The Tortuous Path to NEB ‘Modernization’

OVERVIEW

The epic, and apparently accelerating, struggle between the twin forces of globalism and nationalism play out against a backdrop of rising environmentalism, increasingly threaten the global economic order. No less affected is Canada, as legislators attempt to reconcile national energy policies with international conventions for climate change. Competing views on policies for the economy and the environment underpin the current debates. Meanwhile, advocates of opposed economic and social ideologies have increasingly looked to the courts for resolution. Is there a common ground that can be found between these forces and, of interest here, what are the consequences for energy regulators and policy makers who now find themselves at the center of this social, economic and political storm?

The recent turbulence in Canadian energy policies affecting legislators, regulators and the public results from attempts to reconcile national economies with international treaties that conflict with national, and provincial, interests. Regrettably, simplistic concepts of a Canadian “energy transition” exhibit a limited understanding of energy economics – an enormously complex, global enterprise. There are significant political, financial and social barriers to achieving wholesale transformations in energy production and electricity generation and few solutions are amenable to legislative fiat devoid of material economic consequences. Heightened public expectations for change have increasingly focussed on energy regulators whose decisions are increasingly challenged while the public expresses a rising dismay over the material economic consequences of ill-considered energy policies. Regrettably, Canadian legislators have increasingly interjected themselves into the regulatory decision-making and, in so doing, have steadily eroded the independent decision-making powers of energy regulators and expert tribunals. Canada has demonstrated that these political interventions in the pursuit of ideological or political ideals have tended to create more, not fewer, conflicts associated with significant economic excesses. Such political and regulatory uncertainties have imperiled the Canadian energy industry and have discouraged vital capital investment.

Since 2000, reflecting the ideological views of a divided electorate, Canadian legislators have swung widely across the spectrum of economic and environmental interests. As a result, major energy projects have been cancelled, while material investment capital has sought more certain, or at least more predictable, markets outside Canada. No less a victim are energy regulators, such as the National Energy Board (NEB). After almost 60 years of service that brought Canada one of the globes’ most efficient and safe pipeline systems, the NEB has found itself at the center of controversies that have exposed it to concerns over apprehension of bias and to parallel political initiatives of “modernization”. In particular, the NEB’s National Engagement Initiative led to reports of NEB Energy East Panel members having met privately in early 2015 with former Quebec Premier Jean Charest who was alleged to have been working as a consultant to Trans Canada. Prime Minister Trudeau was urged to scrap the entire NEB Energy East review.1

The direct annual cost to Canada of insufficient pipeline capacity needed to reach potential international export markets has recently been estimated by Scotiabank as in excess of CAD $15 billion. Such amounts, when combined with an estimated $60 billion in lost investment due to cancelled energy infrastructure projects since 2015, are material.2 Canada has the 11th largest GDP in the world (ranked behind India, Italy and Brazil)3 and is nonetheless vulnerable to massive financial outflows that can affect the national economy. These ominous financial trends may yet prefigure a financial and economic ‘transformation’ in Canada with unintended consequences for political, regulatory and economic institutions.

By revisiting a “modernized” version of the Great Pipeline Debate of the 1950s, one that has entailed a heightened involvement of the judicial, regulatory and legal communities, Canada has embarked upon a national experiment of consequence, one that may significantly shape our economy and national identity for generations. Meanwhile, Canadian energy policies have been remarkably out of phase with our primary export customer – the U.S.A. Except for the time when the Trudeau government briefly overlapped with the Obama administration (until its overturn to the newly-elected Trump administration on January 20, 2017)4 the previous Harper government frequently found itself at odds with Obama. Now, at a time of increasing internal discord over pipeline projects, the Trudeau government finds itself significantly at odds with the U.S. Trump administration on implementation of the Paris Climate Agreement5  and also on other major energy and taxation policies.

INTRODUCTION

Since its election in 2015, the Trudeau government has introduced a remarkable series of legislative initiatives for environmental assessment and regulation many of which significantly affect the Canadian energy sector. This paper deals with some recent examples of interest to the Canadian energy regulatory community with an emphasis on those initiatives affecting administrative law and the practice of Canadian energy regulation. What began as a series of intense controversies that centered on the National Energy Board (NEB) has spiraled into legislative and political challenges for a new federal government that potentially places at risk economic and environmental policies. The outcomes may yet threaten federal and provincial governments.

The Canadian energy regulatory community has witnessed the evolution of an intense, political debate that has enveloped long-established regulators, such as the NEB. These debates have evolved into material legislative proposals being read to Parliament at the time of writing.6 In regard to the NEB, Canada is now in advanced preparations to consider options for legislative amendments to CEAA 20127 and the NEB Act8 through Bills C-689 and C-69. The highly qualitative language used by the current government to describe the objectives for the new legislation, to “rebuild public trust and advance Indigenous reconciliation” while advancing “good projects” to ensure energy resources “get to markets responsibly” in many respects appear to be somewhat inconsistent with the actual legislation.10 Critically, the new legislation, and the uncertainties entailed in it, arrives at a time when capital flight out of Canada from cancelled energy projects such as Energy East, Northern Gateway and the Pacific NorthWest LNG Projects exceeds an estimated CAD $60 billion. It also comes at a time of rising provincial and international competitive pressures affecting Canada’s energy infrastructure.

Recent papers and opinion pieces have described Canada as being at an “energy crossroads” with the Canadian energy industry being enveloped by a “perfect storm”,11 one that has resulted from sophisticated attacks from national and international activist groups, changeable regulatory agendas and political interventions in Canada and the U.S.A. that have tended to aggravate regulatory uncertainties and, not least, accompanied by a significant drop in international energy commodity prices.12 These events have also swept over energy regulators across Canada, the most significant being the NEB.13

In experiencing this ‘storm’, Canada is far from unique. In a parallel dance, U.S. lawmakers have swung wildly in their attempts to address global emissions strategies. Notwithstanding these abrupt changes in policy, Canada has shown a determination to proceed with an aggressive ‘leadership role’ associated with the Paris Climate Agreement, one in which the Federal government appears highly disposed to achieve high ideals for “decarbonisation” through the enactment of certain political and regulatory initiatives. These legislative actions, combined with continuing uncertainties on Canada’s position on aboriginal consultation under FPIC14 and UNDRIP15, have perplexed Canadian energy investment communities. In sum, these events appear to constitute very material challenges for the energy sector and its regulators, further exacerbated by the emergence of an increasingly fractious political and regulatory environment between federal, provincial and municipal governments.

The Canadian energy sector has witnessed substantial reductions of Canadian investments by industry heavyweights Apache Corp., ConocoPhillips, Chevron, Petronas, Marathon Oil and Shell Canada. The rejection of the Gateway Pipeline by the federal cabinet followed by the recent collapse of TransCanada’s Energy East Project has been paralleled by ongoing delays to TransCanada’s Keystone XL pipeline proposal. Although the latter project received a Presidential Permit in March 2017, it remains mired in regulatory wrangling in the U.S. Canadian political attentions have now turned to Kinder Morgan’s $7.4 billion Trans Mountain pipeline expansion for which current political leaders in British Columbia have vowed to use “every tool available to stop” the project, starkly in the face of project approvals by the NEB and the Federal Cabinet.16 Many actions remain pending with the Federal Court of Appeal. This maelstrom extends well beyond legal, political and regulatory issues into material questions of constitutional rights, national economic development and the rule of law.

A BRIEF HISTORY OF CANADIAN ENERGY AND ENVIRONMENTAL REGULATION

Harrison (2013)17 and Hummel (2016)18 detail what could be considered to be the two most significant factors that have driven Canadian environmental movements: The rise of the concept of “social licence” and the parallel rise of environmental activism associated with “climate change”, respectively.

