National Energy Board Hearings for Energy East Starting Over

A month and a half after Minister Carr appointed three new panel members to the National Energy Board, the Energy East pipeline review will be starting over from the beginning.

We reported in December that the Minister appointed the new members to the Board following the recusal of the former panel. The panel recused itself following a motion for their recusal on the basis that panel members met privately with a consultant for TransCanada, the proponent of the pipeline.

Following that ruling, environmental organizations claimed that the hearings held to date were also tainted, and new hearings should be held. Immediately after the Minister’s announcement of the new panel members, environmental groups filed a motion to stop the process. The Board has now ruled all decisions made by the original panel are void.

The Panel decides that, given the recusals and the applicable case law, all decisions made by the previous panel must be, and are hereby, voided and stricken from the record. These will be removed from the online public registry. This decision effectively voids the last decision of the previous panel to adjourn the process.

This means even decisions determining who constituted the List of Participants in the process and subsequent rulings on participation and procedural directions were voided and none of the prior deadlines apply. All of these decisions must now be reconsidered. Any persons who submitted applications to participate are not required to resubmit their applications to be considered again.

This hearing was also supposed to be a joint hearing with the Eastern Mainline Project. The decision to hold a joint hearing has also been voided and will be reconsidered. The new panel may decide that the hearings should proceed as joint hearings for the two pipeline proposals, or that they should be heard separately. Anyone wishing to comment on the topic of whether the two projects should be heard together must file a letter with the Board before noon, Calgary time, on Wednesday, February 15, 2017 in accordance with the ruling.

The Board ruled that the applications for the Eastern Mainline application and Energy East application remain valid and are still properly are before the Board. The Board concluded all of the Applicants’ responses to the Board’s information requests and the filings submitted remain valid. The Board concluded that the “Applicants’ responses are theirs and cannot reasonably be expected to have been tainted by the recused panel.”

Similarly, the Board ruled that intervener and commenter filings, including past motions and requests decided upon by the prior panel, remain valid as “intervenor and commenter filings are theirs and cannot reasonably be expected to have been tainted by the recused panel. In addition, it would seem burdensome to require these participants to refile their submissions.”

Despite these rulings, environmental groups continue to demand that the hearings should not proceed until the reform review of the Board and Canada’s environmental assessment laws is concluded.