The new three-member panel appointed earlier this month by the National Energy Board to review TransCanada Corporation’s Energy East and Eastern Mainline pipeline projects is going most of the way back to square one, after deciding to void all decisions made by the previous, discredited panel.
The decision Friday was a big win for Transition Initiative Kenora and its legal counsel, EcoJustice, whose court motion argued “that all decisions made by the prior panel members have been put into question after they stepped down because of questions about a potential conflict of interest last year,” the Montreal Gazette reported at the time.
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“Because there is this reasonable apprehension of bias associated with that panel, any of those discretionary decisions that they’ve made carry the taint of that potential bias,” said Executive Director Teika Newton. “The only way to fix the problem is to start all over again from the beginning.”
That’s what’s happening now. “Given the recusals and the applicable case law, all decisions made by the previous panel must be, and are hereby, voided and stricken from the record,” the NEB stated in its release.”
Within hours of the announcement, the Treaty Alliance was out with a quick reaction that tied the panel’s decision to the NEB’s approvals of other controversial pipelines. “As #EnergyEast review gets tossed due to bias, can’t forget: #KinderMorgan, #Line3 & @KXL all approved under same biased & broken NEB system,” the Alliance tweeted.
Keith Stewart, senior energy strategist at Greenpeace Canada, agreed: “No doubt TransCanada is regretting their overly-aggressive lobbying for this pipeline, which has now come back to bite them,” he said. But “there is no way the new review should be allowed to go ahead under the old rules, which are being rewritten as we speak to address the structural, pro-industry bias introduced by the Harper government, and to incorporate consideration of climate change impacts.”
But as climate and energy advocates and other interveners prepared for the NEB process to restart, there was another, bigger obstacle taking shape for Energy East: the whole project may have been trumped by the U.S. presidential executive order last week, inviting TransCanada to reapply for approval of its Keystone XL pipeline.
University of Calgary energy economist Trevor Tombe said that discussion “delays the time pressure to build Energy East” by a decade, CBC reports.
“It looks like Keystone wouldn’t be fully utilized…until about 2030,” Tombe said. [And that’s before factoring in climate realities that dictate faster, deeper carbon cuts and more fossil resources left in the ground. – Ed.] So if the Canadian government decided there was less urgency attached to the NEB’s Energy East review, “I think there’s a strong case, and I don’t think they’d get a lot of pushback there.”