Pipelines – Route Hearings
Background
On December 16, 2013, Trans Mountain Pipeline ULC (“Trans Mountain”) filed an application with the National Energy Board (“NEB”) under section 52 of the National Energy Board Act (“NEB Act”) for a certificate of public convenience and necessity (“Certificate”) authorizing the construction and operation of the Trans Mountain Expansion Project (“TMEP”).
The TMEP includes twinning the existing 1,147-kilometre-long Trans Mountain Pipeline (TMPL) system in Alberta and British Columbia with approximately 981 kilometres of new buried pipeline; new and modified facilities, such as pump stations and additional tanker loading facilities at the Westridge Marine Terminal in Burnaby; and reactivating 193 kilometres of the existing pipeline between Edmonton and Burnaby. Trans Mountain requested approval of a 150-metre-wide corridor for the TMEP pipeline’s general route.
Following an approval by Order in Council (“OIC”), an appeal, a second public hearing process, an NEB Reconsideration Report, and a further approval of the TMEP by OIC, the NEB issued Certificate OC-065. In July 2019, following a public comment process, the NEB set out how it would resume the TMEP detailed route approval process. The NEB directed Trans Mountain to file its Plan Profile and Book of Reference (PPBoR) for the entire TMEP route. Trans Mountain served landowners along the length of the TMEP with a notice that the detailed route approval process was underway, and placed notices in local publications. The notices indicated that landowners and Indigenous peoples with a continued or new objection to the proposed detailed route, or to the methods or timing of construction, were required to file a statement of opposition (“SOO”). On August 28, 2019, the Canadian Energy Regulator Act (“CER Act”) came into force, repealing the NEB Act. As a result, the CER is considering approval of the PPBoR under the provisions of the CER Act.
Detailed Route Hearing MH-021-2020
Redwoods Golf Course Ltd. (“Redwoods”) is the registered owner of lands noted as Tract PC 7494 in Segment 6.8 on PPBoR Sheet M002-PM03021-007 (C00974-9). Tract PC 7494 was referred to in this Decision as the “Lands”. Figure 2 below shows Redwoods’ suggested alternate route crossing the Lands (the “Western Route”), as indicated by the “pinned” red line, with the Trans Mountain proposed route in dark blue.
Is Trans Mountain’s proposed detailed route the best possible detailed route?
The CER outlined Trans Mountain’s routing criteria and guidelines, and acknowledged that they were reasonable and appropriate. The hierarchy of routing options were as follows:
(a) where practicable, co-locate the TMEP on or adjacent to the existing TMPL easement;
(b) where co-location with the TMPL is not practicable, minimize the creation of new linear corridors by installing the TMEP segments adjacent to existing easements or RoWs of other linear facilities, including other pipelines, power lines, highways, roads, railways, fibre-optic cables, and other utilities;
(c) if co-location with an existing linear facility is not feasible, install the TMEP segments in a new easement selected to balance safety, engineering, construction, environmental, cultural, and socio-economic factors; and
(d) in the event a new easement is necessary, minimize the length of the new easement before returning to the TMPL easement or other RoWs.
The CER stated that the above criteria and other guidelines prioritize safety and consider a number of competing factors, including physical constraints, while attempting to minimize environmental and socio-economic impacts on land and landowners. They are also flexible enough to incorporate reasonable mitigation measures to respond to concerns raised by landowners. Accordingly, the CER assessed whether Trans Mountain’s proposed route reflected an appropriate application of its routing criteria, while considering its proposed mitigation measures to address Redwoods’ concerns, and concludes that Trans Mountain applied its routing criteria appropriately.
The CER noted that the entire route on the Lands is new RoW, not paralleling the existing TMPL or another existing linear easement or RoW. Redwoods did not make submissions about the appropriate application of Trans Mountain’s routing criteria. The CER accepted Trans Mountain’s evidence that urbanization in Langley has encroached on the existing TMPL RoW and, as a result, agreed that it was appropriate for the TMEP pipeline to deviate from the TMPL in the area.
