Pipelines and participation: radical rhetoric, planning and public interest

There has been significant ink devoted to the recent pipeline proposals in the United States and Canada linking oilsands production to world markets.  There has also been some interesting rhetoric being thrown around by the federal government and others lobbying in support of these projects.

In my opinion the “radical” rhetoric results in one primary reaction among those opposing the Northern Gateway and Keystone pipelines.   Opponents, recognizing attempts to marginalize their opinions, will undoubtedly feel embattled and emboldened in their positions.  It is also unlikely that such rhetoric will shift public opinion to any great degree.  There are, and will always be, those who will feel the risks associated with pipelines and tanker traffic off the West Coast, in the case of the Northern Gateway Pipeline, are not worth the risks to land, water and biodiversity and others who feel the benefits outweigh those risks.

Making matters worse, these proposals hit the airwaves and those impacted by them with a “my way or the highway” approach.  People are confronted late in the planning and assessment stages by industry proponents and government alike.  This leaves people wondering, “There must be a better way”.  It doesn’t help optics when, in the case of Keystone, TransCanada appeared adamantly wed to a specific route, only to change its tune once things didn’t appear to be going well.

I would argue that we are failing to have effective and timely dialogue on these important issues of public interest.   There is a need, as espoused by the Alberta Premier and others, to have a national energy policy (or a Canadian energy strategy), to truly canvass options and alternatives to how we develop our energy resources in a manner that minimizes impacts.  What alternatives exist to the Northern Gateway proposal, if any?  What would happen if we refined more bitumen nationally or provincially?  What export requirements would still exist?  What routes would ensure the least risk to the environment?

The key is that a Canadian energy strategy must truly consider environmental outcomes.  This means recognizing that some approaches to energy development will be deemed inappropriate, and others will be accompanied by increased costs.  Now some people reading this may get their hackles up and claim that such an approach would create barriers to investment and frustrate the free market.  To those I say, we can rely on the invisible hand but don’t be surprised if there is a “radical” slap to the face, coming from those with legitimate public interest concerns.  The market doth not the public interest make.

2011 in review

The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Syndey Opera House holds 2,700 people. This blog was viewed about 10,000 times in 2011. If it were a concert at Sydney Opera House, it would take about 4 sold-out performances for that many people to see it.

Click here to see the complete report.

Twas an Alberta night before Christmas

(adapted from Twas the Night Before Christmas, C. Moore or H. Livingston)

Twas the night before Christmas and all through the house

Not a creature was stirring, definitely not a Greater Sage Grouse

The stockings were hung by the chimney with care

In hopes that a wetland policy soon would be there

The children were nestled all snug in their beds

While visions of climate change dance’d in their heads

And mama in her kerchief and I in my cap

Had just settled our brains for a regional planning map

When out on the lawn arose such a clatter

I sprang from my bed to see what was the matter

Away to the Legislature, I flew like a flash

Tore open Bill 36 and threw in some cash

The moon on the breast of the new fallen snow

Gave the luster of planning for environmental objects below

When what to my wondering eyes should appear

But a miniature sleigh and eight endangered rein-deer

With a little old driver, so lively and quick

I knew in a moment it must be St. Nick

More rapid than eagles his courses they came

And he whistled and shouted and called actions to blame

“Now oil sands, now seismic, now infrastructure, all vixens

On habitat, on impacts, that’s what we need a fixen”

To the top of the precipice to the dead end wall,

Now flash away, flash away, populations fall

As dry leaves before the wild hurricane fly

When they meet an obstacle, mount to the sky

So up to the house tops the courses they flew

With the sleigh full of half measures, and St. Nicholas too

And then in a twinkling, I heard but needed proof

Water allocation review was more than mere spoof

As I drew in my head, and was turning around

Down the chimney St. Nick came with a bound

He was dress’d all in fur from his head to his foot

And his clothes were all tarnished with PAHs and soot

A bundle of public interest groups sat on the landing

And they looked to get legal rights to participate, that’s “standing”

