Heads must roll at NEB after Charest affair

The Energy East pipeline hearings were a train wreck before leaving the station and the Trudeau government must step in to salvage some semblance of integrity before energy debates tear the country apart through sheer bungling.

Pipelines are the hottest of political hot potatoes at the moment and the country desperately needs thoughtful leadership and sound public process to negotiate legitimate conflicts and deliver our commitment to phase out of fossil fuels. Instead, we have a National Energy Board process that was already distrusted by the public and is now clouded by scandal.

National Observer’s Mike De Souza has revealed that National Energy Board panelists have been meeting in secret with business leaders, including former premier Jean Charest who was working for Energy East’s TransCanada, in an obvious contravention of their mandate to conduct a public and unbiased process.

At first, the NEB vehemently denied that any discussion of Energy East took place. The public only knows the true story now (or at least some of it) because the regulator was forced to recant as De Souza’s investigative reporting and access to information requests forced them to release details.

TransCanada is being cagey. Despite repeated promises of transparency, the company still has not confirmed what it knew about the meeting. Common sense makes it hard to imagine a high level meeting with a former premier on company payroll could go unnoted. But confirmation would mean the company knowingly tampered with the NEB process.

The revelations are explosive. The NEB has the powers of a federal court. Imagine if a three-member independent tribunal was hearing arguments in a legal battle between Google and Facebook and two of the three judges decided to meet privately with a contractor hired by Google to discuss strategy about the case. What would Facebook say once the trial started? They’d bellow “rigged process,” just as every participant except big oil will declare in the case of Energy East.

Charest’s involvement is surprising to many. He must surely have grasped the gravity of the situation. Not only was he premier of Quebec and deputy prime minister of Canada, he is a practicing lawyer well versed on pipeline issues. And Charest has a long environmental record, leading Canada’s delegation to the Rio Earth Summit as far back as 1992 and spurring Quebec to global leadership on climate change during his time as premier.

The revelations underscore the NEB’s long history of cozy relationships with industry. The regulator lumbers along leaving a trail of frustrated whistleblowers, pipeline explosions and oil spills as it generates ever more public mistrust and accusations of regulatory capture.

Federal Green Party leader Elizabeth May captured the mood succinctly: “I’m quite shocked and it does take a lot for me to lower my opinion of the NEB enough to be shocked."

The obvious first step is for the Trudeau government to remove the head of the NEB along with the panel members that compromised themselves and reconstitute a panel with some chance at public credibility.

Jacques Gauthier is the panel member who wrote to Jean Charest explicitly asking for backroom discussions on Energy East. He was joined at the meeting by fellow panelist Lyne Mercier as well as NEB chairman and chief executive Peter Watson.

The Liberals promised in January that they would appoint new board members to the NEB but have not yet done so. The government also recently initiated a “modernization” review of the pipeline regulator.

The stakes are high. Pipeline conflicts are fracturing national unity and poisoning the larger effort to decarbonize the economy in line with Canada’s international commitments to phase out fossil fuels.

It is abundantly clear that a “review” of the National Energy Board is not nearly enough. The compromised panelists and chief executive need to be removed, a credible panel instated and the NEB itself needs a thorough scouring and restructuring, root to branch.

Editor's Note: This story was updated on Friday, August 12, 2016 to correct a typographical error in the 10th paragraph.