City challenging provincial energy board

Image source: AboutPipelines.com, 2015.

Ontario’s energy regulator is exploring uncharted territory in the wake of strong Hamilton challenges to a proposed fracked gas pipeline. The Ontario Energy Board (OEB) has taken the unprecedented step of seeking input on whether it should consider the climatic impacts of the pipe that Enbridge wants to build across rural Hamilton and has gotten substantial response.

Both the Hamilton Conservation Authority and City Council have told the OEB to include climate, and both also want the OEB to change its procedure in another major way. They are demanding that a full ecological study be completed along with an independent peer review of that study before the OEB makes a decision on the pipeline.

That’s not how the OEB usually operates. Its long-standing practice has been to approve projects first and then attach conditions that require detailed environmental evaluations to be undertaken only after the approval and in advance of construction. Brad Clark called that “backwards” and his council colleagues agreed as they voted unanimously to push for the studies to precede the decisions.

In addition, councillors endorsed a staff recommendation asking the OEB to require an answer to a very specific climate question: “Given the lifespan of the proposed pipeline is beyond 2050; and, as it falls fully within the municipal boundaries of the City of Hamilton, how does Enbridge’s proposed Leave to Construct Application address the City of Hamilton’s declared Climate Emergency and subsequent policies and goals?”

Those goals including net zero carbon emissions from Hamilton by 2050. Councillors also directed numerous staff comments on the project be delivered to the OEB including 15 questions to be directed at Enbridge and 17 conditions the city wants imposed should the OEB eventually approve the pipeline.

Most of the city’s questions to Enbridge focus on the ecological sensitivity of the wetlands, forests and streams in the path of the proposed pipeline. For example, one asks: “How can decisions on the impacts of the project and the preferred route be made before detailed field data (i.e. Ecological Land Classification, fish habitat assessment, species at risk, Significant Wildlife Habitat) are available?”

Even before the OEB asked for input on the inclusion of climatic impacts in the hearing, it had received letters from nine Hamilton organizations asking it to do so, as well as at least thirty letters from individuals. In response, Enbridge urged the Board to exclude climate change, energy conservation and matters related to the import of fracked gas and its subsequent export back to the United States.

Since then dozens more individuals have written pressing the OEB to start considering climate change when it makes decisions on the expansion of Ontario’s energy infrastructure. There are now well over one hundred letters of comment posted on the OEB website and more being added every day.

In making the tentative move to consider the upstream extraction emissions and downstream emissions from burning fossil fuels, the OEB may be nervously recalling what happened to its federal counterpart when it tried to exclude climatic issues from its pipeline approvals process. The National Energy Board came under intense public pressure and ridicule that ultimately forced the NEB to begin considering upstream and downstream carbon emissions. 

Indeed the intense pressure to recognize climate change and its intimate connection to energy and fossil fuels played a large role in forcing the federal government to shut down the NEB last year and replace it with a new oversight body called the Canadian Energy Regulator. Now in 2020 the OEB may be forced to embrace that fundamental change in its processes.

In a long presentation to councillors on February 7, Enbridge refused to say how it would respond to the OEB questions about climate, but this week they left no doubt in a letter sent to the OEB. The company declared that “the Board’s jurisdiction over a pipeline leave to construct application does not extend to matters relating to the upstream extraction or downstream consumption of gas and, as such, the Board should not and cannot consider this issue in the current proceeding.”

Other intervenors have reiterated their disagreement with Enbridge’s contentions. The Board decision is expected soon.