Harrison described the concept of “social license to operate” in which he raised the concern over using “social licence” as a justification for certain individuals and groups as a justification for rejecting the outcomes of formal regulatory processes that, in effect, worked ominously to diminish the rule of law to failures by governments to insist on the use of proper regulatory arenas for determinations of the public interest. His insightful critique effectively anticipated and prefigured the Federal election campaign of 2015 in which candidate Trudeau, at a time when the National Energy Board (NEB) was being subjected to unremitting pressures from local and international activists, joined a chorus that asserted that the NEB was “broken” and in need of “modernization”.19 Notwithstanding these assertions, many polls indicated that the majority of Canadians considered that the NEB made decisions that properly reflected the national interest.

Hummel (2016) described a movement of environmental activists and conservationists that emerged in the 2000’s as a “Fourth Wave” during which climate change emerged as a global and growing national concern. In the late 1980s, not just environmentalists but many Canadians assumed that Canada was positioning itself to lead the international community on actions to combat climate change. Canada made commitments to adopt the Kyoto Protocol20 in 1997, which it joined in 2002 under the leadership of Jean Chrétien’s Liberals.

The 2006 federal election resulted in the minority Conservative government of Steven Harper, Canada’s 22nd Prime Minister, who led Canada’s smallest but longest-serving minority government since Confederation. In the subsequent 2008 federal election, the Conservative Party won a stronger minority. However, it (the 40th Canadian Parliament) was dissolved on March 2011 after a non-confidence vote held Cabinet in contempt of parliament. In the subsequent federal election, the Conservatives won a majority government, the first majority since 2000.

Throughout this electoral process there were a series of measures introduced to change Canadian scientific institutions, including the 2008 elimination of the Office of the National Science Adviser and rules to restrict government scientists from “unauthorized access” to the media. Many scientists and environmentalists considered that these actions were contrary to the institutional basis for federal research by preventing scientists, particularly those in the environmental sciences, from advancing and discussing their research. This view was further heightened when the government directed federal audits at certain environmental charities and when certain Cabinet officials characterized some environmental organizations as being “radicals”.21

The declaration by Canada, Japan and Russia in 2010 not to accept new Kyoto commitments was followed in December by negotiations held in Durban, South Africa (that included delegates from nearly 200 countries) to establish a new binding international treaty to limit carbon emissions with targets to take effect in 2020. However, immediately following the conference, Canada announced its intention to withdraw from the Kyoto Protocol. The government argued that it was impractical since it did not include the United States and China, the world’s largest emitters collectively responsible for over 40 per cent of global emissions. Canada further argued that it could not meet the targets set for it and thus became the only country to repudiate the Kyoto Accord – a decision that immediately drew widespread national and international criticisms.22

The 2012 Jobs, Growth and Long-Term Prosperity Act23, became a significant flashpoint for the national environmental community. Passed as omnibus legislation, it became controversial not as a result of the way the legislation was “bundled” but because many considered it to be a material weakening of environmental policies and regulations. Bill C-3824 was crafted to replace the Canadian Environmental Assessment Act25 (CEAA 1992, 1999) with the Canadian Environmental Assessment Act26 (2012) and made major changes to the Canadian Environmental Protection Act27, the National Energy Board Act28, the Canada Oil and Gas Operations Act29, the Nuclear Safety and Control Act30, the Species at Risk Act31 and the Fisheries Act32  while emphasizing “jobs, growth and prosperity”. It significantly refocussed existing federal environmental regulatory and assessment regimes across Canada.

Harrison (2013)33 extensively reviewed the 2012 amendments to the National Energy Board Act (NEB Act) highlighting concerns such as the removal of the Board’s previous authority as a decision-maker with respect to the issuance of certificates of public convenience and necessity for pipelines and concurrent changes to impose time limits on the Board’s processing of applications for certificates. The legislation transferred authority to make a final decision to issue or deny a certificate to the Governor in Council (ie. the federal cabinet) with the NEB’s role thereafter relegated to making a recommendation.34 Harrison (2012) noted that these intrusive limits imposed on the NEB appeared to be “wholly disproportionate to any problem of timeliness in the NEB’s processes for reviewing pioneering pipeline certificate applications. It would appear that the remedy for a timeliness problem that was perceived to have arisen in another ad hoc regulatory process outside the NEB’s process has nevertheless been imposed upon the NEB.”35

In addition to the changes affecting the NEB Act, funding reviews of Federal departments, including Fisheries and Oceans Canada (DFO), resulted in the proposed closing of the Experimental Lakes Area (ELA) in Ontario, an internationally-recognized aquatic research facility. The item received significant attentions from activists and the public, who viewed the decision as part of a continuing campaign by the Harper government to “muzzle” federal scientists in a shift away from “science-based decision-making”. Canadian scientists and activists protested the decision and continued their protests into the time of the ensuing election.

What followed was a remarkable mobilization of national and international environmental activists who directed public criticisms at these policy and legislative changes and, more specifically, at the government of Canada and its leadership. The stage was set for a major confrontation between the Harper government and the national and international activist communities, one which opposition parties and their advisors immediately recognized. As a result, energy producers, pipeline companies and the NEB, already besieged by opponents in hearings literally from coast to coast, unexpectedly found themselves at the center of the electoral and political stage.

THE 2015 CANADIAN FEDERAL ELECTION: CONSEQUENCES FOR ENERGY REGULATION

Unquestionably, legislative initiatives of the Harper government set off volatile reactions in the Canadian media and spurred activists and communities to participate in an election that focussed to a remarkable degree on energy regulation, in particular to the actions and decisions of the NEB. Some advocated positions to “restore lost protections” such as were alleged to have occurred for diminished provisions to the Fisheries Act and Navigable Waters Act, while others argued for a complete revamp of the Canadian environmental assessment and regulatory system. Such heightened political interests in energy generation and regulation focussed attentions on legislative changes.

In 2008, the province of British Columbia had become the first jurisdiction in North America to institute a carbon tax, and in 2014 the province of Ontario shuttered its last coal-fired power station. However, these provincial policy initiatives were dwarfed by the consequential issues raised in the 2015 Canadian Federal election. The political uproar generated by the 2012 Jobs, Growth and Long-Term Prosperity Act led to an unprecedented wave of initiatives to organize, fund and interject environmental activism into the Canadian political landscape.

Vivian Kraus36 has documented extensively the degree and nature of the international funding that has been directed toward Canada’s energy sector. In describing the anti-pipeline movement as a “directed, network campaign”, she noted that the Tides Foundation of San Francisco “is the funding and co-ordination juggernaut behind anti-pipeline activism. Totaling $USD 35 million, Tides made more than 400 payments (2009 – 2015) to nearly 100 anti-pipeline groups. Without all that money, pipeline projects would not be facing well-organized opposition.”37 Journalist Claudia Cattaneo has also documented actions of certain “Green Coalitions” to disrupt pipeline projects, such as a “KM Action Hive Proposal” to support mass popular resistance to construction of the Kinder Morgan pipeline.38 Cattaneo also documented investigations by U.S. lawmakers that linked activities from a “troll factory” in St. Petersburg, Russia using Facebook and other social media platforms to possible “manipulation of U.S. energy markets – including activism against pipelines such as TransCanada Corp’s Keystone XL pipeline-is a wake-up call to Canadian governments that foreign interests have a big hand in campaigns to block Canadian oil and gas exports.”39 Cattaneo further cautioned that:

By designing energy and environmental policy to appease that inflated activism — for example, regulatory reforms that are expected to further discourage energy investment in Canada – Canadian governments are accommodating competitors prepared to do whatever it takes to protect and grow their global oil and gas market share, not Canada’s best interest.40

The revelations as to the degree and magnitude of foreign-funded anti-pipeline campaigns in Canada may perhaps have included Russian involvement. Others have concluded that U.S. foundations and groups are “sabotaging” the Canadian energy economy in ways that may constitute “blatant U.S.-based interference in Canadian energy policy.”41

These events in Canada may reflect an international groundswell that considers climate change and large-scale conflicts to be real global concerns, issues that are reflected in the World Economic Forum Annual Survey (2017).42

