UVic Lawyer on Woodfibre LNG

Environmental lawyer's take on the Federal Government's response to Woodfibre LNGhaddock-profile.jpg

by Mark Haddock of UVic Law

A concerned citizen on Bowen Island Ross McDonald, asked lawyer Mark Haddock to look into the Woodfibre LNG environmental assessment that now rests with the Federal government. Mark Haddock writes on how the Federal Government can respond to the Provincial Environmental Assessment Office of BC that approved the flawed assessment in October 2015. Take a peek! 


 

Mark Haddock

Barrister & Solicitor

PO Box 1700 STN CSC

Victoria, BC V8W 2Y2

  Opinion respecting Federal Responsibility for Assessment of Howe Sound (Woodfibre) LNG

November 25, 2015

To: Ross McDonald

RE:  Federal Decision-Making for Woodfibre LNG Project

You have asked me for a legal analysis of how the new federal government could respond to the Woodfibre LNG project now that the BC Environmental Assessment Office process has concluded and the project was approved by the BC Ministers of Environment and Natural Gas Development on October 26, 2015.  I understand that there are many outstanding community concerns about public safety, environmental impacts, and the adequacy of the provincial assessment.  Some of these concerns might be allayed by commitments the new federal government has made to improve the integrity of environmental assessment, fisheries protection, endangered species and other federal regulatory aspects of the project, providing that federal decision makers are now able to act on them.  There is also concern that the new government could be under tight deadlines to approve the project due to time limits imposed by 2012 changes to federal environmental assessment legislation

Substitution of Provincial Environmental Assessment Process 

The Woodfibre LNG Project assessment was carried out by the BC Environmental Assessment Office (“BC EAO”) rather than the Canadian Environmental Assessment Agency (the “Agency”).  When the Harper government passed the controversial Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) it required the federal Minister of Environment to accede to provincial requests to have their assessment processes substitute for the federal EA process provided certain conditions were met.  In 2013 the Agency and BC EAO entered into a Memorandum of Understanding (“MOU”) to facilitate these arrangements.  On February 19, 2014, former federal Environment Minister Aglukkaq made a decision to allow substitution for the Woodfibre LNG project under certain conditions, despite the objections and reasons for not doing so put forward by citizen groups such as My Sea to Sky.

I raise this by way of background to make the following observations: 

•    Given the controversies over the adequacy of provincial processes as an acceptable substitute for federal assessment, the new federal government may have a different perspective about the merits of these substitutionary processes in general, or for this project in particular.  For example, My Sea to Sky argued that the scope of this project was unduly narrow because it only addressed shipping and marine issues from the LNG facility to Passage Island, when the project is clearly about shipping for export through the Straits of Georgia and Juan de Fuca.

 •    The MOU provides that either party may cancel it by providing 45 days written notice.  It states that cancellation would have no effect on substituted assessments approved by the Federal Minister, but this one is not yet approved.

•    Even if the new federal government maintains this substitution process, the Minister of Environment and Climate Change will have to decide whether the conditions specified by former Minister Aglukkaq, and the requirements of CEAA 2012 for substitution, have been met adequately by the BC EAO’s assessment.  This includes consideration of whether the “environmental effects” mentioned in section 5 of CEAA 2012 (see Attachment #1) and the “factors” identified in section 19 of CEAA 2012 (see Attachment #2) have been appropriately assessed. 

•    Evaluation of the above issues will require decisions around controversial amendments brought in by the Harper government.  For example, in addition to narrow project scoping, CEAA 2012 narrowed the definition of “environmental effects” considerably.  The new federal government promised to “restore credibility to environmental assessments,” by including “an analysis of upstream impacts and the greenhouse gas emissions resulting from the projects being assessed.”  The platform also committed to “replace Mr. Harper’s changes to the environmental assessment process – with a new, comprehensive, timely, and fair process that:

o restores robust oversight and thorough environmental assessments – which have been gutted by this Conservative government – of areas under federal jurisdiction, while also working with provincial and territorial governments to ensure that processes are not duplicated;

o ensures decisions are based on science, facts, and evidence, and serve the public’s interest;

o provides ways for interested Canadians to express their views and for experts to meaningfully participate in assessment processes; and

o requires project proponents to choose the best technologies available to reduce environmental impacts.”1


1 A New Plan for Canada’s Environment and Economy, p.9. Available online at:

https://www.liberal.ca/files/2015/08/A-new-plan-for-Canadas-environment-and-economy.pdf


 What federal approvals are required?

