Gearing up for the NEB Kinder Morgan pipeline hearings

In early February, I made my way through the complex, web-based, National Energy Board (NEB) website to apply to be an intervenor in the upcoming hearings on the proposed massive expansion of the Kinder Morgan pipeline and tanker traffic to export unprocessed bitumen.

On April 3, the NEB announced those who would be allowed to comment (write a letter) and those who would be allowed to intervene (actively participate in the hearings.)

One big change between when the Enbridge Northern Gateway project went through the NEB hearing process and now is the impact of the spring 2012 omnibus budget legislation, Bill C-38. The repeal of the Canadian Environmental Assessment Act and its replacement with the bogus CEAA2012 law in Bill C-38 has stripped rights of public participation from the framework of Canadian environmental law.

In its place, we have a narrowing of access to review processes to those “directly affected.” As well, we have a mandated shortening of allowed review times. While the Enbridge hearings took several years, the Kinder Morgan process is limited to 15 months. The NEB recommendations on Kinder Morgan must be submitted to the federal Cabinet by July 2, 2015.

It would be the height of naiveté to think the NEB is likely to say “no” to any pipeline. It never has. On the other hand, it is a critical opportunity to make the case that the project is ill-conceived, reckless and that the case against it is based on solid evidence.

Arbitrary choices

Over 2100 organizations and individuals applied to participate. The results have been reported: 400 were approved as intervenors, 1200 were approved as commenters, and 468 were rejected outright.

There was no rationale put forward. Some residents, neighbours opposed to the project who put forward similar applications, found one approved and one denied.

Some environmental groups were rejected, such as Dogwood Initiative, while others, such as Nature Canada, were accepted.

The NEB press release said only “These persons did not demonstrate to the Board’s satisfaction that they are either directly affected by the project, or are in possession of relevant information or expertise that will assist the Board in its assessment.”

A further reading reveals some surprises. The term “intervenor” brings to mind citizens concerned about the project – pro and con. But out of 400 intervenors only 225 are individual citizens. The list of intervenors includes six federal departments within the Government of Canada, the Government of Alberta, three BC provincial departments, 24 municipal governments, as well as representatives from the US government (the Environmental Protection Agency) and the State of Washington.

Twenty-one environmental groups got the nod, but so too did 16 fossil fuel based corporations. Enbridge will be an intervenor on Kinder Morgan’s application, as will Chevron, Imperial-Exxon, Nexen (owned by CNOOC of the People’s Republic of China), Statoil, (state owned enterprise of the government of Norway) and BP Canada, among others.

I was one of those accepted. I applied as an individual, but I based my application on having “relevant information or expertise.” I defended my level of expertise and relevant information by both my professional background in environmental law and policy, but also as the Member of Parliament for Saanich-Gulf Islands. I wrote “Geographically, Saanich-Gulf Islands lies directly in the route of the bitumen-loaded tankers that would service the proposed projects. As such, my constituents are deeply concerned about this project and expect me to represent their concerns in this process.”

My colleagues in the House, NDP MPs Peter Julian and Murray Rankin were also accepted, as was Green Party MLA Dr. Andrew Weaver. Green Party Interim BC Leader Adam Olsen was accepted as an individual, but in the First Nations focused area of review.

An impressive 60 First Nations applied and all were accepted, including the four First Nations within Saanich-Gulf Islands. First Nations issues will be dealt with in hearings through the fall. The hearings will resume for all others in January.

As an intervenor, I have been approved to deal with all 12 issues for discussion that the NEB will allow: potential environmental and social effects of the project, cumulative environmental effects, economic feasibility of the proposed project, appropriateness of the general route and land requirements of the proposed project, the potential environmental and socio-economic effects of marine shipping activities, impacts of the project on Aboriginal Interests, contingency planning for spills, accidents and malfunctions and the economic feasibility of the project. Disallowed from discussion will be the upstream impacts of allowing expansion in the oil sands, as well as climate impacts.

Rights of intervenors usually include rights of cross-examination on evidence. In this case, these rights are being limited. I am considering legal action to protect rights to cross-examination.

I would be very grateful for your help. I want to represent as many constituents as possible. I am open to any creative proposals. I hope to present evidence gleaned from the enormously knowledgeable and engaged citizens of Saanich-Gulf Islands and other impacted communities.

The risks to our communities from over 400 tankers a year, loaded with bitumen mixed with diluents, must be exposed. We need to engage as many like-minded allies as possible, including the potential of the State of Washington and the US EPA raising objections. We must never give up! Our waters, our coastline, the marine environment and the species who depend upon them are far too important.