Climate change and concerns for the global environment formed a major part of the 2015 Federal election debate as pipeline issues, particularly past decisions by the NEB, were viewed by various political candidates and commentators through the lens of the global environment. Indeed, one could say that the traditional environmental mantra of “act locally – think globally” had been reversed. Following the Great Pipeline Debate of the 1950’s, and the fall of a Liberal government, elected leaders wisely distanced themselves from controversial pipeline issues through the creation of a quasi-judicial Board (the NEB) designed to independently arbitrate decisions and regulate pipelines in the national interest. In an ironic reversal in 2015, federal politicians of all stripes entered directly into pipeline debates during the election and aggressively questioned not just the fairness and decisions of the NEB but its very mandate and structure. This focus appeared to take many, including the industry and its associations, by storm as the debate swirled around what was portrayed as the Harper government’s overly-aggressive approach to resource development. The election debate featured Canadian political parties with starkly different visions of the country’s oil and gas sector.43 The Liberals promised to launch an immediate review of Canada’s regulatory process for oil and gas projects, while the NDP proposed to work with provinces to put a price on carbon. The Green Party’s promised a Carbon Fee and Dividend Plan to provide Canadians over age 18 an annual “carbon dividend”. The incumbent Conservatives opposed all these plans.

After having actively championed economic developments, including pipeline infrastructure projects, during the October 2015 federal election debate, the Conservatives argued that their government under Bill C-46: The Pipeline Safety Act44 had introduced strengthened safety and security measures for regulated pipelines by increasing annual inspections and comprehensive audits. The government had also introduced new financial penalties for pipeline companies aimed at preventing major incidents.

In an election platform that accused the Harper government of significantly diluting environmental regulatory processes under the omnibus 2012 “Jobs, Growth and Long-Term Prosperity Act”, the Liberals argued that “Canadians must be able to trust that government will engage in appropriate regulatory oversight, including credible environmental assessments, and that it will respect the rights of those most affected, such as Indigenous communities.” They promised to:

[…] launch an immediate, public review of Canada’s current assessment process. Based on this review, a Liberal government will replace Mr. Harper’s changes to the environmental assessment process with a new, comprehensive, timely and fair process that: restores robust oversight and thorough environmental assessments – which have been gutted by this Conservative government – of areas under federal jurisdiction; ensures decisions are based on science, facts, and evidence, and serve the public’s interest; provide ways for interested Canadians to express their views and for experts to meaningfully participate in assessment processes. We will also, in full partnership and consultation with First Nations, Inuit, and Métis Peoples, undertake a full review of regulatory law, policies, and operational practices. This will ensure that the Crown is fully executing its consultation, accommodation, and consent obligations on project reviews and assessments, in accordance with its constitutional and international human rights obligations. These include Aboriginal and Treaty rights and the United Nations Declaration on the Rights of Indigenous Peoples.45

POLITICAL AND LEGISLATIVE ACTIONS FOLLOWING THE 2015 FEDERAL ELECTION

On October 9, 2015 the Conservative Party under Steven Harper was defeated at the polls by the Liberal Party of Canada led by Justin Trudeau sworn-in on November 4, 2015.

The Trudeau government immediately made its views on gender equality, rights for indigenous communities and climate change of paramount parliamentary importance. The latter issue became a major policy focus and, in April 2016, in the presence of a somewhat disproportionate but enthusiastic, delegation that accompanied the Prime Minister, Canada endorsed the Paris Agreement that was ratified later in New York.46 The Agreement with almost 200 other countries set out terms of cooperation to restrict emissions of greenhouse gasses (GHGs).

In what was also viewed by many in the environmental community as an important semantic shift, Trudeau also changed the name of Environment Canada to Environment and Climate Change Canada and appointed several individuals formerly from prominent NGOs to senior positions in the new government, individuals that undoubtedly had made a major impression on the young Prime Minister to prefigure the election platforms and the subsequent policy initiatives of the Trudeau government.

These appointments represented a significant breakthrough into the highest levels of decision in the Trudeau government for former prominent environmental advocates who undoubtedly reflected, or shaped, views on gender equality and climate change.

In an exceptional decision that effectively “second-guessed” the quasi-judicial process of the NEB, that had previously conditionally approved the Kinder Morgan Trans Mountain pipeline, Resources Minister Jim Carr appointed a three-person “ministerial panel” to review the project. The panel reported in November 2016 immediately prior to the governments’ approval of the project.47

The Ministerial Panel noted in its report:

[…] Canadians have been locked in debate about the processes, policies and staffing of the current NEB. And many, particularly in British Columbia, have asserted that, in its research and deliberations, the NEB left gaps — in knowledge and public confidence — that were so significant that the Board’s recommendation could not, of itself, support a government approval of the Trans Mountain Pipeline project. In light of those two factors — the changing circumstances and public concern about the nature and comprehensiveness of the NEB process — the Government of Canada announced that it would direct three new initiatives before making a decision on the pipeline proposal. First, it commissioned an Environment Canada analysis of upstream greenhouse gas emissions associated with the project, to better understand its climate impacts. Second, the Government of Canada recommitted to ongoing consultation with First Nations whose interests would be affected by the pipeline’s construction and operation. And third, on May 17, 2016, the Honourable Jim Carr, Canada’s Minister of Natural Resources, announced the appointment of a three-member panel to complement the NEB review and identify gaps and/or issues of concern of which the Government should be aware before deciding the fate of the pipeline proposal.”48

On November 29, 2016 the Trudeau cabinet approved two pipeline projects, the previously NEB-approved Kinder Morgan Trans Mountain Pipeline and the Enbridge Line 3 project, but rejected Enbridge’s Northern Gateway project notwithstanding an NEB approval.

Confronted with such major pipeline decisions, Trudeau and his Cabinet had been conspicuously courting its voter base with plans to impose a national price on carbon, restrictions on methane emissions, paralleled by a phase-out of coal powered plants by 2030 and an overhaul (“modernization”) of the National Energy Board. Following the earlier announcement of a $1.5-billion ocean protection plan to improve responses to tanker and fuel spills in the Pacific, Arctic and Atlantic oceans, Trudeau announced a ban on crude oil tankers along the North Coast of British Columbia, promising a future moratorium on oil tanker traffic. These decisions and actions cascaded into a series of political actions and events some of which threatened to escalate into federal-provincial, if not constitutional, conflicts.

PARALLEL EVENTS IN THE UNITED STATES

In the past decade international upheavals in oil prices combined with changing regulatory policies for energy in the U.S. have presented material economic challenges for Canada. In 2015 the Obama administration denied the application by TransCanada for the Keystone XL Pipeline Project proposed to transport Canadian crude oil to the U.S. Gulf Coast, a history thoroughly reviewed by McConaghy (2017).49 Additionally, the Obama Administration also initiated significant national and international actions to regulate carbon. The U.S. Clean Power Plan (CPP) was an ambitious policy of the Obama administration to combat anthropogenic climate change (global warming). First proposed by the Environmental Protection Agency (EPA) in June 2014 the CPP advanced a major EPA rule aiming to cut carbon dioxide emissions from existing U.S. power plants 32 per cent below 2005 levels by 2030. The final version of the plan was unveiled by President Obama on August 3, 2015 through a rule (RIN 2060–AR33) entitled “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units”50  published in the Federal Register on October 23, 2015 that, as an Executive Order, effectively bypassed Congressional oversight and approval.

In February 2016 the U.S. Supreme Court, in a landmark ruling, granted a stay to halt implementation of the EPA’s Clean Power Plan pending the resolution of legal challenges to the program in court.51 This decision represented a major blow to President Obama’s centerpiece strategy to combat climate change and placed a hold on federal regulations to curb carbon dioxide emissions mainly from coal-fired power plants. The court voted 5-4 to grant the request by 27 states, companies and business groups to block the CPP.52 The decision suggested that a majority of the court, and also some U.S. legal scholars, were concerned about the basic premise of the EPA’s authority to impose the CPP under the Clean Air Act.

During the 2016 U.S. election campaign, candidate Trump had gone so far as to propose the elimination of the EPA and, following his election, he proposed a 31 per cent cut to the 2018 EPA budget. Trump made aggressive appointments to key agencies in ways that reflected his commitment to deregulation, particularly for the fossil fuel industry.

Subsequently, President Trump issued an Executive Order that instructed executive departments and agencies to: “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources and appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.”53 Significantly, the Executive Order directed the USEPA Administrator to “immediately take all steps necessary” to review the Rule for consistency with these and other policies set forth in the Order and further instructed the agency to “if appropriate [and] as soon as practicable . . . publish for notice and comment proposed rules suspending, revising, or rescinding” the Rule.54

By October 10, 2017 the USEPA Administrator had signed a Federal Register notice proposing to repeal the Clean Power Plan on the grounds that it exceeded EPA’s statutory authority.55 The matter has continued a convoluted progress through the U.S. court system. On March 1, 2018 the U.S. Court of Appeals ordered that the consolidated cases should remain in abeyance for 60 days while directing the USEPA to continue to file status reports at 30-day intervals.56

Arguably, the CPP was the Obama administration’s signature environmental initiative one that advanced the EPA’s most ambitious effort to control greenhouse gas emissions under the Clean Air Act57. While some other states, environmental groups and some energy companies opposed the stay, five separate applications were filed by more than two dozen states and numerous industry groups. As the signature piece of Obama’s “climate legacy” the CPP was designed as a shift toward renewable energy from coal-fired electricity and represented a potential diplomatic approach to broker the 2014 agreement between President Obama and China’s president, Xi Jinping.58  That agreement effectively signaled the will of the leaders of the world’s two largest polluting countries jointly to enact policies for reductions of emissions. That U.S.-China agreement also paved the way for the signing of the landmark 2015 Paris Climate Change Accord.

Notwithstanding the prior initiatives of the Obama administration, the remarkable events that followed the U.S. election of November 2016 have witnessed a wholesale reversal of those policies. Within days of taking office President Trump signed executive orders to overturn previous decisions by the Obama administration to approve two controversial oil pipelines, one of which was the long-delayed and subsequently rejected, Keystone XL pipeline. The executive orders also required a federal review of the Clean Water Rule and the Clean Power Plan along with initiatives aimed at significantly expanding offshore oil and gas leasing.59 This “America First Energy Plan”60  focused not on decreasing, but increasing, the combustion of fossil fuels and contained little, or no, mention of renewable energy. In sum, the Trump administration repealed many Obama policies, including the Climate Action Plan and Clean Power Plan, while further limiting the EPA’s mandate for the protection of air and water quality. These actions represented a wholesale shift away from the policy priorities of the Obama administration to decrease fossil fuel use.

On June 1, 2017, in a move diametrically opposed to the enthusiastic endorsements of Obama’s agenda made by the new Canadian Trudeau government in 2016, Trump announced plans to have the United States withdraw from the Paris Climate Agreement. In a telecast speech delivered in the White House Rose Garden Trump stated:

As President, I can put no other consideration before the wellbeing of American citizens. The Paris Climate Accord is simply the latest example of Washington entering into an agreement that disadvantages the United States to the exclusive benefit of other countries, leaving American workers — who I love — and taxpayers to absorb the cost in terms of lost jobs, lower wages, shuttered factories, and vastly diminished economic production. Thus, as of today, the United States will cease all implementation of the non-binding Paris Accord and the draconian financial and economic burdens the agreement imposes on our country. This includes ending the implementation of the nationally determined contribution and, very importantly, the Green Climate Fund which is costing the United States a vast fortune. Compliance with the terms of the Paris Accord and the onerous energy restrictions it has placed on the United States could cost America as much as 2.7 million lost jobs by 2025 according to the National Economic Research Associates.61

CANADIAN AND AMERICAN POLICIES REMAIN “OUT OF PHASE”

(Harper-Obama, Obama-Trudeau, Trudeau-Trump)

The Harper and Obama administrations were consistently “out of phase” during their respective terms of office – a view that is highlighted by Prime Minister Harper’s comments that approval of the XL Pipeline was a “no brainer”, an opinion that was subsequently marked by President Obama’s rejection of the project.62

Remarkably, in the closing days of the Obama administration, there was an acceleration of Executive Orders in a last-minute attempt to secure the “Obama legacy”. Samantha Power, an Obama top aide and U.S. ambassador to the United Nations during Obama’s second term remarked: “We should have a clock up, with the days counting down, because what we’ve set in motion…all of that is at stake.”63 The comment reflected concerns that, in face of the imminent arrival of the Trump Presidency, before leaving the White House lame-duck President Obama and his top advisors had to initiate actions around the world aimed at securing Obama’s foreign policy objectives. These actions included negotiating an arms deal in Iran, completing the Paris Climate Accord and managing a response to the refugee crisis in Syria.

Extending from the date of the U.S. election until the early morning of January 20, 2017, the action plan of the dying administration included numerous, and widespread actions ranging from the addition of the Rusty Patched Bumble Bee to the U.S. list of endangered species through to an award of the Presidential Medal of Freedom to Vice President Biden. In face of election promises by President-elect Trump and Vice President-elect Mike Pence to reverse some of Obama’s key policies immediately upon assuming office, many U.S. departments also accelerated hiring in anticipation of planned freezes of federal employees. Princeton University history and public affairs professor Julian Zelizer remarked that: “It is clear that a President who was once reluctant to use the power of his own office has changed his heart, especially now that he sees a radically conservative Congress and Republican president-elect are getting ready to dismantle much of what he has done.”64

Congressional Republicans and members of the Trump transition team questioned the White House for pressing ahead given the imminent change of control in the executive and legislative branch prompting Republican senators to write to Obama asking that his administration “cease issuing new, nonemergency rules and regulations given the recent election results of November 8” noting that: “It is our job now to determine the right balance between regulation and free market principles and make sure that our federal government no longer stands between Americans and financial success.”65

The administrative race to the electoral finish line was typical of many dying U.S. administrations, but this one was particularly significant for Canada and the new Trudeau government, who appeared to be closely tracking the actions of the White House especially in relation to environmental regulations and international agreements.

Remarkably, subsequent actions by the Trudeau government appeared to ignore the reality of the 2016 U.S. election, and during the interim post-U.S. election a brief re-alignment of energy regulatory policies occurred. The Trudeau government embraced the outgoing lame-duck Obama administration with an almost farcical joint announcement on December 20, 2016 in which the two governments agreed to jointly “launch actions ensuring a strong, sustainable and viable Arctic economy and ecosystem, with low-impact shipping, science-based management of marine resources, and free from the future risks of offshore oil and gas activity.”66

Unsurprisingly, organizations like the World Wildlife Federation (WWF) and Environmental Defence lauded the announcement. Less laudatory was Northwest Territories Premier Bob McLeod who, aghast at the lack of governmental consultation that preceded the announcement, voiced concerns about the announcement and asserted his belief in northern involvement in decisions that affect them and their economic future. He noted that, in this instance, they weren’t. Asserting that the North is an expensive place to live where there aren’t a lot of options for people who need good jobs to provide for themselves and their families. McLeod also noted that the drilling ban negated important benefits of the NWT’s Devolution Agreement that allocated it province-like powers in 2014 negotiated under the Harper government that allowed co-management of the offshore and resource revenue sharing. McLeod added that his government was committed to environmentally sound growth but noted that limiting fossil fuel development could be harmful to the sustainability of the northern way of life.67

While the announcement achieved a short-lived alignment between Canada and the U.S., it ignored decades of oil and gas exploratory activities in the Canadian Arctic (ironically previously enthusiastically supported by the elder Trudeau), one that had been an economic mainstay of the north through many long-term industrial benefit agreements. Perhaps there is no better illustration of the relentless focus of Trudeau’s government to diminish the economic decision-making of devolved northern governments in the face of the ideological forces of the climate change agenda – an action that trampled any hope for meaningful prior governmental consultation with northerners. The dying Obama administration provided a brief opportunity for the Trudeau government to “secure” that legacy jointly with the U.S. It was a short-lived triumph for international climate diplomacy. On April 2017, Trump’s America First Offshore Energy Executive Order68 explicitly reversed the Obama administration’s ban on Arctic leases. This reversal of the “Obama legacy” once again placed Canada’s policies directly at odds with the Trump administration. By January 2018, U.S. Interior Secretary Ryan Zinke unveiled a draft proposal (extending from 2019 to 2024) to allow the largest offshore lease sale on the U.S. outer continental shelf (not including the North Aleutian Basin in Alaska).69 The Trump Interior Department subsequently announced plans to offer offshore leases for Arctic oil and gas exploration with access to previously inaccessible acreages and overturned the indefinite drilling bans in much of the Arctic Ocean announced during the final days of the Obama administration.

THE NEB NATIONAL ENGAGEMENT INITIATIVE70

In November 2014 the National Energy Board announced a unique outreach program, the National Engagement Initiative (extending from 25 November 2014 to 3 June 2015), in which the NEB “asked Canadians to help us to better understand how we can adjust our pipeline safety program, public engagement activities and communications”.71 The NEB Chairman, along with selected board members and staff, undertook a broad-based national public consultation on issues related to pipeline safety and environmental protection72 while initiating a parallel Pipeline Safety Forum directed at further examining issues of pipeline safety, the environment and landowner concerns. Additionally, the NEB established new “regional offices” in Vancouver and Montreal to better focus on engagement and outreach activities with Canadians across the country.

In meetings that extended from December 2014 to May 2015, the NEB was careful to qualify the National Engagement Initiative as being distinct from its regulatory processes stating that the sessions were:“…..in addition to the existing engagement efforts of Board. They are also outside of our regulatory process; they are not discussing any specific project”.73 The clear intent of the NEB was to focus on public, stakeholder views on matters regarding pipeline safety and environmental protection. The laudable engagement initiative, unique in the history of the NEB, was nonetheless destined to have material, largely unintended, consequences that impacted not just the NEB and the Energy East application, but eventually extended to federal policies affecting the regulation of the energy industry.

Momentous Events Envelop the NEB74

The National Engagement Initiative led to reports that two NEB members from the Energy East Panel, including the Vice Chairman, had met privately in January 2015 with former Quebec Premier Jean Charest. As Charest was alleged to have been working as a consultant to Trans Canada at the time of the meeting, Prime Minister Trudeau was urged to scrap the entire NEB Energy East review. Although the NEB denied prior knowledge of Charest’s alleged connections to TransCanada, the public and media storm that erupted led to calls for the resignations of all three panel members due to apprehension of bias.

The initial NEB hearings for Energy east were suspended on 29 August 2016 after violent protests in Montreal reached into, and disrupted, the hearing room. While some protestors displayed a banner at the front of the hearing room, another reached the table where the board members were seated and almost knocked it over causing the evacuation of the NEB panel. Police entered to remove the protesters and made three arrests: two men were charged with assaulting a police officer and with obstruction of justice and a woman was charged with obstruction of justice. Montreal Mayor Coderre, an outspoken critic of the proposed $15.7-billion project, cancelled his appearance that he described as a “circus.”75

On August 29, 2016 the National Energy Board announced that it had suspended hearings into the Energy East pipeline project until such time as the board could rule on formal motions demanding the resignations of two panel members. Written comments on the Motions were invited until September 7, 2016.

Then, on September 9, 2016 the NEB announced that all three NEB Panel members had chosen to recuse themselves, a decision that ultimately led to a limiting of the duties by the NEB Chairman and the Vice Chair associated with the Energy East application. The NEB subsequently chose to appoint a new panel formed by new temporary members. After delays of three months, in mid-December 2016 NRCan Minister Carr announced the appointment of three new temporary members who were to be directed not by recused Chairman Watson but by temporary member Hamilton who was appointed as “alternate Chairman” for Energy East. Significantly, the appointments overlooked existing appointees to the NEB, both temporary and permanent, and appointed wholly-new individuals for the regulatory proceedings – untested members to hear the single largest pipeline application in the history of the NEB.

Previously, NRCan Minister Carr had named a five-person “Modernization Panel” tasked with carrying out national consultations to recommend reforms to the NEB. The uproar that forced the recusals therefore came at a time when activists, and some parliamentarians, were advocating that the “NEB was broken” and needed to be reformed.76 It also led to complicated, precedent-setting, internal administrative arrangements within the NEB to accommodate the recused Chair and Vice Chair, a new “alternate chairman” and the new Energy East panel members.

On June 5, 2017 the NEB also launched an initiative to be led by four new temporary members who were to be independent of the three-person Energy East Panel. They were appointed to gather input from Indigenous peoples as part of a new Engagement Initiative to shape the hearing process and identify procedures for the collection and use of oral traditional evidence. However, in spite of the clean slate of appointed members, some landowners expressed scepticism because they felt that the emphasis on aboriginal consultations by the panel ignored their concerns as directly affected parties.

These developments were unique in the history of the NEB and came at a time when government was undertaking a major review of the role and structure of the NEB. There were recusals of the panel appointed to hear the Energy East application, recusals of the Chair and Vice Chair, the unique appointment of the NEB COO in the role as panel CEO in place of the recused Chairman and the appointment of a new “alternate NEB Chair” tasked with appointing and presiding over the Energy East panel. Impossibly, the reorganization required that the new panel not associate with previous panel members or the NEB Chair and Vice Chair. These steps constituted the most significant deviation from established regulatory practices in the history of the NEB

Prior to these events, there had been other administrative delays for the applicants. On February 2016 the first NEB Panel deemed the Energy East application to be difficult to read and understand. This required TransCanada to re-submit a reconsolidation of the massive 50 volume 30,000-page project application.

Following that, on January 2017, after a review process that had taken more than two years, the new panel decided to void previous decisions of the recused panel and re-start the Energy East and Mainline application. Perhaps most significantly, the ruling voided previous decisions for a completeness determination, the list of participants and the Hearing Order (OH-002-2016) issued in June 2016. This forced a reformulation of issues for the project and a new completeness determination. The Ruling noted that: “According to case law, once a reasonable apprehension of bias has been established, the outcome of the proceeding, or the proceeding to date, is void.”77

In its Ruling, the new panel noted: “… the Transition Initiative Kenora (TIK) requested, in letters dated 7 and 22 September 2016 and in a 10 January Notice of Motion, that the Board void all previous decisions of the Energy East hearing, given that a reasonable apprehension of bias had been established. Other participants filed related submissions.”78 The panel rejected TIK’s request to have the applicants resubmit their applications noting: “The Panel decides that the Eastern Mainline application filed on 30 October 2014 remains valid. The Energy East application refiled as a consolidated version on 17 May 2016 also remains valid and will stay on the hearing record.”79 As a result, the proponent was not required to resubmit an application that had already been subjected to 18 months of public consultations.

PARALLEL POLITICAL DEVELOPMENTS

On January 27, 2016 the new federal government introduced five interim principles to guide decision-making on major resource projects. One principle was that direct and upstream greenhouse gas emissions (GHG’s) linked to projects would be reviewed by the newly renamed Environment and Climate Change Canada (ECCC), while the NEB was to consider GHG emissions “directly related to construction and operation of the project” but would not consider “upstream or downstream GHG’s in its project review”80 with a formal Memorandum of Understanding to establish the “engagement process” to address upstream GHG emissions associated with the Energy East project. This process was designed to be independent from the rekindled NEB hearings process.

As part of its reconsideration of a Completeness Decision, on May 10, 2017 the NEB sought public input on its reconsiderations of the draft list of issues for the Energy East application. The applicants responded on June 21, 2017 with a detailed legal analysis. The applicant filing noted that: “…the Board advises that it is “particularly interested” in obtaining comments on whether and if so why, certain additional issues (Draft Additional Issues) should be included in the final lists of issues for the Projects.”81 Among four issues was possible consideration of potential impacts of the Project on Canada’s greenhouse gas (GHG) emissions. The applicants’ analysis concluded that upstream and downstream GHG and GHG emissions policies are both important issues that merit discussion, in an appropriate forum: “However, the Applicants submit that the Board is not the appropriate forum for those discussions, which should and will take place elsewhere. As noted in the submission of Natural Resources Canada, the Government of Canada has committed to assessing the upstream and direct GHG emissions associated with the Projects.”82

The legal submission went on to argue that: “The Board should not and cannot consider Upstream and Downstream GHG Emissions in the context of either of the Projects, for a variety of reasons…” that included consideration of the Constitution Act, 186783, the mandate of the NEB and policy guidance set out in the Interim Measures and principles for Pipeline Reviews set by Canada in January 2016.84 The Applicants further argued that the NEB had “… no authority to mandate or direct the implementation of OSELA85, or to order its implementation. Any attempt by the Board to do so would be a recipe for disaster.”86 In relation to requests that the NEB delay its considerations of the Projects until such time as the CEAA Review and NEB Modernization Panels reports were concluded, the Applicants argued that: “… the Board can only apply existing law, not pending or potential legislation. In short, the Board does not have that legislative authority and cannot delay the pending application. The alternative would not only be a violation of the rule of law, but an abdication of its authority in favour of ‘sheer speculation.’ ”87

Clearly the stage was set for an epic regulatory confrontation.

On August 23, 2017, the newly-appointed NEB Energy East Panel issued its Decision, one which appeared to overlook the MOU signed between the NEB and ECCC and that directly contradicted the legal analysis of the Applicant. The panel ruled that it would for the first time consider the public interest and impacts of upstream and downstream GHG emissions from potential increased production and consumption of oil resulting from the project. It also ruled that, for the first time, it would allow discussion at hearings of the effect of meeting government GHG emission targets on the financial viability and need for the 4,500-kilometre pipeline (previously, the NEB had considered only those GHG emissions that were directly associated with construction and operation of a pipeline).88

Shortly after that ruling on September 7, 2017 the proponent TransCanada Corp announced that it was suspending its application for 30 days while it conducted a careful review of the NEB’s assessment process: “The applicants hereby request thirty days to review the Decision, the resulting implications to the Projects, and the respective Project applications. The Board is respectfully requested to not undertake any further review process on the Projects during the thirty-day period.”89

Predictably, the announcement set off a cascade of political catcalls between provinces and the federal government, while Alberta Energy Minister McCuaig-Boyd, citing Alberta’s Climate Leadership Plan as sufficient to satisfy concerns on emissions, termed the NEB’s decision as an “historic overreach” by the regulator, noting that: “Deciding the merits of a pipeline on downstream emissions is like judging transmission lines based on how its electricity will be used – this is not an appropriate issue to include in this review” further noting that that the Prime Minister had cited the Alberta Climate Plan in his approvals for the Enbridge Line 3 and the Kinder Morgan Trans Mountain pipeline projects. Alberta MP Remple accused the federal Liberals of sending the regulatory system into “quicksand” that would have the effect of damping investment in the Canadian energy sector: “It’s not just disappointing. This is infuriatingly frustrating – and people across the country whose jobs depend on this will look at this as an example of extreme incompetence by an ideological Liberal government that is opposed to development of the energy sector, writ large.”90

TransCanada argued in its request for suspension that an internal corporate project review was warranted due to the significant challenges resulting from the NEB decision.91 It also noted that should the corporation choose not to proceed with the project, the carrying value of the investment including potential recoveries of incurred development costs for the $15.7 billion project would be “negatively affected”, costs that were subsequently estimated at $1 billion. On September 8, 2017 the NEB granted TransCanada’s requested suspension of the Energy East review process agreeing not to issue further decisions or take further process steps relating to the review of the projects until 8 October 2017.

Finally, on October 5, 2017, in a corporate decision that created a Canadian political furor not witnessed since the days of the Great Pipeline Debate of the 1950s, TransCanada announced that it had abandoned the Energy East Project, Asset Transfer and Eastern Mainline Project (EMP).

 CONCLUDING COMMENTS

Many considered that a decision by a novice NEB Energy East panel to require a review of upstream greenhouse gas emissions has contributed to a fundamental re-examination of constitutional powers between provincial and federal governments. That decision, and the subsequent events surrounding the Kinder Morgan pipeline, may have brought Canada to a point that some consider is a “crisis”.

In a house so divided and coming at a time when the mandate of the NEB was being significantly revised with regulatory proposals in Bill C-69, many would consider it unlikely there could be an enhancement of regulatory certainty in national interest determinations. These regulatory uncertainties, when compounded by implications of the Northern Gateway decision and the continuing uncertainties surrounding the Kinder Morgan pipeline application, have eroded international investment interest in major projects just when Canada’s energy industry is struggling to maintain its competitiveness in an era of reduced prices and challenged exports. Is it possible for Canada and its energy sector to become greener and more innovative while enduring lower profitability, restrictions to market access, significant capital flight and major project cancellations? The regulatory authority of the NEB, previously affirmed by the Supreme Court, has been undermined to the extent that a host of jurisdictions and aboriginal organizations now presume, if not demand, a final say in Canadian energy development and transportation. The consequential erosion of the pre-eminence of the regulatory powers of the NEB is creating fundamental uncertainty and makes problematic any science-based determinations that reflect the national interest.

Some consider that the Supreme Court has been thrust into the energy regulatory mix as a direct result of federal governments that have consistently refused to issue clear rules for aboriginal consultation and accommodation. Fortunately, the Supreme Court has ruled that it does not equate the constitutional duty to consult with a veto over development—a useful legal clarification, but perhaps one in a long series of decisions that may be viewed by investors and industrial proponents as being too little and far too late.92

The federal government’s initial intentions to “modernize” and “restore public confidence” in the NEB have increasingly been eclipsed by far more pressing concerns for the economy, the national interest and, perhaps, the ability of the Canadian energy sector to survive such disparate, concerted regulatory assaults from so many sectors.93

The real casualties of this regulatory morass are Canadian corporations, investors and shareholders. Proponents have expended hundreds of millions of dollars in a complex Canadian political, legal and regulatory environment subject to final decisions made behind closed doors using previously undisclosed rules and standards. Such decisions made so late in the regulatory process fundamentally affect how investors view Canada and directly influences future corporate investment decisions.

When a federation dissolves into narrow definitions of federal, provincial and local government interests, the number of hands in the pot increases the complexity of issues for everyone. Such jurisdictional complexities also expand the amount of time needed by proponents to navigate all the interconnected issues through competing jurisdictions that increasingly include First Nations and local governments. The result is a complex, often contradictory and competing web of legislative and regulatory tools whose resolution cannot reasonably be achieved by continuous references to federal courts. The urgent responsibility for resolving these challenges rests with all Canadians, especially its leaders, who are increasingly being confronted with undesirable economic and social consequences of their actions and decisions.

*Dr. Ron Wallace, an Emerald-Award winning scientist with extensive international service, lives in Calgary. He has served on energy and environmental regulators and advisory boards for federal, provincial and territorial agencies. He was appointed as a Permanent Member to the National Energy Board in 2013 and in 2014 briefly served as the Board’s first elected Interim Chairman. Dr. Wallace retired as a permanent NEB member in 2016.

  1. Although the NEB denied prior knowledge of Charest’s alleged connections to TransCanada, the public and media storm that erupted led to successful calls for the resignations of all three Energy East panel members due to allegations of apprehension of bias.
  2. Scotiabank, “Pipeline Approval Delays: the Cost of Inaction”, Commodity Note (2018) Global Economics, online: <http://www.gbm.scotiabank.com/scpt/gbm/scotiaeconomics63/pipeline_approval_delays_2018-02-20.pdf>.
  3. Trading Economics, “Canada GDP”, online: <https://tradingeconomics.com/canada/gdp>: “1960-2018 Data: The Gross Domestic Product (GDP) in Canada was worth 1529.76 billion U.S. dollars in 2016. The GDP value of Canada represents 2.47 percent of the world economy. GDP in Canada averaged 616.46 USD Billion from 1960 until 2016, reaching an all-time high of 1842.63 USD Billion in 2013 and a record low of 40.77 USD Billion in 1961.”
  4. Martin Fletcher, “The Final Year: The breathless story of Obama’s last days as president”, RadioTimes (19 January 2018), online: <http://www.radiotimes.com/news/film/2018-01-19/the-final-year-the-breathless-story-of-obamas-last-days-as-president/>; David Edelstein, “Documentary Offers A Devastating Look At The Obama Administration’s ‘Final Year’”, Nashville Public Radio (22 January 2018), online: <http://nashvillepublicradio.org/post/documentary-offers-devastating-look-obama-administrations-final-year#stream/0>.
  5. Paris Agreement, Off Doc UNFCCC, 21st sess, Annex, UN Doc FCCC/CP/2015/Add.1 (2016) 23 [Paris Agreement].
  6. Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act and to make consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018.
  7. Canadian Environmental Assessment Act 2012, SC 2012, c 19, s 52.
  8. National Energy Board Act, RSC 1985, c N-7 [NEB Act].
  9. Bill C-68, An Act to amend the Fisheries Act and other Acts in consequence, 1st Sess, 42nd Parl, 2018.
  10. Jim Carr, Address (delivered at the Canada’s Minister of Natural Resources GLOBE Forum 2018, 15 March 2018), online: <https://www.canada.ca/en/natural-resources-canada/news/2018/03/the-honourable-jim-carr-canadas-minister-of-natural-resources-globe-forum-2018-vancouver-british-columbia.html>.
  11. Ron Wallace & Bonnie Gray Wallace, “Expert Perspectives on the NEB Modernization”, Daily Oil Bulletin (21 September 2018), online: <http://www.dailyoilbulletin.com/article/2017/9/21/expert-perspectives-neb-modernization/>.
  12. Ron Wallace, “Is the Canadian energy industry approaching a tipping point?”, JW Energy (2 October 2017), online: <http://www.jwnenergy.com/article/2017/10/canadian-energy-industry-approaching-tipping-point/>.
  13. Ron Wallace, “Babies, Bathwaters and Regulators: The ‘Precautionary Principle’ should also apply to how government deals with regulators” Daily Oil Bulletin (2017) 77.
  14. Food and Agriculture Organization of the United Nations, Free Prior and Informed Consent – An Indigenous Peoples’ right and a good practice for local communities (Guide) (Italy: FAO, 2016), online: <http://www.fao.org/3/a-i6190e.pdf>.
  15. United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNAGOR, 2007, UN Doc A/61/L.67 and Add.1.
  16. Laura Stone, “Jason Kenney vows repercussions against B.C. over Trans Mountain pipeline”, The Globe and Mail (4 August 2017), online: <https://www.theglobeandmail.com/news/alberta/jason-kenney-vows-repercussions-against-bc-over-trans-mountain-pipeline/article35887445/>.
  17. Rowland J. Harrison, “Social Licence to Operate: The Good, The bad, The Ominous” (Public Lecture delivered at the Faculty of Law, University of Alberta, 15 March 2015) [unpublished].
  18. Monte Hummel, “Environmental and Conservation Movements” (21 February 2010), The Canadian Encyclopedia, online: <http://www.thecanadianencyclopedia.ca/en/article/environmental-and-conservation-movements/>.
  19. Harrison, Supra note 17.
  20. Kyoto Protocol To The United Nations Framework Convention On Climate Change, 11 December 1997, 2303 RTNU 162 (entered into force 16 February 2005).
  21. Former NRCan Minister Joe Oliver authored a spirited review and defence of his statements by advocating that the prime minister should tell “foreign agitators to butt out of Canada.” Joe Oliver, “Yet more proof radicals (yes, radicals) are sabotaging Canada’s economy”, (13 March 2018) Financial Post, online: <http://business.financialpost.com/opinion/joe-oliver-yet-more-proof-foreign-radicals-yes-radicals-are-sabotaging-canadas-economy>.
  22. “Canada to withdraw from Kyoto Protocol”, BBC News (13 December 2011), online: <http://www.bbc.com/news/world-us-canada-16151310>.
  23. Jobs, Growth and Long-Term Prosperity Act, SC 2012, c 19.
  24. Canada, Bill C-38, An Act to implement certain provisions of the budget tabled in Parliament on March 29, 2012 and other measures, 1st Sess, 41st Parl, 2013.
  25. Canadian Environmental Assessment Act, SC 1992 c 37.
  26. Canadian Environmental Assessment Act, 2012, SC 2012, c 19.
  27. Canadian Environmental Protection Act, SC 1999, c 33.
  28. NEB Act, Supra note 8.
  29. Canada Oil and Gas Operations Act, RSC 1985, c O-7.
  30. Nuclear Safety and Control Act, SC 1997, c 9.
  31. Species at Risk Act, SC 2002, c 29.
  32. Fisheries Act, RSC 1985, c F-14.
  33. Rowland J. Harrison, “The Assault of Regulatory “Efficiency” on Procedural Fairness and Procedural Effectiveness: Mandated time limits under recent amendments to the National Energy Board Act” (Public lecture delivered at the Faculty of Law, University of Alberta, 7 March 2013). The lecture was a presentation version of a more comprehensive paper under the same title.
  34. NEB Act, Supra note 8. Under section 52 of the Act, recommendations from the NEB are made to the Minister, but it is the GIC that has the authority under section 54 to direct the Board to issue a certificate or to dismiss an application.
  35. Harrison, Supra note 33.
  36. Viviane Kraus, “The Cash Pipeline Opposing Canadian Oil Pipelines”, Financial Post (3 October 2016), online: <http://business.financialpost.com/opinion/vivian-krause-the-cash-pipeline-opposing-canadian-oil-pipelines>.
  37. Ibid.
  38. Claudia Cattaneo, “Leaked HIVE document shows how far Trans Mountain opponents will go to orchestrate outrage”, Financial Post (2 March 2018), online : <http://business.financialpost.com/commodities/energy/mixing-with-activists-proves-to-be-a-cautionary-tale-for-government>.
  39. Claudia Cattaneo, “Russian Meddling in Pipelines Uses Old Soviet ‘Useful Idiots’ Ploy”, Financial Post (3 March 2018), online: <http://business.financialpost.com/commodities/energy/russian-meddling-another-worry-for-canadian-energy-exports>.
  40. Ibid.
  41. Suzanne Anton, “Canadians are realizing foreign groups sabotaged our energy economy – for no good reason”, Financial Post (21 March 2018), online: <http://business.financialpost.com/opinion/canadians-are-realizing-foreign-groups-sabotaged-our-energy-economy-for-no-good-reason>.
  42. Global Shapers Community, “Global Shapers Annual Survey 2017” (2017) World Economic Forum, online: <www.shaperssurvey2017.org>.
  43. Yadullah Hussain, “Pipelines & politics: Where the parties stand on oil and gas issues”, Financial Post (14 October 2015), online: <http://business.financialpost.com/commodities/energy/pipelines-politics-where-the-parties-stand-on-oil-gas-issues>.
  44. Bill C-46, An Act to amend the National Energy Board Act and the Canada Oil and Gas Operations Act, 2nd Sess, 41st Parl, 2015.
  45. Liberal Party of Canada, “Election Platform” (2015), online: <https://www.liberal.ca/wp-content/uploads/2015/10/New-plan-for-a-strong-middle-class.pdf>.
  46. Paris Agreement, Supra note 5.  (4 November 2016, in accordance with article 21(1) the Agreement enters into force on the thirtieth day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 per cent of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession. The Paris Agreement was adopted on 12 December 2015 at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change held in Paris from 30 November to 13 December 2015. In accordance with its article 20, the Agreement shall be open for signature at the United Nations Headquarters in New York from 22 April 2016 until 21 April 2017 by States and regional economic integration organizations that are Parties to the United Nations Framework Convention on Climate Change).
  47. National Resources Canada, Report from the Ministerial Panel for the Trans Mountain Expansion Project, by the Ministerial Panel for the Trans Mountain Expansion Project (Ottawa: NRCan, 1 November 2016).
  48. Ibid.
  49. Dennis McConaghy, Dysfunction: Canada after Keystone XL (Toronto: Dundurn, 2017).
  50. Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed Reg 64661 (2015) (to be codified at 40 CFR).
  51. Chamber of Commerce, et al. v EPA (9 February 2016), US 15A787 (order 577 in pending case).
  52. Ibid.
  53. Promoting Energy Independence and Economic Growth, 82 Fed Reg 16093 (2017) (to be codified at 82 FR § 1(c)).
  54. Ibid, section 1(g).
  55. Jonathan H. Adler, “Supreme Court puts the brakes on the EPA’s Clean Power Plan”, The Washington Post (9 February 2016), online: <https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/02/09/supreme-court-puts-the-brakes-on-the-epas-clean-power-plan/?utm_term=.50b5826f057f>.
  56. Environmental Defense Fund, “Clean Power Plan case resources”, online: <https://www.edf.org/climate/clean-power-plan-case-resources>.
  57. US, Bill HR 6518, An Act to improve, strengthen, and accelerate programs for the prevention and abatement of air pollution, 88th Cong, 1963 [Clean Air Act].
  58. Office of the Press Secretary, Press Release, “U.S.-China Joint Announcement on Climate Change” (11 November 2014), online: <https://obamawhitehouse.archives.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change>.
  59. US, Executive Office of the President, Implementing an America-First Offhsore Energy Strategy (S Exec Doc No 13795) (Washington DC: US Government Printing Office, 2017).
  60. US, “Energy & Environment”, online: <https://www.whitehouse.gov/issues/energy-environment/>.
  61. Donald Trump, “Statement issued by President Trump on the Paris Climate Accord” (Address delivered at the White House Rose Garden, 1 June 2017) [unpublished].
  62. Shawn McCarthy, “Keystone pipeline approval ‘complete no-brainer,’ Harper says”, The Globe and Mail (21 September 2011), online: <https://www.theglobeandmail.com/news/politics/keystone-pipeline-approval-complete-no-brainer-harper-says/article4203332/>.
  63. Martin Fletcher, “The Final Year: The breathless story of Obama’s last days as president”, RadioTimes (19 January 2018), online: <http://www.radiotimes.com/news/film/2018-01-19/the-final-year-the-breathless-story-of-obamas-last-days-as-president/>.
  64. Juliet Eilperin and Brady Dennis, “With days left in office, President Obama ushers in dozens of policies. But will they stay seated?”, The Washington Post (14 January 2017), online: <https://www.washingtonpost.com/national/health-science/with-days-left-in-office-obama-ushers-in-dozens-of-policies-but-will-they-stay-seated/2017/01/14/30f56b4a-d8f9-11e6-9a36-1d296534b31e_story.html?utm_term=.14506c38d3ef>.
  65. Ibid.
  66. CBC, “Trudeau announces review of Arctic strategy, joint drilling ban with US”, CBC (21 December 2016), online: <http://www.cbc.ca/news/politics/trudeau-obama-arctic-1.3905933>.
  67. Claudia Cattaneo, “‘The last frontier’: Arctic drilling ban big blow to Northern Indigenous communities, premier says”, Financial Post (29 January 2018).
  68. Implementing an America-First Offshore Energy Strategy, 82 Fed Reg 20815 (2017).
  69. Julia Boccagno and Justin Covington, “Huge swaths of land may be open to offshore drilling in the near future”, CIRCA (4 January 2018), online: <https://www.circa.com/story/2018/01/04/politics/secretary-zinke-unveils-new-draft-proposal-to-open-the-arctic-pacific-and-atlantic-to-offshore-drilling>.
  70. National Energy Board, “National Engagement Initiative” (11 August 2017), online: <https://www.neb-one.gc.ca/glbl/ccct/index-eng.html>.
  71. National Energy Board, National Engagement Initiative Report – Engaging Canadians on Pipeline Safety (Calgary: NEB, 2015), online: <http://www.neb-one.gc.ca/glbl/ccct/ntnlnggmnt/2016rprt-eng.pdf>.
  72. Ibid.
  73. Ibid.
  74. Ruling No. 1 Consequences of the Energy East Hearing panel’s recusal and how to recommence the Energy East hearing, (27 January 2017), OF-Fac-Oil-E266-2014-01 0, online: NEB <https://apps.neb-one.gc.ca/REGDOCS/File/Download/3178888>.
  75. Benjamin Shingler and Stephen Smith, “NEB cancels 2 days of Energy East hearings in Montreal after ‘violent disruption’”, CBC News (29 August 2016), online: <http://www.cbc.ca/news/canada/montreal/neb-hearings-energy-east-protest-quebec-2016-1.3739215>.
  76. Ron Wallace and Jack M. Mintz, “Trudeau wrongly said Canadian energy regulation was ‘broken.’ Then he wrecked it”, Financial Post (23 February 2018), online: <http://business.financialpost.com/opinion/trudeau-wrongly-said-canadian-energy-regulation-was-broken-then-he-wrecked-it>.
  77. Supra note 74.
  78. Ibid.
  79. Ibid.
  80. National Energy Board, Memorandum of Understanding between ECCC and the NEB for the Establishment of a Public Engagement Process for the Assessment of Upstream Greenhouse Gas Emissions related to the Energy East Project (MOU), online: <https://www.neb-one.gc.ca/bts/ctrg/mmrndm/2016nvrnmntclmtchngcnd-eng.html?=undefined&wbdisable=true>.
  81. C Kemm Yates, Applicants comments on draft lists of issues and draft factors and scope of the factors for the Environmental Assessments pursuant to the Canadian Environmental Assessment Act 2012 (21 June 2017).
  82. Ibid.
  83. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
  84. Ibid.
  85. Oil Sands Emissions Limit Act, SA 2016, c O-7.5, enacted by the Alberta Legislature about one year after finalization of the Paris Accord as part of the Notley Government’s Alberta’s Climate Change Strategy.
  86. Supra note 81.
  87. Ibid.
  88. National Energy Board, News Release, “Expanded focus for Energy East assessment” (23 August 2017), online: <https://www.canada.ca/en/national-energy-board/news/2017/08/expanded_focus_forenergyeastassessment.html>
  89. TransCanada, List of issues and factors and scope of factors for the EA pursuant to CEAA 2012,  NEB File OF-Fac-Oil-E266-2014-01 02 (7 September 2017).
  90. John Gibson, “Politicians spar over Energy East as NEB suspends pipeline review”, CBC News (8 September 2017), online: <http://www.cbc.ca/news/canada/calgary/national-energy-board-energy-east-review-trans-canada-alberta-halt-suspend-review-1.4281060>.
  91. TransCanada, News Release, “TransCanada Seeks 30-day suspension of Energy East Pipeline and Eastern Mainline Project Applications” (7 September 2017), online: <https://www.transcanada.com/en/announcements/2017-09-07-transcanada-seeks-30-day-suspension-of-energy-east-pipeline-and-eastern-mainline-project-applications/>.
  92. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at 48.
  93. Supra note 6.

Leave a Reply