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Will the National Energy Board (“NEB”) listen to evidence about climate change when deciding whether to permit an oil pipeline? No, no, and no.

The federal Conservatives have dramatically narrowed Canada’s environmental laws, in a concerted effort to force through approval of oil pipelines, to get Alberta’s bitumen to international markets. They did this through the infamous Omnibus Bills, especially C-38 in 2012 (which eventually became the Jobs, Growth and Long-term Prosperity Act, SC 2012, c19). Among these changes were amendments to the National Energy Board Act (the “NEB Act”), to limit public participation in NEB hearings. Now, Canadian courts have rejected constitutional challenges to these amendments.

Who will the NEB listen to?

The Omnibus Bill cut the number of people eligible to present evidence at NEB hearings, with a particular focus on excluding individuals and civil society groups interested in large-scale environmental issues such as climate change. Under the new section 55.2 of the NEB Act:

On an application for a certificate [required to build a pipeline], the Board shall consider the representations of any person who, in the Board’s opinion, is directly affected by the granting or refusing of the application, and it may consider the representations of any person who, in its opinion, has relevant information or expertise. A decision of the Board as to whether it will consider the representations of any person is conclusive.

That is, the Board must listen to persons “directly affected” by a decision and may listen to persons with “relevant information or expertise.” Both terms are undefined in the NEB Act.

The NEB has interpreted both terms narrowly. According to an NEB guidance document, in deciding who is directly affected, the Board considers “[w]hether a person has a specific and detailed interest, rather than a general public interest.” Appropriate interests include “commercial, property or other financial interest (including employment)”; “personal use and occupancy of land and resources”; and “use of land and resources for traditional Aboriginal purposes.”

The Board also considers whether or not the proposed project would cause “a direct effect on the person’s interest” by considering the “degree of connection” between interest and project; the “likelihood and severity of harm”; and the “frequency and duration of a person’s use of the area near the project.”

For the most part, those without a specific financial interest at stake in the construction or operation of the physical pipeline are not “directly affected.”

As to “relevant information or expertise”, the NEB has decided that larger scale environmental issues, such as climate change, are not “relevant” to oil pipeline permitting. For example, when considering Kinder Morgan’s proposed Trans Mountain pipeline extension, the NEB refused to hear from approximately a quarter of applicants. Why? These applicants wanted to give evidence:

[R]elated to issues outside of the Board’s mandate, such as oil sands development, climate change, sustainable energy alternatives, or were related to issues that were not specific to the particular applicant or to the project.

The NEB repeated this refusal to listen to evidence about climate change in its hearing on the “preferred corridor” aspect of the Burnaby Mountain Trans Mountain project , and, to some extent, before that in the Line 9B Reversal hearings. The NEB says it does not “regulate matters related to, and [could not] make broad policy decisions on, subjects such as climate change or oil sands development.” Accordingly, evidence on these topics is not “useful to the proceeding”.

Why isn’t climate change relevant?

Of course, climate change is “relevant” to oil pipelines. It is beyond doubt that oil extraction, refining and use contributes to climate change, though not as much as coal. The pipeline network arguably undergirds and hastens the expansion of Canada’s petroleum industry, particularly Alberta’s oil sands, and further entrenches our cultural and economic dependence upon fossil fuels. Continuing expansion of the oil sands drives Canada’s shameful record on climate change.

But our national government has made it “the law” that the NEB should ignore climate change when approving oil pipelines, and that is what the NEB is doing.

Courts won’t intervene

Several groups and individuals have brought court cases, challenging the NEB’s refusals to grant standing and/or to listen to evidence about climate change. All such cases have been rejected. More recently, a collection of groups and individuals sought a declaration that section 55.2 of the NEB Act violated their Charter section 2(b) rights to freedom of expression. Now the Supreme Court of Canada has denied these challengers leave to appeal the NEB’s refusal to grant their request.

So who will listen to the link between building oil pipelines and climate change? Not the federal Conservatives. Not the National Energy Board. And so far, not the courts.

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