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U.S. EPA Restricted to Written Testimony in NEB Trans Mountain Case

The top U.S. environmental watchdog has won the right to observe and bark -- but not bite -- in the next contested Canadian pipeline approval case.

The U.S. Environmental Protection Agency (EPA) has obtained participant status from Canada's National Energy Board (NEB) for forthcoming hearings on Kinder Morgan Canada's planned additions to the Trans Mountain Pipeline across Alberta and British Columbia.

EPA's role will be limited. Under regulatory reforms enacted by the Conservative government in Ottawa, the U.S. agency's status in Canada will be confined to a supporting role called "commenter." EPA did not seek, or receive, full rights to be an "intervener" (see Daily GPI, March 13). Under the reforms, tightened rules on legal standing confine active participation and testimony to people, organizations or firms that are directly and adversely affected by projects.

The commenter designation is granted when a participation application convinces the NEB that contributions of "relevant information or expertise" will be forthcoming in writing but not sworn oral witness testimony.

The Trans Mountain case is a hotly contested Canadian counterpart to the fiercely resisted Keystone XL proposal for an oilsands export express pipeline from Alberta across the United States to the coast of the Gulf of Mexico.

For C$5.4 billion (US$4.9 billion) Kinder Morgan intends to nearly triple capacity on the 1,150-kilometer (713-mile) Trans Mountain line from Edmonton to Vancouver to 890,000 b/d from 300,000 b/d. Virtually all the additional service, which is booked up, will be devoted to loading tankers with bitumen from the Alberta oilsands.

In its case participation application, EPA's Region 10 office (Washington, Oregon, Idaho and Seattle) said its rare involvement in a Canadian regulatory case would focus on environmental and socioeconomic effects of the new oilsands export route. EPA said it intends to concentrate on cumulative results of Trans Mountain's expansion, plus those of Enbridge Inc.'s Northern Gateway proposal for a Pacific Coast oilsands outlet, such as increases in West Coast tanker traffic and risks of spills.

The Trans Mountain expansion plus a dock planned on the Washington coast at Cherry Point -- the proposed Gateway Pacific Terminal -- foreshadow an additional 865 tanker voyages per year in the Strait of Juan de Fuca between the United States and Canada, EPA said.

The NEB case participation ruling highlights the efficiency and time-saving that recent Canadian regulatory reforms were meant to achieve. Under the previous regime, a joint review panel of the NEB and the Canadian Environmental Assessment Agency spent nearly a year hearing from environmental and aboriginal critics who had opinions of the recently approved Northern Gateway oilsands pipeline project. The old rules had an "oral statement" provision that enabled opponents to play for time and delay with a tactic known as "mob the microphone." Under the new regime, the NEB started the Trans Mountain proceeding with a step called "applications to participate" (ATP).

The EPA ATP was one of 2,118 reviewed. The board denied 468 participation requests. The ruling grated 400 ATPs for intervener status but bumped another 452 down a level to the commenter role. Commenters, including the EPA, have the right to submit statements in the form of letters, expressing views but not providing sworn evidence or being subject to cross-examination.

The new, selective approach to regulatory case participation has set off protests among eco-critics but no attempts to appeal rulings to the law courts. The procedural reform legislation said board rulings on standing are final.

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