Back to top

Environmental Assessments by NEB not a Bright Idea

March 4, 2010

West Coast Environmental Law has been working with communities along the controversial proposed Enbridge Pipeline and oil tanker route  to make sure that their views are fully considered in any government decision. The Enbridge pipeline is intended to bring tar sands oil to the BC’s Pacific North Coast to be loaded onto tankers. The project’s environmental assessment will be conducted by a Joint Review Panel (a joint body pooling the environmental assessment responsibility of the Canadian Environmental Assessment Agency with the regulatory authority of the National Energy Board). The Joint Review Panel will be composed exclusively of temporary and permanent members of the National Energy Board – who, as Friends of Wild Salmon have noted, have limited experience dealing with BC’s environmental issues, with First Nations in BC, and with BC’s unique salmon habitat. It seems from yesterday’s federal budget that we can look forward to a future filled with environmental assessments for major energy projects performed by agencies that lack strong, specialized environmental assessment experience.

They’d hinted as much in last week’s Throne Speech [at page 9]:

To support responsible development of Canada’s energy and mineral resources, our Government will untangle the daunting maze of regulations that needlessly complicates project approvals, replacing it with simpler, clearer processes that offer improved environmental protection and greater certainty to industry.

But at least some of the details were released in yesterday’s budget [at page 104]. Specifically, the government is taking responsibility for environmental assessments of energy projects away from the Canadian Environmental Assessment Agency – an agency with special expertise in conducting environmental assessments – and giving control of the environmental assessments over energy projects to the National Energy Board – an agency which doesn’t (with the exception of nuclear facilities, which are being delegated to the Canadian Nuclear Safety Commission).

Don’t get me wrong – if you want an agency that has as one of it’s goals ensuring that “Canadians benefit from efficient energy infrastructure and markets” – I can think of no more qualified agency than the NEB. I’m being flippant, and I should acknowledge that the NEB also has environmental protection goals, but the point is that not all government agencies serve the same role or function in the same way. You can’t assume that an environmental assessment carried out by one government agency would be as transparent, credible and effective if it were carried out by another.

Gary Schneider of the Canadian Environmental Network – Environmental Assessment Caucus has made this point well. In addition to the differences in mandate, Schneider points out that the individuals who serve on the NEB are less independent from the federal government and more likely to have previous ties to the energy industry:

Under CEAA, panel members are not employees of the federal government in their capacity as panel members and receive only a stipend while participating in an assessment. Generally, individuals are asked to participate on a particular review panel because they have some relevant expertise and they are recognized as upstanding citizens in their community. … In the case of the NEB, the panel members for a particular hearing are members of the full NEB. … These individuals are employed by the NEB, an independent federal agency considered to be part of the “federal family.” …

 The backgrounds of panel members can be vastly different as well. A look at the NEB shows a membership with strong ties to the oil and gas industry. From the NEB’s perspective, this is probably quite logical. Panel members for CEAA reviews often have a broader scope of interests and backgrounds.

As we’ve said previously, streamlining environmental assessment processes is only a good thing if the environment does continue to be protected. So what does turning environmental assessments over to the NEB mean for the quality of environmental assessments?

In 2006 the federal government authorized the NEB to conduct the environmental assessment in respect of the Emera Brunswick Pipeline, in New Brunswick. The proposed pipeline was to go right through a popular St. John’s park, sparking a high level of public concern. The NEB Panel conducted its assessment which was approved by the federal cabinet in May 2007.

The NEB has developed a highly technical, court-like process with tight time-lines for making its regulatory decisions. Apparently the agency did not let the fact that in this case it was also conducting an Environmental Assessment, with requirements for public participation, interfere with its usual process.

While there are differences of opinion in how well the process worked overall, there was widespread agreement that the process did not work well for ordinary members of the public who wanted to participate. According to a report prepared by the Canadian Environmental Assessment Agency:

Those satisfied with the process were typically professionals for whom environmental assessment processes are a job responsibility. They were familiar with the format, the technicalities, the types of information reviewed, and the decision-making process. Many had staff members and/or legal counsel to assist with their participation. Their satisfaction was chiefly based on the perceived efficiency and timeliness of the substituted process, coupled with their belief that the process did allow an effective forum for meaningful public participation.

Those dissatisfied with the process were often members of the general public, most of whom were somewhat, if not wholly, unfamiliar with the details and workings of this type of tribunal process. They were also, for the most part, people whose participation fell outside the realm of their own professional responsibilities. Their primary issue with the process was the quasi-judicial nature of the proceedings, which let to a perceived imbalance, favouring the hearing towards those participants (including the proponent) who had the resources to employ legal representation.

Indeed, even some professionals who felt that the process had worked well expressed concern that the public had not been involved well. Some comments by members of the public clearly indicate their high level of frustration:

I think the time was designed to minimize the cost to the corporate sector because they are all dealing with billable hours and unfortunately the community side was not dealing with that so there wasn’t reasonably an appropriate amount [of] time. This was in addition to our workday so you’d spend your day at the session, go through the transcripts that night – it was awful and it was designed to minimize their costs.” (Intervenor)

[T]his framework and talking to people who have sat on these boards it is calculated to be intimidating. When they walk in to their raised dais everyone rises – it is quasi-judicial. It succeeded in its design to be intimidating. After the intimidation factor the imbalance factor – you had community members on the right hand side and you looked to the left were the suits and these were … on one side you had grandmothers and grandfathers and people who are just people as opposed to lawyers and staff people. My staff people was me.” (Intervenor)

The CEAA evaluation also noted the limits of the NEB’s process in meeting the federal government’s constitutional obligations to consult aboriginal groups: “The National Energy Board does not engage in separate Aboriginal consultation during the hearing process, nor can the NEB be deemed to represent the Crown with respect to the duty to consult Aboriginal groups.”

Despite the rather serious problems with public input, the CEAA evaluation found that the assessment had met the specific requirements created by the government for the pilot project, and declared it a qualified success. However, reports by members of the Canadian Environmental Network – Environmental Assessment Process Substitution: a Participant’s View and Environmental Assessment Process Substitution: Is Meaning Public Participation Possible – put greater weight on the importance of public participation, and thus were very critical of the process.

The government’s budget announcement seems to be a step backwards for fair public process around major energy project decisions. We also think it’s a move in the wrong direction to sideline the agency that has environmental assessment expertise – the Canadian Environmental Assessment Agency – in favour of having the National Energy Board conduct assessments of energy projects. We would also be surprised if First Nations, who must be consulted on decisions affecting their constitutionally-protected rights, have been involved in the decision to completely change the way that energy projects in their traditional territories are assessed. As far as we are aware, there has been no such consultation, nor any public consultation in general about this major policy change.

We have been informed by the federal government that the environmental assessment for Enbridge, which was started before the government’s budget announcement, will be unaffected. Nevertheless, the federal government will need to officially clarify whether these new rules apply only to new environmental assessments or whether assessments which are currently underway will be affected. We will all have to wait for the Budget Implementation Act to be tabled in the House of Commons, in order to understand the precise details of what the Finance Minister has announced.