The Energy East pipeline has dominated the national conversation for years, but in recent months there have been a series of overlapping legal developments that have led to a great deal of confusion outside Quebec. Allow me to set the record straight.
Quebec has had a mandatory assessment and authorization procedure for pipelines for over 35 years. The province’s Environmental Quality Act applies to all pipelines over two kilometres in length.
Before 2012, projects such as TransCanada’s Energy East pipeline would probably have been reviewed by a joint provincial–federal panel in cooperation with the Canadian Environmental Assessment Agency. But one of the many changes hidden in Harper’s mammoth budget bills removed the agency’s mandate to review the environmental impact of pipelines and handed it to the National Energy Board.
However, Harper couldn’t rewrite the constitutional division of power. That left Quebec with the power to regulate pipelines on its territory.
TransCanada has refused to comply with provincial law despite three letters sent in 2014 by David Heurtel, Quebec’s environment minister, reminding the company of its legal obligation. Faced with this repeated refusal, Minister Heurtel turned around and entrusted the Bureau d’audiences publiques en environnement (BAPE, the body charged with administering public consultations on environmental issues) — which is supposed to evaluate projects using the Environment Quality Act — with a truncated mandate under another section of the same law, a provision that had never been used before to assess a specific development project. The problem is that this improvised process did not offer any of the safeguards of the normal procedure.
Taking TransCanada to court
After the minister failed to respond to letters requesting more information, a group of environmental groups and citizens including my organization, the Quebec Environmental Law Centre, took TransCanada to court last February. We were seeking to confirm that the company would be subject to the mandatory procedure.
It was the second time we had faced the company in court to ensure it respected provincial law. We had previously obtained an injunction to protect beluga whales, an endangered species, against an oil export terminal the company wanted to build in the whales’ essential habitat.
In order to avoid confusion and wasted energy and money in a process that would likely have to be repeated, we asked the minister to suspend the alternative BAPE hearing while the court ruled on TransCanada’s obligations.
About two weeks later, the government introduced its own injunction lawsuit against TransCanada but went ahead with public hearings under the alternative process. This consultation wasn’t based on an impact study specifically tailored to provincial and local questions. It was based on a selection of the unconsolidated and soon to be outdated unofficial translation of TransCanada’s submission to the NEB.
Unsurprisingly, many questions were left unanswered in the first part of the hearing. This problem was highlighted by many of the more than 2,000 people who participated and by some of the BAPE commissioners themselves.
As an independent institution, BAPE’s mission is to help the public fully understand a project. It pursued questions posed by citizens and sought answers from the company. At times it was not unlike a cross-examination in court, a process that was lacking in the much-criticized NEB pipeline review process out West. The Quebec hearings were livestreamed on the web and heavily covered by the media.
Just as the second phase of public hearings were set to start, TransCanada finally agreed to respect the first steps of the regular BAPE process by submitting a project notice to the ministry without waiting for the court’s decision. This raises a question: Was TransCanada worried it would suffer a legal defeat in the proceedings instituted by both the government and our organization?
On April 22, the minister suspended the second phase of the BAPE hearings, which were set to start April 25 and included more than 300 presentations over two months.
On April 25, the minister issued a directive intended to guide the company in preparing its environmental impact study. But the directive fails to include questions on the economic viability of the project, upstream and downstream greenhouse gas emissions or many of the myriad concerns expressed in the hundreds of written submissions and more than 4,000 online comments received by the BAPE. The exact nature of the complaints may never be known because they have not been made public despite our requests.
Both the provincial ministry and the NEB also issued schedules for the provincial and federal review process for the project. The BAPE and the citizens of Quebec should start the process all over again in the fall. This time we hope it will proceed in full respect of due process and the law.
So much has happened before anything has even officially begun. If TransCanada sought to avoid lengthy public proceedings by attempting a silent but blatant rewrite of the constitutional division of power, the strategy has failed.
One thing is certain: the rights of Quebecers will not be bulldozed on our watch.