Robyn Allan Withdrawal Letter NEB May 19, 2015
Robyn Allan Withdrawal Letter NEB May 19, 2015
Robyn Allan Withdrawal Letter NEB May 19, 2015
Allan
Economist
9294
Emerald
Drive
Whistler
BC
V0N
1B9
Sherri
Young
Secretary
National
Energy
Board
517
10th
Ave
SW
Calgary
Alberta
T2R
0A8
!
May
19,
2015
!
Dear
Ms.
Young,
!
I
am
withdrawing
as
an
expert
intervenor
from
the
National
Energy
Board
review
of
the
Trans
Mountain
Expansion
Project.
After
dedicating
professional
expertise
for
more
than
a
year,
pro
bono
and
in
good
faith,
I
have
concluded
that
withdrawal
is
the
only
course
of
action.
Continued
participation
endorses
a
broken
system
and
enables
the
pretence
of
due
process
where
none
exists.
The
review
is
not
conducted
on
a
level
playing
Sield.
The
Panel
is
not
an
impartial
referee.
The
game
is
rigged;
its
outcome
pre-determined
by
a
captured
regulator.
The
NEBs
integrity
has
been
compromised.
Its
actions
put
the
health
and
safety
of
the
Canadian
economy,
society
and
environment
in
harms
way.
The
NEB
has
unconscionably
betrayed
Canadians
through
a
restricted
scope
of
issues,
violated
the
rules
of
procedural
fairness
and
natural
justice,
and
biased
its
decision-making
in
favour
of
Kinder
Morgan.
These
are
discussed
below:
!
(a) Review
is
not
of
the
Pipeline
System
!
Once
expanded,
the
Trans
Mountain
system
will
consist
of
two
pipelines,
related
storage
facilities
and
a
three-berth
marine
terminal
at
Westridge
dock.
The
cumulative
impact
and
risk
of
this
entire
system
is
of
concern
to
the
public,
but
not
to
the
NEB.
The
Panel
has
excluded
from
its
assessment
the
impact
and
risk
of
the
sixty
year
old
legacy
line,
existing
terminals
and
storage
tanksthese
are
outside
the
scope
of
its
review.
What
the
NEB
is
considering
is
the
impact
of
the
Project
which
only
includes
the
incremental,
new,
facilities.
It
is
treating
the
expansion
as
if
it
is
not
part
of
a
larger,
Page 1 of 8
It
is
a
well-known
aspect
of
prudent
risk
analysis
that
aggregate
riskthe
risk
of
the
entire
system
everywhere
along
that
systemis
the
relevant
scope,
not
a
self-serving
limitation
that
restricts
the
scope
of
the
review
to
half
the
systems
potential
transport
capacity,
much
less
than
half
the
systems
aggregate
risk,
and
less
than
half
its
potential
negative
consequence.
This
dangerous
limitation
in
scope
is
how
Kinder
Morgan
successfully
argued
that
its
existing
Emergency
Management
Plan
(EMP)
documents
are
not
relevant
to
the
Boards
consideration
of
the
ProjectTrans
Mountain
notes
that
although
BC
considers
the
EMP
documents
for
the
existing
system
to
be
relevant
for
the
Board
in
considering
this
Application,
the
Board
itself
has
never
taken
that
position.1
The
Panel
agrees,
the
EMP
(Emergency
Management
Plan)
documents
relate
to
the
existing
facilities
that
are
not
the
subject
of
the
present
Project
applicationWhether
Trans
Mountain
is
meeting
its
obligations
with
respect
to
its
EMP
for
the
existing
facilities
is
a
matter
for
the
Board
to
consider
outside
of
the
hearing
for
this
Project.
The
safe
operation
of
the
existing
Line
1
facilities
under
current
operating
conditions
is
out
of
scope
for
this
hearing.2
At
the
Northern
Gateway
proceedings
the
Panel
relied
on
similar
polluted
logic
to
conclude
that
the
Kalamazoo
oil
spill
was
irrelevant
to
informing
the
Board
of
the
risk,
and
cost,
Enbridges
project
posed
to
the
Canadian
public
interest.3
!
