Another government consultation? Why Albertans need to speak up about the new energy regulator.

Image courtesy of Victor Habbick / FreeDigitalPhotos.net

Many of you may have missed the most recent news about Alberta’s single energy regulator, just before the Family Day long weekend. The Alberta government issued a press release on Valentine’s Day, announcing 18 public consultation sessions throughout the province and an on-line survey. This initiative is intended to gather public input on the regulations to be made under the Responsible Energy Development Act, which created this new body, the Alberta Energy Regulator (AER), scheduled to begin work and decision-making June 2013.

Now, I know there are those of you who look at government consultations the same way you look at those mushroom fairy rings that keep popping up on your front lawn each summer: you can never really predict when they’re going to show up; they always seem to create more work and hassle than you expect; it usually feels like you don’t have any control over the situation; and often the effort you put into dealing with them doesn’t match the result you see. Plus, it’s the middle of another long Alberta winter; who can win against “big energy”; and have I seen how long that Responsible Energy Development Act is anyhow?? (Yes, it’s 73 pages long and I’ve read it several times – for work, not for pleasure).

Admittedly, government consultations are not things that excite most Albertans. However, below are a few reasons why you should get involved and speak up on this initiative. You don’t need to read the Act. Just think about your concerns about energy development; what you think needs to happen to ensure that energy development takes place responsibly in  our province; and most importantly, what you want your Alberta and your environment to look like in the future.

Reason #1:  This is your chance to let the government hear your concerns, thoughts and ideas about energy development, including how its activities and impacts should be regulated and managed. Energy development is a key economic engine and influence in Alberta. The provincial government hears consistently from industry operators and associations about their concerns and their ideas for solutions. You know, better than anyone, what your concerns and questions about energy development are, but the Minister of Energy and his staff aren’t mind readers. If you don’t take the chance to speak up, you won’t have the chance to be heard and the Department of Energy won’t know your issues and ideas.

Reason #2:  This consultation is your chance to influence the substance of Alberta’s new energy regulatory system. Remember the talk and news stories last fall about this Act being a “Frankenbill”? Much of the buzz arose due to uncertainty about exactly what the AER would look like, how its processes would work and how the environment and individual interests would be protected in the face of energy development. It’s probably more accurate to liken the Act to a skeleton, as it provides the bare bones that this new regulatory system will need to work. The focus of this consultation, the regulations, is putting the meat on those bare bones. The regulations will provide the details for the following matters:

• How far the AER’s responsibilities will reach, as compared to Alberta Environment and Sustainable Resource Development or other decision-makers;
• Who can be involved in the AER’s decision-making processes;
• What the AER will have to consider in making decisions;
• How the AER’s decision-making processes will work; and
• How information about energy development and the AER’s decisions will be made public.

Reason #3:  The AER will take on responsibility for many topics and issues; odds are there’s at least one that will affect you or that you’re otherwise concerned about. Looking only at the energy aspect, the AER will regulate exploration, recovery, construction (where relevant), closure and processing for:

• Oil;
• Gas;
• Oil sands;
• Coal; and
• Pipelines (within Alberta only).

The AER will also be responsible for regulating the environmental aspects of this energy development. This is equally broad:

• Environmental assessment; substance releases; contaminated land; preservation of soils and cleanup of contamination (reclamation and remediation); and authorizations for processing activities (Environmental Protection and Enhancement Act);
• Allocation of water rights; and regulation of activities affecting water (Water Act); and
• Regulation of exploration activities, such as seismic; and authorizations for activities on public land (Public Lands Act).

Can you be sure that someone else will raise the same concerns that you have? Or that they’ll suggest the same solutions that you want to see?

So, how can you participate in this consultation? One option is to engage in the structured processes set up by the Department of Energy: either by going to one of the consultation sessions being held around the province from now till mid-March, or by answering an on-line survey. More information about these processes is available here. Another option is to get your input directly to the Minister of Energy by letter, e-mail, fax or phone call. If you take this route, consider sending a copy to your MLA as well. Regardless of how you participate, if the government’s questions don’t address your concerns, take steps to ensure you make your issues and ideas are heard. This is an important initiative and no one is going to take away points if you color outside the lines.

