On July 20, 2016, the National Energy Board (NEB, or the Board)
issued its Hearing Order for TransCanada's Energy
East Pipeline Project. As we have previously
described, the planned hearing process includes some new
elements, including public meetings in many affected locations,
participation by NEB panel members other than the Hearing Panel and
public input into the greenhouse gas emissions evaluation of the
The NEB's Hearing Order sets out the steps in the
hearing process that will allow the NEB's Report on the project
to be issued by March 2018 (within the prescribed 21-month
timeframe). The issues to be considered by the NEB in preparing its
Report are set out in the Issues List at Appendix I to the Hearing Order. The NEB says the hearing
process will "make sure the hearing is fair, transparent, and
provides certainty to all participants."
As seen in the Issues List, the NEB has confirmed that the
Energy East project will require an Environmental Assessment (EA)
under the Canadian Environmental Assessment Act,
2012 because the project requires more than 40 km of new
pipeline, as well as new and expanded tank terminals. The NEB's
July 2016 Factors and Scope of the Factors for the EAs
indicate that the EA will take into account the environmental
effects of the project, including the environmental effects of
malfunctions or accidents that may occur. This will include review
of mitigation measures to address significant adverse environmental
effects of the project. The NEB has clearly indicated that the
Board will not consider matters related to upstream activities
associated with the development of oil sands, or the downstream and
end use of the oil transported by the project. However, the NEB
will consider the environmental and socio-economic effects of
increased marine shipping associated with the project.
The Hearing Order includes (at Appendix V) a four
page "Timetable of events" setting out timing and details
about the various steps in the Energy East hearing process (that
part of the process is being conducted by the NEB Hearing Panel).
The general scheme of these events is set out in the chart below
(reproduced from the NEB's earlier public announcements).
The "Panel Sessions" are opportunities for the NEB to
hear from intervenors or allow them to ask questions of the
applicant, and to gather oral traditional evidence from Aboriginal
intervenors. These sessions will be held in 10 affected communities
across the Energy East route, beginning in Saint John on August 8,
2016. After the Panel Sessions are completed, additional evidence
can be filed by the applicant and by intervenors, leading to an
oral hearing to be held in the summer of 2017. Thereafter, the NEB
will release draft Conditions of Approval for comment and parties
may file written argument. This will be completed by November 16,
2017, after which time the NEB will prepare its Report.
In order to assist intervenors, the NEB will hold a series of
eight online workshops to provide information about how to prepare
for each step of the process (including panel sessions, preparing
motions and information requests and evidence, intervenor evidence,
cross-examinations and argument).
The Hearing Order also makes note of the two other
"streams of engagement" in the Energy East review process
(noted on the diagram above as "Additional Board Members"
and "Assessment of Upstream Greenhouse Gas Emissions").
Although no details are provided about how those streams will
proceed, it is interesting to note that the "Assessment of
Upstream Greenhouse Gas Emissions" will not actually be part
of the record upon which the NEB's Report is based. As stated
in the Hearing Order, while "[NEB] Board Members
may be assigned, as needed, to work with Environment and Climate
Change Canada on the public consultation process for their report
on these issues ... this report will not be filed on the record of
this hearing and the Hearing Panel will not consider it."
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.
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The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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