Canadian Regulator Will Consider Coastal GasLink Jurisdiction

Canada’s National Energy Board (NEB) said December 10 it will consider the question of whether it should take jurisdiction over TransCanada’s Coastal GasLink pipeline at a March 2019 oral hearing.

Coastal GasLink is a 670-km pipeline from northeastern BC to Kitimat that will deliver feed gas to the C$40bn (US$31bn) LNG Canada project, led by Anglo-Dutch major Shell and four joint venture partners. Last summer, BC environmentalist Michael Sawyer challenged provincial jurisdiction over the pipeline, and asked the NEB to hear arguments that it should more properly be under federal jurisdiction.

That application began a lengthy process to determine first whether the board would consider the jurisdictional question and second, who should have standing at a future proceeding to answer that question. More than 50 parties, including BC First Nations, environmental organisations, the leader of the federal Green Party, industry and business associations and all the project’s joint venture partners, applied for standing.

In the end, only LNG Canada, Sawyer, CGL, TransCanada and its affiliates, various attorney’s general at the provincial and federal level, the project’s joint venture partners and its upstream gas production affiliates and the environmental group Ecojustice were granted standing.

“Mr. Sawyer and Ecojustice presented the most compelling arguments that they can provide the board relevant information or expertise that could best assist the board in its consideration and assessment of this matter, including with respect to the relevant legal tests and constitutional principles relating to the jurisdictional question,” the NEB said in its decision report.

Left off the intervenor list were all the BC First Nations that had sought standing, federal Green Party leader Elizabeth May, the Canadian Association of Petroleum Producers, the BC LNG Alliance, the BC Chamber of Commerce, the Business Council of British Columbia and all the other environmental non-governmental organisations – including the Sierra Club and Stand.Earth – that had applied for recognition.

Many of the applicants sought standing on the basis that their interests and rights would be directly impacted by the outcome of the jurisdictional examination, the board said. A majority also noted the economic ramifications of a finding of federal jurisdiction, and the potential negative impact of any change in the scope or the timing of the project.

“The board is not persuaded that the potential impacts of the physical project, or the ancillary economic impacts of a finding regarding jurisdiction, are sufficiently connected to the core issue before the board to warrant standing,” the decision report says. “The board was not provided with any authority to suggest that its legal determination on jurisdiction could be influenced by these potential economic or any other impacts. The board is of the view that these applicants for standing have failed to show that they are sufficiently impacted by the decision before it.”

To consider the jurisdictional question, the board says it will hear factual evidence only on the commercial and operational structure of the CGL project, “relative to certain other infrastructure.”

But the focus of the proceeding will not vary from the jurisdictional question, the board stressed.

“This proceeding is not about whether to approve the project, or whether it is in the public interest,” the board said in its decision report. “As such, the board will not consider issues that are typically relevant to a determination of whether to approve a project application. This includes issues such as the economic benefits of the project, the environmental effects of the project, and the impact of the project on any rights and interests.”

Any decision following the hearing, the board added, would not convey approval for construction or operation of the project.

“Rather, if following this hearing, the board determines that it ought to take jurisdiction over the project, it would require a separate application and hold a separate hearing to determine whether to approve the project.”

Ahead of a March oral hearing and presentation of final arguments – in a location yet to be determined – the NEB set out a series of deadlines for intervenors to file relevant documents.

CGL has until December 28 to file any additional evidence, while intervenors have until January 18, 2019 to file additional evidence. CGL and intervenors have until January 29, 2019 to submit information requests, and until February 7, 2019 to reply to those requests. CGL has until February 14, 2019 to file its written reply evidence.