His eyes, how they twinkled! No public land he’d sell

His grasslands were valuable, biologically diverse he’d tell

His droll little mouth drawn up in a sneer

He had grave concerns for woodland caribou, that’s right, his reindeer

The stump of a pipe he gritted in his teeth,

With concerns over fracking and what went on beneath

He had a broad face and a little round belly

That shook when he laughed like a bowl full of jelly

He was chubby and plump, a right jolly old elf

But without effective environmental assessment he doubted himself

A wink of his eye and a twist of his head

He demanded better monitoring, for cumulative effects, he said

He said few more words, but went straight to work

And filled all his policies, with environmental objectives, you jerk

And laying his finger aside of his nose

Public watchdogs we need until results, policy shows

He sprung to his sleigh, to his team gave a whistle

It’s action he wanted, a public interest missile

But I heard him exclaim ere he drove out of sight

Happy Christmas to all, let’s treat our environment right.

Help us get it right in 2012: A note to our friends

Image: Arvind Balaraman / FreeDigitalPhotos.net

2012 will be a significant year for our environment. Political change is in the wind, a provincial election is coming, and Alberta is under pressure internally, nationally and internationally to demonstrate effective environmental stewardship and strong regulatory leadership. We are coming to key decision points on issues of public interest, including water use and allocation and future land use and management. More Albertans are pushing to have a say and have their views included in decision-making.

All of this shapes up to offer a huge opportunity to Albertans to get things right through environmental law and policy. At the Environmental Law Centre, we’re working long-term to build an Alberta where the environment is a priority that guides our choices as a society. We want Alberta to have strong and effective environmental laws, policies and legal processes. We want Albertans to be actively and meaningfully engaged in decisions and processes that affect our environment. In 2012, our work will:

• give all Albertans tools to better access environmental information from government sources;
• help conservation groups in southern Alberta protect water sources through the land use planning process;
• bring forward important law reform recommendations to improve early environmental assessment of projects and activities, ensure timely reclamation of oil and gas activities and expand public interest participation in regulatory proceedings; and
• better inform and educate Albertans on environmental law and policy.

The environment is inherently public. Where decisions can potentially affect the water, land, air and other elements we depend on for life and well-being, broad public concern is inevitably aroused. Our work on environmental law and policy is an important piece of the bigger picture, but we can’t do it alone. We need your help.

Your donation will help us and all Albertans we serve get it right for a safe and healthy environment for all of us. You can donate by visiting our secure donations webpage at https://www.elc.ab.ca/pages/SupportELC/default.aspx.  A visit to our “What’s New” page at http://www.elc.ab.ca/pages/WhatsNew/default.aspx will update you on our recent activities and our 2010 annual report can be accessed at http://www.elc.ab.ca/Content_Files/Files/ELCAnnualReport2010.pdf.

Thank you for your support and your interest in Alberta’s environment. We want to get it right for Albertans and our future generations and with your help, we can.

Best wishes for a safe and happy holiday season. Here’s to a great environmental year for Alberta in 2012!

Cindy Chiasson, Executive Director

Will Statoil’s “creative sentence” prevent illegal water use?

Norwegian giant Statoil has pled guilty to breaching the terms of a Water Act license, joining Suncor and Syncrude as the third oil sands operator to be convicted under provincial legislation in the last three years.  Statoil’s $190,000 fine  is the lowest of the three but it is the leading case for Alberta’s creative sentencing program.  Suncor got hit with a straight fine.  Syncrude saw a mix of fines and creative sentencing, but the case was a mix of federal and provincial laws.  Statoil was convicted on one provincial charge and 97% of the fine is going to provincial creative sentencing.

Creative sentencing has huge potential to repair environmental damage and prevent future harms. Fines to general revenue may not help the environment, or worse, may just be the cost of doing business. Yet exactly ten years ago, the ELC found that Alberta’s program could be more creative under our existing laws.  Are we there yet?

