Questions and Answers
Trans Mountain Expansion Project
- Is the project now approved or does the applicant need any further permits or licenses?
- What happens next? When will we know if the Governor in Council is going to accept the Panel's recommendation?
- Assuming that the Government accepts the Panel's recommendation, when is the earliest date that construction could begin?
- How long does Trans Mountain have before the certificate expires? (sunset clause)
- How much time did the Board take before making this decision public?
- Does the NEB consider the Project feasible given the current low oil price environment?
- How does the report reflect the input from the affected Parties?
- How did the NEB consider the environment in its assessment of the project?
- Why did the Panel not consider the effects of this project on climate change? Or how the Project relates to oil sands development?
- Why did the Panel consider marine shipping?
- The report acknowledges that the impact to Southern Killer Whales as a result of increased tanker traffic will be significant. Why did the Panel recommend approval of the proposed project given these findings?
- The panel heard evidence from intervenors about the risks of transporting bitumen by ocean transport. How could the Panel conclude that this project is in Canadian’s best interest?
- Why did Panel members recommend the Project, given the opposition that was expressed to them?
- What would the Panel say to people who feel like you didn't really listen to their views?
- The NEB was criticized for not including oral cross examination in the hearing. Is this the first time oral cross was not included in a hearing?
- What recourse does one have if they do not agree with the NEB’s recommendation?
- How does the Board ensure compliance?
- Are there any provincial approvals required for the project?
- How are concerns by landowners addressed by the Board?
- Will public get to see Trans Mountain’s Emergency Response Plans?
1. Is the project now approved or does the applicant need any further permits or licenses?
The National Energy Board’s (NEB) found that the Trans Mountain Expansion Project (Project) is in Canada’s public interest and recommends that Governor in Council (GIC) approve the Project, subject to 157 conditions.
The final decision on whether or not the Project should proceed will be made by the Governor in Council (GIC). The NEB’s recommendation report is one of the factors that GIC will consider when making the final decision on whether or not the Project should proceed.
In January 2016, the Government of Canada announced it would undertake deeper consultations with Indigenous peoples, further engage the public and affected communities along the proposed pipeline routes, and undertake an assessment of upstream greenhouse gas emissions for the Trans Mountain Expansion Project.
The Minister of Natural Resources Canada indicated that he would seek an extension to the legislated time limit for the GIC decision, extending the date for a decision from August 2016 to December 2016.
2. What happens next? When will we know if the Governor in Council is going to accept the Panel's recommendation?
The Panel's recommendation report has been submitted to the Minister of Natural Resources. GIC has said it will make a final decision by December 2016 on whether or not the Project should proceed.
If GIC approves the Trans Mountain Expansion Project, the NEB would be required, within seven days of GIC’s order, to issue a Certificate of Public Convenience and Necessity (CPCN), and 7 other orders (see Appendix 2 of the Report). The final conditions would form part of the certificate.
GIC can also dismiss the application, or request that the NEB reconsider its recommendation or any of its terms or conditions. This reconsideration could result in the NEB confirming, removing or replacing matters contained in the report.
3. Assuming that the Government accepts the Panel's recommendation, when is the earliest date that construction could begin?
Trans Mountain has said that construction could begin in 2017 and that it is anticipated that the Project would be completed by late 2019.
4. How long does Trans Mountain have before the certificate expires? (sunset clause)
Certificates of Public Convenience and Necessity usually include a Sunset Clause. In the case of the Trans Mountain Project, the sunset clause states that the certificates and associated orders will expire on September 30, 2021, unless the Project has commenced or the NEB otherwise directs prior to that date.
5. How much time did the Board take before making this decision public?
Under the NEB Act, the Board is required to issue a decision within 15 months of an application being determined to be complete, subject to any modifications permitted under the NEB Act. The Board determined the application was complete on April 2, 2014, and issued its recommendation report May 19, 2016.
The Board initiated two excluded periods during this time to request additional information from the company. The phrase “excluded period” refers to the provision in the NEB Act that allows the NEB to exclude a period of time from its legislated 15-month time limit.
The first excluded period was from July 15, 2014 February 3, 2015 to allow Trans Mountain to file additional studies related to a new preferred corridor through Burnaby Mountain. The second excluded period was from September 17, 2015 to January 8, 2016 to allow the hearing panel to acquire information from Trans Mountain and intervenors in relation to evidence that was stricken from the record August 21, 2015.
6. Does the NEB consider the Project feasible given the current low oil price environment?
In the NEB’s view, there is adequate supply to support the capacity of the Project and the NEB is satisfied there is sufficient market to absorb the volumes. The NEB does not have any concerns with the economic feasibility of the Project.