Interested in the ELC’s views on the Responsible Energy Development Act, potential regulations and this consultation? Watch the blog for future posts in the coming weeks.

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Single energy regulator bill a poor deal for Alberta’s environment

Last week, the Alberta government introduced Bill 2, the Responsible Energy Development Act,which is intended to create aone window regulator that will “improve the energy regulation system for landowners, industry and the environment.” While this new regulator would address energy development from initial applications to reclamation, it should be noted that this is not a cradle to grave initiative, as the process of issuing mineral rights is not included.

Why is government making this change?

This move to a single energy regulator has its roots in steps the Stelmach government took seeking to ensure the competitiveness of Alberta’s energy sector. It began with a strict energy focus coming from 2010’s royalty review and competitiveness review. In the wake of those reviews, the Regulatory Enhancement Task Force was created in 2010 to oversee “regulatory improvement efforts.” The task force looked at processes and policies related to upstream oil and gas development; its recommendations to the Minister of Energy included “creating a single oil and gas regulatory body.” This is an initiative that has been expanding in scope since its creation. What started as a process examining the competitiveness of the upstream oil and gas sector has evolved to encompass creation of a new regulatory body that will address not only oil and gas recovery, but also pipelines, extraction and processing activities (including all related environmental aspects) for oil, gas, oil sands and coal resources in Alberta.

What will Bill 2 create?

Bill 2 proposes to abolish the Energy Resources Conservation Board (ERCB) and replace it with a new regulatory body named the “Alberta Energy Regulator” (the Regulator). In addition to carrying out the ERCB’s current regulatory responsibilities, the Regulator would also take on environmental regulatory responsibilities related to energy development that are now dealt with by Alberta Environment and Sustainable Resource Development. This includes regulation that takes place under:

•  Environmental Protection and Enhancement Act (environmental assessment; substance releases; contaminated land; reclamation; authorizations for industrial processing activities);
• Water Act (allocation of water rights; regulation of activities that affect water); and
• Public Lands Act (regulation of exploration activities; authorization of activities on public land).

The Regulator would be a corporation with board members appointed by the provincial Cabinet. This board of directors would be responsible for the general business of the Regulator. Bill 2 explicitly states that the Regulator is not a Crown agent. The Cabinet would also establish a roster of hearing commissioners to carry out hearings as required under Bill 2. It appears that the types of energy development matters to be regulated would remain the same and what little process is set out in the Bill draws from current energy legislation and regulation. However, most of the details of this new system are left to be set out in rules to be made by the Regulator or in regulations to be made by Cabinet. As such, it is difficult to get a clear picture of future energy and environment regulation in Alberta from the Bill alone.

What’s the ELC’s initial reaction?

From our first readings of Bill 2, it’s unclear where the environment will gain under this new system. Bill 2 appears to ignore many of the long-standing concerns and problems related to energy development and environmental protection in Alberta, such as standing and public input limitations; the separation of the mineral rights licensing process from the balance of energy, environmental and land use decision-making; and transparency and accountability concerns, including the need for independent review of regulator decisions.

While this initiative has been touted as addressing energy and environment as two sides of the same coin, it seems the coin is loaded in favor of energy. Existing environmental regulatory processes would be curtailed and limited:

•  the current standing test of “directly affected” under the Environmental Protection and Enhancement Act (EPEA)and Water Act would be changed to the narrower “directly and adversely affected” test for energy developments; and
• appeals under EPEA and the Water Act to the Environmental Appeals Board, an independent quasi-judicial body, would be eliminated for energy developments and replaced with self-reviews by the Regulator of its own decisions.

The Bill would also give Cabinet the ability to modify how environmental legislation applies to the Regulator.