(b)
Review
Restricted
to
Applied-for
Capacity
not
Designed
Capacity
!
The
new
pipeline
is
designed
to
carry
780,000
barrels
a
day
of
oil
(for
total
system
capacity
of
over
1.1
million
barrels
a
day),
but
the
Panel
is
restricting
its
review
to
the
applied-for
capacity
of
540,000
barrels
a
day.4
When
Kinder
Morgan
comes
forward
to
request
NEB
approval
to
increase
throughput
to
designed
capacity
it
will
not
fall
within
the
deSinition
of
a
designated
project
under
the
Canadian
Environmental
Assessment
Act
2012.
An
NEB
Act
section
52
review
will
not
be
required.
The
impact
of
an
almost
Sifty
percent
increase
in
capacity
on
Line
2,
including
the
marine
trafSic
it
triggers,
will
never
undergo
proper
scrutiny.
Kinder Morgan Response to the Province of BC Motion December 5, 2014, page 5, Letter
Vancouver Sun, NEB Review Panel Violated Public Trust, January 9, 2014, Robyn Allan, Article
Kinder Morgan Pipeline Expansion Designed to Carry Much More Oil, The Tyee, May 28, 2014, Robyn
Allan, Article In contrast, the NEB approved the $5.4 billion capital budget that includes costs for the
designed capacity and incorporated these into approved tolls to be charged to shippers.
Page 2 of 8
On
April
2,
2014,
the
Board
released
its
List
of
Issues.
Intervenors
were
offered
no
opportunity
to
comment.
The
Panel
excluded
economic,
environmental
and
social
impact
activities
that
are
of
signiSicant
concern
to
Canadians.
In
particular,
the
Board
does
not
intend
to
consider
the
environmental
and
socio-economic
effects
associated
with
upstream
activities,
the
development
of
the
oil
sands,
or
the
downstream
use
of
the
oil
transported
by
the
pipeline.5
!
This
means
the
Board
will
not
consider:
!
(i) greenhouse
gas
emissions
from
the
production
of
diluted
bitumen
shipped
down
the
pipeline
and
from
its
use
in
foreign
markets;
(ii) environmental
impacts
of
tanker
trafSic
beyond
a
12
nautical
mile
territorial
sea
limit;
!
(iii)
risks
and
costs
of
climate
change;
!
(iv)
crowding
out
of
economic
activity
and
the
erosion
of
quality
of
life
in
British
Columbia
as
English
Bay
and
Burrard
Inlet
become
oil
tanker
parking
lots
for
Albertas
heavy
oil;
(v) the
opportunity
cost
to
the
Canadian
economy
when
raw
bitumen
is
exported
to
foreign
markets
for
upgrading
and
reSining
at
the
expense
of
value
added,
job
creation,
and
economic
wealth
generation
in
Alberta;
and
(vi)
the
cost
to
the
Canadian
economy
of
a
condensate
import
dependency.
Roughly
one
of
every
three
barrels
intended
for
Trans
Mountains
expansion
consists
of
imported
condensate
from
the
US,
much
of
it
brought
into
Canada
on
Kinder
Morgan
Cochin.
The
expansion
is
pitched
to
Canadians
as
a
Made-in-Canada
heavy
oil
export
strategy
when
it
is
in
no
small
part
a
US
condensate
export
strategy,
making
its
way
to
foreign
markets
via
Trans
Mountain
pipeline
and
our
marine
waterways.
The
Board
received
Notices
of
Motion
from
the
City
of
Vancouver
and
Parents
from
Cameron
Elementary
School
in
Burnaby
requesting
expansion
of
the
List
of
Issues.
Ten
Intervenors
supported
the
motions,
including
the
Intervenor
Robyn
Allan.
The
Board
argued
that,Oil
sands
projects,
including
expansions,
have
and
continue
to
be
subject
to
provincial
environmental
assessment
or
combined
provincial
and
federal
NEB Hearing Order OH-001-2014, Appendix AList of Issues, page 18, Hearing Order
Page 3 of 8
assessment.