You asked me to outline the key federal approvals that will follow from conclusion of the BC EAO’s assessment.  In addition to the decision over whether the BC EAO process met the requirements for substitution under CEAA 2012 and the issues discussed above, the following statutory decisions must also be made.

The Environmental Assessment Decision

The main federal approval required is a decision by the Minister of Environment and Climate Change, Hon. Catherine McKenna, concerning whether the project is likely to cause significant adverse environmental effects.2

If she decides that Woodfibre LNG is likely to cause significant adverse environmental effects, she must refer to Cabinet the question of whether those effects are “justified in the circumstances.”

There have been significant differences of opinion in the past between federal and provincial assessments concerning the likelihood of significant adverse effects and whether the proponent can adequately avoid, mitigate or compensate for them.3

The Minister is not obliged to accept the conclusions of the BC EAO or the BC Ministers who approved the Woodfibre LNG project.  She is required to make her own assessment and come to her own conclusions 

If she decides that Woodfibre LNG is not likely to cause significant adverse environmental effects, or if Cabinet decides they are justified, the Minister must still establish conditions that address the environmental effects caused by the project that the proponent will have to comply with.4  These conditions are usually specified in a decision statement: although this does not appear to be strictly required in this situation, the CEAA Registry for the project was updated on October 27, 2015 to state: “The Minister of the Environment will consider the Government of British Columbia's Assessment Report and issue an Environmental Assessment Decision Statement to the proponent.”  No time frame is specified on the CEAA Registry, nor in the MOU or former Minister Aglukkaq’s substitution decision for this project.

Additional Federal Decisions 

In addition to the Environmental Assessment decision, there are federal permits that are or could be required for this project. Some of these decisions involve additional federal agencies and ministers, such as the Minister of Fisheries, Oceans and the Canadian Coast Guard, Hon. Hunter Tootoo, and the Minister of Transport, Hon. Marc Garneau.

 


2 CEAA 2012, ss.36, 52(1).

3 For example, there were major differences of opinion for the Prosperity Mine project. See http://northwestinstitute.ca/images/uploads/NWI_EAreport_July2011.pdf.

4 CEAA 2012, s.53.


Three of these federal decisions could raise significant issues for the new government as it made specific platform promises in the recent federal election that have now been incorporated in to the Prime Minister’s mandate letters to ministers.5

1)  Fisheries Act:

One key decision is whether authorization under subsection 35(2) of the Fisheries Act is required for possible “serious harm to fish.”  In January 2015 Woodfibre LNG indicated that it “is currently not known” whether this authorization is required and that it would consult with DFO.6  As late as June 26, 2015, DFO itself could not confirm whether an authorization was required, and recommended that monitoring be a condition of the provincial EA certificate to eventually determine whether authorization was required, whether mitigation measures were possible, and if not whether an offset project might be required as compensation.7  I find it remarkable that these issues were not addressed in the assessment itself, and would not be known at the time the proponent concluded its assessment and applied for a provincial EA certificate and that they continued after DFO’s review of that application.  This raises several questions concerning:

1) the adequacy of the assessment;

2) whether DFO was adequately engaged in the assessment process;

3) whether it is legally acceptable to defer the essential aspects of environmental effects to fish and fish habitat given the requirements of subparagraph 5(1)(a)(i) and paragraphs 19(1)(b) and (d)8 of CEAA 2012, and 

4) the previous government’s controversial Fisheries Act amendments which the Liberal Government has now promised to review. 

One possible explanation for why this was not determined at the time of the assessment is that the Harper government’s changes substantially repealed the longstanding fish habitat protection provisions of the Fisheries Act, which were


5 This is not a complete list of federal decisions that may be needed for this project. Woodfibre LNG has identified three additional decisions, including: 1) An approval under section 6 of the Navigation Protection Act could be required by Transport Canada if the works substantially interfere with navigation to Howe Sound; 2) Flare stacks and tall structures that could affect aviation require approvals by Transport Canada and NAV Canada (a private regulator established under the Civil Air Navigation Services Commercialization Act); and 3) an export permit, which Woodfibre LNG says was already approved in March 2014.