In the Legislature, Energy Minister Hughes stated: “The new regulator will provide effective processes for Albertans to be heard and respected on an ongoing basis.” However, on its face Bill 2 appears to place greater limitations on public engagement and participation in environmental decision-making related to energy development. As mentioned above, the use of “directly and adversely affected” as the test for standing narrows the standing currently provided under EPEA and the Water Act; it is also inconsistent with the Kelly trilogy of cases from the Alberta Court of Appeal, which moved to expand standing in sour gas hearings. In addition, the Bill specifically excludes consideration of the adequacy of First Nations consultation from the Regulator’s jurisdiction.

We also have concerns regarding the potential transparency and accountability of the Regulator. Bill 2 specifically states that the Regulator is not a Crown agent. There is no clear accountability of the Regulator directly to the public. It will be required to report to the Minister of Energy upon request, but there is no further obligation on either the Minister or the Regulator to make such reporting public. The checks and balances on regulatory action are also limited. The ability to seek judicial review of the Regulator’s actions, as well as related legal remedies, is excluded by the Bill. Options for other review are somewhat limited: the Bill provides for two forms of self-review by the Regulator, as well as appeals on questions of law or jurisdiction to the Alberta Court of Appeal.

What happens next?

Bill 2 is now at second reading stage, which means it will be debated in relation to its broad principle. Once a bill passes second reading, it is referred to Committee of the Whole (effectively meaning the whole Legislature), where it is reviewed clause by clause and can be amended. Following this review, a bill is then put to third reading for final approval (or not) by the Legislature.  The current legislative session is scheduled to continue through the first week of December 2012. The government’s intent is to have the Regulator operative by mid-2013.

When he introduced Bill 2 for second reading, Minister Hughes indicated that the government is in the process of developing the regulations to support this legislation and stated: “This is essential work that will require feedback and consultation from Albertans to ensure we’re hitting the mark by providing for effective participation.” Given the framework nature of Bill 2 and the significant implications for our environment and all Albertans, we believe these regulations should be publicly released in draft before Bill 2 is passed, to allow all concerned parties to review and understand the proposed system as a whole.

At the ELC, we’re preparing a detailed analysis and critique of Bill 2, which will be sent to Minister Hughes and other decision-makers and made publicly available. Watch for our brief and further blog posts on Bill 2 in the near future.

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The times, are they a-changin’? Standing and the ERCB

For many years, one of the most troublesome points in environmental law in Alberta has been the very narrow scope of standing, the right to participate in court, regulatory or other legal proceedings. This has been particularly evident in relation to energy development and proceedings before the Energy Resources Conservation Board (ERCB), where the ability for parties to initiate hearings has generally been limited to those with property interests in land within prescribed distances from proposed wells or facilities. However, a trilogy of decisions from the Alberta Court of Appeal seems to signal a shift to a more flexible approach that is more consistent with the ERCB’s mandate to make its decisions in the public interest. Since 2009, the Court of Appeal has issued three decisions involving the same key parties: the ERCB and landowners Susan Kelly, Lillian Duperron and Linda McGinn. As each decision has the same name within its citation, Kelly v. Alberta (Energy Resources Conservation Board), for simplicity we’ll refer to them here as Kelly #1, Kelly #2 and Kelly costs.

 

Kelly #1 was a 2009 appeal of the ERCB’s refusal to give the landowners standing in relation to an application to drill two sour gas wells in the vicinity of their properties. Kelly, Duperron and McGinn all lived on properties located within the protective action zone (PAZ), an area determined by atmospheric modeling of possible releases of sour gas from the proposed wells. The relevant ERCB directive defined the PAZ as “(a)n area downwind of a hazardous release where outdoor pollutant concentrations may result in life threatening or serious and possibly irreversible health effects on the public.” The ERCB refused Kelly et al standing on the basis that their residence within the PAZ and the possible exposure to life threatening or serious, possibly irreversible, health effects were not sufficient evidence of a direct and adverse effect on their rights, and that to get standing, they must show that they would be affected in a different or greater way than the general public. However, the Court of Appeal disagreed. It found that residence within the PAZ was adequate evidence to establish standing and that the ERCB’s standing test does not include a requirement for a person to show a potential effect on them to a different or greater degree than the general public. It held that Kelly, Duperron and McGinn had standing and directed the ERCB to hold a rehearing of the well application.

