A senior official with the National Energy Board says its review of Kinder Morgan's Trans Mountain pipeline expansion did not include the same scrutiny around greenhouse-gas emissions as TransCanada's Energy East pipeline will face, but the agency presented the same type of information to federal cabinet before it was approved.
Robert Steedman, the NEB's chief environment officer, also said the regulator welcomes the Federal Court of Appeal's review of its actions on Trans Mountain, a significant legal challenge scheduled to be heard in October.
Earlier this week, a First Nation from the Vancouver region that is leading the legal challenge of the pipeline, asked a Federal Court of Appeal to force the NEB to broaden the scope of its review. The Tsleil-Waututh Nation's latest court submission noted that forthcoming Energy East hearings are set to consider how construction of that pipeline would affect greenhouse-gas emissions from the production of the crude flowing through it. The hearings for Trans Mountain didn't touch on that issue.
While Dr. Steedman said the board's mandate did not allow for the consideration of such "upstream emissions" when reviewing Trans Mountain, that information was still gathered and given to federal ministers before they approved the $7.4-billion project last winter.
"It has found and been upheld in court that we didn't have jurisdiction over the upstream in most cases," he said in an interview. "It's become quite apparent that Canadians are interested in that sort of thing. The NEB's regulatory framework was not well-positioned to deliver that and I think we see that reflected in the federal government's interim measures."
Ottawa is in the midst of overhauling its environmental-assessment regime, with the government introducing legislation in the coming months that will change how the National Energy Board approves pipeline projects.
In the meantime, as it gets set to review the $15.7-billion Energy East project, the board has said it is enhancing its evaluation of oil-spill scenarios, including cleanup and preventive programs, as well as how government climate-change policies would affect the commercial viability of the project.
The Tsleil-Waututh Nation argues the NEB should go back and put Kinder Morgan's proposal through a similar review. The First Nation is among a list of Indigenous groups, environmentalists and local governments seeking to block the project.
A Kinder Morgan representative was unavailable for comment on Thursday afternoon, but the company and the federal government, which approved Trans Mountain last November, opposed Tsleil-Waututh's motion in submissions on Monday, telling the court separately the federal government's opinion on Energy East was "irrelevant" to Trans Mountain. The company has said in the past that its Trans Mountain expansion has undergone an unprecedented level of scrutiny and review, noting it is subject to more than 150 NEB conditions and another 37 attached to a federal environmental certificate.
Chief Rueben George, manager of Sacred Trust, a Tsleil-Waututh-led coalition aimed at stopping the project, said the NEB review did not go nearly far enough.
"Those laws are really old and outdated," he said. "If they did the environmental assessment that the Tsleil-Waututh Nation did, they wouldn't be having these problems."
Dr. Steedman said the all of the NEB's work on Trans Mountain is "basically fair game" in the Federal Court of Appeal challenge.
"Our decisions and our processes are challenged from time to time and we basically see those as learning opportunities," he said. "We get higher courts opining on whether we did our job properly and whether we followed our own process – that's part of how the system adapts to society's needs and we're at a pretty busy time for that right now."
On Thursday, the NEB released its schedule for initial hearings in B.C. and Alberta to review proposals by Trans Mountain for its detailed pipeline corridor through the two provinces. The board will also hold a hearing early next year in Chilliwack, B.C., to review a proposal by Trans Mountain to relocate nearly two kilometres of its pipeline corridor through the city.
Meanwhile, hearings will be held in Spruce Grove, Edson and Hinton in November and December on the first two segments of the pipeline through Alberta.
Dr. Steedman said further hearings on the route of the other segments across B.C., where the pipeline is hotly contested, should take place throughout next year.
The federal government's approval of the expansion project included a general pipeline corridor from Edmonton to Burnaby, B.C.
The board says the company, a subsidiary of Kinder Morgan Canada, has asked for seven variances that affect about four kilometres of the 1,147-kilometre corridor.
The federal regulator says from April to July, it received 452 statements opposing the detailed route that Trans Mountain is proposing.
Meanwhile, the energy board said the project has met conditions required for the expansion of its Westridge Marine Terminal in Burnaby. Trans Mountain has plans to expand the terminal's dock to load three tankers, up from one, and increase the number of delivery lines connected to its other Burnaby terminal.
With reports from Reuters and The Canadian Press