Liberal pipeline policy presents 3 key problems

Prime Minister Justin Trudeau hopes that a new approach will provide the public support to finally cut through the Gordian knot that has tied up pipeline development. That was the gist of the changes announced to the environmental assessment process for resource projects.

The significant development is that the federal government will now include upstream greenhouse gas emissions when evaluating projects, while also trying to meaningfully engage with affected communities and First Nations.

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Hand over heart, this government will listen, but whether that's enough to bring the public onside for a new export pipeline is not at all clear.

Upstream emissions tricky to calculate

The first problem is that upstream emissions of a single pipeline aren't easy to calculate. Take Trans Mountain for example: the proposed B.C. expansion is designed to carry 890,000 barrels of bitumen per day. So you could argue, then, what are the greenhouse gas emissions associated with producing 890,000 barrels bitumen a day? 

The State Department put a lot of effort into figuring out what those upstream emissions would be. The best it could say was that, "We're not sure."- James Coleman, University of Calgary energy law professor

But that assumes the oil wouldn't be produced without Trans Mountain. History has shown that's not the case. In the years that Keystone XL was hung up in regulatory limbo, oilsands crude exports to the U.S. Gulf Coast more than doubled. That oil often took the scenic route, on trains or on barges, but it got there.

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James Coleman, an assistant professor of energy law at the University of Calgary, noted that U.S. President Barack Obama had asked for upstream emissions of Keystone XL to be included in an environmental review.

"The State Department put a lot of effort into figuring out what those upstream emissions would be," said Coleman.

"The best it could say was that, 'We're not sure, we don't think it will have a big impact on upstream production, but we're not sure, a pipeline may lower emissions, by switching to more efficient modes of transportation, like pipeline instead of rail.' It doesn't lead to conclusions that made the decision easy."

Others say such a calculation can roughly be done.

"If you take certain assumptions around the price of oil, for example, you can look at the regulatory queue in Alberta and you can say how many projects are likely to come on at that price and what will those projects require in terms of transportation infrastructure," said Erin Flanagan with the Pembina Institute, an environmental think-tank.

She says the challenge is figuring out how much weight the data has when the government makes its final decision on a project.

First Nations consultation

The second problem is whether the pledge to talk more with First Nations will actually be "meaningful" as the government promises, or have little effect. Sending ministerial representatives to consult with people about how they have been consulted in the past seems like a bureaucratic process, not a way to genuinely connect.

The federal government has added four months of consultation to the Trans Mountain process; notably though, the change stopped short of requiring aboriginal consent.

"It still feels like these projects are going to go ahead," said Carleen Thomas, with the Tsleil-Waututh's First Nation, who recently presented at the Trans Mountain National Energy Board hearings.

"Both ministers said that the prime goal is to get Canada's resources to market in a sustainable way. If you go into any kind of consultations with any citizen of the country with that mindset, how can it be a fair and transparent process?" she said.

"It's putting us in the light that we are the bad guys."

Scott Smith, the lawyer for the Tsleil-Waututh, said that legal precedent has shown that consultation is not enough, particularly since the 2014 Supreme Court decision on the land title claims of the Tsilhqot'in First Nation

"The court in the Tsilhqot'in decision clearly indicated that the purpose of consultation should be to seek consent," said Smith

Status quo for energy board

The third problem is that the fate of the National Energy Board is still very much in the air.

The Liberal government has pledged to modernize the energy board, but for now the regulator stays on its original path in reviewing the Trans Mountain and Energy East proposals. If anything, the board is sidelined with the focus now on the federal government. It's the government, not the energy board, that will calculate the upstream emissions associated with a project.

It's putting us in the light that we are the bad guys.– Carleen Thomas,  Tsleil-Waututh First Nation

Keeping the status quo right now is fair for pipeline proponents who are in the midst of the regulatory process and wouldn't appreciate having the rug pulled from under their feet.

Changes are coming to the energy board, but not for a while.

"Any change they would like the NEB to make to their processes has to go through an act of Parliament," said Gaétan Caron, the former chair of the energy board. "This review will take a number of years."

The question is whether the board will eventually be the one to tally up the greenhouse gas emissions of a proposal and include the data in its decision to approve or deny a project. Caron doesn't think it's a good fit.

No matter whether new oil export pipelines are approved or declined, there will be disappointed parties

The Liberals' goal is that even through the disappointment, Canadians will feel the process was fair. The reaction so far from both First Nations and industry suggest there still is considerable doubt.