Neither party provided evidence of existing easements or RoWs of other linear facilities adjacent to which the TMEP pipeline could be situated. In the absence of such evidence, the Commission accepted that no such easements or RoWs present an appropriate opportunity for the TMEP pipeline to follow in this area.
Accordingly, the Commission was of the view that Trans Mountain properly applied its routing criteria, such that the third criterion applies. As per the routing criteria, the new easement for the TMEP pipeline should balance safety, engineering, construction, environmental, cultural, and socio-economic factors, and its length should be minimized before returning to the TMPL easement or other linear easements. Trans Mountain submitted that it considered and balanced these factors in selecting the proposed route. Redwoods identified some outstanding concerns with the proposed route and suggested the Western Route which, in its view, would address these concerns.
Considering the Concerns Raised by Redwoods, Is Trans Mountain’s Proposed Route the Best Possible Route?
The Commission found that Trans Mountain’s proposed route is, on balance, the best possible route, because:
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it reflects an appropriate application of Trans Mountain’s routing criteria;
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Trans Mountain has appropriate plans in place to avoid or mitigate impacts of the proposed route, including the specific concerns raised by Redwoods;
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it appropriately reflects consideration of the golf course operations, including through its meandering route that avoids existing infrastructure, minimizes impacts to fairways and greens, and minimizes tree removal; and
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it is consistent with Trans Mountain’s prior commitment to the Township of Langley to locate the pipeline on the eastern part of the Lands.
The CER was of the view that all but one of the concerns Redwoods raised about Trans Mountain’s proposed route through the Lands are more accurately described as concerns with the proposed open-cut method of construction. The Commission was not persuaded by Redwoods’ remaining concern that the length of the proposed route is longer than strictly necessary to cross the Lands, since length is one of many factors to consider in assessing the proposed route. Since Redwoods suggested the Western Route on the premise that it would be constructed using trenchless methods of construction, the solutions it offers are primarily associated with Redwoods’ concerns about open-cut construction, rather than with the specific location of Trans Mountain’s proposed route. Considering Redwoods’ concerns about the proposed route, separately from its concerns about the proposed methods of construction, and Trans Mountain’s responses to these concerns, the Commission found that Trans Mountain’s proposed route is, on balance, the best possible route.
Are Trans Mountain’s Proposed Methods of Construction the Most Appropriate?
The CER noted that Trans Mountain plans to install the TMEP using trenchless techniques for the crossing of 88th Avenue and 96th Avenue, and for identified fish-bearing watercourses within the Lands. Trans Mountain proposes conventional open-cut construction with a moderately or heavily restricted footprint on the remaining portion of the Lands.
In the CER’s view, Trans Mountain’s criteria to determine its proposed methods of construction on particular lands are reasonable and appropriate. They minimize the risk of construction failure, prioritize safety, and consider physical constraints both on the surface of the land and subsurface. In addition, temporary workspaces are located as much as possible on open and undeveloped lands to avoid proximity to residences, treed areas, and areas of environmental or cultural sensitivity. Where a landowner raises concerns, the Commission was of the view that the criteria are flexible enough to allow Trans Mountain to incorporate mitigation strategies in response. The Commission assessed Trans Mountain’s proposed methods of construction on the Lands against these criteria, while also considering Redwoods’ proposed trenchless method of construction, and concluded that Trans Mountain’s proposed methods are, on a balance of probabilities, the most appropriate.
Is Trans Mountain’s Proposed Timing of Construction the Most Appropriate?
Construction timing is scheduled between Q4 2021 and Q1 2022. The CER found that Trans Mountain’s proposed timing of constructing the TMEP across the Lands is appropriate because construction in the winter will reduce the impact on golf course operations and allow the commencement of processes to restore the irrigation systems and soil, seeding, and sod replacement. The CER found that Trans Mountain’s proposed timing of construction is the most appropriate.
Conclusion
Having decided that Trans Mountain’s proposed detailed route is the best possible detailed route on the Lands, and that its proposed methods and timing of construction are the most appropriate, the Commission noted that it may issue an order approving the PPBoR for the Lands.
