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 an 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-023-2020
Austeville Properties Ltd. (“Austeville”) is the registered owner of lands identified as Tract 7538 in Segment 6.8 on PPBoR Sheet M002-PM03021-010 filed by Trans Mountain (C00974-9). Tract 7538 was referred to in this decision as the “Lands”. Figure 1 below shows Trans Mountain’s proposed route, and Austeville’s proposed alternate route, across the Lands.
Figure 1 – Trans Mountain’s proposed route (in yellow), and Austeville’s proposed alternate route (in red), across the Lands (C04884-1, PDF page 5)
Is Trans Mountain’s Proposed Detailed Route the Best Possible Detailed Route?
Austeville argued that its alternate route aligned better with Trans Mountain’s routing criteria.
The CER held that the Trans Mountain’s routing criteria and other guidelines prioritize safety and consider competing factors, including physical constraints, while attempting to minimize environmental and socio-economic impacts on land and landowners. Trans Mountain’s routing criteria 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. The CER found that that Trans Mountain applied its routing criteria appropriately.
The CER agreed that the proposed route was consistent with its routing criteria, since the TMPL right of way (“RoW”) is not near the Lands and the proposed route follows the existing CN Rail RoW. However, as Austeville identified outstanding concerns with the route and suggested an alternate route, the CER considered Austeville’s alternate route to determine if Trans Moutains’ proposed route was the best possible route.
Considering the Concerns and the Alternate Route Raised by Austeville, is Trans Mountain’s Proposed Route the Best Possible Detailed Route?
Having considered the evidence of the parties, the CER was not persuaded that Trans Mountain had met the burden to establish that its proposed route was the best possible detailed route. Austeville’s concerns about the proposed route were not enough to convince the CER that the route should be denied. However, the CER noted that Austeville had gone to extraordinary lengths to demonstrate the feasibility of its preferred alternate route. Having considered the alternate route, Trans Mountain failed to persuade the CER that the proposed route was the best possible detailed route.
Is Trans Mountain’s Proposed Timing of Construction the Most Appropriate?
Construction timing is scheduled between Q1 and Q2 of 2021. The CER acknowledged that Trans Mountain may have determined its proposed construction timing based on its proposed route through Austeville’s Lands. As a result of the CER’s decision regarding the proposed route, the CER did not make a determination regarding the most appropriate timing of construction in this decision.
