The Globe and Mail

After Enbridge submitted its project application, a Joint Review Panel (The Panel) was convened under an agreement between the National Energy Board and the Minister of Environment -- the Panel's mandate is described here. After seeking comments from the public on the project, a Hearing Order was issued by the Panel in May, 2011.

During the hearing process, the Panel will hear formal evidence from intervenors (anyone registered to give written or oral testimony) as well as public statements relating to the application. The hearing process has already been extended by one year, largely as a result of more than 4,000 people having registered to provide oral statements. Delays in the approval process have attracted significant attention, including recent comments from Prime Minister Stephen Harper.

After the hearing process, the Panel will issue an environmental assessment report and make its recommendation and, should they decide on approval, stipulate any conditions they deem appropriate (the conditional approval for the Mackenzie Valley pipeline contained 264 conditions). This environmental assessment report will be submitted to the Minister of the Environment for a government response. The Panel then considers this response and issues a final decision.

If the project receives approval from the JRP, it would then authorize a certificate of public convenience and necessity under the National Energy Board Act, and Enbridge would be able to proceed to construction. The pipeline would still need local and provincial permits and agreements with landowners before it could be built. It will also have to meet the legal tests of appropriate consultation and accommodation with aboriginal groups. Given the concerns raised by aboriginal groups along the route, the likelihood of judicial challenge is quite high.

The scope of the assessment has been defined under the Terms of Reference for the Panel. The Panel must assess, “the environmental effects of the project, including the environmental effects of malfunctions or accidents,” as well as, “any cumulative environmental effects that are likely to result from the project.”

The Panel must consider, “measures…that would mitigate any significant adverse environmental effects,” as well as, “alternative means of carrying out the project,” as long as these are deemed to be technically and economically feasible. They must also consider any, “measures to enhance any beneficial environmental effects,” as well as emergency response plans.

It’s important to note that the project doesn’t end with the pipeline. The Panel will consider as part of the project a tank farm and marine terminal at Kitimat, B.C., and the tanker traffic within Canada’s territorial waters.

What the project does not include, at least according to the Panel, are the environmental impacts of oil sands development or the eventual use of the exported oil. As such, greenhouse gas emissions and other environmental impacts from oil sands production and downstream uses have been ruled beyond the scope of the Panel’s mandate and will not be considered when rendering a decision. The decision to exclude these impacts continues to face significant opposition from environmental groups.

The commercial case, termed the need for the project, must be made by the proponent and consideration must be given by the Panel to whether alternatives to the project exist to satisfy the same commercial demand. In other words, Enbridge needs to demonstrate not only that the pipeline would be utilized, but that the use of their pipeline would not diminish the viability of other, existing pipelines. After showing that there is a demand for more oil transportation capacity to the West Coast, they have to make the case that the Northern Gateway project is the preferable option to accomplish that.

Finally, the Panel is charged with considering concerns raised by Aboriginal groups. The Panel is authorized to recommend “appropriate measures to avoid or mitigate potential adverse impacts or infringements on Aboriginal and treaty rights and interests.”

There are five key issues in this controversy. First, the well-documented first nations opposition to the pipeline will play a prominent role. Second, despite its formal exclusion by the Panel, the environmental impacts of oil sands production will be a constant theme, with significant attention likely to be focused on greenhouse gas emissions. Third, the risk of a pipeline spill will be mentioned frequently, and if you don’t know where Kalamazoo is or why it matters, you’ll soon find out. Fourth, the risk of a tanker accident at sea is of great concern to project opponents. Enbridge will have to make the case for the environmental safeguards associated with both the pipeline and marine transportation.

Finally, the economic benefits of the pipeline, both during construction and in the long term will be emphasized by pipeline proponents and called into question by oppoments. In particular, there will likely be extensive discussion of the benefits of diversification of markets for Alberta oil sands products, and access to world oil prices which are higher than those in the U.S. Midwest.

Enbridge will need to make the commercial case for the pipeline, relying on forecast growth in oil sands production to do so. The National Energy Board has forecast a near-doubling of oil sands production between now and the potential in-service date of the pipeline and this, along with similar forecasts from industry, will likely be cited often. Project opponents are likely to call the commercial case for the pipeline into question.

Oil sands growth forecast

So, that’s it. You now know the process, the issues, and the timing. The process will be exhaustive. We are looking forward to a rigorous process that is well-reasoned and fosters legitimacy for whatever the ultimate outcome of this challenging Canadian controversy may be.

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George Hoberg is a political scientist and a Professor in the Department of Forest Resources Management at the University of British Columbia. He blogs on energy and the environment at GreenPolicyProf and is on Twitter @ghoberg

Andrew Leach is an Associate Professor of Natural Resources, Energy and the Environment at the Alberta School of Business. He blogs on energy, environment, and oil sands issues at http://www.andrewleach.ca and is on Twitter @andrew_leach

Research work by Andrea Rivers at the University of British Columbia contributed significantly to this post.