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General · 5th December 2014
Ray Grigg
The National Energy Board (NEB) is supposedly an independent legal body constituted by the government of Canada to consider evidence on proposed energy projects and then to objectively decide if such projects as oil or gas pipelines are in the “public interest”. But, true to its literal name, the NEB almost never decides against an energy project.

This nearly perfect record of approval can be explained by the industrialized world's continued dependency on fossil fuels, by the royalty benefits accruing to Canada, and by the political inclination of the present federal government whose economic policies clearly support the oil and gas industry. The threat of global climate change, the risk of devastating oil spills and the growing precariousness of ecologies are now altering the meaning of “public interest.”

The NEB is supposed to be making apolitical assessments in the “public interest”. But it is hardly apolitical. The appointees to the NEB have political partialities. The parameters of evidence allowed to be presented in the NEB hearings come with political implications. So, too, do the time allocations allowed for evidence. The Board conducts hearings with only a precarious semblance of objectivity. But this lasts only as long as the NEB is rendering decisions that seem to have social license. When a proposed project is controversial, when the NEB is subject to critical examination, and when the public's understanding of its “interest” is changing, then the NEB's inherent bias becomes conspicuously obvious.

One recent example is Enbridge's Northern Gateway pipeline, a project intended to bring Alberta bitumen through spectacular and rare wilderness to coastal BC at Kitimat. While the NEB approved the Enbridge project subject to the proponent meeting 209 conditions, the decision contradicted the nearly unanimous evidence of all presenters at the Board's hearings — 1,159 of 1,179 submissions were opposed, including almost every expert witness. The NEB's approval of this pipeline also received the scathing censure of over 300 scholars and scientists from around the world whose open letter to the Board pronounced the assessment process so “flawed” as to be essentially “useless” in reaching any meaningful finding. In their thoughtful judgment, the NEB failed "to provide an explanation of how it had reached its conclusions, especially the central one, that the project’s benefits justify its risks and costs."

The most recent example of the NEB's controversial assessment process is the current hearings for Kinder-Morgan's Trans Mountain Pipeline, another project intended to bring more of Alberta bitumen to BC's coast, this time via a southerly route that would pass through the Fraser Valley and Burnaby to a refinery in Burrard Inlet. In this case, the NEB has been empowered to overrule city and municipal bylaws, to radically restrict the duration of the hearings, to include only select presenters directly impacted, and to so limit the parameters of the evidence received as to exclude any careful examination of peripheral risks and damages. In considering the “public interest” of this bitumen pipeline, the NEB has decided that it will not receive evidence about global climate change, it will not require Kinder-Morgan to answer hundreds of pertinent questions, and it has compounded its already conspicuous bias by eliminating the critically important tradition of oral cross-examination of witnesses — without this critically important step, any submitted evidence would be of questionable validity.

Marc Eleison, with 40 years of executive experience in Canada's energy sector, has quit his role as an intervenor because of what he calls a "lack of respect for hearing participants," as well as a disregard for "the standards and practices of natural justice that previous boards have respected." Elieson's conclusion is that, “In effect, this so-called public hearing process has become a farce, and this Board a truly industry captured regulator.”

The NEB maintains its credibility, and therefore the credibility of the energy projects it approves, by being thorough, objective and apolitical. The “public interest” it is supposed to represent must entail more than profitability for the oil and gas industries and the supportive policies they are receiving from the present Canadian government. Like this government, the NEB has chosen to be indifferent to the pressing need for a transition out of the fossil fuel age.

Fossil fuels are on the ebbing tide of history. The energy equation is shifting away from carbon. CO2 emissions are now a critical factor in the calculation of social benefit, while pollution from leaking pipelines and dashed supertankers has become anathema to a world already alarmed about losing valuable ecologies to a multiplicity of other environmental abuses. The entire calculation of economics is being reconsidered by a planet increasingly damaged by an industrialized system now incurring costs that are challenging the benefits. Meanwhile, the public's tolerance for risk is shrinking dramatically in a world already suffering from an excess of ecological threats.

These threats are now becoming ubiquitous. Extreme weather is a constant reminder, while the worrisome parade of other related and unrelated threats are getting too numerous to list. The public is getting nervous, its tolerance for ecological risk is collapsing, and its optimism for the future is darkening. Meanwhile, pro-fossil fuel energy policies in Canada, linked with conspicuously anti-environmental measures, are increasing a national mood of brooding cynicism.

The impatience, frustration and anger that is building in Canadians has to express itself somewhere. The NEB has made itself an obvious target. So, too, have the ambitions of Enbridge, Kinder-Morgan and everything associated with Alberta's tar sands. All are becoming increasingly incompatible with the emerging vision for a sustainable future.