national energy board

Cue Collective Eye Roll: Harper Appoints Kinder Morgan Consultant to Pipeline Regulator

The purpose of the National Energy Board, like any regulator, is to be unprofitable. They perform unprofitable environmental assessments to make sure we have access to unprofitable clean drinking water and preserve unprofitable nature for unprofitable future generations. That’s because citizens value things beyond profits, and the National Energy Board represents citizens. In theory… 

One of the last things the Harper government did before it launched the federal election was to appoint Steven Kelly, who is a consultant for Kinder Morgan, to the National Energy Board. This guy was paid to convince the government to approve the expansion of the Kinder Morgan pipeline. And now he’ll be part of the team that helps to decide if his own argument was convincing. If the pipeline review process was a cutest baby competition, we just hired the baby’s mom.

Kinder Morgan, NEB Draw Ire for Oil Spill Response Plans Released in Washington State, But Not B.C.

kinder morgan pipeline, trans mountain spill response plans

Since DeSmog Canada broke the story two weeks ago that Kinder Morgan publicly released its emergency oil spill plans for the Trans Mountain pipeline in Washington State while withholding or severely redacting the exact same plans in B.C., there's been a firestorm of activity on the topic.

The story has now been covered by the Globe and Mail, the CBC and the Canadian Press, the issue was raised in the House of Commons this week and the president of Kinder Morgan and the chair of the National Energy Board (NEB) have been forced to respond.

Kinder Morgan and the NEB angered the B.C. government in January after ruling the company could keep spill response plans for the proposed oilsands pipeline secret due to “security concerns.”

This week Kinder Morgan president Ian Anderson defended the company’s actions, saying the NEB did not demand disclosure of the plans.

We in no way want to have this perceived lack of transparency around our emergency response plans as any indication of us wanting to hide anything or keep anything a secret,” Anderson said.

What Kinder Morgan is Keeping Secret About its Trans Mountain Spill Response Plans

Kinder Morgan, the company currently seeking permission to nearly triple the capacity of the Trans Mountain pipeline to carry Albertan crude to the west coast, has engaged in a protracted fight with the province of British Columbia in an effort to keep its oil spill response plans a secret.

The company alleges its motivation has to do with ‘security concerns’ although a look back at the to and fro with the province of B.C. paints a story of either incompetence or pure, defenseless hubris.

Either way, what Kinder Morgan is refusing to produce for B.C. and other intervenors in the pipeline review process, the company willingly disclosed south of the border for portions of the pipeline that extend to Washington State.

A read through the detailed spill response plans Kinder Morgan has in place for the U.S. shows just how far the company went to prove they can handle a pipeline spill. 

It also highlights how outlandish it is that Kinder Morgan has not released similarly-detailed plans to the province of B.C.

It is also troubling that Kinder Morgan expects the government of B.C. to consent to a massive pipeline expansion — the proposal calls for a twinning of the pipeline which would lead to a fivefold increase in tanker traffic — without adequate assurances the best available emergency plans are in place.

So, what did Kinder Morgan tell Washington State that it refuses to tell B.C.?

How Trans Mountain Pipeline Delivers Max Profits to U.S. Investors By Avoiding Paying Canadian Taxes

Kinder Morgan Trans Mountain rally on Burnaby Mountain

Kinder Morgan, the Texas-based multinational that owns and operates the Trans Mountain Pipeline System, claims Trans Mountain is a significant contributor to federal and provincial income tax revenues. The company is relying on this as proof it deserves public licence to triple its pipeline capacity in Western Canada.

Pouring tax revenues into Canada is not the story Kinder Morgan tells its U.S.-based shareholders. Promoting Trans Mountain south of the border, Kinder Morgan boasts of tax refunds — two in the past five years. From 2009 to 2013, Trans Mountain's combined federal and provincial Canadian corporate tax contribution averaged just $1.5 million per year.

How could this be? The answer lies in complexities of U.S. corporate tax regulation which I will do my best to explain here.

Energy Executive Quits Trans Mountain Pipeline Review, Calls NEB Process A ‘Public Deception'

Marc Eliesen

An energy executive is weighing in on the federal review of Kinder Morgan’s Trans Mountain oil pipeline expansion with a scathing letter that calls the National Energy Board’s review process “fraudulent” and a “public deception” — and calls for the province of British Columbia to undertake its own environmental assessment.

