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City takes legal action on Line 10

Apr 14, 2017

City council has launched a legal challenge of the National Energy Board decision on the controversial Enbridge pipeline project across rural Hamilton. The judicial review of the NEB decision to allow the old pipe to remain in the ground was started nearly two months ago but has not been made public by the city. 

Limited available information on the NEB website indicates the focus of council’s challenge is the Board’s decision to allow Enbridge to decommission their 55 year old pipe and leave it in the ground. As reported earlier by CATCH, the NEB either ignored or didn’t notice the city’s request for the pipe to be removed.

Enbridge intends to replace the existing 12-inch pipe with one that is 20 inches in diameter but maintains this is not an expansion project. A contrary view is taken by the Hamilton 350 citizen group who argue that the potential increased flows of tar sands bitumen would generate greenhouse gas emissions equivalent to reopening and then doubling all of Ontario’s coal-fired electricity plants.

Hamilton 350 is hosting a public meeting about Line 10 on Wednesday April 19 at 6:30 pm at Evergreen’s Collaboration Station storefront at 294 James Street North. The pipeline carries heavy crude oil 143 kilometres down the peninsula to Seneca, New York.

The replacement project approved by the NEB is for the initial 35 kilometres inside Hamilton’s boundaries from the Village of Westover to Nebo Road just south of Airport Road. The project crosses 69 watercourses and 23 wetlands, and disturbs 13.6 hectares of woodlands with nearly a third of the route using a new right-of-way across farmland that avoids the higher costs of disturbing several local golf courses.

The NEB website says the City of Hamilton applied “to judicially review the Board’s decision approving the project” and that it is “based on jurisdictional errors, errors of fact, law, and mixed law and fact with respect to the Board’s decision to allow the line to be decommissioned in place and its findings about the benefits/risks, mitigations, and significance of impacts.”

It shows the action was begun on February 27, just under the wire for a step that NEB rules require to be taken within 30 days of the decision released on January 27. However, it appears the first council discussion of the litigation took place nearly a month later during an in camera session on March 22.

The minutes of that general issues committee don’t mention either Enbridge or the Line 10 pipeline but describe the agenda item as “Potential Litigation – Administrative Tribunal Matter”. They report approval of “direction provided to staff in Closed Session” and a decision that the staff report “remain confidential”.

Earlier in that meeting councillors heard from eight delegations opposed to the Line 10 project plus a representative of Enbridge, but there was no mention of the pending in camera item. It seems likely that the Enbridge speakers were already aware of the city’s legal action since the company was notified nearly a month earlier.

The NEB website records the “notice of application” having been filed in Toronto on February 27, and the “respondent” (Enbridge Inc) being served with the judicial review application on March 3 followed by notice to other participants who were in the Line 10 hearings. These included Hydro One, Fisheries and Oceans Canada and the Band Council of Six Nations on the Grand.

There’s also reporting of “written directions of the Court” on April third by Madam Justice Dawson of the Federal Court, accepting “for filing the motion record of the National Energy Board”. Justice Dawson has some history with Hamilton having been the judge who heard and ruled in 2001 on the municipality’s successful lawsuit to stop a federal environmental assessment of the Red Hill expressway project.

The city’s submission to the NEB review of the Line 10 project stated that “Enbridge should be required to remove the decommissioned portion of the pipeline, assuring that site remediation is performed as required.” But this was not mentioned in the 145 page NEB decision even though it detailed other municipal concerns. 

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