Category: Environmental Page 1 of 53

Matter Commented On: Letter Decision by AER re: EIA of Pathways Alliance Carbon Capture and Storage Hub (25 October 2024)

PDF Version: AER declines request for an Environmental Impact Assessment of the Pathways Project

The Pathways Alliance Carbon Capture and Storage Hub (Pathways Project) is set to be one of the largest carbon capture and storage projects globally. In late October, the Alberta Energy Regulator (AER) decided that the Pathways Project would not be required to undergo a provincial environmental assessment under the Environmental Protection and Enhancement Act, RSA 2000, c E-12 (EPEA). The AER’s decision highlights how Alberta’s largely discretionary approach to environmental assessments under EPEA, which has not been substantively updated since its enactment in 1993, is inadequate to properly and transparently assess the effects of new and emerging major technologies. This post argues that the legislation should be amended to require a transparent assessment for new forms of major projects with potentially significant environmental, social, economic, and cultural consequences. The undertaking of a comprehensive provincial impact assessment on major projects such as the Pathways Project would also help avoid an application of the federal impact assessment process under the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) for projects wholly within the province.

The Alberta Emergency Statutes Amendment Act, 2024 Surges Executive Powers under the Water Act

By Brenda Heelan Powell

On October 10, 2024

In Emergencies Act, Environmental, Water Law

By: Brenda Heelan Powell, Arlene Kwasniak, Braum Barber, and Ruiping Luo

Statute Commented On: The Alberta Emergency Statutes Amendment Act, 2024, SA 2024, c 9

PDF Version: The Alberta Emergency Statutes Amendment Act, 2024 Surges Executive Powers under the Water Act

Emergency Legislation and the Rule of Law

Since the 1215 Magna Carta, democratic society has been based on the tenet that the Executive in power is not above the rule of law. The United Nations has described the core values underlying the rule of law as follows:

… the rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency. (United Nations and the Rule of Law).

Constitutional Caution, Correction, and Abdication: The Proposed Amendments to the Impact Assessment Act

By David V Wright

On May 10, 2024

In Constitutional, Environmental

By: David V. Wright

Matter Commented On: Proposed Amendments to the Federal Impact Assessment Act following Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Constitutional Caution, Correction, and Abdication: The Proposed Amendments to the Impact Assessment Act

Last week, the federal government released proposed amendments (beginning at 557) to the Impact Assessment Act (SC 2019, c 28, s 1) (IAA). These come in the wake of Reference re Impact Assessment Act, 2023 SCC 23 (CanLII) (Re IAA), where a 5:2 majority of the Supreme Court of Canada (SCC) found the federal impact assessment regime unconstitutional in part. This post briefly sets out the legal backdrop for the proposed amendments, discusses key proposed changes, and then concludes with commentary on implications going forward. For detailed commentary on Re IAA, see here, here, here, here, here, and here. Overall, this package of proposed amendments represents a constitutionally cautious approach to correcting constitutional problems, including one excessive over-correction where caution is tantamount to abdication (interprovincial effects of greenhouse gas emissions).

‘Negative Population Growth’ for Boreal Caribou in Alberta

By Shaun Fluker

On March 15, 2024

In Animal Law, Environmental, Protection of Species

By: Shaun Fluker

Report Commented On: First Report on the implementation of the Section 11 agreement for the conservation and recovery of the woodland caribou in Alberta (January 19, 2024)

PDF Version: ‘Negative Population Growth’ for Boreal Caribou in Alberta

In late January, Alberta issued the first Report on implementation of the Agreement for the conservation and recovery of the Woodland Caribou in Alberta, signed by Alberta and Canada under section 11 of the Species at Risk Act, SC 2002, c 29 [SARA] in October 2020. Commentators have noted that the Report reveals little progress by Alberta on protecting what is left of boreal caribou in this province. This criticism is certainly warranted, however the commitments made by Alberta in this Agreement will never result in progress towards halting the march of caribou towards extirpation (see “Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou”). What the Report does make transparent is: (1) Alberta continues to authorize the destruction of caribou habitat despite saying publicly that the government is committed to achieving population recovery; and (2) Alberta’s only real action plan to save caribou is to kill wolves.

Inextricably Linked: Climate Policy and the Oil and Gas Sector’s Closure Liabilities

By Martin Olszynski

On February 21, 2024

In Energy, Environmental, Oil & Gas

By: Martin Olszynski

Matter Commented On: Study on Emerging Issues Related to the Senate Standing Committee on Energy, Environment and Natural Resources’ Mandate: Climate Change – Canadian Oil & Gas Industry

PDF Version: Inextricably Linked: Climate Policy and the Oil and Gas Sector’s Closure Liabilities

On February 15, 2024, I appeared before the Senate Standing Committee on Energy, Environment and Natural Resources’ (ENEV) in the context of its study into emerging issues related to its mandate. As has been my practice in the past (see here and here), what follows are my prepared remarks, modified only for formatting purposes and to include hyperlinks to supporting resources where relevant. A recording of the hearing is available here; a hearing transcript should also be available upon translation.