Canadian Regulator to Examine Coastal GasLink Jurisdiction Issue - UPDATE
Canada's National Energy Board (NEB) said October 22 it has determined there is a prima facie case that the Coastal GasLink (CGL) project, the feeder pipeline for LNG Canada’s Kitimat terminal, may form part of a federal undertaking and thus could be subject to federal regulation under the NEB Act.
The board was responding to an earlier application from BC environmentalist Michael Sawyer suggesting that since TransCanada’s CGL will link to the Nova Gas Transmission Limited (NGTL) system in Alberta, also owned by TransCanada, it should properly be regulated at the federal level. Not surprisingly, TransCanada rejected that argument and asked the NEB to dismiss Sawyer's application for a jurisdictional review.
CGL’s existing approvals are provincial, issued by the BC Oil & Gas Commission and the BC Environmental Assessment Office. And that, TransCanada said in a statement released late on October 22 expressing its disappointment in the NEB’s ruling, should be enough.
“We understand this decision only represents the start of a review process to examine the issue of jurisdiction more closely, and not a final decision on the jurisdiction of the project,” the company said. “However, the Coastal GasLink project was subject to a robust two-year environmental and technical review as part of the BC regulatory process, whereby it received all of its valid permits under the current provincial regulatory bodies.”
In its ruling, the NEB suggested that several factors – common ownership, CGL’s expressed expectation that it would connect to the NGTL system, and the fact that senior officials and directors of CGL hold senior management positions at TransCanada – were among suggestions pointing to the possibility of a prima facie case for federal jurisdiction.
“This prima facie decision is not a determination (nor does it suggest a leaning by the board one way or the other) that the project is under federal jurisdiction and regulated by the NEB,” the board said. “Once the board’s further process is held, and if the board determines that the project is federally and NEB-regulated, the question of whether the project is in the present and future public convenience and necessity under section 52 of the NEB Act would be addressed in a subsequent proceeding.”
To proceed with the prima facie case, the NEB has invited Sawyer – and any other parties seeking standing, including federal and provincial attorneys general – to file submissions on the factual and legal basis for their standing to address the jurisdictional matter, and serve them on CGL, by 4 pm on October 29, 2018. CGL has until 4 pm November 5 to file its reply to arguments put forward by Sawyer and any others.
TransCanada said it would continue to “respond as appropriate” through the NEB but “believes that the facts pertaining to this project will support a strong case of continued provincial regulation of the pipeline.”
Once the standing of Sawyer and other parties is determined, the board will advise of its next steps. But it has decided at this time not to refer the question of federal jurisdiction to the Federal Court of Appeal.