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The regulators held two days of hearings in Calgary after the company complained the municipality, a staunch opponent of the $7.4 billion project, used stalling tactics to delay it, and putting it in jeopardy. The tactics included saying its staff was too busy, requesting time-consuming and unnecessary studies, duplicating information requests, and refusing to provide timelines.

On Monday, Kinder Morgan said a lack of clarity around municipal permit processes and related judicial process could swell startup delays beyond the previously expected nine months. The company says that it expects to lose about $75 million before certain deductions for every month the in-service date is pushed back.

The company promised the NEB it would follow the spirit of the bylaws, but could no longer wait for Burnaby to issue permits under a process it described as opaque and arbitrary. Six months after applying for them, it said it had yet to receive a single one and that it was in the dark about what it was required to do.

Without NEB action, the company said it would be impossible to predict when the project could be built.

The request triggered a constitutional question about whether a single municipality could stop construction of an inter-provincial pipeline approved and deemed in the public interest by the federal government.

The hearings were attended by lawyers representing the governments of Alberta and Saskatchewan, which sided with Trans Mountain, and representing B.C., which sided with Burnaby after its NDP government promised to use every tool at its disposal to ensure the Trans Mountain project never moves forward.

At the hearing, the city denied it was giving the company the run around and blamed its incompetence for the delays. It said the pipeline project was subject to the same rules as every one else and that proponents should have known how to meet its requirements.

Burnaby can seek leave to appeal at the Federal Court of Appeal.

“We are pleased with the decision we have received from the NEB today, as it reinforces our view this federally approved project is in the national interest,” Ian Anderson, president of Kinder Morgan Canada, said in a statement.

Financial Post

ccattaneo@nationalpost.com