Changes to CER’s adjudicative processes during pandemic
Published by Lydia Woellwarth,
The COVID-19 pandemic poses an unprecedented challenge for all of those with whom the Canada Energy Regulator work closely. The Commission of the Canada Energy Regulator (Commission) has an obligation to adjudicate applications in a fair, transparent, accessible and timely manner. During the pandemic, the Commission will explore flexible ways to continue its work while respecting physical distancing measures. This may mean replacing in-person meetings with written formats or using audio-visual tools as alternative means, where appropriate to do so.
Of the approximately 70 applications before the Commission, one hearing process has been postponed and procedural adjustments have been made to two applications with the possibility of further adjustments. This means that the vast majority of the applications before the Commission at this time are being assessed through a written process and as a result, no significant procedural changes have been necessary thus far.
The Commission must complete its review of certain applications within the 300 or 450 days legislative time limit. At this time, the Commission expects to meet all of its time limits.
The Canada Energy Regulator (CER) also uses Service Standards, which are targets the CER has set for itself to work efficiently and measure its performance. The CER aims to maintain its Service Standards but realises that some changes may be needed on a case-by-case basis as it adjusts to the impacts of COVID-19. Any adjustments to a Service Standard for a specific application will be communicated transparently.
Unique circumstances for Indigenous communities for responding to notices of application
As part of its early engagement efforts, the CER sends a Notice of Application to Indigenous peoples to notify them that the CER has received an application that may impact their community. The Notice of Application provides details on how to submit comments to the CER.
The CER is aware that Indigenous communities in Canada face increased challenges and risks associated with the COVID-19 pandemic, and have taken extra measures to protect their communities. The CER is dedicated to the safety and well-being of its staff, Indigenous peoples, applicants, landowners, and all of those with whom we work closely. As such, when a Notice of Application is sent to an Indigenous community, the CER will:
- Reach out to Indigenous communities to assess their capacity to engage. Where communities have expressed that they have the ability to engage, CER staff will work with them to arrange engagement by phone or videoconference. This will ensure the safety of Indigenous community members and CER staff by eliminating in-person contact.
- Provide additional time (30 days instead of the regular 14 days), for Indigenous communities to respond to Notices of Application from the CER. Further extension requests will be assessed on a case-by-case basis.
Listed below are the active hearing processes currently before the Commission. For each, a short summary of recent procedural guidance issued by the Commission is included.
Hearings with procedural changes
- Enbridge Canadian Mainline contracting application: The Commission is currently reviewing submissions from interested persons regarding postponement of the hearing. In light of the COVID-19 situation, the Commission previously postponed an in-person Technical Conference originally scheduled for 8 April 2020, with further direction to be provided at a later date.
- NGTL Edson Mainline Expansion Project: Oral cross examination was originally planned for this review process. The Commission replaced in-person hearing steps with an additional round of Information Requests. The Commission is also reviewing submissions regarding adjournment of this application. Comments were requested by 1 May 2020. The CER Commission is currently reviewing the submissions and will communicate next steps in a transparent manner.
- Trans Mountain Expansion Project detailed route hearings: In-person oral hearing sessions and in-person site visits have been cancelled. The Commission has set out a revised schedule for the majority of hearings in Segments 5, 6 and 7, as well as a revised schedule for the S’ólh Téméxw Stewardship Alliance (STSA) Phase 1 hearing process. Additionally, the Commission has initiated a comment process on the sharing of STSA’s Indigenous knowledge for the purposes of the detailed route hearing process.
Hearings continuing without procedural changes
- TQM reinforcement and asset purchase.
- Trans Mountain Westridge delivery line relocation.
- NGTL Etzikom abandonment.
- AltaGas LPG General Partner Inc. on behalf of AltaGas LPG Limited Partnership application for a licence to export propane.
- NGTL north corridor expansion.
Other processes continuing
The majority of applications adjudicated by the Commission do not involve in-person meetings and can be evaluated and tested through written processes. This is an efficient way to conduct a comprehensive and science-based review of the proposed project’s engineering and safety specifications, economic, socio-economic and environmental effects, and possible impacts on the rights and interests of Indigenous peoples.
Read the article online at: https://www.worldpipelines.com/regulations-and-standards/13052020/changes-to-cers-adjudicative-processes-during-pandemic/
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