National Energy Board faces legal challenge over new rules on public hearings

Image from Tar Sands Solutions Network

Image from Tar Sands Solutions Network

Vancouver – A group of landowners, business people, academics and environmental advocates are launching a second constitutional challenge to the National Energy Board (NEB) review of the Kinder Morgan Trans Mountain pipeline.

The motion filed asserts that the NEB review process unfairly restricts public participation as a result of process design, unduly rejects participant applications, and refuses to hear concerns related to climate change or oil sands development.

“Last year in Omnibus Bill C-38 the Harper Government snuck in amendments to the NEB process that restrict who can speak before the National Energy Board and limit what individuals are allowed to say,” said Ben West, Tar Sands Campaign Director for ForestEthics Advocacy.

Kinder Morgan, a U.S. company, has applied to nearly triple the capacity of its Trans Mountain project – a 1,150-km pipeline carrying oil sands bitumen from Alberta to the British Columbia coast. The expansion would increase shipments from 300,000 barrels per day to 890,000 by 2017.

Testimony filed in the legal challenge by Mark Jaccard and Danny Harvey illustrate that oil sands mining would increase significantly to meet the intensified barrels-per-day target. This would have significant climate implications and tanker traffic off the BC coast would also grow dramatically, increasing the risk of a major oil spill.

“President Obama has set a ‘climate test’ for Keystone yet in the Kinder Morgan pipeline review NEB does not allow Canadians to talk about climate change,” said applicant and noted activist Tzeporah Berman. “Canadians deserve a fair public debate about the future of our economy and energy systems. Right now, they aren’t getting it.”

New rules passed by the NEB in response to the Harper government’s new laws require Canadians to fill out an invasive eleven-page application form, to be allowed to even write a letter to the National Energy Board, which approves pipeline projects.

Because of the new rules, many individuals who apply will never be permitted to have their say, and even more will never apply in the first place. Furthermore, Canadians with comments about human health impacts, downstream environmental impacts, or climate change effects are not permitted to comment on those issues.

“The National Energy Board was established to conduct public hearings in order to assess whether or not an infrastructure proposal such as that made by Kinder Morgan is in the public interest, and in the past, it has done so,” said David Martin, legal counsel to the applicants. “But in 2012, at the urging of the oil industry, the Harper Government amended the NEB Act so that its hearings would be completed in an unreasonably short period of time, and would curtail the public’s right to meaningfully participate.”

The new legal motion challenges this new law, arguing that it violates the public’s right to freedom of expression. If approved, the Kinder Morgan proposal would greatly impact residents, say the group’s lawyers, so the public should have access to a full hearing, and the right to express itself and be heard.

“It makes no sense to shut over 450 people out from even writing a letter to voice their input to the National Energy Board. This is a huge decision that will affect people’s communities for generations to come,” said Josh Paterson, executive director of the BC Civil Liberties Association. “For years, anybody who wanted to express themselves on these large projects could freely write a letter and actively participate in these public hearings. Now the National Energy Board and the federal government have changed the rules, keeping out what people have to say. In a democracy, we should be encouraging participation, not building walls to keep people out of public decision-making.”

This is the second time the National Energy Board Act amendments will be challenged. In August 2013, ForestEthics Advocacy launched a similar lawsuit related to Enbridge’s proposal to reverse the flow and substantially increase capacity of its Line 9B pipeline. The Line 9B case will be heard in court in Ontario in early spring.