Streamlined Environmental Assessment - and how that’s working out
When the Harper government changed the environmental assessment law in 2012, they said it was to ”streamline” a process that was susceptible to being ”hi-jacked” by opponents intent on ”interfering” with energy projects. The government was referring to the fact that thousands of citizens chose to participate in the Northern Gateway public review process. Public review processes were invented to involve the public in decision-making. For the Harper government, this is “interference.”
Under the new law, the TransMountain Pipeline assessment hearings were supposed to be wrapped up in just 15 months. In order to do that, one of the most important procedures in our legal system was discarded: cross-examinations were replaced with a written “Information Request” process that was supposed to be faster. The Hearing Order set fixed dates when we could ask questions about the evidence presented by TransMountain.
Yet 11 months after the NEB declared Kinder Morgan’s application complete, pulling the trigger on all those timelines, the company is still seeking leave to file new evidence to fill the many gaps in its application.
What was missing from the 15,000 page application filed in December 2013? Kinder Morgan hadn’t figured out the pipeline route. That was critical, because only people who are “directly affected” by the project were allowed to intervene. And how would we know who is directly affected when we don’t know where they want to put it?
Also missing at the time the NEB declared the application “complete” was a Human Health Risk Assessment and an Emergency Response Plan. The TERMPOL report—a federal committee review of plans for the port and marine component—wasn’t filed until December 2014. Now, the company seeks leave to file geotechnical evidence that is critical to the assessment of spills.
All of these deficiencies (and dozens more) have caused delays, extensions and/or additional rounds of information requests that have combined to extend the hearing’s timelines and increase the workload of the assessment for all parties quite dramatically. Kinder Morgan’s failure to answer those information requests led to thousands of hours of work on motions compelling them to answer, only to find the NEB ruling that the information is unnecessary. (So much for our substitute for cross-examination.)
Maybe the NEB should have waited until Kinder Morgan had all its ducks in a row to start the hearing. It’s supposed to be over by now. Instead, we’re waiting for new evidence to be filed (and yet another round of information requests) even as we face a May deadline to file our experts’ reports assessing that very evidence.
According to the revised schedule the hearings will close in October, with the NEB’s recommendations going to Cabinet by January 2016. By then the process will have taken 21 months and it may stretch longer. The panel reviewing the Northern Gateway application heard from all interested parties, held oral cross examinations and heard oral arguments; it delivered final recommendations after 31 months.
At what cost has the Harper government expedited the TransMountain assessment by 10 months? Public participation, procedural fairness, expert assessment and development of effective mitigation measures have all been compromised—and that is just about every reason we have to hold public environmental assessments.