6 Woodfibre LNG Application for Environmental Assessment Certificate, January 2015, page 2-101.

7 See: http://a100.gov.bc.ca/appsdata/epic/documents/p408/1435859527447_QVcyVV5YhjCMfRrLmLy1 qVlTfQHqcz0cyLzBcY346SN9hvhSyd01!217898076!1435859288289.pdf

8 These require evaluation of the significance of the effect on fish and fish habitat, and if significant, consideration of mitigation measures that are technically and economically feasible.


augmented by longstanding policies for mitigation and compensation. DFO may have been trying to grapple with how to interpret and apply these very significant changes that many have criticized as gutting fish habitat protection.  For many decades an authorization was required if a project would result in the “harmful alteration, disruption or destruction of fish habitat.”

The Harper government changed this by stipulating that authorization was only required if a work or undertaking would result in “serious harm to fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support such a fishery.” Serious harm is now defined as “the death of fish or any permanent alteration to, or destruction of, fish habitat.”

The Prime Minister’s mandate letter to the Minister of Fisheries, Oceans and the Canadian Coast Guard directs the minister to “to review the previous government’s changes to the Fisheries and Navigable Waters Protection Acts, restore lost protections, and incorporate modern safeguards.”9  Given the high profile of this issue and these commitments, the new federal government could be expected to have a different policy perspective than the Harper government.  The Woodfibre LNG assessment was carried out under the former government’s operating rules and policies.

At the very least, there should be a clear answer to whether a Fisheries Act authorization is required, whether any significant adverse effects can be avoided, mitigated or compensated before the Minister makes a decision on the environmental assessment.  This is because changes to fish and fish habitat are mandatory considerations under section 5 of CEAA 2012.  The failure to have done so in this assessment makes it very difficult for the Minister to fulfill her duty under s.52 of CEAA 2012 to take into account the implementation of mitigation measures, because they were not assessed and have been deferred to the future.

2)  Species at Risk & Project Scoping:

A permit under the Species at Risk Act (SARA) will be required if Woodfibre LNG is required to carry out a monitoring program that affects a listed species.  While the company doubts that this will be required, this is possibly due to its narrow scoping of the project.  The proponent excluded its marine shipping activities beyond Passage Island through the Straits of Georgia Strait and Juan de Fuca, and out to the Pacific Ocean, through waters that are designated under SARA as critical habitat for the endangered southern resident killer whale population.10  This critical habitat was hard won and was only protected after conservation organizations successfully


 

9 See: http://pm.gc.ca/eng/minister-fisheries-oceans-and-canadian-coast-guard-mandate- letter#sthash.fPq6iJki.dpuf

10 See http://www.sararegistry.gc.ca/document/doc1341a/p3_e.cfm#s3_1_1


challenged the previous government in the Federal Court of Canada and Federal Court of Appeal.11

The submission of My Sea to Sky to former Minister Aglukkaq, prepared by its legal counsel Bill Andrews, argued against the substitution process based in part on this and other problematic scoping issues.  It also identified inconsistency with the scoping decisions for other environmental assessments involving similar activities, which were required to assess a broader geographic area.  Despite those submissions, former Minister Aglukkaq decided to allow the assessment to limit evaluation of marine shipping activities from the LNG facility location “up to Passage Island.”  This narrow scoping decision appears to be the justification for geographically limited consideration of impacts to species at risk, particularly the killer whales.

In my view, it is unreasonable and arbitrary to limit the consideration of shipping impacts to Passage Island in Howe Sound when the facility is clearly being proposed for the purpose of LNG export to overseas markets, and it is clear that the ships will not stop at Passage Island. This marine shipping activity in critical habitat should be seen as “incidental to” the designated project.12

This raises legal issues for the Minister of Environment and Climate Change (who is responsible for the Environmental Assessment decision) and the Minister of Fisheries, Oceans and the Canadian Coast Guard (who is responsible for aquatic species under SARA, and for marine mammal protection under the Fisheries Act) to consider.  Subsection 5(1) of CEAA 2012 specifically requires consideration of impacts to aquatic species listed under the SARA, and subsection 19(1) requires evaluation of “any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out.”

The proponent and BC EAO did assess cumulative effects, but only within the Howe Sound area.  The main threats, and the whale’s critical habitat, lie just outside of this area.  There are numerous proposed projects that involve shipping through the Strait of Juan de Fuca, such as Roberts Bank Terminal 2 and the Westridge Terminal that is part of Kinder Morgan’s Trans Mountain pipeline expansion project. Inconsistent and narrow project scoping may have been justification for avoiding full evaluation of cumulative effects to this endangered species, but in my view it should be required so that the Minister can fulfill her duty to “establish the conditions” that the proponent must comply with under section 53 of CEAA 2012 (see Attachment #3).13

 


11 Georgia Strait Alliance v. Canada (Minister of Fisheries & Oceans, 2012 FCA 40 (F.C.A.), and David

Suzuki Foundation v. Canada (Fisheries and Oceans), 2010 FC 1233 (CanLII).

