Canadian Lawyer

44 M A r C h 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m hen Brian Grindey was in-house counsel for energy giant Enbridge more than a decade ago, pipeline applications were much less trou- bled than today. "Once the National Energy Board approved the project, there was little sense it would get derailed," he says. Now the game has changed dramatically, says Grindey, of Field Law in Edmonton. "There's a lot of uncertainty that wasn't there even 10 or 15 years ago." Four Canadian pipeline proposals face fierce opposition: Keystone XL, Northern Gateway, Trans Mountain, and Energy East. Aboriginal groups, environmental- ists, and some cities are lining up against them, complicating legal issues. At least 18 court challenges have been filed against Northern Gateway. Dozens were arrested in November near Vancouver protesting Trans Mountain. Applications are soar- ing to participate in hearings before the National Energy Board. Hearings for the 529-kilometre Canadian leg of the Keystone XL pipeline in 2009 saw just 29 intervenors. The fol- lowing year, 206 intervened in hearings for the 1,178-kilometre Enbridge Northern Gateway Project between the Alberta oil- sands and the British Columbia coast. In ongoing hearings for the 1,150-kilometre Trans Mountain Expansion Project from Edmonton to Burnaby, B.C., 1,040 applied to intervene; a record 400 were accepted. Lawyers say two accidents in 2010 have sharpened public anxiety: the Enbridge diluted bitumen pipeline leak into the Kalamazoo River in Michigan and the Deepwater Horizon spill in the Gulf of Mexico. A Harris/Decima poll shows only 32 per cent of Canadians trust the federal government to adequately respond to oil spills on land. Opposition has also grown around greenhouse gas emissions. And the Tsilhqot'in Nation v. British Columbia decision by the Supreme Court of Canada in June 2014 has given Aboriginal groups powerful leverage over development on their claimed territory. Federal reforms in 2012 to streamline regulatory reviews have provoked a back- lash. Under the changes, the NEB is gen- erally limited to 15 months to consider a proposal. A rejection will no longer be final, but can be overturned by cabinet. In addition, the NEB must limit public par- ticipation in hearings to directly affected "interested parties" or people with relevant information or expertise. Jessica Clogg, executive director of West Coast Environmental Law, calls these modifications part of a massive rollback of federal environmental legislation. "The legislative changes were designed to push through pipeline projects in a more expedi- tious way, but in fact some of the limitations in the processes have effectively resulted in conflict and delay," she says. Vancouver-based ForestEthics Advocacy Association mounted an unsuccessful constitutional challenge against the limits L E g A L r E p o rt \ E N E r g y L AW W alexei Vella Kink in the lines Legal and non-legal issues surrounding proposed energy pipelines are making approval processes long and complex. By Peter Small

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