Quiet Shift in Feds' Criteria for Approving Northern Gateway

When the federal government conducts its environmental assessment for Enbridge's controversial Northern Gateway pipeline and tanker project, risks to the environment likely will not be the main concern.

If this seems illogical, here is why it is true. In the current review of Northern Gateway, there has been a subtle but significant shift in focus from a fairly straightforward environmental assessment (EA) of the project, to a review with much greater emphasis on the need for the project.

We can see this by comparing the evolving language in a chain of documents. A straightforward environmental assessment of the project was prescribed in the preamble of the Dec. 4, 2009 agreement between the National Energy Board and the minister of the environment concerning the joint review of the Northern Gateway pipeline project.

But then came the procedural direction of July 5, 2010 and the hearing order of May 5, 2011. These two documents, issued by the Joint Review Panel (JRP) charged with conducting the review itself, indicate the decision to allow or quash the project will be made by taking into account factors other than its environmental impact.

With this classic bait and switch manoeuvre, the JRP is signalling to the legions of people and NGOs who oppose the project on environmental grounds: If you want to defeat this project, you'll have to convince the panel that it is not in the public interest.

Reversing the emphasis

In order to understand how we got to this point, we must first examine the JRP's terms of reference, which are included as an appendix to the 2009 agreement mentioned above. These terms of reference unequivocally task the panel with conducting "a review of the Environmental Effects of the project." Under those same terms of reference, the predominant factors to be considered in the course of the review are, once again, "the environmental effects of the project," with "need for the project" being an ancillary factor to be considered as part of that environmental assessment.

Thus, while the JRP is supposed to consider the need for the project when deciding whether to approve it, this is not one of the main factors to be taken into account. However, the JRP's subsequent interpretation of its own mandate appears to differ somewhat from these original terms of reference. 

In the hearing order issued by the JRP, the "list of issues" in Appendix 1 refers to the "environmental assessment of the Project and related public interest determination" that the panel is to undertake. In other words, what first started out under the JRP's terms of reference as a rather straightforward EA of the project, with "need for the project" constituting one (relatively minor) component of that EA, has morphed into an EA plus a "public interest determination" that is related to the EA. Interestingly, the JRP keeps hammering home this "public interest" aspect in a "meet the panel" video posted on the JRP website.

This is all fair enough, since under the National Energy Board Act, any project approved by the board (including this one) has to meet this "public interest" standard. But both the procedural direction and the hearing order issued by the JRP turn the panel's original remit on its head, making "need for the project" the foremost issue the JRP intends to examine, with environmental impacts listed a distant third, behind potential impacts of the project on aboriginal and commercial interests, landowners and land use.

In short, in three easy steps we go from the JRP being instructed to basically conduct an EA of the project, taking "need for the project" into consideration as part of that EA, to the JRP in effect usurping its own mandate by deciding to concentrate on the need for the project, with passing reference to environmental impacts.

Critical question of what to weigh

If this seemingly arbitrary change is not reversed before the final hearings begin in summer 2012, it could completely change the tenor of the proceedings, and possibly the outcome of the deliberations, since one of the proponent's main arguments in favour of the project is that it is in accordance with Canada's need to diversify away from American markets for tar sands bitumen, and expand towards lucrative Asian export markets instead.

This position is backed by statements from the current federal minister of natural resources (to whom the JRP will eventually report, along with the federal minister of the environment). Thus, the proponent and the minister of natural resources are of one mind: the Enbridge Northern Gateway pipeline and tanker project is in the national interest. And while the JRP has yet to make its views known, it is now apparent that it views the need for the project as the number one issue associated with its review. 

One implication of this sea change is that if the JRP looks at "need" first, and in the course of that examination determines that the project is indeed in the national interest, then, when it moves on to an analysis of environmental impacts, it would presumably have to find pretty compelling environmental reasons for the application to be rejected. If, on the other hand, the JRP looks first and foremost at environmental impacts, as its terms of reference instruct it to do, or at the very least accords higher priority to these impacts, and then concludes that such impacts are significant and cannot be mitigated, then it would be hard-pressed to argue that the project should proceed regardless, on the grounds that it is in the public interest. 

In the final analysis, any review of this project is bound to end up examining environmental impact, the need for the project, and ultimately the public interest, since the three elements are inextricably linked. What it all boils down to, then, is the relative weight accorded to each of the three factors. Under the JRP's original terms of reference, environmental factors were accorded greater weight, whereas in subsequent documents the JRP has turned this around, bestowing greater prominence to the "need for the project" and introducing the element of public interest. 

Let's be clear here: the JRP has every right to determine which issues it chooses to examine as it reviews the application. But it must develop this list of issues within the framework of the factors it is tasked with examining, and their relative importance -- something the panel has clearly failed to do. 

The bottom line is that in an environmental assessment as important as this one, the Canadian public has a right to expect that environmental impacts, rather than need for the project, will be top of mind for the panel.

[Tags: Environment.]