Marc Eliesen — who has 40 years of executive experience in the energy sector, including as a board member at Suncor — writes in his letter to the National Energy Board that the process is jury-rigged with a “pre-determined outcome.”

Eliesen is the former CEO of BC Hydro, former chair of Manitoba Hydro and has served as a deputy minister in seven different federal and provincial governments.

In his letter, Eliesen tells the National Energy Board (NEB) that he offered his expertise as an intervenor in good faith that his time would be well spent in evaluation Trans Mountain’s proposal.

Unfortunately, I have come to the conclusion that the board, through its decisions, is engaged in a public deception,” Eliesen writes. “Continued involvement with this process is a waste of time and effort, and represents a disservice to the public interest because it endorses a fraudulent process.”

Decision on Kinder Morgan's Trans Mountain Oil Pipeline Delayed Until After Next Federal Election

Kinder Morgan pipeline protest

Canada's National Energy Board (NEB) announced today that it is stopping the clock on the review of Kinder Morgan’s Trans Mountain oil pipeline expansion due to the company’s new proposed corridor through Burnaby, B.C. — which will push a decision on the project back to after the 2015 federal election.

The board will take a seven-month timeout from its 15-month timeline between July 11, 2014, and Februrary 3, 2015, to allow Kinder Morgan time to file studies for its new corridor through Burnaby Mountain, according to a letter to intervenors sent today.

That pushes the board’s deadline to file its report on the project with cabinet back seven months from July 2, 2015, to Jan. 25, 2016.

The significant thing is that this decision now won’t be made until after the next federal election. It’ll be up to the next Prime Minister to make that call,” says Karen Campbell, staff lawyer with Ecojustice.

From a campaign perspective, it certainly gives some wind in the sails of those who want to make sure this isn’t a fait accompli before the next election,” she says.

The Fish Are Fine, Kinder Morgan Says

Chinook salmon

Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right   Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

The motion Ecojustice lawyers filed on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, asks the Board to order Kinder Morgan to fully respond to our clients’ first round of information requests about the Trans Mountain Expansion Project.

Kinder Morgan received more than 10,000 questions from intervenors. As we wrote last month, the company asked for an extension of the time limit to respond, but got only 14 of the 23 days they asked for. Our clients supported the request, in the interest of allowing Kinder Morgan time to provide as much information as possible.

Kinder Morgan's slippery responses

But now that the responses are in, we wonder whether the extra nine days would have made a difference. Responses from the company have ranged from vague to incomplete to non-existent. In short The information provided by Kinder Morgan is not nearly good enough. Of the 253 responses our clients received from the company, at least 77 – approximately 30 per cent – were inadequate. 

In 20 responses, Kinder Morgan refused to answer the question in whole or in part, by:

  • Claiming it was “not relevant” to the review (including the record of leaks and ruptures on Kinder Morgan’s other pipeline systems, and the make and model of clean-up equipment); or
  • Stating that it did not have the information (including air monitoring information), because the data do not exist, because the answer was not in the documents they relied on in the application, or because they had not done the necessary work to answer.

In five responses, Kinder Morgan gave a response which only partially answered the question or provided an answer but not the supporting data requested.

In the remainder of the responses, Kinder Morgan simply didn’t answer the questions it was asked. Here’s a snapshot of the ways the company answered questions with non-answers:

  • Cited a large document or report rather than provide an clear answer;
  • Referred to a document that did not contain any answer to the question; 
  • Said it would file an answer later; or
  • Cited a legal standard rather than address facts. 

As we mentioned above, when our clients asked if there was evidence from cold water oil spills, beyond evidence from the Exxon Valdez oil spill, of marine fish communities or habitat being impacted for more than two years after a spill, this was Kinder Morgan’s response: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.” 

In support of that mystifying non-answer, Kinder Morgan cited a 264-page report from Enbridge’s reply evidence in the Northern Gateway pipeline hearings. 

We’ve written about how, in the wake of the 2012 omnibus budget bill, reviews of major pipeline projects have been scaled back dramatically, sacrificing good science and process for “efficiency.” The Kinder Morgan Trans Mountain Expansion Project hearing, with its 15-month time limit and lack of oral cross-examination, is a prime example of how this shift is deeply problematic. 

We are now halfway through the two rounds of intervenor information requests, which are intervenors’ only chance to ask Kinder Morgan questions about its 15,000-page application. Our clients are increasingly worried that they will be unable to meaningfully challenge Kinder Morgan’s evidence, particularly given its evasive approach to our information requests. 

But as for the fish, according to Kinder Morgan, they will be just fine.

- See more at: http://www.ecojustice.ca/blog/the-fish-are-fine-kinder-morgan-says#sthas...

Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right   Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

The motion Ecojustice lawyers filed on behalf of our clients, Living Oceans Society and Raincoast Conservation Foundation, asks the Board to order Kinder Morgan to fully respond to our clients’ first round of information requests about the Trans Mountain Expansion Project.

Kinder Morgan received more than 10,000 questions from intervenors. As we wrote last month, the company asked for an extension of the time limit to respond, but got only 14 of the 23 days they asked for. Our clients supported the request, in the interest of allowing Kinder Morgan time to provide as much information as possible.

Kinder Morgan's slippery responses

But now that the responses are in, we wonder whether the extra nine days would have made a difference. Responses from the company have ranged from vague to incomplete to non-existent. In short The information provided by Kinder Morgan is not nearly good enough. Of the 253 responses our clients received from the company, at least 77 – approximately 30 per cent – were inadequate. 

In 20 responses, Kinder Morgan refused to answer the question in whole or in part, by:

  • Claiming it was “not relevant” to the review (including the record of leaks and ruptures on Kinder Morgan’s other pipeline systems, and the make and model of clean-up equipment); or
  • Stating that it did not have the information (including air monitoring information), because the data do not exist, because the answer was not in the documents they relied on in the application, or because they had not done the necessary work to answer.

In five responses, Kinder Morgan gave a response which only partially answered the question or provided an answer but not the supporting data requested.

In the remainder of the responses, Kinder Morgan simply didn’t answer the questions it was asked. Here’s a snapshot of the ways the company answered questions with non-answers:

  • Cited a large document or report rather than provide an clear answer;
  • Referred to a document that did not contain any answer to the question; 
  • Said it would file an answer later; or
  • Cited a legal standard rather than address facts. 

As we mentioned above, when our clients asked if there was evidence from cold water oil spills, beyond evidence from the Exxon Valdez oil spill, of marine fish communities or habitat being impacted for more than two years after a spill, this was Kinder Morgan’s response: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.” 

In support of that mystifying non-answer, Kinder Morgan cited a 264-page report from Enbridge’s reply evidence in the Northern Gateway pipeline hearings. 

We’ve written about how, in the wake of the 2012 omnibus budget bill, reviews of major pipeline projects have been scaled back dramatically, sacrificing good science and process for “efficiency.” The Kinder Morgan Trans Mountain Expansion Project hearing, with its 15-month time limit and lack of oral cross-examination, is a prime example of how this shift is deeply problematic. 

We are now halfway through the two rounds of intervenor information requests, which are intervenors’ only chance to ask Kinder Morgan questions about its 15,000-page application. Our clients are increasingly worried that they will be unable to meaningfully challenge Kinder Morgan’s evidence, particularly given its evasive approach to our information requests. 

But as for the fish, according to Kinder Morgan, they will be just fine.

- See more at: http://www.ecojustice.ca/blog/the-fish-are-fine-kinder-morgan-says#sthas...
Dyna Tuytel, staff lawyer

This is a guest post by Ecojustice staff lawyer Dyna Tuytel.

Ecojustice lawyers were among the many to file motions to the National Energy Board late last week regarding Kinder Morgan’s poor and non-existent responses to questions posed to it by intervenors. And while we were generally disappointed by Kinder Morgan’s evasive approach, we were shocked at one reply in particular.

When asked whether there is any evidence from cold water oil spills to suggest marine fish are impacted, Kinder Morgan’s response was that: “Harm to marine fish populations seems to be the exception, rather than the rule, following marine oil spills.”

That’s right — Kinder Morgan’s view is that when oil is spilled in water, there is little harm to fish, and it is more likely the fish will be just fine.

B.C. Government Calls on NEB to Compel Kinder Morgan to Answer Oil Spill Questions

oil tanker

The province of British Columbia has filed a motion with the National Energy Board (NEB) to compel pipeline company Kinder Morgan to answer the province’s questions on its Trans Mountain expansion project.

