May to NEB: Kinder Morgan Expansion Fails Public Interest Test

BURNABY, BC — In the final argument phase of the National Energy Board hearing in the application from Trans Mountain to expand the Kinder Morgan pipeline from Alberta to the lower mainland of British Columbia, Elizabeth May, MP for Saanich-Gulf Islands and Leader of the Green Party of Canada catalogued the many failures of the process. Critical to her argument is that the lack of cross-examination meant that the evidence presented by Trans Mountain is unreliable and untested.

May focused her arguments on the multiple claims by the proponent that were never subjected to proper scrutiny due to the unprecedented decision to deny rights of cross-examination.  “I first appeared before the NEB as counsel back in 1981.  I am familiar with how the NEB used to function.  It was court-like and it was open to the public and media.  This process has been a dangerous departure from the NEB’s traditional role,” she noted.

May pointed out in her argument that only due to the omnibus budget bill of spring 2012 (C-38) was the NEB entrusted with assessing the environmental impact of the proposed expansion — “a role to which it is ill-suited and inexperienced.”  Only due to the time limitations inserted in C-38 under the gutted and inadequate replacement of real environmental assessment with CEAA2012 did the board justify the unprecedented decision to eliminate oral cross-examination.

“I hope I made it clear to the NEB that not only is this is a violation of procedural fairness, it fundamentally undermines the probity of the evidence. Lacking oral cross-examination, the written questions were never answered by the experts or those who did studies and reviews, but by Trans Mountain’s legal team.  Nearly every intervenor complained that answers were non-responsive.  But it is much worse than that,” explained May.  “In essence, none of the witnesses were available to answer any question – whether orally or in writing.”

May pointed out that Trans Mountain’s claims that bitumen behaves just as ordinary crude in the marine environment is based on one study conducted in water tanks in Gainford, Alberta.  That one experiment ran for ten days.  The Gainford study is contradicted by numerous and more rigorous studies. Unlike the Gainford ten day study, the evidence relied upon that bitumen forms oil balls that sink was tested through peer-review.

Similarly, Trans Mountain dismisses the risk of serious tanker accidents, even though it will be increasing tanker traffic from one a week to one a day.  It minimizes the risk of pipeline ruptures and spills.  But, strangely, considers the risk of pipeline workers spreading Avian flu by wandering into poultry barns a risk worthy of consideration.

“In conclusion, I submit that the NEB has no choice but to find that this project is not in the public interest.  It is opposed by the Government of British Columbia, the municipal governments of Vancouver, Victoria, Burnaby, North and West Vancouver, the regional government of Metro Vancouver, the Tsartlip and Tsawout First Nations within my riding of Saanich-Gulf Islands – nations who correctly point out that their very specific treaty rights under the Douglas Treaty are violated by this process – as well as the majority of the constituents of Saanich-Gulf Islands.”

Watch BC Green Leader Andrew Weaver’s testimony here (begins at 3:48:30).

Watch the testimony of BC Greens Deputy Leader Adam Olsen here: