Proroguing participation in environmental decision-making

As our prime minister prorogues Parliament (again), environmental advocates are suing the federal government over new rules restricting public participation in hearings conducted by the National Energy Board (NEB) on major energy projects, including Enbridge’s proposed reversal of its Line 9B pipeline.

Some background: In 2008 the government passed the Federal Sustainable Development Act. The unobjectionable purpose of this legislation is to make environmental decision-making more transparent and accountable. In passing the act, the government acknowledged the “need to integrate environmental, economic and social factors in the making of all decisions by government.”

Fast-forward to 2012. Having made no measurable progress in implementing its sustainability strategy (more on that in a moment), the government tabled Bill C-38, a sprawling omnibus budget-implementation bill introducing, amending or repealing some 70 laws in a single stroke, including the NEB Act.

Also known as the Jobs, Growth and Long-term Prosperity Act, Bill C-38 amended the NEB Act to restrict both who may participate in the NEB’s public hearings and what participants may speak about.

Under the amended NEB Act, participants must demonstrate, to the NEB’s satisfaction, that they are directly affected by a given project, or have relevant information or expertise.

So how does this work? Would-be participants must now submit a lengthy application (numbering nine pages in its current form), even when a member of the public merely wants to submit a one-page comment letter to the NEB. The NEB will consider, in its sole discretion, the extent to which a participant’s interest or expertise falls within the scope of the hearing, as defined by the NEB.

In their lawsuit against the government, Forest Ethics Advocacy and Donna Sinclair allege that these new rules unjustifiably violate Canadians’ freedom of expression under the Charter of Rights and Freedoms. They further argue that the new rules will have a chilling effect on public participation in environmental decision-making.

Do they have a case? Well, numbers don’t lie. Before the new rules were enacted, 1,544 people spoke at the NEB’s hearings on Enbridge’s Northern Gateway pipeline proposal. But after the new rules were passed, only 175 people were granted permission to speak at the NEB’s upcoming hearings on Enbridge’s Line 9B reversal proposal, which seeks to transport Alberta bitumen crude oil to Quebec refineries through a 38-year-old pipeline dissecting the most populated part of Canada, running west to east roughly adjacent to Lake Ontario’s northern shoreline.

What’s more, the NEB’s arbitrary refusal to allow any discussion during the Line 9B hearings of the broader environmental consequences of further extracting Alberta’s bitumen crude oil contradicts settled scientific opinion, the NEB’s mandate, and the government’s own sustainability strategy.

Of course, the government will argue that the new NEB rules are “carefully tailored” to speed up lengthy environmental assessments and prevent project delays.

The trouble with that argument, however, is that there’s no evidence that environmental assessments were taking too long before the new rules were created.

In fact, a study of the length of environmental assessments under the Fisheries Act and the Canadian Environmental Assessment Act published in March revealed that most environmental assessments in Canada are completed in a timely manner. A more fulsome assessment is required only in a small minority of cases covering larger land areas and posing greater environmental risks.

Now, if ever a project merited a fulsome assessment, it’s Enbridge’s Line 9B. Using Enbridge’s own data, the Polaris Institute identified 804 ruptures of Enbridge pipelines between 1999 and 2010.

In 2010, Enbridge was responsible for the largest onshore oil spill ever in North America: the leak of more than three million litres of Alberta bitumen crude oil into Michigan’s Kalamazoo River, where the cleanup is still ongoing three years later.

Incredibly, the U.S. National Transportation Safety Board (NTSB) discovered that Enbridge knew of the Michigan pipeline’s defect as early as 2005, but neither Enbridge nor its Canadian regulator — the NEB — did anything to prevent a rupture. The NTSB publicly lambasted Enbridge for its “culture of deviancy” regarding pipeline safety.

Returning to the government’s plan to make environmental decision-making more transparent, how’s that working out? Not great. As the former commissioner of the Environment and Sustainable Development recently admonished the government, transparency is not a one-way street: “it involves a two-way exchange between government and its partners, based on meaningful public participation.”

Ironically enough, our prime minister once understood this. Back in 2005, before taking office, he told us that “when a government starts trying to cancel dissent or avoid dissent is frankly when it’s rapidly losing the moral authority to govern.”

Sadly, cancelling dissent by proroguing public participation is now the order of the day.

Jason MacLean

Published in the bi-weekly column, Sustainability Matters, The Chronicle-Journal, Thunder Bay, Monday, August 26, 2013

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