7. How does the report reflect the input from the affected Parties?
Each chapter of the report outlines some of the views of the participants as well as the views of the NEB. In addition, the 157 conditions attached to the recommendation were developed as a result of the NEB’s thorough scientific and technical examination of all of the evidence filed by participants. For example, evidence provided by the Grasslands Conservation Council of British Columbia, led to the inclusion of conditions about grassland protection and management, and evidence submitted by municipalities of the lower mainland of B.C. led to the inclusion of conditions for the creation and operation of technical working groups.
8. How did the NEB consider the environment in its assessment of the project?
The NEB considers environmental protection as part of its public interest mandate under the NEB Act and assesses environmental protection in each application before it. It also conducted an environmental assessment of the Trans Mountain Expansion Project under the Canadian Environmental Assessment Act (CEAA 2012).
As a responsible authority under the CEAA 2012, the NEB must, in its report to the Governor in Council, set out its recommendation regarding the environmental effects of a project. Specifically, the NEB provides a recommendation that a project is likely, or is not likely, to cause significant adverse environmental effects after taking into account the implementation of mitigation measures.
Regardless of whether the NEB’s environmental assessment falls under the NEB Act or the CEAA 2012, the NEB provides one comprehensive environmental assessment that covers all regulatory requirements.
The NEB has decades of experience in considering potential environmental effects when making its regulatory decisions. Environmental aspects have been considered in Board decisions under the National Energy Board Act since the early 1970’s. In addition, the Board has been conducting EAs under the Canadian Environmental Assessment Act since it first came into force in 1995.
9. Why did the Panel not consider the effects of this project on climate change? Or how the Project relates to oil sands development?
The NEB understands Canadians are concerned about Climate Change – NEB staff and members care about it too. Detailed reasons for not including Climate Change in the List of Issues were provided in Ruling 25 [Filing A61912].
Since upstream and downstream facilities were not directly linked or part of this project application, the NEB did not consider the environmental and socio-economic effects of those as part of its review.
The NEB focused its assessment on the amount of greenhouse gas emissions from the Project, and considered whether regulatory conditions were required as mitigation beyond existing federal or provincial regulatory requirements.
The NEB included Condition 142 requiring Trans Mountain to develop an offset plan for the Project’s entire direct construction-related greenhouse gas emissions determined post-construction. The intent of the offset plan would be to confirm that there are no net greenhouse gas emissions from Project construction.
The Alberta Energy Regulator, under the authority of the Government of Alberta, Regulates oil sands development.
The NEB also does not regulate the emissions resulting from the public’s demand for and consumption of energy.
10. Why did the Panel consider marine shipping?
The NEB’s regulatory oversight of the Project, as well as the scope of its assessment of the Project under the CEAA 2012, reaches from Edmonton to Burnaby, up to and including the Westridge Marine Terminal (WMT).
Marine vessel traffic is regulated by government agencies, such as Transport Canada, Port Metro Vancouver, Pacific Pilotage Authority and the Canadian Coast Guard, under a broad and detailed regulatory framework. All of these agencies participated in the NEB’s hearing process. As the NEB does not have regulatory oversight of marine vessel traffic, any changes to the existing regime would be the responsibility of those competent authorities.
However, the NEB did consider the potential environmental and socio-economic effects of Project-related tanker traffic, including the potential effects of accidents or malfunctions that may occur in coming to its public interest determination under the NEB Act.
11. The report acknowledges that the impact to Southern Killer Whales as a result of increased tanker traffic will be significant. Why did the Panel recommend approval of the proposed project given these findings?
The Board found that Port Metro Vancouver and the Marine Regional Study Area currently support a large amount of vessel traffic, and the level of traffic is expected to increase, with or without Project-related marine vessels.
The Department of Fisheries and Oceans and other organizations are currently undertaking numerous initiatives to support the recovery of the Southern resident killer whales, including finalizing the Action Plan for the Northern and Southern Resident Killer Whales in Canada. As part of the Marine Mammal Protection Program, Trans Mountain has committed to support the objectives and recovery measures identified in the Action Plan. The Board encourages these initiatives that prioritize and implement specific measures to promote the recovery of the southern resident killer whale.
12. The panel heard evidence from intervenors about the risks of transporting bitumen by ocean transport. How could the Panel conclude that this project is in Canadian’s best interest?
The NEB considered the probability as well as the consequences of a spill in its assessment of the evidence before it. Based on its analysis of the evidence outlined in Chapter 14, the NEB found that there would be very low probability of a large oil spill.
