Part 1 in a series of guest blog posts by Ecojustice.
Photo: Aaron Vincent Elkaim
Ecojustice has worked with federal environmental assessment (EA) law in its various forms for more than 20 years. These experiences have given us many clear examples of how Canada’s EA process is broken and in need of major changes.
Earlier this year, the Minister of Environment and Climate Change established an Expert Panel to review federal EA processes. This Expert Panel intends to engage broadly with Indigenous people, key stakeholders, and all Canadians.
As part of this process, Ecojustice will participate in the in-person engagement sessions taking place across Canada.
Ecojustice lawyers from Vancouver to Ottawa, and everywhere in-between, will present submissions to the Panel. These presentations will explore various aspects of EA law and provide recommendations on how the government can re-envision the process to focus on sustainability and not just mitigating impacts.
From now through to December, we will publish a series of five blogs that will give you the inside scoop on where key improvements to environmental assessment law should be made.
In late September, I spoke to the Expert Panel in Edmonton, and stressed the importance of follow-up programs and the need for better accountability through compliance and enforcement. I’ve had a long history of working on tar sands issues and know firsthand that there must be clear requirements to making sure sustainability is front and centre during EAs.
What are follow-up programs? Why do they matter?
The Canadian Environmental Assessment Act, 2012 (CEAA) requires projects to have follow-up programs in place to verify the accuracy of the predictions made about the effects of the project and determine whether the measures proposed to mitigate any negative impacts will be effective. Monitoring is essential to follow-up programs because it provides the information necessary to confirm predicted effects and assess effectiveness of mitigation measures. Unfortunately, there are significant gaps in how follow-up programs are implemented in practice.
Right now, there is no requirement that the results of follow-up programs be made publically available. Unless the programs are conditional to a project proceeding, it is up to those tasked with implementing the programs to decide whether to disclose information. In instances where the results of follow-up programs are provided, there is no requirement that the information be used to inform future EAs.
If this sounds crazy to you, don’t worry, you’re not alone. We think so too.
We know that part of making follow-up programs successful is ensuring accountability measures exist to make sure that unanticipated effects are not occurring and that any anticipated effects are being adequately mitigated to prevent environmental harm. The structure of current EA law leaves the door wide open for the abuse of a broken system. We’ve seen it happen with our own eyes.
Why is reform needed?
The public has the right to know how projects may affect their communities, environment and ultimately their country. That’s why we are big believers in the need for more transparency during the EA process. It can easily be said that the more transparency there is, the more likely there is appropriate accountability in place, which leads to fewer instances where those responsible for damages can cut and run without repercussion.
To put things into perspective: While no two projects are the same, decision-makers often consider very similar (and sometimes even identical) issues and challenges. Being able to know whether a previous project’s follow-up program was successfully implemented can be extremely helpful in determining if that method should be used again, or if it should be scrapped.
Those are just a few benefits of better information and transparency. When there is a clearer picture of what works (and what doesn’t), the path begins to open for a conversation about how to conduct better EAs in the future. It also helps ensure that we aren’t approving projects that will harm the environment.
Case study: Kearl Yellow Rail assessment
The Yellow Rail assessment for Imperial Oil’s Kearl tar sands project provides a concrete example of what happens when follow-up is left to non-binding panel recommendations (instead of being mandated through binding project conditions).
The panel in Kearl recommended that both levels of government coordinate a regional review of the cumulative impacts of the Yellow Rail in the tar sands region and determine steps to minimize those impacts.
But a few years after the Kearl decision report was released, the Oil Sands Environmental Coalition (OSEC) followed-up on the status of that recommendation. What comes next might leave you rereading in shock and confusion.
Instead of following through with the recommended approach, the government of Alberta advised OSEC that Alberta Environment had “considered” the panel recommendation but determined that it was appropriate to have Imperial Oil conduct predevelopment surveys and implement “applicable strategies” in relation to the Kearl site. Essentially Alberta Environment allowed a company — which has a vested interest in its own project’s success — to decide which recommendations it wants to follow and which ones it doesn’t.
The end result: A cumulative effects assessment for Yellow Rail was never completed and to our knowledge those impacts remain unaddressed to this day.
If you’re like us, you might be asking yourself: What’s the point of prescribing follow-up measures if there is no requirement to complete them? Seems a bit like a free pass to greenlighting a project.
What we want to see happen
We know that re-envisioning our EA laws won’t be easy, but we are well-past the time where simply tweaking them will be enough. That’s why we’re recommending the following changes be made:
- Follow-up programs must be proposed and assessed in the course of the environmental assessment process and reviewed by independent sources.
- Follow-up programs must include a requirement for ongoing monitoring.
- The status and results of any follow-up measures, including monitoring and compliance results, should be made available to the public and regulatory decision-makers for consideration when designing and approving new programs.
- Follow-up programs and mitigation measures should be included as binding project conditions and the failure to comply with them should be subject to regulatory action.
- Broad powers and adequate resourcing to monitor for compliance and take enforcement action to address non-compliance should be provided to an independent entity.
- There should be mechanisms to amend project conditions, or even revoke project authorizations, where follow-up programs are not completed and if they identify issues or impacts that need to be addressed.
By Melissa Gorrie, Ecojustice Lawyer
Stay tuned for more
Keep your eyes open for our next stop: Ottawa.
Joshua Ginsberg, the new director of the Ecojustice Environmental Law Clinic, will weigh in on the importance of clarity during the EA process and why we need to address uncertainty.
The independent panel appointed to review Canada’s environmental assessment processes wants to hear from you. Please submit your comments online and tell the federal government what you think matters most in strengthening environmental assessments – such as meaningful public participation, a climate test and nation-to-nation dialogue with Indigenous peoples.