The National Energy Board ruled in favour of Kinder Morgan Friday, allowing the company to keep its emergency response plans for the expanded Trans Mountain pipeline secret.

Kinder Morgan fought the province of British Columbia’s demands to disclose its emergency response plans for the $6.5 billion pipeline expansion that will triple the amount of oilsands crude moving from Alberta to the Burrard Inlet, arguing the information is too “sensitive.”

In a statement Kinder Morgan argued “it is not appropriate to file security sensitive information about facility operations and countermeasures.”

Eoin Madden with the Wilderness Committee, an intervenor in the Trans Mountain hearing process, said he wished this ruling came as more of a surprise.

“I’d love for it to be news, but basically for the last year or so we’ve watched more and more information be denied to us intervenors in the National Energy Board process.”

Madden said the entire project review process has been threatened by regulatory capture, a concern he said was confirmed at the highest level with the outspoken disavowal of the proceedings by former BC Hydro CEO Mark Eliesen.

Last fall Eliesen became a vocal critic of the Trans Mountain review, criticizing the National Energy Board’s activity as “fraudulent” and a “public deception.”

Madden said the NEB’s recent ruling falls into a trend of information being withheld from participants in the public hearings. “You’ve got to look at the trend. The trend started in 2012 where, through increased lobbying, the federal government changed the laws on how we engage in processes like this. They made it less democratic.”

“At this point you have to wonder whether the process should proceed at all,” he said, adding many participants lack a fundamental faith in the hearings.

“Breach of due process”

“I’m disappointed in the ruling,” Chris Tollefson, legal counsel with the Environmental Law Centre at the University of Victoria, said. “I think the tribunal made an error when it concluded it didn’t need the documents at this stage.”

Tollefson said the tribunal should have considered not whether it needed the information, but whether the information was necessary for the process and “necessary for procedural fairness to be ensured for the intervenors.”

Tollefson said intervenors needed to see Kinder Morgan’s emergency plan to prepare questions for the second and final round of 'information requests' or questioning.

“Without those documents in my view they’ve been denied the ability to make their case and that amounts to a breach of due process.” He added that there was a marked drop in participation during the final round of questioning.

“Certainly you hear – loudly – frustration being voiced by lawyers, by clients who are involved in this process,” he said.

Tollefson said his clients, BC Nature and Nature Canada, are committed to carrying through with the NEB process “despite the failings we see,” but adds a separate province-led environmental review could address some of the growing concerns with the adequacy of the current review.

“The notion of having a parallel provincial process at this point makes a lot of sense. There are many issues and questions that are not being dealt with in this process that British Columbians want and need to be addressed.”

Intervenors involved in the process have found themselves without the necessary information needed to present their case, they’ve been denied the opportunity to question officials outside a written ‘information request’ process, and are prevented from discussing issues – like climate change – that the NEB finds outside the scope of the hearings.

“I think British Columbians also want to cross-examine company officials and experts to get answers to these questions and that could happen through a parallel provincial process,” Tollefson said.

“That doesn’t mean this federal process will come to an end. It will carry on. But together hopefully the two processes will provide us with a basis for making a wise decision about the future of this project.”

Made-in-B.C. environmental review the answer?

Other on-lookers, however, are less convinced the process should continue.

Spencer Chandra Herbert, NDP MLA and environment critic, said the NEB ruling strongly supports the argument for a separate province-led environmental review.

“I think the NEB’s ruling that Kinder Morgan doesn’t have to provide their full emergency management plan, the plan to deal with oil spills and fires and the like, is wrong. It’s outrageous.”

Chandra said the NEB review process has “been so drastically altered by the Harper Government” that it has become “a fraud and a sham.”

“What it means for B.C. – the province that moved the motion to ask for this information – is that this process is a sham and B.C. should get out of it. B.C. should withdraw.”

Chandra argued a review process tailored to B.C.’s specific concerns is the only thing that makes sense in light of the project and failed federal review.

“We should have a made-in-B.C. process where we can demand the answers that we want whether they are about oil spills or climate change. It’s our coast.”

“What other recourse do we have? I’m not willing to roll over and trust Kinder Morgan asB.C. seems willing to do,” he said.

In November the Green Party of B.C. launched a petition to call for a “made-in-B.C.review” of the pipeline project.

“The B.C. Government has the option to pull out of the existing process and launch its own separate environmental assessment by giving the National Energy Board 30 days notice,” the petition page states.

Around the launch of the petition Green Party MLA and climate scientist Andrew Weaver said, “enough is enough.”

“For months now we’ve seen mounting evidence that the National Energy Board hearings on the Trans Mountain pipeline are seriously flawed.”

“Our provincial government must reclaim British Columbia’s right to have our own, made-in-B.C., hearing process,” he added. “It’s time for the government to step up and protect our interests for it’s clear that the National Energy Board is not doing so.”

Last week Weaver submitted nearly 100 additional questions to Kinder Morgan in the second and final round of the NEB hearings.

“I continue to engage in the this process because I believe it’s important to give a voice to my constituents and to British Columbians who worry that their concerns are being ignored,” he said in a statement.

Around 400 intervenors submitted 10,000 questions to Kinder Morgan and 2000 of the company’s answers were challenged as inadequate. The NEB provided support for those challenges less than 5 per cent of the time.

According to Metro News, the B.C. Ministry of Environment submitted requests for additional information to “seek more information about the Emergency Management Plan.”

Christy Clark has outlined seven conditions for the pipeline to go forward, one of which is a comprehensive spill plan.

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