Under the CER Act, the Lead Commissioner must set a time limit for certain types of applications. On January 9, 2020, the Lead Commissioner of the Canada Energy Regulator (CER) published a letter outlining the standard time limits for processing infrastructure applications pursuant to sections 183, 214 or 262 of the Canadian Energy Regulator Act (CER Act). The Letter and Record of Decision can be found online.
Section 183 of the CER Act outlines the process the Commission must follow, and the factors it must consider, in determining whether to issue a certificate in respect of a non-designated pipeline. Section 214 provides that the Commission may exempt certain pipeline projects from certain provisions of the CER Act on application. The Commission may exempt pipelines not more than 40 kilometres in length, pipelines that have already been constructed and infrastructure related to those pipelines. Finally, section 262 refers to the factors that the Commission must consider before issuing a certificate in respect of an international or interprovincial power line.
The Record of Decision notes that, once an application under section 183, 214 or 262 has been made, the Commission informs the applicant of the start and end dates of the time limits. The start date commences when the Commission determines that an application is complete. The time limits take into account the complexity of the projects, and have been set out as follows:
- Section 214 (Routine Process):
- Minor complexity: 130 days
- Moderate complexity: 210 days
- Major complexity: 300 days
- Section 183 (non-designated), 214 or 262 (Hearing Process):
- Section 183: 450 days
- Section 214: 300 days
- Section 262: 300 days
We note that the time limit for section 183, or pipeline projects, does not apply to designated projects as defined in the Impact Assessment Act (IAA). Designated projects are those subject to impact assessment under the IAA. We further note that the Lead Commissioner has discretion to vary the time limit for a specific application.
The previous timelines under the National Energy Board Act provided that the NEB must have completed its assessment of an application within 15 months of receiving an application. The new timelines provide for a more expeditious review, and the Commission must complete its assessment and either issue a certificate or make its recommendation within the foregoing time limits. The new timelines ensure that stakeholders and project proponents have certainty regarding when the Commission will, or will not, issue a certificate regarding their project(s). However, given that the Lead Commissioner retains discretion to vary the time limit for an application, it remains unclear as to whether the new time limits will ultimately expedite the process if that discretion is exercised regularly.