Category Archives: Environmental

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

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

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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Coal Law and Policy in Alberta, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

By: Nigel Bankes

PDF Version: Coal Law and Policy in Alberta, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

Matter Commented On: Information Letter 2020-23, “Rescission of A Coal Development Policy for Alberta and new leasing rules for Crown coal leases” (15 May 2020)

While Minister Savage announced the temporary reinstatement of the 1976 Coal Development Policy (CDP) on February 8, 2021, it still seems worth examining the public justification offered by the Government of Alberta for rescinding the CDP. The principal justification advanced was that the CDP was obsolete in light of developments in law and regulation. One version of this justification was posted on the coal policy guidelines page of the Department of Energy’s web page. The text is no longer available online, but it read as follows:

The Coal Policy was originally published in 1976, before modern regulatory processes existed. The scope of the policy was wide-ranging and included, among other items, a land use classification system…. When these categories were created, land use planning hadn’t yet been completed, supporting infrastructure was lacking and there were environmental concerns that the existing regulatory processes weren’t equipped to address.

With the various regulatory, policy and planning advancements over the past 45 years, the Coal Policy became obsolete.

…

All coal development projects will continue to be considered through the existing rigorous Alberta Energy Regulator review process. This review is based on each project’s merits, including its economic, social and environmental impacts.

The original intention of the Coal Policy was to ensure that there were appropriate regulatory and environmental protection measures in place before new coal projects were authorized—this objective is being met by today’s modern regulatory, land use planning and leasing systems.

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Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

By: Nigel Bankes

PDF Version: Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

Matters Commented On: Mines and Minerals Act, RSA 2000, c M-17; Coal Royalty Regulation, Alta Reg 295/1992

Minister of Energy Sonya Savage’s announcement on February 8, 2021 that the province would reinstate the 1976 Coal Development Policy (CDP) caused us to change the planned roll-out of this series on coal law and policy, and to add some analysis of that decision in the post “What Are the Implications of Reinstating the 1976 Coal Development Policy?”

With that out of the way, it still seems useful to return to the original plan in the interests of contributing to the ongoing debate on the future of coal on Alberta’s landscape and economy. To that end, this post examines the rules for acquiring coal rights and the royalty regime for coal in Alberta. In other words, it deals with questions of ownership or property. A later post will deal with questions relating to the regulation of coal exploration and development. It bears emphasizing at the outset that while a lease gives the lessee the property right to exploit the coal, the lessee still needs regulatory approvals from the Alberta Energy Regulator before it can engage in any exploration activities on the land. We see the same parallel structure in the oil and gas sector. A petroleum and natural gas lease, whether acquired from the Crown (Department of Energy) or a private owner, grants the property right to exploit the oil or gas but the lessee still requires a licence from the AER in order to be able to drill a well (see Oil and Gas Conservation Act, RSA 2000, c O-6, s 11). Hence it is important to keep separate questions of property and questions of regulation. The focus of this post is on question of property.

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The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

By: Kirk Lambrecht Q.C.

PDF Version: The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

Decision Commented On: Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 (CanLII), reversing Normtek Radiation Services Ltd v Alberta (Environmental Appeals Board), 2018 ABQB 911 (CanLII), which upheld Normtek Radiation Services Ltd. v Director, Red Deer-North Saskatchewan Region, Alberta Environment and Parks, re: Secure Energy Services Inc. (2 March 2018), Appeal No. 16-024-D (AEAB)

This brief case comment offers a proposition on the cause of a yawning gap between (i) purposes defined in section 2 of the Environmental Protection and Enhancement Act (EPEA); and (ii) practices of the Environmental Appeal Board (EAB) and the Directors under EPEA.

The proposition advanced here is that the phrase “directly affected” in EPEA has been, for decades, interpreted and applied by the EAB and Directors under EPEA in such a way as to avoid Ministerial oversight of Directors’ decisions regarding the environment. In Normtek, the Court of Appeal attempted to correct these practices. In the result, the Court remitted the matter of Normtek’s standing to appeal to the EAB back to the EAB for reconsideration in accordance with the reasons of the Court.

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