NEB has legal authority to issue permits for Trans Mountain Expansion if BC government refuses
A National Energy Board update on the Trans Mountain Expansion pipeline suggests proponent Kinder Morgan still hasn’t satisfied enough conditions to begin construction next month as planned, but the company says it still expects work will start on schedule.
“The Trans Mountain Expansion Project is in an ongoing process to meet the conditions required by the NEB to begin construction. This process will continue in-step with our activities into the future, keeping in mind that the construction of the Project is phased and condition compliance will be ongoing as construction is underway,” spokesperson Ali Hounsell said in an email.
“We are confident we will satisfy the NEB’s compliance requirements to begin construction activity in September 2017.”
Asked when in Sept. Kinder Morgan plans to “put shovels in the ground,” the company referred this journalist to the timeline set out on the project’s website. Plenty of activity is planned to begin in Sept. including site preparation and Westridge Marine Terminal tunnel in Lower mainland BC, and clearing and site preparation for pump stations in the BC interior.
Peter Watson, chair and CEO of the NEB, provided Natural Resources Minister Jim Carr with an update late last week that included the Trans Mountain project, which will boost shipping capacity from 300,000 b/d to 890,000 b/d. The majority of the new pipeline will be adjacent to the existing pipeline or along existing corridors, and the new pipeline is expected to be in operation by early 2019.
TMX was approved last year with 157 conditions. Watson says the national energy regulator has reviewed 200 submissions that relate to 97 condition compliance requirements and, thus far, “Trans Mountain has satisfied 27 of the 49 conditions necessary to begin construction at the Westridge Marine Terminal.”
The update notes that 452 “Statements of Opposition” – including five from indigenous groups and 121 from landowners – concerned the pipeline’s route have been received by the NEB. Hearings on the details of the route are expected to begin in the fall.
The company has already applied for seven route variances, according to the update, and the NEB has asked for public comment, after which the board will make a recommendation to the Canadian government. If approved, detailed route plans will begin for those sections of the project.
Later next month, Trans Mountain will undertake an emergency response exercise that includes “deployment of personnel and first responders with equipment.”
NEB Inspection Officers plan to make about 28 field inspections this fiscal year and spend 84 days minimum onsite. Inspections began earlier in August.
A “regional engagement strategy” has been established by NEB’s Vancouver Regional Office that sets out how information will be shared among municipalities, Indigenous communities, BC government departments, and Kinder Morgan. The process includes ” informal means to address project concerns and information needs.”
The impression is that Trans Mountain has every intention of beginning construction in Sept. and the NEB is following its normal policies and procedures that – assuming Kinder Morgan complies with conditions – will enable work to start according to the company’s timelines.
What about the BC Environment Minister George Heyman’s warning at an Aug. 10 press conference that, until “consultations are completed in a way that meets BC’s legal obligations, work on this project, on public land, cannot proceed.”
According to Heyman, Kinder Morgan owns private land at Burnaby Mountain and the tank farm at the Westridge Terminal that is outside BC jurisdiction, but “the rest of the pipeline is pretty much passing through First Nations territory or public land.”
Heyman also pointed to eight management plans that are required under the terms of the environmental assessment certificate issued by the Liberal government of Christy Clark, which was defeated in the May election.
“Until those plans are completed, Kinder Morgan, with the exception of private land and the exception of some clearing of right of way, cannot put shovels in the ground,” he said.
“They need to have those work plans accepted. It is highly unlikely that can be completed by Sept. 12 and until it is completed, they are not able to begin work.”
Prof. James Coleman begs to differ. Trans Mountain can ask the NEB to proceed without provincial approvals, just as it did several years ago to conduct preliminary work on Burnaby Mountain when the City of Burnaby refused to grant municipal permits.
“[Kinder Morgan] did so with Burnaby under section 73(a) of the NEB Act. It may need to use other subsections of section 73 (or other sections of the Act) for the request depending on what it needs in the specific circumstances,” wrote Coleman in an email.
Given BC’s oft repeated promise to use “every tool available” to oppose Trans Mountain Expansion, the most likely scenario is that the NEB will be asked for, and likely grant, any permits John Horgan’s NDP government refuses.
Peter McCartney, a Vancouver-based climate campaigner for the Wilderness Committee, says that if Kinder Morgan proceeds without the provincial government’s approval, it will be a slap in the face to British Columbians.
“To try to do a run around is really quite offensive to the democratically elected government of this province and the people they’re accountable to,” he said in an interview.
McCartney says his organization will organize vigorous protests if construction does start next month.