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Practice & Procedure
Apr 29, 2016
New Schedule Issued for the Energy East Pipeline Project Review Processes
There have been several recent developments in the approval and review process for TransCanada's Energy East pipeline project.
Most significantly, on April 26, 2016, the National Energy Board (NEB) issued a "preliminary timeline" for the hearing process, which indicates that the NEB's report on the project will be issued by March 2018. The timeframe for the NEB's process has been extended to 21 months for the process versus the usual 15 month time limit. That is in keeping with the Federal Government's January 27, 2016 announcement that the time for NEB review of the Energy East project would be extended by six months (see our previous post discussing changes to the interim approach that the Government will require for the review of major projects currently under environmental review). The NEB's report on the project will be presented the Federal Cabinet, who will then have six months to make a decision.
The preliminary timeline is set out below. It anticipates that a consolidated application is expected to be filed by mid-May. This follows a direction by the NEB (discussed in a previous post) for the applicant to address the NEB's concern that the application in its present form was too difficult for even experts to navigate, let alone for the public to comprehend. In a letter to Energy East (TransCanada), the NEB indicated that it has not yet determined the Application to be complete and that the completeness determination is an initial threshold question to be decided.
The NEB has indicated that it expects to gather input from hearing participants on what process elements the participants would like to see included in the review. The NEB will use this feedback to design the review process. The proposed dates for the NEB review process are as follows:
|Expected Process Step||Expected Timing|
|Filing of Consolidated Application by Energy East Pipeline Ltd.||Mid-May 2016|
|Issuance of List of Participants||Early June 2016|
|Issuance of Hearing Order (including completeness determination)||Mid-June 2016|
|Panel Sessions in communities along pipeline route||August-December 2016|
|Written Process for Participants||January-May 2017|
|Draft Conditions for Comment||Mid 2017|
|Final Argument||November - December 2017|
|NEB Report to Governor in Council||March 2018|
A second recent development is the decision by TransCanada to voluntarily participate in the Quebec environmental assessment process. As we previously discussed, the Quebec Government has asserted that there should be a review by the province's Bureau d'audiences publiques sur l'environnement (BAPE) to consider environmental impacts of the Energy East project within Quebec. TransCanada had resisted this. In response, the Quebec Government sought an injunction to require TransCanada to comply with the Quebec Environmental Quality Act and file environmental assessment documents for the Quebec portion of the project. Now, according to recent news reports (see here and here ), TransCanada has agreed to submit an environmental impact study to the BAPE by early June, and the Quebec Government has agreed to withdraw its injunction application. Given this development, there will be no court hearing or decision that would clarify the extent to which this provincial regulator has jurisdiction to review an interprovincial pipeline project.