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Federal Government Declines Emergency Order for Southern Mountain Caribou

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On March 25, 2021

In Environmental, Protection of Species

By: Shaun Fluker

 PDF Version: Federal Government Declines Emergency Order for Southern Mountain Caribou

Matter Commented On: Government of Canada, Statement: Government of Canada’s approach to addressing the imminent threats to the recovery of Southern Mountain Caribou (18 March 2021)

The federal government recently added a Statement on Southern Mountain Caribou to the species at risk public registry announcing that the Governor in Council has declined to issue an emergency protection order under section 80 of the Species at Risk Act, SC 2002, c 29. This statement was a response to the recommendation for the order made by the federal Minister of the Environment following her finding in March 2018 that the southern mountain caribou face an imminent threat to their recovery. I wasn’t planning to comment on this announcement because it is fully consistent with the federal strategy of deference to the provinces on the woodland caribou file, a strategy which I debunked recently in Canada and Alberta Agree to More Pie-In-The-Sky on Woodland Caribou. Accordingly, this announcement was not surprising, or particularly newsworthy in Alberta. However, I changed my tune last Friday afternoon while perusing my inbox looking for a weekly fix of Alberta government spin, and Jason Nixon, the Alberta Minister of Environment and Parks, did not disappoint with his comments in Federal recognition of Alberta’s caribou recovery efforts: Minister Nixon, expressing that the federal Statement is a recognition of Alberta’s strong caribou recovery efforts to date.

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Coal Law and Policy Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

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On March 24, 2021

In Energy, Environmental

By: Drew Yewchuk

PDF Version: Coal Law and Policy Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

Legislation Commented On: Impact Assessment Act, SC 2019, c 28, s 1; Species at Risk Act, SC 2002, c 29; Coal Mining Effluent Regulations (forthcoming)

This is another installment in the continuing ABlawg series on the law and policy framework for coal projects in Alberta. This installment focuses on three statutes or regulations by which the federal government exercises authority over possible coal mining in Alberta’s eastern slopes: the Impact Assessment Act, the Species at Risk Act, and the forthcoming Coal Mining Effluent Regulations (a regulation under the Fisheries Act).

It should be noted these three enactments are not exhaustive of federal powers that apply to coal mining. The federal government may be involved in other ways, including through the general protection for fish habitat under the Fisheries Act, limitation of greenhouse gas emissions from industrial projects, constitutional obligations to Indigenous peoples, or water allocation disputes between provinces.

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Coal Law and Policy, Part Four: The Regulation of Coal Exploration

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On March 9, 2021

In Energy, Environmental

By: Drew Yewchuk & Nigel Bankes

PDF Version: Coal Law and Policy, Part Four: The Regulation of Coal Exploration

Matter Commented On: Information Letter 2021-07 “Coal Policy Reinstatement” (February 8, 2021) and attached Ministerial Order 054/2021

This is the fourth instalment in ABlawg’s series on coal law: for the background, see Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, and Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

 This post covers the regulation of coal exploration programs. On February 8, 2021 the Minister of Energy ordered the Alberta Energy Regulator (AER) not to “issue any new approvals for coal on Category 2 Lands” using the Minister’s authority to issue directions to the AER under section 67 of the Responsible Energy Development Act, SA 2012, c R-17.3. This did not cancel ongoing coal exploration programs and hence the importance of considering at least some elements of the regulation of these activities.

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Does the Water Licence for a Coal Mine Capture its Impact on the Water Resource? Examining Benga Mining Limited’s Proposed Grassy Mountain Mine in the Headwaters of the Oldman River Basin

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On March 8, 2021

In Energy, Environmental

By: Chris Hopkinson

PDF Version: Does the Water Licence for a Coal Mine Capture its Impact on the Water Resource? Examining Benga Mining Limited’s Proposed Grassy Mountain Mine in the Headwaters of the Oldman River Basin

Matters Commented On: Grassy Mountain Mine Project Water Diversion Licence Application by Benga Mining Limited (Riversdale Resources (16 October 2017)); Oldman River Basin Water Allocation Order, Alta Reg 319/2003

An earlier ABlawg post examined the general implications of proposals to re-open the Oldman River Basin Water Allocation Order, Alta Reg 319/2003 (WAO) so as to allow a greater proportion of the 11,000 acre-feet (AF) reserved by that Order to be used for industrial purposes, such as coal mining (see details on the proposals here). The Order as currently framed limits this to 150 AF. This post examines why this proposed change is such an important issue by considering in detail the water issues associated with one proposed mine in the upper Oldman Basin, namely the Grassy Mountain Mine proposed by Benga Mining Limited (BML). The post examines the Grassy Mountain Mine Project Water Diversion Licence (WDL) Application by BML (Riversdale Resources (16 October 2017)) to explore the viability of their proposed water use in the context of competing water demands and the WAO. The examination draws from materials shared and discussed as part of the Grassy Mountain Coal Project Joint Review Panel Public Hearing (Agreement to Establish a Joint Review Panel for the Grassy Mountain Coal Project Between The Minister of the Environment, Canada and The Alberta Energy Regulator, Alberta, OC 262/2018; documents available here). The analysis presented below first considers the disclosed WDL water uses associated with the Coal Processing Plant (CPP) and evaporative loss from the Raw Water Pond (RWP). It then moves to elements of water loss from the mine site that are either omitted from the WDL or expected to exceed the pre-mine background levels. Finally, potential implications of proposed water uses within the context of low frequency high impact drought periods are considered.

The overall conclusions are that BML’s water licence application likely understates its actual impact to the regional water resource, and that the overall hydrological effects of increased mining activity in the upper Oldman basin will reduce water availability for all users downstream, thus leading to an increased risk of water-related conflict during times of drought.

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An Important Number You’ve Likely Heard About: Recent Social Cost of Carbon Developments in the United States and Canada

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On February 19, 2021

In Environmental

By: David V Wright

 PDF Version: An Important Number You’ve Likely Heard About: Recent Social Cost of Carbon Developments in the United States and Canada

Matter Commented On: Biden Administration Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis”

More than ten years ago, American economist Frank Ackerman called the social cost of carbon (SCC) “the most important number you’ve never heard of.” Times have changed. Today, the SCC figures prominently in climate policy discussions and analyses, and recent developments in Canada and the US are sure to reach any late adopters out there. That’s because the social cost of carbon (SCC) is a cornerstone in the Biden Administration’s ambitious climate action, and this comes at a time when Canada is showing a rejuvenated commitment to this important tool.

In this post, I present and comment on recent SCC developments at the federal levels in the US and Canada. There has been a flurry of climate law and policy activity on both sides of the border in recent weeks and months; this post helps make sense of it by focusing on the SCC specifically. In particular, I comment on Canada’s new federal climate change plan, the proposed Clean Fuel Standard regulations, and the all-important direction set out in President Biden’s executive order on climate change. I also touch on Canada’s new proposed climate change accountability regime, tabled as Bill C-12; the new federal impact assessment regime; and the federal carbon pricing regime. Overall, the Canadian federal government has taken significant steps on addressing climate change in recent years, though much critically important work remains to implement new law and policy levers in service of emissions reductions and decarbonization. My comments here really only scratch the surface of all that is going on in the climate and energy policy space these days. For more on many other topics, including interesting developments in Alberta (think coal, Allen inquiry, orphaned wells, clean tech) check out posts by my colleagues such as those here, here, here, here and here.

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