In the motion, the province argues the company has failed to supply adequate answers to dozens of questions on issues such as oil spill response. A 41-page chart submitted to the NEB by the province outlines all of the instances in which Kinder Morgan did not adequately answer its questions.

For instance, Kinder Morgan declined to provide a copy of its emergency response program documents to the province — after promising to do so upon request to “any member of the public” in its application — on the basis that they contain information of a confidential and sensitive nature. 

In another instance, the province requested a detailed report on Western Canada Marine Response Corporation’s (WCMRC) ability to respond to a worst-case scenario oil spill. Kinder Morgan responded by telling the province to go ask the marine oil spill responder for that information themselves.

Canada Approves Enbridge Line 9 Reversal: Tar Sands Crude to Flow to Montreal

Alberta’s tar sands crude has a new route east. 

Canada’s National Energy Board announced on Thursday the approval of Enbridge’s request to reverse and expand a portion of the company’s Line 9 pipeline to allow for crude to flow east to Montreal, Quebec. This follows a July 2012 decision by the NEB to allow reversal of the western Line 9 segment from West Northover to Sarnia, Ontario. As a result, in the words of the NEB, “Enbridge will be permitted to operate all of Line 9 in an eastward direction in order to transport crude oil from western Canada and the U.S. Bakken region to refineries in Ontario and Quebec.”

Canadian activists urged the NEB to fully consider the high risk and small reward of reversing the pipeline, pointing to the “DilBit Disaster” — when another reversed-flow Enbridge pipeline spilled over 800,000 gallons of diluted bitumen into Michigan’s Kalamazoo River — as a warning for what could occur on the Line 9 route.

As DeSmog Canada has reported, Enbridge’s Line 9 shares the same design deficiencies as the company’s Line 6B, which burst in Michigan. Canadian environmental groups are crying foul over the agency’s non-transparent and restrictive public comment process.

It’s pretty obvious the entire regulatory system is broken,” Adam Scott, spokesperson for Environmental Defence, told the Vancouver Observer. “They restricted the public’s ability to even participate.” Language in a 2012 budget bill allowed the NEB’s decision to be made without a comprehensive environmental assessment, and the Canadian public was forced to complete a lengthy 10-page application (and given a short two week warning to do so) to even earn the right to submit a public comment.

There were roughly 150 folks who were actually even allowed to comment or write a letter, and this was also the first major energy project not to have to go through an environmental assessment, so it’s clear the whole system has been stacked against the public’s interest in favour of oil companies,” said Scott.

Whistleblower Evan Voke’s Evidence Against TransCanada Whitewashed By Regulators

Pipeline safety regulators in North America have done nothing but write warning letters to TransCanada in the two years since former employee Evan Vokes revealed evidence indicating the company had been breaking the rules.

A recently released report by the Canadian National Energy Board on TransCanada's integrity management programs stated: “There are areas where the company was found to be out of compliance.” The board gave TransCanada 30 days to come up with a plan to fix things internally.

In response, Vokes released a statement through the advocacy group, Public Citizen stating:

The Canadian government's audit criticizing TransCanada’s failings is a start, but leaves numerous safety concerns unaddressed. An audit based on paper and interviews only cannot catch non-compliance in the field. In my experience, TransCanada’s management failings are systemic and won’t be fixed simply by reviewing what TransCanada says its policies are on paper. These kind of reviews have not fixed the problem in the past and they aren’t sufficient now. Time and again, TransCanada’s internal and third-party audit systems have failed to catch the repeated substandard practice of engineering in the construction and maintenance of its pipelines. Unless regulators in Canada and the United States step up to the plate to ensure compliance in the field, future ruptures and risks to Americans are inevitable.”

The Canadian Senate held hearings in 2013 about the transport of hazardous materials after Vokes went to the media with what he said was proof that TransCanada was breaking the law. During the hearings the National Energy board testified they had verified much of the evidence Vokes provided.

The Senate’s report cites the National Energy Board's conclusion that TransCanada's incidents of non-compliance do not represent immediate threats to the safety of people or the environment. The report notes the board advanced its previously scheduled audit of TransCanada to include the specific concerns raised by Vokes, but recommends no further action.

“The lack of accountability with regulators is appalling,” Vokes told DeSmog Blog. He says he came forward because the oath he took to become an engineer requires him to put public safety first.

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