Pipeline Reversal Protesters Muzzled

NEB limits public input at oil pipeline reversal hearings
October 1, 2013

The final National Energy Board (NEB) public hearings on Enbridge's controversial Line 9B oil pipeline reversal are scheduled for Montreal (Oct. 8 to 11) and Toronto (Oct. 16-19). (Locations and times can be found on the NEB website under "Hearings and Information Sessions.")

Enbridge has applied to the NEB to reverse the direction of its 639-kilometre 9B pipeline between Montreal and Westover, Ont., and to increase its capacity from 240,000 barrels per day (bpd) to 300,000 bpd, in order to carry Western crude (including tar-sands diluted bitumen, or dilbit) east to Quebec. Enbridge received NEB approval for the reversal of Line 9A between Sarnia and Westover on July 27, 2012.

Enbridge's Line 9 pipe extends across the most populated regions of Canada, passing through or near 115 urban areas and 14 First Nations communities. Line 9 also crosses every river and stream flowing south into Lake Ontario and the St. Lawrence River.

Line 9 is an aging pipeline made of the same outdated materials as Enbridge's Line 6B, which ruptured in Michigan in 2010 and sent some 27,000 barrels of dilbit into the Kalamazoo River. Enbridge insists, however, that, if properly maintained, a pipeline can last "forever."

The NEB public hearings process for this project has become equally controversial.

New Hearings Process

Enbridge's Line 9B is the first pipeline proposal to come under the authority of the new rules hidden in Harper's omnibus budget Bill C-38 passed in July 2012. Those rule changes, adopted as amendments in the budget bill, restrict public participation in NEB project reviews and hearings so that, in Minister of Natural Resources Joe Oliver's words, environmentalists cannot "game the system." Now a lawsuit has been launched to overturn the legislation.

On Aug. 13, Vancouver-based NGO ForestEthics Advocacy and activist Donna Sinclair, represented by constitutional lawyer Clayton Ruby, filed a lawsuit calling for the Federal Court of Canada to strike down the new provisions of the 2012 legislation that unreasonably restrict public comment on project proposals. Ruby claims the new rules "violate fundamental free speech guarantees enshrined in the Canadian Charter of Rights and Freedoms" (more about the lawsuit later).

Other major tar sands pipeline proposals that will use the new NEB public hearings process include Kinder Morgan's plan to triple capacity of the TransMountain pipeline from Alberta to Burnaby, B.C.; and TransCanada Corp.'s Energy East proposal to use a gas pipeline for transporting western crude from Alberta to Eastern Canada (see Dec. 2012-Jan. 2013 CCPA Monitor).

The NEB introduced its new public-hearings screening process in April 2013, specifically stating that it wanted to hear only from people "directly affected" by the Line 9B pipeline project, or people with "special expertise." It also gave the public a mere two weeks' notice to meet the deadline for submissions (April 19) to participate in the public hearings now scheduled for October. Now Magazine reported (April 11-17), that "...merely to send a letter requesting permission to participate in NEB [hearings], members of the public must complete a 10-page form and include a resumé or reference letters documenting their expertise."

The Toronto Star (April 9) reported that "the 10-page application for would-be letter writers has some cryptic hurdles to jump, such as this one on Page 4: 'Before you continue with this form, refer to the Board's Guidance Document on Section 55.2 and Participation in a Facilities Hearing attached to the Hearing Order OH-OO2-2013 as Appendix VI, and again as Appendix III of Procedural Update No. 1 for OH-002-2013'."

The application also stated: "The Board will review your application to participate first and notify you if you are allowed to participate as a Commenter before you may file a Letter of Comment."

"Commenters" may only file a written letter. "Intervenors" can file evidence, request information, and make oral arguments at NEB public hearings.

The NEB also restricted the issues that could be addressed by "intervenors" and "commenters" on Line 9 (see the accompanying box on this page), and specifically stated: "The Board will not consider the environmental and socio-economic effects associated with upstream activities [extraction, fracking, upgrading, etc.], the development of oil sands, or the downstream use [refining, shipping, export, etc.] of the oil transported by the pipeline."
With such restrictions, it is hard to understand how anyone could adequately address "the need for the proposed Project" – the first of the allowed topics.

In mid-April, when NDP MP Claude Gravelle asked Natural Resources Minister Joe Oliver to "translate" the above convoluted application instructions, Oliver reportedly said that "for the average person, it's not complex at all."
But, as the Globe & Mail reported (May 4), after the submission deadline had passed, "Fewer than 200 interested parties have completed a 10-page application form asking the National Energy Board to accept their written comments about the reversal [of Enbridge's Line 9B]. That compares to the more than 9,000 letters that were written during the approvals process for the [Enbridge] Northern Gateway pipeline... Graham White, a spokesman for Enbridge, said the relatively small number of applications could be an indication that the project [Line 9B] has more support than some critics would indicate."