12 Note that the definition of “designated project” in s.2 of CEAA 2012 includes “any physical activity that is incidental to” the physical activities that comprise the project.

13 Note that this duty could extend to other federal decision makers if s.5(2) of CEAA 2012 applies.


 

 

To be clear, the proponent and the BC EAO addressed the endangered southern resident killer whale population, but in a very limited way due to the scoping decision that confined the assessment to Howe Sound.  For example, the BC EAO report states on page 93 that “Critical killer whale habitat does not occur in Howe Sound.” Yet it is clear that the very same ships will continue from Howe Sound and travel through critical habitat in the Strait of Juan de Fuca.  There are no other routes.

The BC EAO considered a number of additional species at risk issues, which are summarized in Table 12-10 of its Assessment Report, and identified possible mitigation measures.  However, it again defers to future underwater noise management and marine mammal management plans, mostly focused on the local assessment area (LAA), which is a small area near the proposed LNG facility itself.

The federal ministers have a statutory obligation to uphold under both CEAA 2012 and the Species at Risk Act.  In addition, Minister McKenna’s mandate letter states that she is to “enhance protection of Canada’s endangered species by responding quickly to the advice of scientists and completing robust species-at-risk recovery plans in a timely way.”

She may therefore wish to insist upon closer examination of the effects of the marine shipping that is incidental to this project, as well as a broader cumulative effects assessment of this project in conjunction with other existing and proposed projects that involve increased marine traffic through the critical habitat.  She may also wish to specify more detailed conditions in her decision statement, rather than deferring to future planning.

3)  Transportation of Dangerous Goods Act & Assessment of Malfunctions & Accidents

I understand that local communities and residents are very concerned about explosion and fire risks posed by the project.  The Minister of Transport must approve an emergency response assistance plan under section 7 of the Transportation of Dangerous Goods Act. The plan must outline what will be done to respond to an actual or anticipated release of the dangerous goods in the course of their handling or transporting that endangers, or could endanger, public safety.14 

In addition, CEAA 2012 requires evaluation of “the environmental effects of malfunctions or accidents that may occur in connection with the designated project” as a mandatory factor in subsection 19(1).  At the time of the former Minister Aglukkaq’s Substitution Decision, My Sea to Sky raised several concerns that relate to this factor, such as:


14 Woodfibre LNG has stated that this plan is required based on the technical thresholds found in the Transportation of Dangerous Goods Regulation. The plans content and approval criteria are set out in Part 7 of that regulation. See: http://www.tc.gc.ca/eng/tdg/clear-part7-374.htm#sec71.


  

•    the need for sophisticated risk assessment methods and the adequacy of the BC EAO requirements given available technical studies such as the 2004 report by Sandia National Laboratories and US Coast Guard standards that adopt its recommended criteria;

•   conformity with the standards and siting criteria recommended by the

Society of International Gas Tanker and Terminal Operators (SIGTTO);

•   proximity to local populations such as Bowen Island, Horseshoe Bay, West

Vancouver, Lions Bay, and other Gulf island communities;

•    the shipping distance required to reach the ocean, and proximity to major public transportation routes such as BC Ferries;

•    the availability and timing of Woodfibre LNG’s completion of a TERMPOL review process (addressing marine safety and pollution prevention issues) in relation to the Environmental Assessment Decision, and the fact that it was not incorporated into the BC EAO process even though TERMPOL was incorporated into the EAs for other projects (Enbridge Northern Gateway and Trans Mountain Pipeline Expansion Terminal Project). 

The BC EAO assessment did consider malfunctions and accidents and the issues listed above, but in a limited way that defers to future plans, processes and approvals.  However, the federal legislation is much more specific in its requirements.

For example, the TERMPOL review process was not completed at the time of the BC EAO Assessment Report, so it was instead stipulated as a condition of BC’s Environmental Assessment Certificate, to be met at some point in the future, rather than informing the EA decision itself (although some of the preliminary content was provided to the EAO).  The provincial legislation is much less specific and more discretionary on these matters than is CEAA 2012.

