Energy and the environment:Are our laws keeping up?

Martin Olszynski

Assistant Professor

Faculty of Law

June 20, 2017

Martin OlszynskiFaculty of Law

Assistant professor of law

B. Sc. (Biology), LL.B, LL.M (Environmental Law)

Research focus includes habitat protection, environmental assessment, adaptive management, and climate change liability

Has published in various law journals, including most recently the University of British Columbia Law Review and the Georgetown Environmental Law Review

Overview

The energy/environment nexus

3 challenges for environmental law:• Set and enforce effective limits on environmental pollution

and degradation;

• Manage cumulative effects;

• Learn from doing;

Preliminary issue: Transparency (lack thereof)

Are Canada’s environmental laws keeping up?• Effective?

• Cumulative effects?

• Learning from doing (Adaptive Management)?

Conclusions, recommendations and further reading

The energy/environment nexus

Links between energy development and environmental pollution/degradation are well established:

Environmental laws should:

Set and enforce effective limits on pollution/degradation;

Manage the cumulative effects of various development on the landscape;

Recognize uncertainty and learn from/by doing;

But first…

Transparency

Transparency

Necessary to assess effectiveness of current laws

• Examples

1. Fisheries Act section 35 prohibition and authorization for impacts to fish and fish habitat

2. CEAA 2012 section 67 requirement for “informal” environmental assessment for projects on federal lands

3. Approvals under Alberta’s Environmental Protection and Enhancement Act (EPEA)

Transparency (cont’d)

1. Fisheries Act section 35

• Prohibits impacts to fish and fish habitat unless authorized by Minister or by regulations;

• Prior to 2013, guided by 1986 Policy for the Management of Fish Habitat;

• Overarching goal: net gainof fish habitat

• Principle of No Net Loss(NNL) on a project basis

• Required compensation/offset habitat);

Photo credit: http://portadam.com/cofferdam-projects/pipeline-crossing-projects/

Transparency (cont’d)

Very difficult to assess performance

• Annual reports on implementation of section 35 but information is of limited use (but not no use)

• Auditor General Report (2009)

• “We found no documentation to show that [DFO] had followed up or evaluated the effectiveness of it decisions—that is, whether implementing the conditions of the ministerial authorizations…had resulted in no net loss of habitat.”

• DFO does not make authorizations public (including terms and conditions)

• Requires Access to Information Act requests (aka ATIP requests)

Transparency (cont’d)

2. CEAA, 2012 “Federal Lands” EA requirement

• Section 67: Requires federal authorities to determine whether or not a project is likely to result in significant adverse environmental effects (SAEE) where such a project is carried out on federal lands

• Section 71: federal authorities must report on their activities under this section

Transparency (cont’d)

2014-2015 Reports by Federal Authorities with Obligations under Section 71 of the Canadian Environmental Assessment Act, 2012

• DFO: “There have been no determinations made where a project on federal lands was likely to cause [SAEE].”

• Parks Canada: “In the last year, there have been no determinations made where a project on federal lands was likely to cause [SAEE].”

Transparency (cont’d)

ATIP request sent 30 Aug. 2016 for documentation supporting s. 67 determinations

Parks Canada: List of approximately 1200 projects deemed not likely to result in SAEE (November 2016)

DFO: List of at least 675 projects deemed not likely to result in SAEE (January 2017)

TC: Still pending (!)

Transparency (cont’d)

EPEA approvals under Alberta’s Environmental Protection and Enforcement Act

• Main permitting vehicle for environmental effects caused by various projects, including oil sands (mines and in situs) and coal mines

• Authorization viewer is of limited use to non-proponents

Effectiveness (including enforcement)

Effectiveness?

Effectiveness? (cont’d)

Effectiveness? (cont’d)

Enforcement?

Managing cumulative effects?

Fisheries Act section 35 referrals v. authorizations

Managing cumulative effects? (cont’d)

0

2000

4000

6000

8000

10000

12000

14000

Figure 5: Total Habitat Activity (2001/02 - 2013/14)

Total ProponentActivity

Referrals

Written Advice (LoAsand OS)

OS Notifications andClass Authorizations

Authorizations

Managing cumulative effects? (cont’d)

22

Managing cumulative effects? (cont’d)

Learning from doing

(“Adaptive Management”)

Ubiquitous invocation in the context of environmental assessment (EA) and mitigation for major natural resources development

Mackenzie Gas Pipeline, N.W.T Lower Churchill Hydro-electric

Project, NL Northern Gateway Project, B.C. Prosperity (II) Metal Mine, B.C. All recent oil sands projects, AB

Learning from doing? “Adaptive Management”

Adaptive Management (cont’d)

Survey (August 2015): 60 active projects on CEA Registry relying on adaptive management for 1+ environmental issue

Average # project EAs under CEAA, 2012 (2012-2015): 66

~ 91% projects

25

Adaptive management (AM)

• “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” CEAA, 2013

The primary goal is to reduce uncertainty

Adaptive Management (cont’d)

Adaptive Management (cont’d)

Adaptive Management (cont’d)

Adaptive Management (cont’d)

Adaptive Management (cont’d)

Conclusions, recommendations, and further reading

Conclusions & recommendations

Canada’s environmental laws are not keeping up with energy development (things got worse in 2012);

Lack of transparency is a fundamental problem:

• Inhibits assessments of effectiveness;

• Transparency would also drive better performance;

Need to transition from individual project focus to regional approaches (some progress in Alberta on this front)

Need to take learning seriously

• Rigorous implementation of adaptive management

Further reading (selected)

"Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta's Energy Resources Sector" (2017) U.B.C. Law Review (Forthcoming)

"Authorized Net Losses of Fish Habitat Demonstrate Need for Improved Habitat Protection in Canada" (2017) Can. J. Fish. Aquat. Sci. (Forthcoming) (with Dr. Brett Favaro)

“From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada's New Approach to Fish Habitat Protection Laws” (2015) 28(1) J. Env. L & Prac. (SSRN)

“Environmental Assessment as Planning and Disclosure Tool: Greenpeace Canada v. Canada (Attorney General)” 38(1) (2015) Dalhousie Law Journal ( SSRN)

“Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-based Regulation” (2015) 40:2 Queen's LJ 705 (SSRN)