This
supports
the
conclusion
that
the
CEAA
2012
does
not
require
the
Board
to
include
in
its
environmental
assessment
activities
that
have
been
so
assessed.6
The
Board
provides
false
assurances.
The
Board
has
accepted
Kinder
Morgans
supply
forecasts
in
Volume
2
of
its
Application.
These
forecasts
include
production
volumes
from
some
projects
that
have
not
received
regulatory
approval,
therefore
it
is
not
possible
that
the
environmental
costs
of
these
projects
have
been
considered.
The
NEB
attempts
to
lull
Canadians
into
the
delusion
that
they
have.
The
Board
also
argues
that
it
is
mindful
that
the
environmental
and
socio-economic
effects
of
petroleum
exploration
and
production
activities
in
Canada
are
assessed
in
other
federal
and
provincial
processes
that
involve
those
conducting
those
activities,
and
that
the
end
use
of
oil
is
managed
by
the
jurisdiction
within
which
that
use
occurs.7
This
spurious
reasoning
is
nonsense
since
subsection
52
(2)
of
the
NEB
Act
grants
the
Board
authority
to
determine
what
is
relevant
to
it
in
fulUilling
its
mandate.8
The
duplicity
of
the
Board
becomes
glaringly
apparent
when
its
reasons
to
exclude
upstream
activities,
oil
sands
extraction,
and
downstream
use
are
viewed
in
light
of
the
Boards
decision
on
marine
transport
issues.
The
Board
has
no
authority
with
respect
to
marine
shipping,
navigation,
safety
and
spill
prevention
and
yet,
the
Board
included
the
potential
environmental
and
socio-economic
effects
of
marine
shipping
activities
that
would
result
from
the
proposed
project,
including
the
potential
effects
of
accidents
or
malfunctions
that
may
occur.9
!
(d)
Review
Restricts
Marine
Shipping
Activities
Assessment
to
12
Nautical
Miles
!
Strangely,
the
Panel
has
limited
the
assessment
of
marine
shipping
activities
to
12
nautical
miles,
as
if
somehow
environmental
impact
and
spill
threat
cease
beyond
this
limit.10
The
Board
is
deluding
us
with
this
territorial
limit.
The
environmental
threats
from
oil
tankers
must
be
evaluated
throughout
the
entire
marine
vessel
trip.
For
example,
Canada
is
a
signatory
to
the
North
American
Emissions
Control
Area
(ECA)11
requirements,
which
assist
in
reducing
air
pollution
from
ships,
but
the
boundary
extends
to
only
200
nautical
miles.
Once
past
this
point,
tankers
shift
to
much
dirtier,
Ibid., page 6.
Ibid., page 6.
NEB Hearing Order, List of Issues #5, op. cit. The Board provided a follow-up to Issue #5 on September
10, 2013 titled Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of
Increased Marine Shipping Activities, Attachment 1
10
NEB Letter September 10, 2013, Attachment, Ibid, page 1. 12 nautical miles translates into 22.2 km
from the low water mark of the coast.
11
Canada Implements North American ECA Requirements, May 10, 2013. Article
Page 4 of 8
and
more
environmentally
challenging
fuel
sources,
most
notably
Bunker
Cthe
same
oil
that
spilled
recently
in
English
Bay.
!
!
2. Compromised
Principles
of
Procedural
Fairness
and
Natural
Justice
!
Much
has
been
written
about
the
Panels
unprecedented
exclusion
of
cross
examination
and
how
this
undermines
the
integrity
of
the
review
process.
The
Intervenor,
Robyn
Allan,
formally
requested
that
it
be
re-introduced
into
the
hearing
schedule.12
Numerous
Intervenors
sent
in
letters
of
support.
The
Board
rejected
the
request
siding
with
Kinder
Morgan,
the
beneSiciary
of
the
Boards
decision.