Transport Canada’s 2014 TERMPOL (Technical Review Process of Marine Terminal Systems and Transshipment Sites) Review Process guidance document TP 743E states:

“TERMPOL report conclusions and recommendations do not relieve a proponent and the vessel(s) associated with the project from an obligation to fully comply with all current legislative and regulatory requirements, amended from time to time, that apply to shipping safety and to the protection of the environment. These Acts include but are not limited to…the Canadian Environmental Assessment Act, 2012.”

While Transport Canada does not intend the TERMPOL review process to be a substitute for environmental assessment, it recognizes its relevance to environmental assessment in stating:15 

“Where a regulatory process such as those under the Canadian Environmental Agency, the National Energy Board or provincial authorities applies to the project, the TERMPOL Review Committee (TRC) expects the proponent to:

 •    consider how the TERMPOL review can help to inform that review process and to align timelines if possible and as appropriate; and

 •    provide its submission, or submissions, to the lead authority and the public, including all correspondence with the TRC related to TERMPOL review, according to the filing and timing requirements of that regulatory process.” 

For the federal approvals, the Minister of Environment and Climate Change will need assurance that “the environmental effects of malfunctions or accidents that may occur in connection with the designated project” have been adequately addressed as required by subsection 19(1) of CEAA 2012, and the Minister of Transport will need to be satisfied as to Transportation of Dangerous Goods Act approvals.  Sections 5, 19 and 53 of CEAA 2012 combine to require that these issues not be deferred to the future but considered and addressed at the time of the Environmental Assessment Decision so that any conditions deemed necessary by the Minister of Environment and Climate Change can be incorporated into the approval and decision statement.

As the My Sea to Sky submission to former Minister Aglukkaq pointed out, the Federal Court of Canada has confirmed this interpretation of the statute in an Ontario case involving possible malfunctions or accidents in relation to a nuclear energy project. In his 2014 decision in Greenpeace Canada v. Canada (Attorney General) , Russell, J. found that:

[331] This seems to engage the realm of highly improbable, but possibility catastrophic, events.  On policy grounds, it is logical that such scenarios should be considered by political decision-makers, because once again they seem to engage mainly questions of “society’s chosen level of protection against risk” that will be difficult for a specialized regulator to assess with legitimacy.  On this view, having found that such an analysis was required, it would seem more appropriate for the Panel to have insisted it be completed within the EA process…


15 Transport Canada, TERMPOL Review Process, TP 743E, p.2 of 41. Online:

http://www.tc.gc.ca/media/documents/marinesafety/tp743e.pdf

 


 

[334]  In my view, the one conclusion that is not supported by the language of the statute is the Panel’s conclusion that the analysis had to be conducted, but could be deferred until later.  Rather, in my view, it had to be conducted as part of the EA so that it could be considered by those with political decision-making power in relation to the Project. 

[337]  In my view, then, the Panel’s approach to this issue was unreasonable and not in accordance with its obligations under the CEAA and it needs to be revisited in some supplement or amendment to the Report.16

(underlining added)

The Minister therefore has ample support for insisting on a more fulsome analysis of accidents and malfunctions, including navigation safety and marine pollution issues that would be addressed in the TERMPOL review process, before reaching her Environmental Assessment Decision. She may also wish to coordinate with the Minister of Transport to determine which issues should be specified as conditions in her Environmental Assessment decision statement, and which are to be addressed in the emergency response assistance plan under section 7 of the Transportation of Dangerous Goods Act.

Time Frame for Decision-Making

You have asked whether the new Minister of Environment and Climate Change is under a strict time limit to make a decision on whether to approve this environmental assessment.  The Harper government imposed new time limits for decision making CEAA 2012, and there are differences of legal opinion on how or whether they apply to assessments done by provincial substitution.  In short, my response is:

•    There is a reasonable argument that the Minister is not under any time limit in reaching her decision on this environmental assessment;

•   If the time limits do apply, she can extend them for up to three months;

•   If she needs more time, Federal Cabinet may grant an additional extension.

Time Limits under CEAA 2012:

CEAA 2012 introduced new time limits for decision-making: section 27 stipulates that where the Agency is the responsible authority, the Minister must make a decision “365 days after the day on which the notice of the commencement of the environmental assessment of the designated project is posted on the Internet site.” The heading for this part of the Act says “Environmental Assessment by Responsible


16 Greenpeace Canada v. Canada (Attorney General), 2014 FC 463 (CanLII), <http://canlii.ca/t/g6z5z>

retrieved on 2015-11-25.


