Hearings spiral into soap opera
Pipeline protests show pitfalls of social licence
The deplorable vi ol e nt demonstrations during the National Energy Board’s hearings on the Energy East pipeline in Montreal, and Tuesday’s announcement the hearings have been suspended indefinitely, provide more proof Ottawa’s pursuit of social licence for major energy projects is pointless, even harmful.
Instead of producing more opportunity for public input and building the credibility of regulatory reviews, the hearings have degenerated into a soap opera. The result? More delays.
The NEB said Tuesday it needs to rule on whether two of the three panel members overseeing the review can continue. Motions have been filed demanding their resignation, based on claims in a news report they met former Quebec premier Jean Charest, when he was a paid lobbyist for TransCanada Corp., Energy East’s proponent.
Similarly, the additional consultations ordered by the Liberals on Kinder Morgan’s Trans Mountain expansion proposal have turned into a parade of naysayers demanding its cancellation, even though it has already been approved by the NEB after a thorough and costly review.
The pursuit of social licence by beefing up regulatory reviews is part of the Justin Trudeau/ Rachel Notley game plan to build support for proposed oil pipelines by upping the ante on climate change policy.
What we are getting instead is aggressive climate change policy, and even more aggressive opposition to pipelines.
All this was predictable by anyone who’s watched the growth of the anti- development movement in North America. The promise of social licence made by naive politicians in search of votes has given it room to expand even more, escalate demands, trigger delays.
In a thoughtful column, Too Much Power to t he People, Vancouver environmental l awyer Paul Cassidy highlights the pitfalls of social licence. Indeed, he argues it could be deemed illegal if integrated in the Canadian Environmental Assessment Act, as contemplated.
In government decision making, the rule of law mandates government action to be based in legal authority and prohibits upholding an irrational decision, which means it has to be reasonable, demonstrated through defensibility in terms of fact and law, Cassidy writes in the column, published in Lawyers Weekly in April.
“While public opinion has a place in environmental assessment, it should not serve as the stamp of approval, condition precedent or a superseding consideration for a minister’s decision under the law,” he writes.
“Public opinion is historically dominated by the project opposition, where only the loudest voices count. In the context of development, public opinion is often riddled with personal interest and framed by individualized conceptions of justice. As the rule of law forbids these personal interests and considerations to wade into the application of the law, it would be inconsistent with the constitutional principle for a social licence to be determinative of a project’s approval.”
Given the increasing challenges faced by proposed energy projects, Ottawa and the provinces need to consider a course correction, rather than press forward with carbon reduction policies.
If their goal is truly to build support for energy infrastructure to benefit the country as a whole, by demonstrating Canada is embracing the highest possible environmental standards in fossil fuels production, they should make adoption of those standards conditional on pipeline approvals.
Dennis McConaghy, a retired TransCanada Corp. senior executive whose book on the Keystone XL pipeline will be published soon, said the Alberta government, in particular, would have been better off making its carbon tax conditional on a breakthrough on market access.
“If Alberta was to impose on itself a carbon tax that would rank as one of the most stringent in the world, it had to get something for it from the rest of the country, but especially from the federal government of Justin Trudeau,” said McConaghy, who supervised TransCanada’s KXL strategy until his retirement two years ago.
“The Notley approach was naive and ass backwards. Her government is now in the position of relying on Trudeau, and to some extent, the rest of the country, to be fair to Alberta, in recognition of its leadership on carbon pricing.”
As the Montreal demonstrations showed, Energy East opponents don’t care about regulatory reviews, pipeline safety or that Alberta and Canada are paying for pipeline approvals by swallowing stringent climate change plans. Their goal is to disrupt and discredit any regulatory process that doesn’t kill projects. Their licence should be contained, not encouraged.