The
Board
assured
participants
that
two
rounds
of
written
requests
would
be
sufSicient
to
test
the
evidence.
The
Boards
assurances
are
without
merit.
The
Sirst
round
of
information
requests
resulted
in
Intervenors
formally
petitioning
the
Board
to
compel
Kinder
Morgan
to
answer
thousands
of
questions,
but
the
Board
granted
only
5%
of
them.
In
the
second
round,
the
Board
compelled
Kinder
Morgan
to
answer
less
than
3%.
Separate
Information
Requests,
required
because
of
late
TERMPOL
and
Seismic
reports,
have
experienced
similar,
unsatisfactory,
responses
from
the
Board.
The
absence
of
oral
cross
has
turned
this
public
hearing
into
a
farce,
and
the
written
information
request
process
into
an
exercise
in
futility.
For
two
centuries
past,
the
policy
of
the
Anglo-American
system
of
evidence
has
been
to
regard
the
necessity
of
testing
by
cross-examination
as
a
vital
feature
of
the
law.
The
belief
that
no
safeguard
for
testing
the
value
of
human
statements
is
comparable
to
that
furnished
by
cross-examination,
and
the
conviction
that
no
statement
(unless
by
special
exception)
should
be
used
as
testimony
until
it
has
been
probed
and
sublimated
by
that
test,
has
found
increasing
strength
in
lengthening
the
experience.13
The
Board
was
advised
by
the
Department
of
Justice
that
the
absence
of
oral
cross
is
a
failure
of
the
process
pointing
out
that
beyond
any
doubt
cross
examination
is
the
greatest
legal
engine
ever
invented
for
the
discovery
of
truth.14
!
12
13
14
Attorney General of Canada, June 27, 2014, page 5, para 16. Written Response
Page 5 of 8
!
!
3. Biased
Decision
Making
!
One
of
the
fundamental
features
of
our
market
system
is
that
the
risk
borne
by
shareholders
is
balanced
against
the
Sinancial
reward
they
expect
to
receive.
This
risk-
reward
trade-off
sends
appropriate
market
signals
and
supports
a
more
efSicient
and
effective
allocation
of
capital.
Not
only
did
the
NEB
undermine
the
market
system
by
granting
Kinder
Morgan
a
fund
to
push
through
its
project,
it
has
knowingly
stacked
the
deck
in
favour
of
the
Proponent.
The
NEB
did
not
ensure
concomitant
Sinancial
resources
would
be
available
to
Intervenors
during
these
same
NEB
proceedings.
The
NEB
socialized
project
approval
costs
onto
the
backs
of
Canadians
while
it
knows
the
projects
vast
Sinancial
returnssome
$850
million
a
yearwill
be
privatized
into
the
pockets
of
Kinder
Morgans
US
based
investors.17
When
the
Intervenor,
Robyn
Allan,
requested
the
Board
compel
Kinder
Morgan
to
reconcile
inconsistencies
between
the
economic
beneSits
claims
in
its
application
against
what
it
has
told
its
shareholders
in
Texasthat
it
intends
to
siphon
away
close
to
a
billion
a
year
from
the
Canadian
economy
while
paying
almost
no
Canadian
corporate
taxes
astonishingly,
the
Board
concluded
this
is
outside
the
scope
of
its
review.
By
its
actions
it
is
clear
the
Board
has
no
intention
of
considering
the
economic
impact
and
Sinancial
viability
of
this
application
but
for
accepting
Kinder
Morgans
bogus
case
in
Volume
2.
Refusing
to
compel
Kinder
Morgan
to
answer
questions,
the
Board
allows
Kinder
Morgan
to
pretend
beneSits
exist
where
they
do
not.
When
Intervenors
submit
evidence
on
the
economic
issues
the
Board
will
give
it
little,
if
any,
15
The National Energy Board Guaranteed Kinder Morgan a Fund to Push Pipeline Expansion Through
Regulatory Review, June 17, 2014, Robyn Allan, Report
16
Application for Firm Service to Westridge Marine Terminal, RH-2-2011,Reasons for Decision, page 13.