Authority – General Rules.”  But this assessment was not done by the Agency acting as the responsible authority; it was done by British Columbia.  It is not entirely clear that these time limits apply to projects that undergo substitution by a provincial EA process because the substitution provisions found in ss.32–36 of CEAA 2012 do not specify a time limit.

Former Minister Aglukkaq was apparently of the view that the timelines do apply, because her Substitution Decision of February 19, 2014 states that “B.C. will provide the environmental assessment report to the Agency within a time frame that will enable the Minister to make decisions under subsection 52(1) of CEAA 2012 within the time limits set out in CEAA 2012.”

 The new Minister does not have to agree with the former Minister Aglukkaq on this point. She might receive legal advice that leads her to conclude she is not bound by any deadline because none is specified in sections 32-36 of CEAA 2012.

Alternatively, if Minister McKenna decides that she is bound by the 365-day time limit, the question becomes when that time limit expires.  Calculating this is difficult for those outside of government, because it is not published, not transparent, and essentially not knowable without inside information.  The matter is further complicated because some of the factors may be known only to British Columbia, and the Province has different time limits under the provincial legislation. 

Under CEAA 2012, the time limit begins when notice of the commencement of the environmental assessment is posted to the Agency’s Internet project registry.  That date is February 3, 2014.  However, time taken by the proponent to collect information or undertake a study, “in the Agency’s opinion,” is to be deducted from the calculation of time. This provision specifies that the federal Agency must impose the requirement, and a court would have to infer that Parliament intended this section to include requests made by a Province in a substitution process, which seems like a stretch.  However, assuming that this hurdle could be overcome, to determine when the 365-day time limit expires we would need to know the CEA Agency’s opinion concerning how much time Woodfibre LNG took to collect the information and undertake the study required.

I was unable to find policy on CEAA’s website for guidance on how it calculates time and deductions against the timelines, but was able to confirm that the Agency believes the 365 day time limit does apply to projects assessed under the substitution process.

The provincial and federal time limits do not seem to synchronize well, making compliance determinations difficult.  This might help the argument that Parliament did not intend for the time limits in section 27 of CEAA 2012 to apply to provincial substitution assessments.

Power to extend time limits

If the time limits do apply, the Minister of Environment and Climate Change has the authority under subsection 27(3) to extend them up to 3 months if one of two conditions applies: 1) it is necessary to permit the Agency to cooperate with the Province; or 2) to take into account circumstances that are specific to the project. This provides her with broad discretion.

If more time is needed the Minister may recommend additional time extensions to Cabinet under subsection 27(4).  No outside limit is specified. 

What arguments could be made to support taking the time needed for a credible assessment decision?

You have asked what arguments could be made to encourage the new government to take the time necessary to address the outstanding issues of public concern with the assessment to date. Given the timing issues discussed above, there is a chance that the Minister will be advised that she is not subject to the time limits imposed by section 27 of CEAA 2012.  Even if she is, she has authority to extend them and seek Cabinet approval for additional time.

However, if the Minister believes she must make a decision within a narrow, specified time frame, you should assume that she will require some compelling reason to postpone a decision on this project assessment.  You first need to decide the grounds on which she can justify delay.  The submission by My Sea to Sky to Minister Aglukkaq identifies several possible grounds, and these should be reviewed to determine which remain relevant now that the provincial process has concluded.

Additional factors could include your assessment of the following:

1.   Did the BC EAO meet the conditions specified by the federal government when agreeing to the substitution?

 •   Did it properly evaluate all of the environmental effects set out in section 5 of CEAA 2012? (see Attachment 1).  I have suggested above that the fish and fish habitat, species at risk and malfunctions and accidents assessments were deficient, and you may be aware of other issues. 

•    Did it properly evaluate all of the factors set out in subsection 19(1) of CEAA 2012? (see Attachment 2).  I have raised questions about the evaluation of the significant of adverse effects and mitigation measures in relation to fish or fish habitat, and cumulative effects in relation to species at risk, but you may be aware of other issues.  Note that there have been significant differences of opinion the Province and Canada in the past on some issues such as whether significant adverse effects to fish or fish habitat could be mitigated, and whether a project would cause significant adverse effects to species at risk and other factors).17

2.   Given that the BC EAO does not have expertise in areas of exclusive federal jurisdiction, was the level of federal agency involvement adequate and appropriate?

3.   Were federal scientists free to provide expert advice and was that advice appropriately evaluated in the assessment?

