National Energy Board rules in favour of Trans Mountain pipeline in fight against Burnaby

By The Canadian Press
December 7, 2017 - 5:34pm

The Canadian Press

CALGARY — The National Energy Board has ruled in favour of Kinder Morgan Canada in its efforts to bypass Burnaby, B.C., bylaws that stand in the way of its Trans Mountain expansion project.

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.

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 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."

B.C. Environment Minister George Heyman says the province is looking at appealing the NEB decision.

"I’m shocked the NEB has ruled in favour of Kinder Morgan and frankly I’m angry on behalf of British Columbians,” he said. “The NEB placed a condition on this project that Kinder Morgan needed to get all necessary permits from local governments and today’s decision essentially changed their own condition for this project and granted Kinder Morgan a waiver.”

Tim McMillan, head of the Canadian Association of Petroleum Producers, said the decision was a critical step to advance a project that had seen considerable stakeholder collaboration.

"This decision acknowledges that federal permits that are deemed in the national interest will not be delayed at the local level. With access to new and existing markets we can work towards providing the world with energy of tomorrow, which is key to Canada's growth, prosperity and job creation."

Burnaby's lawyer Greg McDade 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.

"Our regulatory process was never about shutting down the pipeline. It was about making sure parking and traffic and those sorts of things were properly handled," said McDade on the ruling.

"It's clear that the municipality was regulating in good faith on local issues and the NEB has ruled that's unconstitutional. So they've sided yet again with the company against municipalities."

The ruling raises concerns about the company potentially pushing local governments all along the route into granting permits without the required information, said Wilderness Committee Climate Campaigner Peter McCartney 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 NEB said its decision allows the company to start work at its temporary infrastructure site near the Westridge Marine Terminal, and some work at the Burnaby Terminal, subject to any other permits or authorizations that may be required.

The board said it would release its reasons for the decision at a later date.  

Kinder Morgan Canada has said the $7.4 billion pipeline expansion is already months behind and further delays could threaten the viability of the controversial project.

On Monday, the company said it was further pushing back major construction on the project because of uncertainty over permitting, and that if delays continue it could threaten the viability of the project.

The company said that it expects to lose about $75 million in earnings before certain deductions for every month the in-service date is pushed back.

- With a file from Dean Bennett in Edmonton.

Ian Bickis, The Canadian Press

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