The Obama Administration’s recent decision to deny TransCanada’s application to build the Keystone XL pipeline is monumental. Alongside the rousing display of public environmental activism sparked by the proposed pipeline, the US government finally showed its environmental assessment process has a backbone. And given this timely announcement, which coincides with the Enbridge Joint Panel Review of the proposed Northern Gateway Pipeline, it might be cause for some optimism. That is, it would be if the Enbridge hearing wasn’t built to fail.

But the hearings are built to fail. The National Energy Board (NEB), the federal body tasked with overseeing the Enbridge hearing, issued a general directive one year ago designed to exclude input from prominent environmental groups critical of the astonishingly rapid expansion of the tar sands – an expansion that only stands to increase with the proposed pipeline. 

According to the NEB, information regarding the cumulative environmental impacts of the tar sands – including climate change impacts – is irrelevant to the hearing, which is intended to consider information regarding the pipeline alone.

The NEB’s muzzle tactics affected groups like the Raincoast Conservation Foundation, the Living Oceans Society and Forest Ethics, all prominent organizations critical of the environmental threats posed by the tar sands. Facing the board’s enforced censorship, these groups teamed up with EcoJustice to appeal the directive.

Paul Paquet, biologist and senior scientist with the Raincoast Conservation Foundation, headed up the organization’s submission to the NEB. The group’s plan to discuss the pipeline in the context of the tar sands ran aground with the release of the January 2011 NEB directive entitled “Panel Session Results and Decision.” Their submission “became a major issue,” Paquet told DeSmogBlog, “because of course we were looking at the tar sands.”

It looked to Raincoast like the NEB had responded to their application, and others, by issuing a gag order. And indeed, they had.

“Nobody has been silenced directly; only by the directive that came from the NEB…And that’s right across for everybody, not just us,” said Paquet. “I think it’s scandalous.”

The NEB justifies the exclusion – which denies some of Canada’s leading environmental scientists the right to talk about climate change, greenhouse gasses and Canada’s energy future throughout the hearing – rather crudely:

“…we do not consider that there is a sufficiently direct connection between the [Pipeline] Project and any particular existing or proposed oil sands development, or other oil production activities, to warrant consideration of the environmental effects of such activities…Subject to consideration of cumulative effects…we will not consider the environmental effects of upstream hydrocarbon production projects or activities in our review.” [emphasis mine]

To an environmental scientist like Paquet, the full significance of the directive was shockingly obvious:

“it was a general directive in order to try to constrain the hearings…including issues of cumulative effects or sustainable development that are supposed to be looked at. You can hardly talk about sustainable development that relates to the pipeline by excluding a discussion of the tar sands,” Paquet told DeSmogBlog.

But when EcoJustice began investigating the energy board’s hearing strategy they realized that was exactly what was slated to happen: a hearing crafted to overstate the benefits of the pipeline by ignoring the inherent costs of the tar sands. Although the NEB hasn’t been entirely consistent in their rationale. Apparently when it comes to the tar sands, not all opinions are equal.

Duplicitous Directive

Though the NEB termed Raincoast’s treatment of the tar sands irrelevant to the pipeline, the Pipeline Partnership’s treatment of the tar sands was fair game – a little inconsistency EcoJustice thought pertinent to mention in its appeal.

According to Barry Robinson, the EcoJustice lawyer representing the three environmental groups, the hearing is *strategically biased* unbalanced. “We generally see this as an unbalanced approach,” he told DeSmogBlog, “to consider the economic benefits but not the environmental impacts.”

And if you’re going to include the one you should, as a matter principle, be open to including the other. “Since Enbridge is relying on the economic benefits of the oil sands and its one of the reasons to approve this then you must equally consider the environmental impacts of the oil sands,” he continued.

The premise of Enbridge’s Project Application submitted by the Northern Gateway Pipelines Limited Partnership falls entirely upon the benefits the pipeline will bring to tar sands development. The pipeline is in no way a standalone project; its contribution to the tar sands economy is its only measure of success.

And that is why the Partnership’s application relies so heavily on the projected economic benefits the pipeline will bring to the tar sands.

In the words of the Partnership:

“There is a clear opportunity to link, by new pipelines and marine transportation, regions of rapid demand growth with new, secure supplies of oil, such as those that are increasingly available from Canada’s oil sands. The Enbridge Northern Gateway Project (the Project) will create that link by connecting to suppliers of oil delivered at the Edmonton hub…”

“…As nations continue to develop and grow, oil sands supply will continue to respond by increasing production. It is critical, however, that oil sands producers can access new global markets to support their development so that Canada obtains full value for its secure oil production…”

“…Enbridge’s Gateway Project is an important part of Canada’s energy future and will help ensure there is enough capacity to transport new oil from Canada’s oil sands in the years to come…”

EcoJustice challenged the NEB’s disingenuous claim that there is no “significant direct connection” between the Northern Gateway proposed pipeline and “existing or proposed tar sands development.”

But EcoJustice’s appeal is something the National Energy Board refused to reconsider, twice. 

“Early in the panel process we formed a letter on behalf of the three groups [pushing] that the environmental impacts…should be considered…Then the panel came out with…the panel decision and they declared that ‘no, we are not including upstream impacts.’ We subsequently submitted a formal motion to the panel, arguing that the upstream impacts should be included…and they once again decided that the impacts are outside the scope of what the hearing will consider,”Robinson told DeSmogBlog.

The apparent double standard on NEB‘s part here is clear: Gateway supporters are welcome, while critics who bring up the larger issue of the tar sands are muzzled.

From a legal perspective, says Robinson, “the panel, particularly in its role as a National Energy Board panel, has to decide if the project is in the public interest…and they are required to balance both the benefits and the burdens of the project.”

Legality, however, might have little to do with it, says Paquet. “It’s just one of those issues where justice and the law aren’t necessarily going to be the same.”

**Editor’s Clarification Feb 9th: Carol didn’t intend to suggest that EcoJustice’s Barry Robinson used the phrase “strategically biased.” That was her choice of words. We have stricken that and replaced it with ‘unbalanced’ to more accurately reflect Mr. Robinson’s position.  

Mr. Robinson issued the following statement for additional clarification:

“It is unfortunate the Joint Review Panel decided not to include upstream impacts in the scope of its review, as Ecojustice believes a balanced approach to the review process should include an equally weighted assessment of all the environmental impacts and economic benefits of the proposed pipeline. But while I and others may disagree with the Panel’s position with respect to the balancing of environmental impacts and economic benefits, I would not say their decision has rendered the hearing process as a whole “strategically biased.” The JRP review process is supposed to be rooted in facts and science – as the Panel itself recently affirmed – and remains the most transparent way to assess whether the project has merit for Canadians, or poses too many unnecessary risks.”

Image: Burning oil in the Gulf of Mexico. Used with permission from Kris Krug.