4.   Was the consideration of environmental effects and cumulative effects hampered by the narrow project scoping discussed above? Is additional evaluation required to ensure the spirit and intent of CEAA and SARA respecting threatened and endangered species are met?

5.   The new government has placed a high priority on meaningful public and expert participation in environmental assessments to increase public confidence in the EA process and outcomes.  The Substitution Decision of former Minister Aglukkaq also contemplated meaningful public participation. Was public participation under the BC EAO process adequate? If not, would the Minister provide an opportunity for public comment and participation on federal aspects of the project before she makes a final decision?

6.   How do the policies and commitments of the new federal government inform this decision-making process? The policies that may be most relevant to the Minister of Environment and Climate Change are those that are set out in her mandate letter from the Prime Minister.  This letter addresses many government priorities that point to significant changes in policy and direction.18 They coincide with the election platform commitments mentioned above.  Some of the most relevant provisions are:

•    To “immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market and introduce new, fair processes that will: 

o restore robust oversight and thorough environmental assessments of areas under federal jurisdiction, while also working with provinces and territories to avoid duplication;

o ensure that decisions are based on science, facts, and evidence, and serve the public’s interest;

o provide ways for Canadians to express their views and opportunities for experts to meaningfully participate; and


17 For example, see http://northwestinstitute.ca/images/uploads/NWI_EAreport_July2011.pdf .

18 See: http://pm.gc.ca/eng/minister-environment-and-climate-change-mandate-letter


 

o require project advocates to choose the best technologies available to reduce environmental impacts.”

•    A plan to combat climate change (this echoes the platform commitment to ensure that assessments include “an analysis of upstream impacts and the greenhouse gas emissions resulting from the projects being assessed.”) 19

•   Enhancing protection for endangered species

7.   The mandate letter for the Minister of Fisheries, Oceans and the Canadian Coast Guard directs him:

“to review the previous government’s changes to the Fisheries and Navigable Waters Protection Acts, restore lost protections, and incorporate modern safeguards.”20

It would seem at the very least that the assessment process should have determined whether a section 35 authorization under the Fisheries Act is required for the project.  I do not know the significance of this issue for this particular project, but expect that this issue will be before the government for other environmental assessments that it will be deciding.  For example, there are proposed pipelines that cross fish streams where the same issue arises, for which authorizations would have been required prior to the Harper government changes.

What will be the new government’s approach to Fisheries Act s.35 authorizations? Shouldn’t DFO know with a certainty whether an authorization is required, and if so, require the proponent to identify how it mitigation and compensation requirements? Again, these are the requirements of subparagraph 5(1)(a)(i) and paragraph 19(1)(d) of CEAA 2012.

Conclusion:

The Woodfibre LNG assessment began under a federal government that had very different policies respecting environmental assessment, fisheries, species at risk, and climate change than the newly elected government that is now called to make a decision concerning the project.  The new Minister is not bound by past agreements

concerning the substitution of provincial assessment for federal Agency assessment: the MOU between the federal Agency and BC EAO may be cancelled by providing 45 days written notice.  However, the Liberal government has also said that it would work “with provincial and territorial governments to ensure that processes are not


19 Did the Province’s assessment do this adequately? The EAO has been criticized for not addressing this issue well. See:  http://www.elc.uvic.ca/climate-change-should-be-part-of-bcs-environmental- assessment-process/

20 See: http://pm.gc.ca/eng/minister-fisheries-oceans-and-canadian-coast-guard-mandate-letter


duplicated.” In the past this was achieved through harmonization of the federal and provincial assessments, rather than by substitution of the provincial process.

Even if it accepts the provincial substitution in this instance, given that it has run its course, the new government may apply its policies and ministerial mandates to evaluation of the many areas of federal responsibility that this project entails, and now must determine whether it will result in significant adverse environmental effects, whether they are justified, and if it approves the project, what conditions to impose.

The government might decide that it requires further information from the proponent to properly evaluate factors that it places a higher priority on when it comes to the discretionary aspects of its evaluation and decision.  It will want to ensure that the requirements of sections 5 and 19(1) of CEAA 2012 have been met, and it is entitled to probe more deeply on aspects of federal responsibility and expertise than perhaps the BC EAO has done in its assessment report.

Substitution of the provincial process does not take away federal authority over decision-making.  The government’s policy commitments and Prime Minister Trudeau’s mandate letters to ministers suggest that the new government may want to scrutinize the evaluation of environmental effects and s.19 factors in the BC EAO report, seek additional advice from the Agency, other federal agencies with expertise relevant to the project, the proponent and the public given the high levels of community concern.

