About six weeks before the National Energy Board was due to make a recommendation on the Trans Mountain pipeline, the company behind the project was told a British Columbia provincial environmental assessment will now be required.
B.C.'s Environmental Assessment Office (EAO) put up a new hurdle when it advised Ian Anderson, president of Kinder Morgan Canada, that the expansion project will have to pass provincial scrutiny before it can proceed.
In a letter dated March 17, Kevin Jardine, associate deputy minister of the EAO, informed Mr. Anderson that because of a B.C. Supreme Court decision related to Enbridge's proposed Northern Gateway project, the province cannot assign environmental assessment responsibilities solely to the NEB.
"Specifically, the court ruled that British Columbia's Environmental Assessment Act applies to NEB projects to the extent that they require a provincial environmental assessment certificate," Mr. Jardine wrote. "We have reviewed descriptions of the Trans Mountain Expansion Project (TMX) that Kinder Morgan Canada has submitted to the NEB … and are of the view that TMX is a reviewable project."
He advised Mr. Anderson that evidence filed during the NEB hearings would be reviewed and adopted by the province, but the new process "may require you to provide EAO with any additional information necessary to support its consultation with aboriginal groups."
The province issued an order on April 8 stating that the Trans Mountain project cannot proceed until a provincial environmental assessment certificate has been issued.
The NEB's assessment of the pipeline project started in 2013, after British Columbia agreed to streamline the process by letting the federal agency take responsibility. The hearings ended earlier this year, with Kinder Morgan filing its final argument on Feb. 17. The NEB has been weighing the arguments heard from 400 intervenors, including 73 aboriginal groups, and is due to send its recommendation to the federal government by May 20.
Ottawa's decision on the $6.8-billion project – which would expand an existing pipeline between Edmonton and Burnaby, and is seen as crucial oil infrastructure by Alberta – is expected in December.
In an e-mail Monday, company spokeswoman Ali Hounsell said the B.C. decision "was expected" and Kinder Morgan is awaiting details on how the process will unfold.
"We look forward to receiving further direction from the BCEAO. The next key step in the process is for them to issue an order under Section 11 of British Columbia's Environmental Assessment Act outlining the scope of the review, which we expect will address both timing and information requirements," she stated. "We are committed to working with the BCEAO and to ensuring we deliver the project on schedule."
When Kinder Morgan concluded its submissions to the NEB, Mr. Anderson issued a statement saying he was confident a solid case had been made for the project, and that the expanded pipeline would be in service as planned, by December, 2019.
But Chris Tollefson, executive director of the Environmental Law Centre at the University of Victoria, said it is hard to know how the provincial hearings will play out.
"I think given the history of this, it is difficult to predict how long it could take, but I think the goal should be to get it right," he said.
He said the B.C. Supreme Court ruling showed that the NEB process was flawed, and the province will have to hear new evidence in order to be comprehensive and fair.
"I don't see a problem in the government accepting the evidence that has been put into the [NEB] record so far. But clearly the government has to do more than simply review the [NEB] evidence … because the federal process was in many ways gravely flawed and had serious informational deficiencies, which the provincial process must seek to remedy," Prof. Tollefson said.
"I fully expect that the government will soon announce an opportunity for intervenors to submit further evidence and to help the government get the full picture before it makes a decision," he said, adding the B.C. process should get under way as soon as possible.
"It's in everyone's interests to get on with this, to deal with the challenge of creating a full and robust evidentiary record upon which the B.C. government can make a lawful and proper decision on this matter," he said.