The more revealing comparison, however, is to the tens of thousands of people who responded during the public comment period regarding Enbridge's Line 9A reversal proposal back in April 2012 (before the new NEB rules and application form were introduced). According to a press release by Toronto-based Environmental Defence (April 23, 2012), the NEB "received 41,000 citizen comments opposed to [Enbridge's] plans to pump tar sands oil through pipelines in Ontario and Quebec."

Living Downstream

By the end of May 2013, the NEB had determined that only 60 organizations, companies, governments, and individuals would be granted "intervenor status" and allowed to speak at the October hearings. Another 110 people were allowed to submit letters of comment to the NEB review board.

Thus, only about 175 people will be formally heard on an issue that affects millions of people in Ontario and Quebec.

The NEB denied "intervenor status" to the Council of Canadians (national), Council of Canadians (Guelph chapter), Sierra Club Canada, East End Against Line 9, and Environmental Justice Toronto.

According to the Council of Canadians, the NEB explained its ruling in this way: "The Board notes that many applicants submitted that they were directly affected by the proposed Project due to concerns related to the risk of a pipeline spill or rupture and the resulting environmental effects, specifically, contamination of water sources... (But) persons who live north (upstream) of the currently operating Line 9 pipeline are exposed to a different likelihood and severity of harm in the event of a pipeline spill or rupture than those who live south (downstream) of the Line 9 pipeline. For example, since the route crosses the watershed approximately 20 km south (downstream) from the City of Guelph, and the groundwater gradient in the region is from the NW to SE, there is a lower likelihood that the pipeline will have a direct effect on a City of Guelph resident than on someone who lives downstream of the pipeline. The Board also regulates the currently operating Line 9 and understands where the Line 9 pipeline is located in and near the City of Toronto and relative to Lake Ontario where the City of Toronto obtains its drinking water."

But apparently, even living downstream of the pipeline wasn't enough to warrant "intervenor" or "commenter" status from the NEB. The Toronto-based NGO East End Against Line 9, which represents Torontonians living in the East End and Beaches area, was denied any role in the hearings. Their letter to rabble.ca (Aug. 12) explains: "The reason given [by the NEB] is that the areas we represent – 8 to 15 km downstream from Line 9 – are allegedly 'not in close vicinity to the pipeline route' and we 'therefore did not persuasively demonstrate a specific and detailed interest that would be directly affected by the Project'."

The Court Challenge

By August, having heard so many complaints about the new NEB screening process for public hearings, ForestEthics Advocacy filed its lawsuit, asking the Federal Court to strike down the legislation that limits who can participate in the NEB review process; to lift the restrictions on what people can say about tar sands projects in public hearings; and to prevent the NEB from concluding the Enbridge Line 9B hearing process until this constitutional challenge has been dealt with.

Lawyer and ForestEthics Advocacy chair Clayton Ruby told the Globe & Mail (Aug. 14), "The Constitution guarantees my right to free expression... It's pretty clear that involves the right to appear before any board that calls for public submissions... And you cannot limit that freedom of expression in arbitrary fashion."

Tzeporah Berman, board member of ForestEthics Advocacy, told The Canadian Progressive (Aug. 15), "The amendments [in Bill C-38] not only restrict who can speak to issues before the NEB, but they also limit what those individuals are allowed to say. Canadians deserve a fair public debate about the future of our economy and energy systems. Right now, they aren't getting it."

Berman also told the Vancouver Sun (April 13) that the new NEB public hearings process is "McCarthyesque" and asked: "Why are we as taxpayers paying for this as a public process if we're not allowed to voice our concerns within that process? It's not fair, it's not objective."

A Toronto Star editorial (Aug. 18) stated: "The undemocratic Line 9 assessment process is just the latest example of the Harper government attempting to stifle public debate on the ideal balance between resource extraction and environmental protection. It has defunded research organizations, killed environmental agencies, and muzzled scientists whose data and advice run counter to its agenda of aggressive development. And now it doesn't want to hear the concerns of citizens who will be directly affected if Enbridge's proposal is accepted."

As Ruby told The Tyee (Aug. 14), "These are vital issues, and the government wants as little discussion about them as possible; they want silence."

But the safety of Enbridge's Line 9 pipeline calls for widespread debate, not silence.

Line 9 Pipeline Safety

From a variety of published sources, it's clear that there are at least four major factors compromising the safety of Enbridge's Line 9.

First, Line 9 is an aging pipe, built from materials no longer considered up to standard. The Hamilton Spectator (May 24, 2012) reported that John Goudy, spokesman for the Ontario Pipeline Landowners' Association, has "noted that Line 9 was built in 1975 when standards were lower. The pipe walls, for instance, are as little as one-quarter inch thick, he said. That's 50% less than current standards."

Further, in their letter to the NEB during the hearings for Line 9A, the Haudenosaunee First Nation wrote (Sept. 20, 2011): "...Enbridge's Line 9 is a relatively old pipeline built in 1975 using polyethylene tape as a coating – the same material used in the Enbridge pipeline that ruptured in Michigan last year [2010], which investigators found to have 'surface cracks and indications of corrosion,' and the same material used in the Plains Midstream pipeline which ruptured in Alberta this year [2011]."

