PDF version: The Fading Federal Presence in Environmental Assessment and the Muting of the Public Interest Voice 

Topic: Federal environmental assessment and effective public participation update

Good environmental assessment followed by well crafted permits, regulation, monitoring and follow-up responsive to the assessment, results in better planned projects, fewer environmental impacts, and often net environmental and social sustainability gains. The legislative authority for the federal government to carry out the assessment is found in the Canadian Environmental Assessment Act (SC 1992, c 37) (”CEAA“) and regulations. The federal government may assess a project when it has constitutional jurisdiction over an area that may be impacted by a project, and, generally, where the federal government has permitting authority over the project or an aspect of it, all as set out in the CEAA and regulations. These areas include fisheries, navigation, migratory birds, federal lands, Aboriginal interests, nuclear facilities, interprovincial and international matters. Having the exclusive right to regulate in these and other areas, only the federal government can do a fully responsive job in assessing impacts. This is because only the federal government is in a position to know what information it needs in the environmental assessment process in order to determine whether it should provide the permit for the project when taking into account likely environmental impacts. If the project does go ahead (like most projects do) only the federal government is in a position to know what it needs during the assessment process in order to properly mitigate and regulate impacts, especially on areas within its jurisdiction. Such mitigation and alteration could include project alterations, monitoring, follow up conditions, and adaptive management measures that may require the proponent to change environmental management because of unexpected impacts. As well, as the responsible protector of the public interest with respect to matters under its jurisdiction, only the federal government can wholly take into account the public and national interest during the environmental assessment and following regulatory processes.

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PDF version: Failing to Assess the Key Issue: The Unsatisfactory Approval Process for Keystone XL 

Decision considered: United States Department of State Bureau of Oceans and International Environmental and Scientific Affairs, Final Environmental Impact Statement for the Proposed Keystone XL Project (August 26, 2011); National Energy Board, TransCanada Keystone Pipeline GP Ltd., OH-1-2009 (March 2010)

For two weeks in August, thousands of protesters staged a sit-in at the White House to protest the imminent approval of TransCanada’s Keystone XL pipeline expansion project. The project would connect the Alberta oilsands to the Gulf Coast market. In one of the biggest acts of environmental civil disobedience in decades, over 1,200 people were arrested and fined, including big names such as Daryl Hanna, Naomi Klein and NASA climatologist, James Hansen. While the Canadian regulatory process caused barely a ripple in the Canadian public conscience, American protesters have launched a full frontal attack drawing support from celebrities, Senators, Congress members, State Governors and Nobel Prize laureates. Keystone XL has become the next chapter in Alberta’s increasingly hostile relationship with American environmentalists. This post explains the American context of the Keystone XL proposal. Why has it is inflamed environmentalists, and is this more than just politics?

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 PDF version: Another step in implementing ALSA: the review and variance provisions and compensation for compensable takings

Regulation commented on: Alberta Land Stewardship Regulation, Alta. Reg. 179/2011 

The Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA) is a work in progress: see my earlier blog: “ALSA and the property rights debate in Alberta: a certificate of title to land is not a ‘statutory consent’” We won’t know how this beast or angel will turn until we see the first approved plans (see my blog on the draft Lower Athabasca Plan (”The proof of the pudding: ALSA and the Draft Lower Athabasca Regional Plan“) and a complete set of implementing regulations. Here we have the next piece of the puzzle in the form of a set of regulations primarily concerned to implement the 2011 amendments to the ALSA (Bill 10, the Alberta Land Stewardship Amendment Act, 2011) which I blogged at “Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act” .

I wasn’t exactly a fan of Bill 10. I thought that it created too many opportunities to put roadblocks in the way of implementing plans. I don’t believe that it is necessary to provide for both plan reviews and variance applications, and I am still of the view that the compensable taking provisions of Bill 10 will foster needless and expensive litigation.

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PDF version: The Elephant in the Courtroom

Case Considered: Reece v Edmonton (City), 2011 ABCA 238

In March 2011 the Court of Appeal heard an appeal by Zoocheck Canada, People for the Ethical Treatment of Animals, and Tove Reece (collectively referred to as Zoocheck here) from Justice John Rooke’s August 2010 decision to strike Zoocheck’s application for a declaration that the City of Edmonton is violating the Animal Protection Act, RSA 2000 c. A-41 by keeping Lucy the Elephant in its Valley Zoo. See my previous ABlawg comment Lucy the Elephant v Edmonton (City) for some analysis of Justice Rooke’s decision (Reece v Edmonton (City), 2010 ABQB 538), the background concerning Lucy’s health problems and living conditions in the zoo, the applicable legislative framework, and the City’s motion to strike the Zoocheck application. In its August 2011 Reece v Edmonton (City) decision the Court of Appeal dismisses the Zoocheck appeal, with the majority written by Justice Frans Slatter upholding the finding at the Court of Queen’s Bench that the application for a declaration constitutes an abuse of process. In her lengthy dissenting opinion, Madame Justice Catherine Fraser rules the Zoocheck application is not an abuse of process and should go to trial. This Court of Appeal decision is noteworthy to me for three reasons: (1) the sharp contrast of legal theory underlying the majority and the dissent; (2) the environmental ethic informing Justice Fraser’s dissent; and (3) the comments made by Justice Fraser concerning the availability of public interest standing.