The Water Act and Environmental Protection and Enhancement Act dictate what creative sentences are allowed, but the allowance is quite broad. The idea is basically to have some good come from the bad.  Alberta Environment’s policy is to prevent future harms by the same offense or same offender.  That makes programs for industry an option, so long as they go beyond sound business practices.  This is not the federal Environmental Damages Fund, where environmental groups apply for the money through a formal process.  Alberta makes no public call for sentencing proposals.  Creative sentences often come through consent orders proposed by the prosecutor and offender and approved by the judge. The order will reference the breached law but will not explore the principles of sentencing the way that a contested decision would.  Such is the Statoil order.

The only stakeholders listed in the order are the Alberta government, Statoil and the petroleum industry.  $185,000 out of the $190,000 will go towards online education for industry field workers.  Statoil will launch the program with a closed-door presentation to other oil companies about what it learned.  My reading is that for this order to prevent future harms, the facts must be that oil companies:

• Don’t know the law;
• Don’t know how water use impacts the environment;
• Don’t know how to comply with the law; and,
• Would behave better if they knew all of the above but didn’t share it.

So it is worth looking at the parties’ agreed facts: Statoil was using water for which a license was refused, running intakes that could suck up aquatic life in violation of the license it held, and providing estimates of water diversion that were 66% of what inspectors found.

It is also worth recalling that Statoil faced two charges, as recorded in Alberta Environment’s publicly available prosecution summaries:

• Unlicensed water diversion, and
• Providing false or misleading information.

Statoil pleaded guilty to the licensing charge and the charge of providing false or misleading information was dropped.  Negotiation was the norm before the conviction yet alone before sentencing.   There are no true plea bargains allowed, but courts tend to like negotiated settlements.

Creative sentencing will definitely not work if offenders see it as a deal.  Yet Alberta’s program gave Statoil a role not just in picking its penalty but in designing it. Somehow the offender’s preferences have become a practical factor in creative sentencing, which could be antithetical to deterring future offenses.  And if teaching your employees to follow the law isn’t just sound business practice, then I am moving to Norway.  In sum, a non-public process created a non-public solution that might not meet the goals of creative sentencing.

Alberta’s program could be the gold standard if the public were invited to make sentencing proposals on behalf of the environment.  Some debate about the right penalty would encourage judges to make their final say through principled decisions.  If offenders truly need help to be law abiding, let that argument prevail.  But given the cuts to environmental  agencies in this country, the best way for creative sentences to prevent future harms might be to fund citizen action.  Consider how charges laid by a private individual triggered the successful Syncrude prosecution.  Let some private prosecutions run their course and allow citizen enforcement to become self-funding.  That would create something.  Environmental offenders might think about the lessons from Statoil, but they would think twice if their fines were going to the watchdogs.

Seven Year Review of CEAA: An Update

A comprehensive review of the provisions and operation of the Canadian Environmental Assessment Act (CEAA) was due to be conducted in 2010 (by section 32 of Bill C-9: An Act to Amend the Canadian Environmental Assessment Act). With a late start, the review began in early 2011 but was cut short with the federal election call. The review started anew in October of this year. The ELC participated in the seven year review by submitting written comments to the Standing Committee on Environment and Sustainable Development in both March and November 2011 (which can be found on our website at http://www.elc.ab.ca/Content_Files/Files/BriefsAndSubmissions/ELCAlbertaCEAAreview2011_Final_EN.pdf and http://www.elc.ab.ca/Content_Files/Files/CEAA_Comments_November_2011.pdf)

The ELC welcomes and encourages a thorough review of CEAA and the federal environmental assessment process. However, we are concerned that a thorough review will not happen given the process followed by the Standing Committee.

Individuals and organizations began receiving calls to appear as witnesses before the Standing Committee in October – often with very little notice to appear and little direction from the Standing Committee as to which issues it particularly wanted input. Then, with barely two business days  notice, the Standing Committee set a deadline for written submissions (November 28). The hearing and witnesses scheduled for November 29 were cancelled. A confidential draft report to the Standing Committee is due December 6^th. As abruptly as it started, the seven year review appears to have come to an end.

