On February 22, 2019, the National Energy Board ("NEB" or the "Board") released its reconsideration report (the "Reconsideration") on the Trans Mountain Expansion Project (the "Project"). The Reconsideration follows the August 2018 Federal Court of Appeal decision that set aside the NEB's previous approval of the Project and the federal government's subsequent direction for the NEB to reconsider the Project to take into account Project-related marine shipping. In its lengthy report, the Board recommends the approval of the Project subject to the 156 conditions that it had proposed in its previous recommendation and 16 new recommendations that are aimed at mitigating the environmental impacts of marine shipping that are beyond the scope of the Board's regulatory authority. This recommendation flows from the Board's finding that the Project is in the Canadian public interest and is required by present and future public convenience and necessity.
In the Reconsideration, the Board makes three key findings with respect to the Project's environmental effects. First, the Project-related marine shipping is likely to cause significant adverse environmental effects on the Southern resident killer whale population and on Indigenous cultural use associated with same. Second, the marine shipping is likely to result in significant increases of greenhouse gas emissions. Finally, while unlikely to occur, the environmental effects from a worse-case spill would be significant. Ultimately, the Board concludes that the potential adverse effects can be justified in light of the Project's considerable benefits and the availability of mitigation measures.
Following the guidance from the Federal Court of Appeal, the Board's 16 new recommendations identify measures that fall within the federal government's jurisdiction notwithstanding that (1) the Board does not have authority to regulate marine shipping and (2) Trans Mountain may not have control over the implementation of the proposed measures. The Board's regulatory mandate remains limited to the requirements of the 156 conditions, while the Governor-in-Council has the requisite authority and flexibility to adopt the Board's recommended mitigation measures in any number of ways. The 16 recommendations are as follows:
- Develop a plan to assess the cumulative effects on the Salish Sea and a long-term strategy to manage these effects;
- Release an annual public report of the progress of measures to address the cumulative effects on the Salish Sea;
- Develop a marine bird monitoring and protection program;
- Expedite the completion of the feasibility study for establishing a Southern Strait of Georgia National Marine Conservation Area Reserve and establish it if considered feasible;
- Develop an offset program for increased underwater noise and increased strike risk posed to marine mammal and fish species listed in the Species at Risk Act;
- Consider the specific measures related to marine vessel usage and design;
- Update federal marine shipping oil spill response requirements;
- Develop a regulatory framework for mandatory enhanced tug escort in the Salish Sea for Project-related tankers;
- Consider the need for a Canada/United States Transboundary Vessel Traffic Risk Assessment;
- Support greenhouse gas reduction measures related to marine shipping;
- Facilitate opportunities to engage the Indigenous Advisory and Monitoring Committee on the marine safety system;
- Continue engagement activities targeting coastal Indigenous communications, recreational boaters, fishing vessel operators, and small vessel operators with respect to navigation safety and prevention of collision with large vessels;
- Combine current initiatives and investigate new paths for the delivery of government grants to promote innovation in
- Accelerate the development of the Enhanced Maritime Situational Awareness initiative and the extension of the Automatic Identification System to smaller passenger vessels;
- Review the federal marine oil spill compensatory framework to compensate for non-use values for Indigenous and non-Indigenous communities; and
- Develop a formal complaint resolution program to facilitate discussions on port-related impacts and resolve complaints relating marine vessels anchored at anchorages managed by the Vancouver Fraser Port Authority.
The release of the Reconsideration starts the 90-day clock for the federal government to make its final decision for the Project. Opponents of the Project may yet seek judicial review of the Reconsideration. BLG continues to monitor this legal development.