NEB Voids Energy East Proceedings
Today's Decision and the Path Forward
The NEB announced a decision today that concurs with TIK and Ecojustice's January 10, 2017 motion regarding the consequences of the previous panel's recusal due to a reasonable apprehension of bias.
"The Panel decides that, given the recusals and the applicable case law, all decisions made by the previous panel must be, and are hereby, voided and stricken from the record. These will be removed from the online public registry. This decision effectively voids the last decision of the previous panel to adjourn the process. As described below, the Panel is now taking steps to begin a new hearing process."
TIK is pleased with this decision - the only one possible by law.
However, this decision does nothing to address the underlying problems inherent in the pipeline regulatory review process in Canada. In 2012, the Harper government's legislative changes to the National Energy Board Act created a process intended to streamline pipeline approvals. Instead, the 2012 legislation restricted public participation and narrowed the scope of reviews to such an extent that public confidence in the process has become dangerously eroded, leading to numerous ongoing legal challenges to the regulator on many of its files.
The Trudeau government campaigned on promises to reform this flawed legislation, to restore credibility to the regulatory process. And yet, this government failed to hold Energy East to a more reliable new review process. Instead, they have allowed the process to continue under the Harper government's rules. A year ago today, they merely added some additional policy measures that are not grounded in law. These so-called interim measures for pipeline review do not amend a fundamentally flawed process and will fail to deliver a result that the Canadian public finds credible. Moreover, with today's announcement, the likely timeline for the Energy East review will place this politically fraught decision in Cabinet's hands just in time for the 2019 federal election.
This year, the federal government is undertaking a comprehensive review of the laws under which the NEB operates. Public consultations are underway now, with recommendations going to Cabinet in May. Legislative reforms are anticipated later this year.
In TIK's view, the prudent course of action would be for Cabinet to issue a moratorium on further pipeline reviews, pending the completion of anticipated legislative changes. While we appreciate Cabinet's commitment to see that pipeline reviews are completed in an efficient and fair manner, we recognize that continuing to operate under legislation that we know delivers contested outcomes is not the most efficient path forward for anyone.
How Did We Get Here?
In August 2016, TIK and Ecojustice filed a Notice of Motion requesting the recusal of NEB panelists reviewing Energy East due to the reasonable apprehension of bias resulting from those members having taken private meetings with a paid lobbyist for the project applicant, TransCanada, in January 2015. These meetings, we alleged, contravened the NEB's Code of Conduct guidelines.
On September 9, 2016, the NEB agreed with us, and the entire Energy East panel recused itself. Their final decision before recusal was to adjourn the formal review process, thus pausing the 21-month technical review that had started in June 2016.
On January 9, 2017, the NEB appointed a new review panel for the project. The following day, TIK and Ecojustice filed a new motion outlining the consequences of the recusal due to the apprehension of bias - namely that the only remedy for a process tainted by the apprehension of bias is to void its proceedings and start anew. Today's decision reflects the Board's agreement with our arguments.