 

Kelly #2 was a 2011 appeal by Kelly and Duperron of the ERCB’s refusal to give them standing on an application to drill a different sour gas well in the region of their properties. In this instance, Kelly and Duperron resided outside of the PAZ, but in a region referred to as the “tertiary zone” where persons would be advised to either evacuate or take shelter if a release of hydrogen sulphide from the proposed well exceeded 10 parts per million. They had provided evidence to the ERCB of medical conditions they have that could be adversely affected by hydrogen sulphide releases, but the ERCB refused to grant standing, indicating that Kelly and Duperron had not provided evidence that their medical conditions would be aggravated by hydrogen sulphide and that the risk of evacuation from their homes was not an adverse effect. Again, the Court of Appeal disagreed with the ERCB. It referred to its decision in Kelly #1 in finding that Kelly and Duperron did not have to provide evidence of a specific effect by the proposed well on their medical conditions. It also held that the ERCB’s reasoning in relation to adverse effects was not reasonable and that the need for an evacuation plan and possible evacuation was indicative of a “lurking risk,” which was the adverse effect. Most notably, the Court stated: “The right to intervene … is designed to allow those with legitimate concerns to have input into the licensing of oil and gas wells that will have a recognizable impact on their rights, while screening out those who have only a generic interest in resource development (but no ‘right’ that is engaged), and true ‘busybodies’ …that balancing is the responsibility of the Board, provided that it is done on a proper legal foundation.”

 

Kelly costs is the Court of Appeal’s January 2012 decision of an appeal by Kelly, Duperron and McGinn of the ERCB’s refusal to grant them intervener costs following the rehearing of the well application dealt with in Kelly #1. While legal points before the Court focused specifically on the interpretation of the legislation that gives the ERCB power to award costs, the greater significance of this decision is the Court’s discussion of the public interest aspect of the ERCB’s mandate and how the hearing process should work to carry out this aspect. The Court indicated that the purpose of the standing and hearing sections of the legislation is “to allow people to be heard” and that an award of costs may be necessary to allow the ERCB to fulfill its mandate.

 

An important aspect of this string of cases is that the Court of Appeal, while recognizing the deference that it must give to the ERCB as an expert tribunal, clearly identified where the ERCB was unreasonable in dealing with standing and costs decisions and provided direction to address those matters, rather than deferring on a blanket basis to the ERCB.  In particular, this direction focused on the ERCB’s ongoing use of very high evidentiary standards against interveners.

 

More significantly, in these decisions the Court has also spoken directly to the ERCB’s public interest mandate and what that practically means in terms of hearing process. The Court has clearly indicated that sound hearing process ensuring participation of affected parties is a key element of public interest decision-making and that a purely adversarial approach is not necessarily consistent with protecting the public interest, stating in Kelly costs: “The requirement for public hearings is to allow those “directly and adversely affected” a forum within which they can put forward their interests and air their concerns. In today’s Alberta it is accepted that citizens have a right to provide input on public decisions that will affect their rights.” These cases are a welcome development in Alberta’s environmental law landscape, providing much needed guidance on participation rules and public interest decision-making.

 

This blog post is part of research being carried out by the ELC under its public interest standing project, with funding support from the Max Bell Foundation. For more information about this project, contact Adam Driedzic, ELC staff counsel, at adriedzic@elc.ab.ca.

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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.

 

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What’s Standing and Why Should You Care?

When the lawyers were figuring out a theme for this issue of News Brief, I couldn’t bring myself to tell them I didn’t know what they meant by “standing.”  I’m sure I’m not the only person who isn’t clear on the concept.

After reading and editing their articles, I think I get it. My hope is that after reading this issue those of you who, like me, aren’t lawyers will understand too; and that those of you who have legal training will learn a few things too.

To read the most recent issue of News Brief – Vol. 26 No. 1 – click here (pdf).