The NEB also reviewed evidence from other authorities responsible for the marine oil spill preparedness and response regime, and that regime is functioning appropriately. Trans Mountain does not own the Project-related marine vessels and therefore, does not have direct control over the vessel owner’s pollution response planning. Evidence filed by Trans Mountain, Transport Canada and Canadian Coast Guard confirms that vessel owners must have an agreement in place for spill response with Western Canada Marine Response Corporation, and vessels must also have a Shipboard Oil Pollution Emergency Plan.
13. Why did Panel members recommend the Project, given the opposition that was expressed to them?
Recommendations made by quasi-judicial regulatory tribunals such as the NEB are based on a review of scientific and technical information placed on the record during a public hearing.
The NEB balanced the benefits against the residual burdens (burdens that exist after mitigation through Conditions) to come to its final determination as to whether the Project is in the public interest. This task of balancing the benefits versus the burdens of the Project was a difficult one.
After considering all of the evidence in this hearing, all relevant factors, and given that there are considerable benefits nationally, regionally and locally, the NEB found that the benefits of this Project outweigh the residual burdens. As a result, the NEB recommends that Governor in Council find this project to be in the Canadian public interest.
14. What would the Panel say to people who feel like you didn't really listen to their views?
The Panel designed and implemented a hearing process that encouraged and supported meaningful public and Indigenous participation. The Panel heard local, regional, and national perspectives about the Project from individuals, Indigenous Groups, and other groups who indicated that they would be affected by the proposed pipeline.
The Panel heard and considered all views and evidence, both written and oral, as it related to the list of issues, to determine whether the proposed Project is in the public interest. It was important for the Panel to gain a broad perspective on all aspects of the Project before making its recommendation.
15. The NEB was criticized for not including oral cross examination in the hearing. Is this the first time oral cross was not included in a hearing?
No. The hearing process can take many forms, and incorporate a combination of formats. As an example, in the Enbridge Line 9B hearing evidence was testing in writing without cross examination. Other large hearings such as Gateway had cross examination. The hearing process can range from a process where impacted people can provide written comments to the Board, to a written public hearing, to an oral public hearing [see our website “Types of public hearings at the NEB” for more detail]. However, all of these formats incorporate a testing and challenging function – no application for a project is approved without a comprehensive and science-based review of, among other things, the engineering specifications and potential safety impacts, the environmental and socio-economic impacts, the economic implications, and the possible impacts on Indigenous rights and interests.
It is important to note that the absence of oral cross-examination does not mean that the evidence of the proponent is not tested or challenged – it is thoroughly tested and challenged by the NEB’s expert staff, through the written questioning process, and the filing of information that comes to different conclusions, and through the submission of final argument. Whatever type of hearing process used by the NEB, it must be fair to all participants. The Board determined this hearing was fair and met natural justice requirements. The Board also indicated it would pass on comments about the process for the consideration of future Board panels.
16. What recourse does one have if they do not agree with the NEB’s recommendation?
All NEB decisions are subject to independent and impartial judicial oversight, generally through the Federal Court of Appeal and Supreme Court of Canada, and the NEB is bound to act in accordance with the court’s decisions.
17. How does the Board ensure compliance?
There are various methods to ensure compliance, including inspections. The Board routinely conducts compliance meetings and inspections of pipeline projects to verify regulatory compliance. The Board also conducts audits of company management systems. These regulatory activities continue throughout the life of a project.
Each year the NEB conducts targeted compliance verification activities including six comprehensive audits and at least 150 inspections of regulated companies. This is in addition to the 100+ technical meetings and exercises conducted on an annual basis. These tools are effective in allowing the Board to proactively detect and correct non-compliances before they become issues.
18. Are there any provincial approvals required for the project?
In addition to the Board’s approval, companies may still need separate approvals from other jurisdictions. It is the responsibility of the company to determine what permits and licenses are required.
19. How are concerns by landowners addressed by the Board?
Concerned landowners can contact the Board to access its Landowner Complaint Resolution Program and the Appropriate Dispute Resolution (ADR) processes which involve informal and formal options for resolving outstanding issues.
20. Will public get to see Trans Mountain’s Emergency Response Plans?
The NEB has issued a Board Order that directs NEB-regulated pipeline companies to publish their emergency procedures manuals online for public viewing by September 30, 2016. This would apply to Trans Mountain’s existing emergency procedures manuals.
If this project receives all the necessary approvals, Trans Mountain will be required under the Onshore Pipeline Regulations, to fully develop an emergency response plan prior to beginning operations. This would be filed and fully assessed once the detailed routing is known. Because the detailed routing information is necessary to perform this assessment, it would be premature to require a fully detailed emergency response plan to be filed at the time of the Project application.
For Q&A around the Conditions attached to the recommendation, see Backgrounder: Conditions.
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