17
Ian Anderson, Kinder Morgan Inc. Transcript Part IV Toll Hearing Evidence, January 30, 2013, page 3.
Page 6 of 8
weight;
it
has
already
ruled
meaningful
critique
is
outside
the
scope
of
issues.
This
is
a
travesty.
!
!
The
Boards
unfair
approach
is
also
reSlected
in
its
determination
that
the
application
was
complete
when
it
was
not.
This
is
most
clearly
illustrated
by
Kinder
Morgans
uncertainty
over
its
route
and
the
Boards
accommodation
of
Kinder
Morgans
lack
of
preparation
inside
the
review
process.
Although
aware
of
the
Panels
violation
of
the
public
trust,
Peter
Watson,
NEB
Chair
and
CEO
has
not
sought
to
rectify
the
broken
process.
The
entire
National
Energy
Board
is
perpetrating
a
fraud
on
the
Canadian
public.
Withdrawing
as
an
expert
intervenor
is
not
only
a
form
of
formal
protest
against
the
broken
system,
it
is
also
a
reasoned
decision
considered
in
light
of
efSiciency
and
effectiveness.
Protection
of
our
democracy
and
market
economy
is
best
undertaken
outside
the
industry
contrived,
and
controlled,
NEB
failed
system.
The
NEB
is
not
a
national
energy
board;
it
is
a
parochial
board
steeped
in
Calgary
petro
culture,
run
by
corporate
interests.
Industry
bias
began
in
the
1990s
when
the
NEB
moved
from
Ottawa
to
Calgary,
leaving
two-
thirds
of
its
staff
behind
and
requiring
permanent
Board
members
to
live
in
proximity
to
Calgary.
Regulatory
capture
continued
as
the
Federal
Government
and
Board
adopted
the
practice
of
offering
Board
and
staff
positions
to
people
with
energy
industry
backgrounds,
at
the
expense
of
establishing
a
diversiSication
of
interests.
The
Board
abandoned
prudent
and
sound
economic
and
Sinancial
analysis
when
these
led
to
decisions
recommending
projects
be
rejected
because
costs
outweighed
beneSits.
Rather
than
continuing
to
rely
on
Cost-BeneSit
analysis
as
a
sound
analytical
approach,
the
NEB
rejected
it
in
favour
of
Input-Output
analysis;
a
Slawed
and
misleading
substitute
that
presents
impacts
as
if
they
are
beneSits
and
ignores
known
and
reasonable
costs.
The
Board
is
charged
with
environmental
assessment
without
appropriately
skilled
and
experienced
staff
to
undertake
it.
The
Board
does
not
have
the
expertise,
or
will,
to
understand
complex
corporate
structures
designed
to
minimize
corporate
taxes,
siphon
vast
Sinancial
wealth
out
of
the
country,
and
leave
Canadians
holding
the
bag
when
major
or
catastrophic
events
happen.
I
withdraw
from
this
process
in
defence
of
the
market
system
and
a
sound
economy.
I
withdraw
from
this
process
in
defence
of
sustainable
economic
progress
that
promotes
resource
development
rather
than
resource
exploitation.
The
Sight
to
protect
the
Canadian
public
interest
must
be
conducted
in
an
open
and
transparent
forum,
where
those
who
desire
to
participate,
have
a
right
and
opportunity
to
do
so.
Page 7 of 8
The
Sight
to
protect
the
Canadian
public
interest
must
include
those
issues
that
fully
represent
the
Canadian
public
interest,
not
limit
themas
the
Panel
has
doneto
a
deSinition
serving
industry.
We
are
being
conned
by
the
very
agency
entrusted
to
protect
us.
This
must
stop.
The
health
and
welfare
of
our
economic,
social
and
environmental
systems
are
at
stake.
!
Sincerely,
!
!
!
Robyn
Allan
!
cc
Intervenors
Kinder
Morgan
Peter
Watson,
Chair
and
CEO,
NEB
Page 8 of 8