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Landfill Intervener has Genuine Interest

“Pity the fool who mess with Mr. T“.   No, this is not the A-Team movie or television show.  This is the story of two St. Paul area residents and the Evergreen Regional Landfill, documented in the companion decisions of Re. Tomlinson (EAB Decision 08-036-038-IDI) and Re. Shapka (EAB Decision: 08-037-ID2).  It is a story of local knowledge and a genuine interest winning the ear of Alberta’s Environmental Appeals Board (the “EAB”).

In order to accept over 10,000 tonnes of waste a year, the Class II (non-hazardous) landfill applied to have its Alberta Environment authorization upgraded from a standardized “registration” to a project-specific “approval”.  Misters Shapka and Tomlinson both submitted Statements of Concern and about operating conditions, especially water monitoring.  Tomlinson could not get standing to appeal, but when Shapka did, Tomlinson applied to intervene. The Board held that:

“Although Mr. T’s appeal was dismissed, it does not preclude him from appearing as an intervener and providing evidence on the issues.  The submissions establish that Mr. T resides in the area and is knowledgeable about the area.  It is apparent to the Board that he has a genuine interest in the operation of the Landfill and the potential effect an expanded Landfill will have on the environment and surface water and groundwater surrounding the Landfill.  [08-037-ID2, para. 13]

Genuine interest?  The Board affirmed its reasoning  in a Reconsideration Decision brought on by T himself:

“Although Mr. Tomlinson had filed an appeal, the Board determined he was not directly affected.  Mr. Tomlinson filed for intervenor standing, and the Board granted him limited intervenor status because he had first-hand knowledge of the area and a genuine interest in the operation of the Landfill and the potential impact of the expanded Landfill on surface and ground water.” [08-037-RD para. 38].

Note the use of “because”.  In the original decision, the Board granted intervener status based on a more established test.  It relied on the requirements for intervention in Board Rule of Practice 14, that the intervener: materially assist the board, support one side of the appeal, and not duplicate other submissions.  The Evergreen proceedings suggest is that the formal test may be for all practical purposes an assessment of genuine interest.

The ELC has long advocated for broader participation at Alberta’s boards.  Does the Evergreen case show a new trend?  Critics will note that an EAB intervener does not have true party “standing” like an intervener at other Alberta boards or a public interest litigant in court.  EAB Interveners are cannot force a hearing, suggest the issues, make motions, or claim common law fairness rights.  The test for full standing is still “directly affected”, and the test remains skewed towards property interests.   Shapka and Tomlinson both drink well water, fish, and recreate in the Landfill area.  The distinguishing factor for that Board was that Shapka lives 2 kilometers from the Landfill site and Tomlinson 8 kilometers.

Optimists will look at the Evergreen proceedings holistically.  Mr. T won intervener status despite opposition from the Landfill and Alberta Environment.   Unlike the test for public interest standing in court, Mr. T. did not have to prove that there were no other way for his concerns to be heard, only that he would assist the decision maker.  His assistance contributed to a partly successful appeal.  The Landfill will be enlarged, but the Board recommended that its approval be varied for enhanced water monitoring conditions.  The Board also tackled the question of whether an intervener can request the reconsideration of a board decision.  Thought it would not grant the request in this case, it did not dismiss the possibility outright.

The Board further upheld citizen participation through a separate Costs Decision.  In an uncommon move, the Landfill asked for costs against the intervener as well as the appellant.  The board dismissed both claims, stating that project proponents must bear their “cost of doing business” in Alberta.   The same decision upheld an interim award of costs to Shapka.  Earlier on, the Board had ordered the Landfill to fund Shapka’s scientific expert.  Such interim orders are rare because the Board views cost awards as recognition of assistance provided.

All of the Board’s decisions were correct in law.  “Directly affected” is open to interpretation.  For participants who do not qualify, section 95 of the Environmental Protection and Enhancement Act (EPEA) provides the Board with discretion to determine who may make representations.  In making these determinations, Rule 14 is a general rule” not an absolute one. As for reconsideration requests, EPEA section 101 does not specify what participants can make the request. Cost decisions are not a reliable funding source but they continue to protect citizens.  In short, the EAB has more power to boost public participation than it has yet to flex.  “What’s the plan, Hannibal?”

