plans to ‘engage communities,’ both Indigenous and non-Indigenous, will include access to funding to support people’s involvement.  

Ensure science-based oil spill analysis including a risk assessment for spills within federal and provincial jurisdiction, and evidence supporting world-class spill preparedness and emergency response measures is allowed. This includes allowing the National Academy of Science study on the effects of spilled bitumen, which the NEB has refused in the Kinder Morgan review, into evidence.

ANSWER: It appears that this falls to the wayside in the interim measures, other then what people bring forward in forthcoming engagement with the Ministry of Natural Resources and potentially the NEB for Energy East. From what I heard today, it doesn’t sound like the current proposals will see the NEB allow evidence on the National Academy of Science study on the effects of spilled bitumen in the Kinder Morgan review.