By Colleen Collins and Marla Orenstein
Published in the Hill Times

January 22, 2019

The next time you fly, consider two things: the greenhouse gas emissions created by air travel and whether you will land safely. Then think about who should be the primary regulator of air travel—is it the minister of the environment or transport?

Canada has an outstanding safety record, not only for air travel but also for pipeline and nuclear safety—all areas where failure is not an option, as certain types of failure can be disastrous. This outstanding safety record itself is no accident. Yet the proposed Bill C-69 will essentially move the approval for pipelines and nuclear facilities from independent, expert, experienced regulators to a new Impact Assessment Agency that reports to the minister of the environment—like having the environment minister regulate air safety.

This makes no sense.

For pipeline and nuclear projects, Canada has had the benefit of two expert regulators, the National Energy Board (NEB) and the Canadian Nuclear Safety Commission (CNSC). They oversee technically complex projects from assessment, permitting (including conditions), construction, and operation through to decommissioning. Their perspective is public safety in the context of complex technical, environmental, and human conditions. They are the rule-makers and rule enforcers who ensure public safety.

The NEB and CNSC are “courts of record.” They hear evidence, examine witnesses and documents, examine property, and make decisions just like a court. When they recommend project approvals and then ultimately issue permits, they set out what is to be enforced through regulations and project-specific conditions. They understand the impact of decisions at the beginning of a project on the implications for safety later on. Their deep expertise in all aspects of pipeline and nuclear safety comes from dealing with it in the field: they do the inspections, investigate incidents (and near incidents), examine company culture and management systems, right down to the technical specifications of pipes, valves, monitoring equipment, and how the land is returned to use after construction.

The NEB and major pipeline companies agree that a goal of zero incidents is key. Just like air transport safety, a vigilant and deeply informed focus operating 24-7 is crucial, as are detailed reviews and new learning and directives should anything go wrong. That continuous improvement is all about applying the most advanced knowledge to every step, across every system and company, including the assessment of new proposals. Severing the process invites missing crucial issues.

Bill C-69 proposes to remove the project approval function from both the NEB and the CNSC, and instead move it to the new Impact Assessment Agency (IAA).

On paper, having the IAA take over assessment duties seems just a matter of changing who organizes the process and sends out the invitations to participate.

In practice, it’s like handing the Environment Ministry responsibility to oversee air safety. Airplanes have environmental, human, and economic impacts, but air safety is by far the dominant concern. That means the independent Civil Aviation Directorate of Transport Canada needs to be the lead regulator.

The same is true for pipelines and nuclear facilities. Environmental and other concerns are important, but public safety is the top issue. And just because our systems are already safe doesn’t mean we should jeopardize that safety.

When the process was established to modernize the NEB, did anyone envision that public safety would be taken out of the hands of the experts in pipeline and nuclear safety and given to the minister of the environment?

For pipelines, the vast majority of environmental risk stems from safety. Legitimate attention to concerns about the risk of a natural gas leak or liquids spill is ultimately about a safety risk to prevent that break. And emergency response is about the best-in-class safety systems that must and do face continual regulatory scrutiny and improvement throughout the life cycle of any facility.

Public safety should not be given a back-seat role to what can be politically influenced decision-making on environmental risk. In fact, many (ourselves included) recommended reducing the role of political decision-making in determining major energy project go/no-go decisions. The risk that matters first and foremost is the risk to public safety, which itself has implications for the environment, the economy, human health, Indigenous rights and title, and even climate change.

One of the reasons for changing the previous legislation, the Canadian Environmental Assessment Act, 2012, was to increase public trust in major energy project approvals. Removing the additional political influence CEAA 2012 introduced would have been a move in the right direction. Instead, Bill C-69 doubles down on the same mistake.

Bill C-69 is now in the Senate for some much-needed sober second thought; public safety is one area that deserves another look in the legislation. Canada’s economic prosperity is at stake; failure is not an option. Let’s put public safety in the right hands and let our experts in pipeline and nuclear safety do their work.

Colleen Collins is the vice-president and Marla Orenstein is the director of the Natural Resources Centre at the Canada West Foundation.



Photo credit: Steve Halama, UNSPLASH