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Public Participation Guide – Q and A

How does reviewing a board decision on a preliminary matter like standing differ from reviewing the substantive outcome of a hearing?

On February 25, 2009, the ELC concluded its webinar series on public participation with the topic of going to court:   judicial review of administrative decision making.  Webinar participants were especially interested in the case of Ben Gadd and the Cheviot Mine.  In Cardinal Rivers Coals v. Gadd and the Environmental Appeal Board, the Alberta Court of Queen’s Bench dismissed the coal company’s challenge to Gadd’s standing at the EAB because proceedings had not concluded.  The 2004 case was a victory for the renowned naturalist Mr. Gadd, but a stern warning to anyone wishing to challenge preliminary EAB findings before  the appeal is decided.

At the relevant time, Cardinal River Coals (CRC) was operating the mine in the same area near Grande Cache where Gadd was engaged in commercial guiding activities.  CRC applied to Alberta Environment to make changes to its haul road, and Gadd filed a Statement of Concern.  When Alberta Environment’s Regional Director approved the application, Gadd’s filed Statement gave him the right to appeal to the Environmental Appeal Board (EAB).  Before the appeal was heard, CRC brought a preliminary motion arguing that Gadd had no standing to appear before the EAB.  The EAB concluded that Gadd did have standing as a person “directly affected” under s.91 of Alberta’s Environmental Protection and Enhancement Act.  CRC applied for judicial review of the standing decision, but the appeal itself had still not been heard.  In dismissing the application, Justice Clarke noted that:

“The courts have discouraged resort to judicial review remedies while administrative proceedings are still going on except in extraordinary circumstances”.

The ABQB followed the general rule of mootness, meaning that an otherwise legitimate legal issue can be rendered academic by the timing of events:  if the EAB upheld the haul road approval then it would not matter that Gadd had standing.   It also applied the more specific doctrine of prematurity, which demands that parties to a regulatory process exhaust that process before turning to the courts.  The rule is supported by policy rationales against fragmenting legal proceedings.  Courts often hold that they are best able to decide cases when hearing all issues together, and that fragmented proceedings are the source of costs and delay.

CRC argued that it had to go to court to meet a six-month limitation period from the decision of the Director.  The Court held that with proceedings in the EAB, the clock had not yet started.  The EAB itself cannot pass binding decisions, rather it prepares a report and recommendations for consideration by the Minister of Environment.  Therefore the limitation period would run from the time of the final decision of the Minister.

Even after dismissing the application, the Court made clear that it would have upheld Gadd’s standing in any event.  The ABQB accepted the reasons of the EAB, that Gadd was “directly affected” on account of being “individually and personally affected”.   The EAB considered how one uses an area and rather it involves an economic livelihood.  Though Gadd did not own property near the mine or hold a business license specific to the area, he did have a reasonable and plausible interest that would cause him to feel a greater affect than the public at large.  There is no checklist of factors leading to being directly affected, but the more ways in which one is affected the greater the possibility.

The ABQB extended the highest level of deference to the EAB, finding that the question of whether one is “directly affected” under EPEA is a mix of law, fact, and policy:  a type of question that the legislature intended be decided by the Board rather than the Court.  This conclusion must be treated with caution as it predates the Supreme Court of Canada ruling on review standards in Dunsmuir v. New Brunswick.   As if anticipating such uncertainty, however, the Court assured that it would have cleared the EAB at any standard.

The standing decision remains good law, and individuals granted standing at the EAB need not fear that they will lose it through litigation before their concerns are heard.  The bigger issue for those concerned with procedural fairness in the decision making of Alberta Environment, however, is that everyone must exhaust the EPEA process before turning to the courts.  Those who do wish to litigate early must accept the risks of an adverse outcome and bear the onus of proving their exceptional circumstances.

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