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PDF version: First Nation treaty obligations should inform the interpretation of discretionary powers under the Species at Risk Act 

Case commented on: Adam v Canada (Environment), 2011 FC 962

Woodland caribou are listed as threatened under the Species at Risk Act, SC 2002, c 29 (SARA). The species (and particular herds of the species) are threatened by the fragmentation of their habitat principally due to resource developments including coal mining (see West Moberly First Nation v British Columbia (Chief Inspector of Mines), 2011 BCCA 247), oil and gas exploration, oil sands projects (mining and in situ) and forestry projects, and by the linear land use disturbances often associated with these projects including seismic lines, roads, transmission lines and pipelines. The species is also negatively impacted by increased predation.

But what should we do about this? The answer of governments in Alberta, British Columbia and the federal government seems to be as little as possible and as slowly as possible - for fear that any real action to recover the various herds will be too disruptive of the governments’ shared resource development agendas.

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PDF version: Compensation for cancelled oil sands rights under the terms of the draft Lower Athabasca Regional Plan 

Documents commented on: Draft Lower Athabasca Regional Plan 2011 - 2021, Strategic Plan and Implementation Plan; Proposed Lower Athabasca Integrated Regional Plan Regulations

In an earlier blog on a draft version of the Lower Athabasca Regional Plan (LARP) under the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA) I suggested that I might provide a further blog on the implications of the Plan (if implemented) for existing property interests. This is that blog but with a focus on oil sands rights that will be cancelled if the Plan is implemented as proposed. The Draft LARP also addresses other Crown resource interests that might be affected including timber harvesting interests.

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PDF version: A single window for the permitting of energy projects in Alberta: who will look out for the chickens? 

Report commented on: Enhancing Assurance: Developing an integrated energy resources regulator, a discussion document, May 2011

In a discussion paper released on May 9, 2011 under a covering message from Premier Stelmach, the provincial government has announced its intention to create a single window for the permitting of energy projects in the province. The proposal envisages a single new board that will have all of the current responsibilities of the Energy Resources Conservation Board (ERCB) plus the following additional responsibilities (as they pertain to energy projects including conventional oil and gas, oilsands, and coal - and in the future perhaps mining):

1. The responsibilities currently vested in Alberta Environment under the terms of the Environmental Protection and Enhancement Act, (EPEA) RSA 2000c. E-12, and the Water Act, RSA 2000, c.W-3 to conduct EIAs, issue licences and authorizations under the Water Act and EPEA and to deal with reclamation and remediation on private land.

2. The responsibilities currently vested in Sustainable Resource Development (SRD) to issue public land dispositions including mineral surface leases, and to deal with reclamation and remediation on public land.

Does this make sense?

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PDF version: The proof of the pudding: ALSA and the Draft Lower Athabasca Regional Plan

Documents commented on: Draft Lower Athabasca Regional Plan 2011 - 2021, Strategic Plan and Implementation Plan; Proposed Lower Athabasca Integrated Regional Plan Regulations

On April 5, 2011 the Government of Alberta (GOA) moved a step further to implementing the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA) when it released a draft version of the Lower Athabasca Regional Plan (LARP) for public consultation. ALSA has been much in the news in Alberta over the last few months and the legislation has been embroiled in debates over property rights leading the GOA to introduce a Bill (Bill 10) to amend ALSA to, inter alia, clarify the relationship between regional plans and property rights. I have commented on that debate (see here) and on Bill 10 (see here).

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PDF version: Regulatory chill, weak regional plans, and lots of jobs for lawyers: the proposed amendments to the Alberta Land Stewardship Act 

Legislation commented on: Bill 10, the Alberta Land Stewardship Amendment Act, 2011

In an earlier blog, I commented on one aspect of the on-going debate in Alberta on the Alberta Land Stewardship Act, SA 2009, c.A-26.8 (ALSA). On March 1, 2011 the government introduced Bill 10, the Alberta Land Stewardship Amendment Act, 2011. The Bill contains 12 pages of amendments to the Act. I think that the Bill will encourage the adoption of timid plans that will not achieve the noble purpose of the legislation. I also think that the amendments will create significant uncertainty and encourage litigation. The big winners from this Bill will be lawyers; the environment will be the loser. And if the environment loses then we all lose; whether we happen to be landowners or not.

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PDF version: The continuing mystery of standing at the Energy Resources Conservation Board 

Case considered: West Energy/Daylight Energy - Section 39 review hearing re: Linda McGinn, 2011 ABERCB 002

A couple weeks ago on ABlawg I suggested that the law governing standing to contest an energy project in front of the Energy Resources Conservation Board (ERCB) is becoming unglued (see The problem of costs at the Energy Resources Conservation Board: Leave to appeal granted in Kelly #4).The first change came out of the Court of Appeal’s October 2009 decision in Kelly v. Alberta (Energy Resources Conservation Board, 2009 ABCA 349, (and see The Problem of Locus Standi at the Energy Resources Conservation Board: A Diceyan Solution). The Court of Appeal has subsequently granted two leave applications made by Susan Kelly that concern the interpretation of sections 26 and 28 of the Energy Resources Conservation Act (ERCA), R.S.A. 2000, c. E-10. These additional appeals have yet to be heard, but I am certain the Court’s ruling in both matters will result in further changes to the law concerning who must be heard at the ERCB. The ERCB’s recent standing ruling in West Energy/Daylight Energy Section 39 Review Decision, 2011 ABERCB 002 suggests to me that the Board has lost its way on how to apply section 26(2) of the ERCA.

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