Less than 24 hours after Canada's federal pipeline regulator announced a brand new panel to review the controversial Energy East pipeline, an environmental group in northern Ontario is turning to the courts to shut it down.
A new motion filed with the embattled National Energy Board (NEB) on Tuesday by the environmental law firm Ecojustice seeks to stop the process in its tracks, arguing that the review is tainted by conflict-of-interest allegations brought to light last summer.
Hearings on the 4,500-kilometre Energy East pipeline, a project of Calgary-based TransCanada Corp., have been stalled since September 2016, after a National Observer investigation revealed that members of the NEB panel reviewing the project had met secretly with former Quebec premier Jean Charest. At the time, Charest was working for TransCanada to promote the project.
Ecojustice's motion was filed on behalf of Transition Initiative Kenora (TIK), an environmental advocacy network based in northern Ontario. In the motion, the two groups note that the NEB panel members who recused themselves following the scandal had met with Charest within the first month of the two years they worked on the review.
"Bias permeates the entire review process"
“Because there is the reasonable apprehension of bias that resulted in the recusal of the original panel, that bias permeates the entire review process,” TIK executive director Teika Newton told National Observer. “The only remedy for that is to void the process to date and start it over again."
In an email statement to National Observer, the NEB responded briefly to the filing by TIK and Ecojustice.
"It will be up to the new Energy East Hearing Panel to review this notice of motion and rule on it," said spokesperson Sarah Kiley.
On Monday, the NEB announced the appointment of three new board members to review the project, but Ecojustice and TIK are not convinced that changing the faces on the panel will wipe the slate clean on Energy East, the largest pipeline proposal in Canadian history. After all, argues Ecojustice lawyer Charles Hatt, the integrity of any decisions made by the original Board members during the two years after the Charest meeting could have been compromised.
Among other decisions, the Board reviewed TransCanada's application for the project and set out the scope of the environmental assessment to be done. They also examined hundreds of applications from individuals and groups seeking to participate in the review process.
“It's not possible for these new Board members to look at each decision and decide, 'Was this decision tainted by bias?'” Hatt said.
New rules for environmental assessments
Newton said that if the process is restarted, TIK hopes the NEB will wait until new environmental assessment rules are put in place later this year. Recommendations about those new rules are expected in May, when a review panel aimed at modernizing the NEB reports its findings to the minister of natural resources.
If the Board cancels the process as a result of the challenge, TransCanada could file a new application, and it would appoint a new review panel and schedule new hearings.
If approved, the Energy East pipeline would carry 1.1 million barrels of oil per day from Alberta and Saskatchewan to Quebec and New Brunswick, crossing roughly 3,000 rivers, streams and waterways. Opponents say the project is too risky and would push Canada's climate change goals out of reach, while many business and union leaders believe the project is important and would contribute to jobs and economic growth.