Finally, it is unclear whether the Minister of Environment and Climate Change is under a tight deadline to make a s.52 decision on this environmental assessment, but if so she has the authority to extend any time limit for three months, and Federal Cabinet has the authority to extend it further.

 

Yours truly,

Mark Haddock

ENVIRONMENTAL EFFECTS

 

5. (1) For the purposes of this Act, the environmental effects that are to be taken into

account in relation to an act or thing, a physical activity, a designated project or a project are

(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:

(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act, (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,

(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds

Convention Act, 1994, and

(iv) any other component of the environment that is set out in Schedule 2; (b) a change that may be caused to the environment that would occur

(i) on federal lands,

(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or

(iii) outside Canada; and

(c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on

(i) health and socio-economic conditions, (ii) physical and cultural heritage,

(iii) the current use of lands and resources for traditional purposes, or

(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Exercise of power or performance of duty or function by federal authority

(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account: 

(a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and

(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on

(i) health and socio-economic conditions, (ii) physical and cultural heritage, or

(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. 

Schedule 2

(3) The Governor in Council may, by order, amend Schedule 2 to add or remove a component of the environment.

Factors To Be Considered

19. (1) The environmental assessment of a designated project must take into account the following factors:

 (a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the

designated project and any cumulative environmental effects that are likely to result

from the designated project in combination with other physical activities that have been or will be carried out;

 (b) the significance of the effects referred to in paragraph (a);

 (c) comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section

54 of the National Energy Board Act, any interested party — that are received in accordance with this Act;

(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project;

(e) the requirements of the follow-up program in respect of the designated project; (f) the purpose of the designated project;

(g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means; (h) any change to the designated project that may be caused by the environment;

(i) the results of any relevant study conducted by a committee established under section 73 or 74; and

(j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account.

Scope of factors

(2) The scope of the factors to be taken into account under paragraphs (1)(a), (b), (d), (e), (g), (h) and (j) is determined by

(a) the responsible authority; or

(b) the Minister, if the environmental assessment is referred to a review panel.

Community knowledge and Aboriginal traditional knowledge

(3) The environmental assessment of a designated project may take into account community knowledge and Aboriginal traditional knowledge.

Attachment #3: Decision Making in Sections 52 & 53 of CEAA 2012

Decisions of decision maker

52. (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project

 a)   is likely to cause significant adverse environmental effects referred to in subsection

5(1); and

 b)   is likely to cause significant adverse environmental effects referred to in subsection

5(2). 

Referral if significant adverse environmental effects

(2) If the decision maker decides that the designated project is likely to cause significant adverse environmental effects referred to in subsection 5(1) or (2), the decision maker must refer to the Governor in Council the matter of whether those effects are justified in the circumstances.

Referral through Minister

(3) If the decision maker is a responsible authority referred to in any of paragraphs

15(a) to (c), the referral to the Governor in Council is made through the Minister responsible before Parliament for the responsible authority.

Governor in Council’s decision

(4) When a matter has been referred to the Governor in Council, the Governor in

Council may decide

(a) that the significant adverse environmental effects that the designated project is likely to cause are justified in the circumstances; or

(b) that the significant adverse environmental effects that the designated project is likely to cause are not justified in the circumstances.

Conditions — environmental effects referred to in subsection 5(1)

53. (1) If the decision maker decides under paragraph 52(1)(a) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(1), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.

Conditions — environmental effects referred to in subsection 5(2) 

(2) If the decision maker decides under paragraph 52(1)(b) that the designated project is not likely to cause significant adverse environmental effects referred to in subsection 5(2), or the Governor in Council decides under paragraph 52(4)(a) that the significant adverse environmental effects referred to in that subsection that the designated project is likely to cause are justified in the circumstances, the decision maker must establish the conditions — that are directly linked or necessarily incidental to the exercise of a power or performance of a duty or function by a federal authority that would permit designated project to be carried out, in whole or in part — in relation to the environmental effects referred to in that subsection with which the proponent of the designated project must comply.

Conditions subject to exercise of power or performance of duty or function

(3) The conditions referred to in subsection (2) take effect only if the federal authority exercises the power or performs the duty or function.

Mitigation measures and follow-up program

(4) The conditions referred to in subsections (1) and (2) must include

(a) the implementation of the mitigation measures that were taken into account in making the decisions under subsection 52(1); and

(b) the implementation of a follow-up program

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