According to the London Free Press (July 20, 2012), the old polyethylene tape coating "can trap moisture against the pipes, promoting corrosion." And the Kingston Whig-Standard (Sept. 9) identified four Enbridge pipe ruptures in Canada caused by PE tape coating problems.

Indeed, DeSmog Canada reported (June 24, 2013), "The Canadian Energy Pipelines Association (CEPA), an industry group, warned in 2007 against the use of PE [polyethylene] tape on new pipelines because it can stretch or become unglued from a pipeline, creating pockets of water that cause pipeline corrosion. CEPA concluded that PE tape was ineffective in mitigating the effects of stress corrosion cracking (SCC) in pipelines."

Second, Enbridge wants the pipeline to sometimes carry a product (dilbit) that it wasn't designed for. A 2011 study by the National Petroleum Council for the U.S. Department of Energy noted: "Pipelines operating outside of their design parameters, such as those carrying commodities for which they were not initially designed... are at the greatest risk of integrity issues in the future..."

Third, Enbridge wants to increase the capacity of Line 9 from 240,000 bpd to 300,000 bpd. Moreover, according to the Financial Post (March 26, 2013), in moving imported conventional oil from Quebec to Sarnia, Ont., Line 9 "averaged 64,000 bpd between 2009 and 2011, Enbridge said in filings. The volume is a fraction of the pipeline's 240,000 bpd capacity." The figures reveal not only how little imported conventional oil is actually used in Ontario, but also show that Enbridge wants to quintuple the average daily capacity of Line 9 in terms of recent usage. This greatly increased capacity would be a major stressor on the pipe.

Fourth, Enbridge wants to reverse the flow of Line 9 – the second reversal it's had in its 38 years. Margaret Vance, president of the Ontario Pipeline Landowners Association, told rabble.ca (April 18, 2012), "It's my understanding that, when the flow on a pipeline is one way, patterns develop inside the pipe; when it's reversed, of course it makes different patterns. We know that there are thinner-walled portions of Line 9, and our question is: what does that do to the inside of the pipe?"

So, to summarize: Enbridge Line 9 is an aging pipeline, built of sub-standard materials, which will be used to sometimes carry a product (dilbit) it wasn't designed for, at a greatly increased capacity and pressure, and after a second reversal of flow direction since being built in 1975.

Some of these same factors were involved in the March 29, 2013 oil-pipeline spill in Mayflower, Arkansas, where ExxonMobil's Pegasus pipeline ruptured with a 22-foot gash that sent 5,000 barrels of dilbit flowing down suburban streets and across manicured yards.

The Pegasus pipeline was an aging pipeline, initially built to carry thinner conventional oil at lower pressure and in the opposite direction. In 2006, Exxon turned the pipeline into a higher-capacity line for carrying heavier oil (dilbit) flowing under greater pressure, and reversed the direction of the flow.

As Toronto's Now Magazine reported (Apr. 11-17), "...in ordering Exxon Mobil to take corrective action in Arkansas after the Pegasus spill, the U.S. Dept of Transportation noted that 'a change in direction flow can affect the hydraulic and stress demands on the pipeline'."

"High Risk of Rupture"

On Aug. 5, 2013, a coalition of environmental groups released the safety report on Line 9 that it has submitted to the NEB hearings. The evidence was filed by Equiterre, Environmental Defence, Environment Jeunesse (ENJEU), the Association Quebecoise de lutte contre la pollution atmospherique, Sierra Club Canada (Quebec chapter), Climate Justice Montreal, and Nature Quebec. Entitled "Report on Pipeline Safety for Enbridge's Line 9B Application to NEB," the document was written by international pipeline safety expert Richard Kuprewicz, president of Accufacts Inc.

Kuprewicz has been involved in many pipeline investigations, including the Enbridge Line 6B breach into the Kalamazoo River, the San Bruno (Calif.) natural gas pipeline explosion, and ExxonMobil's Pegasus pipeline spill.
In his report, Kuprewicz bluntly states that, "given the many deficiencies uncovered in this [Enbridge] application, Accufacts places Line 9 at a high risk of rupture failure post reversal... in the early years following Project implementation." He also states that Enbridge's proposed emergency response plan and response times (1.5 to 4 hours) "are completely unworkable for a pipeline located in so many high consequence areas [i.e., populated areas and near significant waterways]." And he concludes that "...Enbridge has a culture where safety management seems not to be a critical component of their operation."

As Mike Schreiner, Ontario's Green Party leader, wrote in the Huffington Post (Aug. 23), Enbridge's Line 9B reversal "provides no clear economic benefits for Ontario unless we are trying to develop expertise in cleaning up dilbit spills."

ForestEthics Advocacy's lawsuit is seeking an injunction to prevent the NEB from concluding the Line 9B hearings process until the lawsuit has been dealt with. Otherwise, the NEB could decide on Line 9B as early as January 2014.

(Joyce Nelson is an award-winning freelance writer/researcher and the author of five books. She lives downstream of Line 9.)