It is disappointing that the opportunity to conduct a thorough review and learn from years of experience under CEAA has not been seized. Environmental assessment is a cornerstone of sustainable development – unfortunately, it appears an opportunity to improve upon CEAA and environmental assessment in Canada may have been squandered by not pursuing a more thorough and structured review process.

Court directs precaution in pesticide review case.

A recent decision from the Federal Court of Canada is notable for its interpretation of the how the precautionary principle must guide government decisions when dealing with scientific uncertainty.  The case revolved around a “special review” request made by an individual to the Minister of Health under the Pest Control Products Act to conduct an assessment of the pesticide glyphosate (containing polyoxyethlene tallow amines, POEA) and whether the pesticide posed an unacceptable risk to human health and the environment.

The focus of the decisions was the impact or potential impact of glyphosate with POEA on amphibians in ephemeral wetlands in forestry treatments.  As application of the pesticide to water bodies is prohibited the focus of the case was on ephemeral wetlands, which are characterized by the temporary presence of water, often associated with such things as spring melt or heave precipitation events. (There may be broader implications of the glyphosate review if it is found that it does pose an unacceptable risk to amphibians in ephemeral wetlands as similar products may be in use in commercial agricultural treatments.)

Justice Kelen considered several issues in coming to the conclusion that Minister had erred  in deciding not to initiate a  “special review”.  The court found that the Minister’s decision was not transparent or intelligible and referred the matter back to the Minister for reconsideration.

The court further found that the Minister erred in his interpretation of the statutory obligation to apply the precautionary principle.   The evidence before the court indicated that there was significant scientific uncertainty about the impacts of the pesticide on amphibians associated with ephemeral wetlands, with clear indications of the potential impact and differing conclusions among staff.

Indeed, a draft letter from the Pest Management Regulatory Agency at Health Canada, later amended, reflected this lack of clarity stating that “uncertainty currently hinders effective and realistic assessment of the risk to amphibians from the use of glyphosate formulations”.

The Agency had argued that their regulatory approach was precautionary insofar as it placed on onus on the industry to conduct scientific testing, the fact that the Agency used conservative assumptions in assessing products and the high standard of “acceptable risk” imposed by the legislation.

The Court nevertheless held that the Minister erred in his interpretation of how the principle be should be applied, noting at  paragraph 101,

With opinions within the Regulatory Agency on both sides of the question as to whether the pesticide presents an unacceptable environmental risk to amphibians in ephemeral wetlands, the precautionary principle would require that the Minister initiate a special review into that issue.

The approach taken in the court in this case rightly focused on the uncertainty in the science (as reflected in department discussions and materials) and how the precautionary principle must be applied by the Minister in dealing with that uncertainty.  The decision reinforces the need to ensure environmental legislation incorporates strong precautionary principles.  Certainly the inclusion of such provisions within Alberta’s environmental legislation should be top of mind for those who wish to seek reforms.

ALSA: Digging Deeper (Webinar)

The Alberta Land Stewardship Act (ALSA), which provides the legal framework for the province’s new land use planning and management system, has been in effect for two years. During that time, a first regional plan has been released in draft form, with a second soon to follow, and the first ALSA regulations have been enacted. ALSA has also been criticized extensively in relation to anticipated effects on property rights, compensation and limitations on legal rights. Premier Redford recently directed suspension of its implementation pending review and potential amendment.

Join ELC Executive Director Cindy Chiasson on Wednesday, Nov. 23, 12:00 noon – 1:00 pm for an update on ALSA, its implementation and its possible future.

Click here to register.

Note that there is a registration fee of $75.00. However, a limited number of subsidized registrations are available for individuals and organizations who cannot afford the registration fee. Contact Leah at lorr@elc.ab.ca with any questions about the event or how to register.

The ELC is a registered charity. Please donate!

ELC launches public interest standing project

“Standing”:   Basically the right to a hearing.  Greatly in need of law reform.

