Two more articles on Kinder Morgan's win at the NEB

Jeff Lewis, the Canadian Press

Kinder Morgan wins appeal over Trans Mountain pipeline expansion


Kinder Morgan Trans Mountain Expansion Project's Westeridge loading dock, at centre with green tanks, is seen in Burnaby, B.C., on Nov. 25, 2016. JONATHAN HAYWARD/THE CANADIAN PRESS





Kinder Morgan Canada Ltd. does not have to abide by some bylaws in Burnaby, B.C., as the company starts construction on its contentious Trans Mountain oil pipeline, Canada's top energy regulator says.

The National Energy Board said Thursday that the company is not required to comply with sections of the city's bylaws over preliminary planning approvals and tree-cutting permits for work at its Burnaby storage terminal and a nearby temporary infrastructure site.

Kinder Morgan had asked the regulator to intervene after it complained about delays obtaining local permits needed to proceed with construction on the $7.4-billion pipeline. It said the city's refusal to issue permits raised "serious issues of jurisdiction" and that the company objected on constitutional grounds.

In a brief statement, the board said the decision allows the company to start work on both sites, "subject to other permits and authorizations that may be required."

The decision is a small victory for Kinder Morgan, although the NEB has yet to decide whether to establish a special panel to quickly resolve future permitting issues as per the company's request.

Kinder Morgan has said it needs clarity on permitting before ramping up spending on the 590,000-barrel-a-day expansion, while warning that startup could be delayed by at least nine months, past September, 2020.

The company welcomed the decision.

"It reinforces the view that this federally approved project is in the national interest," Kinder Morgan president Ian Anderson said in a statement.

The City of Burnaby and its mayor, Derek Corrigan, have been vocal opponents of the pipeline and have joined a separate legal challenge in the Federal Court of Appeal that also involves other municipalities, First Nations and environmental groups.

But Mr. Corrigan has also insisted the city has simply followed its normal permitting process. He said the NEB decision was frustrating, but not unexpected.

"It's been apparent that the National Energy Board is dedicated to ensuring that these projects go ahead and are prepared to eliminate any obstacle that gets in their way," he said, adding that he's concerned this won't be the last instance of the NEB overriding his city.

"They say that they're only taking these two areas and eliminating Burnaby's input, and other bylaws have to be obeyed, so they aren't able to proceed with impunity," he said. "But it doesn't bode well for any other bylaws being applied."

He said the city is awaiting the board's full reasons to assess the impact of the decision before considering whether to appeal.

Alberta Premier Rachel Notley, whose government has intervened in both the NEB hearings as well as the Federal Court of Appeal case, said the ruling was a good step forward.

"It probably means that the NEB has accepted our argument that this is a project that is in the national interest and, as a result, we can't have individual jurisdictions interfering with it," Ms. Notley told reporters in Edmonton.

Ms. Notley's support for the pipeline has put her at odds with her NDP counterparts in B.C., where the ruling New Democrats came to power earlier this year on a promise to do what they could to block the project.

B.C. Environment Minister George Heyman said he was "shocked" by the NEB ruling.

"And frankly, on behalf of British Columbians, I'm angry," he said in an interview.

"The NEB placed a condition on Kinder Morgan's project that they had to get permits from local governments. They've now changed their own conditions for this project. That's exactly the kind of interference and one-sidedness in this process that led us to the Federal Court of Appeal to fight this project."

Mr. Heyman noted that the expansion still requires more than 1,000 permits from the B.C. government, and he's worried how the NEB will handle subsequent permitting disputes.

With a report from James Keller in Vancouver


National Energy Board rules in favour of Trans Mountain on Burnaby pipeline impasse


Published on: December 7, 2017 | Last Updated: December 7, 2017 4:37 PM PST

Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, demonstrates against Kinder Morgan outside National Energy Board hearings on the proposed Trans Mountain pipeline expansion. DARRYL DYCK / THE CANADIAN PRESS

B.C.’s Environment Minister is sharply criticizing a National Energy Board ruling in favour of Kinder Morgan Canada’s efforts to bypass Burnaby bylaws that stand in the way of its Trans Mountain expansion project.

“I’m shocked at the ruling and frankly I’m angry on behalf of British Columbians,” George Heyman said in an interview Thursday. “We’re reviewing the decision and exploring any options we have to appeal this decision. This is exactly why we’re fighting this project in Federal Court.”

Gregory McDade, Burnaby’s lawyer, said the municipality will consider an appeal.

“We think the evidence was clear the municipality was regulating in good faith,” he said in an interview. “The NEB has ruled yet again in favour of the company, agains the interest of the municipality, and that is a great concern to us.”

In an order issued Thursday, the NEB said the company is not required to comply with two sections of the city’s bylaws as it prepares to begin construction at the Trans Mountain Burnaby Terminal, Westridge Marine Terminal and at a nearby temporary infrastructure site.

Heyman said all cities and provinces in the country should be concerned about the ruling, which appears to undercut their ability to set reasonable conditions and permitting requirements on national projects. 

“Frankly the National Energy Board, with the assistance of the Government of Canada who stepped into the fray on this, appear to be looking to short-circuit provincial and municipal authorities,” said Heyman. “We have rights to set conditions despite the fact this is a naturally regulated project.”

Heyman said B.C. has been unable to issue Kinder Morgan with some provincial permits because the company doesn’t seem to understand its obligations in its applications.

The ruling raises concerns about the company potentially pushing local governments all along the route into granting permits without the required information, Wilderness Committee Climate Campaigner Peter McCartney said in a statement. “Today’s decision should shake British Columbians to their core. … Kinder Morgan has used a manufactured dispute with Burnaby to bypass the ability for cities to protect their residents and environment.”

The company had filed a motion on Oct. 26 to have the NEB overrule the bylaws on a constitutional basis, claiming the city was delaying a project the federal government had approved.

“We are pleased with the decision we have received from the NEB today, as it reinforces our view this federally approved project is in the national interest,” the company said in a statement.

Kinder Morgan Canada said it was still waiting to hear from the NEB on its second motion requesting the establishment of a generic process to deal with future permitting issues.

Alberta Premier Rachel Notley, who has been outspoken in her support for the project, welcomed the news.

“We are, of course, very pleased to see this decision,” she said. “It probably means that the NEB has accepted our argument that, of course, this is a project that is in the national interest and as a result we can’t have individual jurisdictions interfering with it.”

Burnaby had argued in two days of hearings in Calgary that the city was following its standard permitting process, and that the company was to blame for the slow pace because of shoddy applications.