Premier John Horgan says the approval of Trans Mountain’s expansion was the “outcome of a flawed process endorsed” by the B.C. Liberals under Christy Clark and wants “a credible process to evaluate the risks.”
Last week, the Federal Court of Appeal handed Horgan what he’s been looking for — unequivocal, objective proof that neither the National Energy Board nor Ottawa will protect B.C.’s environmental or economic interests, and a real and meaningful opportunity to fix it.
The court ruling means Horgan can order a rigorous, scientific and fact-based made-in-B.C. environmental assessment under the B.C. Environmental Assessment Act. This is because the court found that Ottawa “could not rely on the board’s report and recommendations when assessing the project’s environmental effects and the overall public interest.” The “successive, unacceptable deficiencies” in the NEB’s report is why the court said the federal certificate must be pulled.
When the Clark government issued B.C.’s environmental certificate, it relied on the same flawed NEB report. In its reasons for approval, then-ministers Mary Polak and Chris Coleman explained that “the NEB Report is the assessment report that we have considered for the project.” Period. No other environmental-assessment report was relied upon.
If the federal certificate is no longer valid because of the NEB report, then it follows the B.C. certificate must be invalid, too. Approval of a B.C. certificate must start anew.
The reason the Clark government relied on the NEB report — and not an environmental assessment conducted by B.C., as it has the sovereign right to do — is because B.C. entered an equivalency agreement with the NEB in 2010. That agreement required B.C. to accept the NEB environmental assessment as its own.
That was then; this is now. The NEB can no longer be trusted with B.C.’s environmental and economic future. It had its chance. It failed.
Prime Minister Justin Trudeau could appeal the court decision to quash the certificate, but it is more likely he will refer the expansion project back to the NEB for reconsideration. He’s in a rush to get Trans Mountain built. He’s made it clear what he wants the NEB to do. Why subject B.C. to the indignity of another flawed NEB process?
Trans Mountain needs to be removed from the projects subject to the equivalency agreement. If it is not possible to take it off the list for some technical reason, then Horgan needs to exercise the 30-day exit clause and release B.C. from the shackles of an agreement with a regulator he knows cannot be trusted.
It is not only B.C. that has experienced the NEB’s inadequacies. The expert panel on the modernization of the NEB determined the regulator lacks the trust of Canadians largely because of its industry bias.
Trudeau himself knows the board is not credible or up to the task of protecting the public interest. This is why Bill C-69 is before Parliament — to scrap the NEB and replace it with a new energy regulator while removing from it the responsibility for environmental assessments.
The spectre of Trudeau returning Trans Mountain to a regulatory board his government has no confidence in is mind-boggling. He should wait until the NEB is overhauled and the new system in place, with newly appointed evaluators who are up to the task. He’s not going to do that.
As Horgan said immediately following the court’s decision: “Establishing provincial jurisdiction is more important than ever.” If B.C. reclaims its sovereign right by freeing itself from the constraints of the equivalency agreement, the negative fallout from Trudeau’s irresponsible behaviour will no longer be B.C.’s problem.
Pulling Trans Mountain out from under the equivalency agreement and conducting proper due diligence through B.C.’s environmental-assessment system — as it should have been done from the start — is the only responsible course of action.
Robyn Allan is an independent economist and was a qualified expert intervener at the Trans Mountain Expansion Project review.