•  Are you a lawyer for parties that represent public viewpoints?
•  Are you that party, whether environmental watchdog or concerned citizen?
•  Have you had trouble participating in board hearings?

The Environmental Law Centre has been funded by the Max Bell Foundation to promote improvements to the law of standing in Alberta.  The focus is on administrative boards that consider the environment and determine the public interest.

This project is for you, and we need your help.

 

Consider that:

•  Parties who are directly affected may or may not represent public interests;
•  Parties who represent public interests may or may not be directly affected;
•  Parties without standing can be allowed to participate in some way.

Participant roles are often determined with no hearing, making this an imprecise area of law. It also means that the ELC needs to hear about what doesn’t appear in decision documents.

 

You can participate in this project by:

•  Replying to this blog post
•  Emailing Adam Driedzic, ELC Staff Counsel at adriedzic@elc.ab.ca
•  Calling Adam at 780-424-5099

 

What will I be asked?

We would ask you:

• Has your group been denied standing where you feel standing was warranted?
• How receptive was the board to your party, your arguments, or your evidence?
• What was the impact of the standing decision on the proceedings and the outcome?
• What kind of knowledge or experience could your group have added to the proceedings?

Real stories and examples will be useful.

 

How will my comments be used?

Individual comments will be consolidated to remove identifiers. The net results will help the ELC determine:

• The extent to which reasonable representatives of public viewpoints are being denied standing;
• How the board proceedings and outcomes could differ if these parties had standing;
• The level of support for some form of genuine interest standing;
• The extent to which such a standing tool would get used if it were available.

The ELC will then pursue a year of research on the connection between public interest decision making and standing, comparing the situation in Alberta to other jurisdictions.  The findings will be published and followed by a conference for lawyers, environmental groups, and advocates pursuing the standing issue.  This blog post is your invitation to inform the project at the front end.

 

What does the future hold for the Alberta Land Stewardship Act?

Two weeks have passed since Alison Redford became Alberta’s newest premier. One of her first statements as premier was that she would “immediately suspend” the Alberta Land Stewardship Act (ALSA), intending to hold consultations and make any needed amendments. ALSA, together with legislation related to major infrastructure projects and electricity transmission development, has been on the receiving end of significant public criticism in relation to possible effects on property rights, as well as the broad scope of government discretion. This criticism, together with Premier Redford’s declaration, raises questions about ALSA’s future.

So what can the premier do about ALSA? In spite of the popular references to it as Bill 36 (which imply it is still under development), ALSA is current law in Alberta. It was passed by the Legislature in 2009 and given royal assent, which makes it law. Any action to repeal or amend ALSA would have to be taken by passage of another bill through the Legislature; the premier does not have individual powers to change laws. Digging a bit deeper into the story, it appears that Premier Redford is inclined to deal with concerns about ALSA by amendment, rather than repeal. In a leadership policy statement, she supported suspending further implementation of ALSA in favor of review of Albertans’ concerns; see Redford – leadership policy position on ALSA. She also indicated her intention to add three elements to ALSA: “improved consultation, an explicit compensation model and access to the courts”.

There are a number of positives in Premier Redford’s position:

• The intent to amend, rather than repeal, ALSA;
• The need for improved consultation elements within ALSA; and
• The plan to include access to the courts as part of ALSA.

While ALSA has weaknesses in relation to limited public participation and court rights and very broad government discretion with few checks, these problems can be fixed through careful, thoughtful amendments. Any steps taken by the government to add improved consultation and court access to ALSA should incorporate public interest elements by providing broader qualifications for participation and supports such as funding. In relation to property rights concerns, any changes to clarify compensation issues must preserve government’s ability to regulate in support of valid public purposes. Sound land use planning that serves the public interest and protects our environment can be achieved without conflict with private property rights.

Alberta needs a strong, integrated, binding land use planning system. What we had before ALSA did not do the job. The process to build this system, which started in 2006, is a marathon, not a sprint. It’s encouraging to see that Premier Redford’s plan is to fix the potholes in the course, rather than send Albertans back to the start line.