NEB vs. CNSC: Comparing ethical standards behind closed doors

(Image via Kaz)

Co-written by Mark Mattson and Pippa Feinstein

Earlier this month, the three Members sitting on the National Energy Board’s (NEB) decision-making review panel for the Energy East and Eastern Mainline projects stepped down. At the same time, the Chair and Vice Chair of the NEB also recused themselves from any involvement with the review of these projects.

These decisions were in response to several intervenors’ concerns over evidence that a private meeting occurred between Board Members, the Board’s CEO, and Jean Charest about TransCanada’s application. Troublingly, this meeting took place while the Board Members were already engaged in their review of the application, and while Mr. Charest was a paid agent of TransCanada. No public announcement about the meeting was ever made and the Board initially denied the story, only later conceding its truth. Lake Ontario Waterkeeper’s submissions on this issue can be found here.

The Code of Conduct for National Energy Board Employees applies to all who work for the Board, including its CEO, Chair, and Board Members. The Code of Conduct has several provisions and an entire appendix dedicated to ensuring against improper meetings between Board employees and stakeholders. The Code recognizes that employees must have relationships with stakeholders to ensure they understand industry standards, project operations, and local communities’ needs. But the Code also recognizes that when quasi-judicial hearings are in progress, the neutrality and impartiality of decision-makers is paramount.

For this reason, the Code of Conduct permits meetings with stakeholders, but only when certain safeguards are in place so that they can be conducted in a transparent way that would prevent the public’s perception of bias. For example, the meetings must be approved by Board officials, agendas and minutes of these meetings must be filed with the Board, and any Members or staff involved in an ongoing hearing must not discuss the application before them. (See sections 2.1.4 and Appendix II)

Significantly, it appears as though the private meetings between the Board Members, Board Chair, and Mr. Charest did not comply with several of these provisions. Neither the Board’s Chief Operating Officer nor Member George authorized these meetings to take place. Board Members and staff involved in the current TransCanada application hearings were not identified and excluded from discussions about the application at these meetings. No formal agenda was established for the meetings.

TransCanada’s proposed project is massive. If its application is approved, the Energy East and Eastern Mainline pipelines would cross thousands of waterbodies that provide important habitat for a myriad of species (including species at risk). The pipelines would also traverse several sources of drinking water for millions of Canadians, not to mention the many beloved waterways that are used for subsistence and recreational fishing.

The NEB exercises an enormous amount of discretion in ultimately determining whether or not an application is approved. It determines the necessary detail for the project application to be deemed complete (including the necessary detail of maps with each pipeline’s route). Its Chairperson designs the hearing process and determines who will sit on its decision-making panels. It is also the filter through which months of hearings and the concerns of local communities across much of the country will be presented to the Prime Minister for a final approval or rejection of the pipeline. (See the NEB Act section 6(2), 15(3), 16, 32(1), 52, and 58)

The Board Members’, Chair’s, and Vice-Chair’s recusals have shown us that when the stakes are high and government agencies don’t follow their own guidelines for ensuring their neutrality, they can be taken to task.

This has made us think about another federal regulatory agency: the Canadian Nuclear Safety Commission (CNSC).  

Like the NEB, the CNSC exercises a significant amount of discretionary power. In regulating the nuclear industry in Canada, it determines which facilities are permitted to operate, and is able to impose whatever conditions on these operations it deems necessary to protect people and the environment. The CNSC’s President also exercises a considerable degree of discretionary power. He supervises and directs Commission Members’ work, appoints the CNSC’s experts and staff, and determines which Commission Members will sit on decision-making panels to review regulated projects and facilities. (See Nuclear Safety and Control Act sections 12, 15, 16, and 22)

Like the oil and gas industry, the nuclear industry has a major impact on the swimmability, drinkability and fishability of our local waterbodies. Nuclear plants alone kill millions of fish each year in their reactor-cooling processes, and are responsible for significant chemical and thermal pollution of local aquatic habitats.

And like the NEB, the CNSC, has a CNSC Values and Ethics Code. However, their respective codes differ substantially, especially when it comes to relationships with stakeholders.

While the NEB’s Code of Conduct prohibits meetings between stakeholders and NEB employees (including Board Members) pertaining to a deliberated project, the CNSC’s Code of Conduct is completely silent on this matter.

Waterkeeper has long been concerned about the lack of CNSC accountability and transparency, not to mention the Commission’s close relationship with the nuclear industry. The CNSC regularly convenes closed meetings to consider amendments to regulated facilities’ licences. CNSC staff are also regularly in contact with regulated companies to ensure their compliance before, during, and after decision-making processes.

Ultimately, this conduct makes many doubt the neutrality of the Commission. This fear was confirmed when past Commission President Linda Keen was fired in 2008 for closing down a nuclear facility due to safety concerns. The facility produced medical isotopes, and its closure occurred during an isotope shortage. She maintained that as an independent Commission, the CNSC’s duty was to protect the safety of Canadians, and not ignore this duty in order to ensure continued isotope production. Her demotion for not protecting industry productivity effectively eroded the Commission’s independence.  

The recusal of NEB Members from the Energy East and Eastern Mainline decision-making panel was an important step towards transparency and accountability for the Board. It has also made us wonder whether the CNSC would be held to a similar standard.