Weeks after recusing themselves from the federal review of TransCanada's Energy East project, two National Energy Board members were back on the job, reviewing another TransCanada-linked project.
Only two weeks after conflict-of-interest allegations forced three National Energy Board members to remove themselves from the Energy East review, new documents show that two of those members were assigned to review a project application from Nova Gas, a company also owned by TransCanada.
The panel members, Lyne Mercier and Jacques Gauthier, stopped their work on the review on Sept. 9, 2016 to avoid the appearance of bias after National Observer reported they had met privately with a TransCanada contractor in 2015 to discuss the Energy East project. On Sept. 22, 2016 the NEB assigned them to review an application from Nova Gas Transmission Ltd., a subsidiary wholly owned by the company they're accused of being too cozy with by critics and watchdogs.
The documents, obtained by National Observer under access to information legislation, also show that NEB chair Peter Watson — who also recused himself from the Energy East panel to avoid being perceived as biased in favour of TransCanada — was the executive who signed off on the September decision.
Keith Stewart, a climate and energy campaigner for Greenpeace Canada, said the appointment appears fishy.
“While it may not be against the rules, it certainly raises some eyebrows,” he told National Observer. “It is a little surprising that they would have to recuse themselves for inappropriate contact with the company, and then get immediately re-assigned to a project from the same company."
Watson, Mercier, Gauthier, and their colleague, Roland George, pulled themselves out of the review for the Energy East pipeline project after National Observer reported that three of them had met privately in January 2015 with former Quebec premier Jean Charest. Charest was working for TransCanada to promote Energy East at the time, but Gauthier and Mercier later said they did not know that when they met him.
Charest gave them political advice on how the NEB could effectively engage Quebecers on the Energy East project.
Gauthier invited Charest to the private meeting, which took place while the board was doing a formal public review of the Energy East, the largest pipeline proposal in Canadian history. National Energy Board rules require such meetings to be public and on the record.
In letters to the NEB in September 2016, the board members said they were recusing themselves because the meeting with a TransCanada representative could create the appearance of impartiality. Two weeks later, the NEB chair, Watson assigned both board members to sit on a new committee to review an August 2016 request for approval from Nova Gas to abandon 266 kilometres of pipeline in northern Alberta.
The Energy East pipeline is a proposal to ship more than a million barrels of crude oil per day from the Prairies to refineries and terminals in Quebec and New Brunswick. Canada's oilsands producers say the project is needed to support jobs and growth in their sector, while environmentalists say it must be blocked to slow down the country's fastest growing source of greenhouse gas emissions and protect vulnerable land and water ecosystems.
The NEB representatives who recused themselves only from the Energy East project review, not from all business related to TransCanada or its subsidiary companies, NEB spokesperson Sarah Kiley told National Observer in an email. Kiley wouldn't say whether the NEB sought a legal opinion before Watson appointed the board members to the Nova Gas application.
“Legal advice is protected by solicitor-client privilege and that privilege extends to the question of whether or not legal advice was sought,” Kiley wrote.
— additional reporting by Mike De Souza