Canada: Should Energy Board Consider Climate Before Approving Pipelines?

Last Updated: September 9 2014
Article by Meredith James

Can, and should, the National Energy Board consider climate impacts before approving oil pipelines? The federal government says no, objectors say yes. Now the courts must decide.

The Trans Mountain Pipeline expansion would increase the capacity of the current 1,150 km pipeline between Strathcona County (near Edmonton), Alberta and Burnaby, British Columbia from 300,000 barrels/day to 890,000 barrels/day.

The City of Vancouver (Vancouver) and the Parents from Cameron Elementary School Burnaby (the Parents) and Danny Harvey, a Professor in the Department of Geography at the University of Toronto brought motions before the NEB arguing that upstream activities and downstream uses of the oil intended to be shipped in the pipeline should be included in the "List of Issues" that the board will consider in its environmental assessment of the project. In particular, they argue that the effect of greenhouse gas (GHG) emissions must be considered.

The NEB dismissed these motions.

The City of Vancouver announced that it will seek leave to appeal the NEB's decision to the Federal Court of Appeal.

Upstream and downstream impacts are irrelevant to the NEB's decision

The City of Vancouver and the Parents each filed motions requesting that the "List of Issues be expanded to include environmental and socio-economic effects associated with upstream activities, including development of the oil sands (upstream effects) and the downstream use of the oil intended to be shipped on the pipeline (downstream effects)." Their submissions focussed on the effects of GHG emissions from the production of oil sourced from the oil sands and the end use of that oil.

The NEB dismissed these motions, concluding that:

"The Board has the authority to determine what is relevant to it in fulfilling its mandate under the NEB Act. In the circumstances of this hearing, the Board does not consider that upstream and downstream effects, including those of GHG emissions, are relevant. The Board is mindful that the environmental and socio-economic effects of petroleum exploration and production activities in Canada are assessed in other federal and provincial processes that involve those conducting those activities, and that the end use of oil is managed by the jurisdiction within which that use occurs."

This conclusion was based on their findings that:

  • "The Project does not include upstream production and is not dependent on any particular upstream development and; therefore, any link to environmental changes caused by such upstream production is indirect and is not necessarily incidental to Project approval."
  • "[N]o particular upstream development is dependent on the Project... It is not the Board's recommendation that could directly or necessarily cause growth in oil sands development with its accompanying effects. It may contribute to that development, but the degree of that contribution is dependent on demand and other transportation options available now or in the future."
  • "Oil sands development is subject to provincial and federal environmental assessment processes. Duplication of environmental assessments is discouraged..."
  • "The Project does not include downstream use and is not tied to, or dependent on, any particular use in any particular destination. Oil, whether from Canada or from elsewhere in the world, will go to where the demand is, whether or not the Project proceeds. The effects of end use are not directly linked or necessarily incidental to the Board's regulatory process regarding the Project."
  • "The Board agrees with Trans Mountain that downstream effects are more effectively assessed and regulated by the jurisdictions where the use occurs."

Failure to consider upstream and downstream impacts does not violate the Charter

Mr. Harvey's motion argued that the List of Issues violated the rights to "life" and "security of the person" under s. 7 of the Charter by excluding the Project's upstream and downstream environmental effects, including the Project's contribution to climate change.

Citing the Supreme Court of Canada's decision Operation Dismantle v. The Queen, the Board concluded that "A section 7 claim cannot be founded on speculation as to effects that "may" happen." Rather, the infringement must be "proven to result" from the challenged act.

The Board found that Mr. Harvey had not proven that an adverse effect on human health, due to the oil sand's contribution to climate change, would result from their approval of the project.

Project scoping is critically important

In 2008, before the latest revisions to the Canadian Environmental Assessment Act (CEAA), Professor Meinhard Doelle described the importance and difficulty of scoping projects for environmental assessment (EA). His comments remain equally relevant today:

Scoping is a critical stage in the EA process. This is where key decisions are made that will affect what information will have to be gathered during the course of the EA process. The overall tension in the Act between the narrow objective of informing the final EA determination as to whether the project is likely to cause significant adverse environmental effects and the broader objective to inform and encourage integrated decision-making for sustainability is reflected in the scoping process. Under CEAA, the cases to date suggest that it is left to individual federal decision-makers to resolve this tension on a case-by-case basis. Narrow scoping under section 16 would limit the scope of factors to those relevant to the final determination of likely significance. Broader scoping would include additional issues that may not be relevant to the likely significance test but would assist responsible authorities to make integrated decisions in light of precaution and in the interests of sustainability.

The legal challenges to the NEB's scoping decision in the Trans Mountain Pipeline expansion reflect public frustration, as foreshadowed by Prof. Doelle, with the perceived failure of government to make decisions about energy developments that consider sustainability and the precautionary principle. Where will the cumulative impacts of our energy decisions be considered if not before the NEB?

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Meredith James
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.