Still advocating for Environmental Rights as Human Rights. Evidence from Alberta, and innovative proposals for Nova Scotia

The Pembina Institute recently compiled three case studies related to energy development in Alberta, in an effort to document the adverse effects on individuals, communities and regions that result from weak environmental laws or regulatory enforcement.  The Environmental Law Centre in  Alberta also  published a series of reports in late 2016, including a module, Substantive Environmental Rights , which discusses environmental rights as a human right. Since 2014, the Blue Dot campaign, led by the David Suzuki Foundation and Ecojustice ,  has been advocating for environmental rights to be enshrined in the Canadian Charter of Human Rights and Freedoms.

Now, from the Pembina Institute comes The Right to a Healthy Environment: Documenting the need for environmental rights in Canada.  It consists of:  Case Study #1:  Individual impacts of intensive hydraulic fracturing activity in rural Alberta   ;  #2 Community impacts of air pollution in urban central Alberta (related to coal-fired electricity plants), and #3 Regional impacts of oilsands development in northern Alberta   (which examines the rights of First Nations).

In Nova Scotia, the Nova Scotia Environmental Rights Working Group of the East Coast Environmental Law Association  released their proposed and innovative  Nova Scotia Environmental Bill of Rights  on April 21 2017.  The bill states that the people “have a right to a healthy and ecologically balanced environment”, and that the “primary responsibility” to protect and conserve that environment falls to the province.  It also states that “there is a history of environmental racism in Nova Scotia that has disproportionately and negatively affected historically marginalized, vulnerable, and economically disadvantaged individuals, groups or communities, particularly Indigenous People and African Nova Scotians”.  The bill is based on the Precautionary Principle, the Polluter Pays Principle, the Non-Regression Principle, the Intergenerational Equity Principle, and the Principle of Environmental Justice and Equity.  Nova Scotians go to the polls in a general election on May 30; a guide to the policy positions of the Liberal, Conservative and NDP parties is here at the CBC website.  According to the Ecology Action Centre in Halifax, the provincial NDP party has pledged to support an Environmental Bill of Rights .

 

 

 

 

Bold recommendations from the Expert Panel on Modernization of the National Energy Board – but experts call for more

NEB_banner1-eIn November 2016, Canada’s  Minister of Natural Resources commissioned an  5-person Expert Panel on the Modernization of the National Energy Board , mandated “ to position the NEB as a modern, efficient, and effective energy regulator and regain public trust”. After public hearings and submissions, the results are in, in the form of 26 recommendations released on May 15, in their report:  Forward,Together: Enabling Canada’s Clean, Safe, and Secure Energy Future .   Chief among the recommendations:  replace the current Board  with a new organization called the Canadian Energy Transmission Commission, to be based in Ottawa rather than Calgary, with radically increased scale and scope of stakeholder engagement, and especially with an increased role for Indigenous people.  The report also calls for a new, independent Canadian Energy Information Agency to provide energy data, information, and analysis. The Panel lays out a detailed vision of a new process, based on 5 core principles of: Living the Nation-to-Nation Relationship with Indigenous Peoples; Alignment of Regulatory Activities to National Policy Goals; Transparency of Decision-Making & Restoring Confidence ; Public Engagement Throughout the Lifecycle; and Regulatory Efficiency and Effectiveness.

For summaries and a range of immediate  response to the Panel’s recommendations, see : “Trudeau- appointed panel recommends replacement of the National Energy Board” in the National Observer , which provides summary, reaction, and background based on its ground-breaking, sustained investigations into the NEB process;  “Scrap NEB and replace it with 2 separate agencies, expert panel recommends” from CBC Calgary, with a sense of Alberta’s reaction; “National Energy Board needs major overhaul, Panel says”   in the Globe and Mail, which seems to greet the news with a yawn. 

For substantive response, see “NEB Modernization Panel report: The good, the workable and the ugly”   from West Coast Environmental Law, which states: “environmental lawyers say that the report completely misses the mark when it comes to how projects like oil pipelines should be assessed, and disagree with the Panel’s approach to determining whether individual energy projects are in the national interest.”

The “Statement by Environmental Defence’s Patrick DeRochie on the report from the Expert Panel on National Energy Board Modernization”   says:   “the Panel’s proposal for the Federal Cabinet to determine whether a project is in the national interest before it undergoes an environmental assessment is problematic. Responsibility for environmental assessments must be removed from the energy regulator and be completed before a Cabinet decision.” Environmental Defence also states that the NEB’s review of the Energy East pipeline must be put on hold until NEB modernization is complete.

From DeSmog Canada, “Trudeau promised to fix the National Energy Board. Here’s what his Panel Recommends” summarizes the contents.  In “Will a Repackaged National Energy Board Be Able to Meet Canada’s 21st Century Challenges? ”  Chris Tollefson of the Pacific Centre for Environmental Law and Litigation  frames the report in its larger context, and states: “What the Expert Panel fails to address, however, is the need fundamentally to reform the assessment that major energy projects must undergo before we, as a society, allow them to proceed. These assessments must be capable of supporting informed, transparent and defensible social choices about future development.  This is quite different from regulatory processes that are principally aimed at mitigating anticipated harms. …. where this Expert Panel has failed, and where the CEAA, 2012 Expert Report adds enduring value, is in confronting the legitimacy crisis that pervades decision making around fossil fuel infrastructure development. ”

From the Pembina Institute:  “NEB Expert Panel report two steps forward, one step back on climate” :  “The Expert Panel’s recommendations are only as good as the federal government’s next steps. It’s up to Prime Minister Trudeau and his Cabinet to seize this once-in-a-generation opportunity to reform Canada’s energy project review landscape by ensuring NEB modernization works in sync with other elements of the federal environmental law reform process. … now is the time to outline a credible pathway that builds upon recommendations from the EA and NEB expert panels to ensure this outcome is achieved.”

A  public comment period on the Expert Panel report is open until June 14th; click here to participate in French or English. You can read research reports and position papers already submitted to the Expert Panel here.  The submissions already received are not available – only Panel-generated summaries of the engagement sessions, which are here.

What next for the recommendations of this Expert Panel, and the other regulatory reviews in process (for example, the Report of the Expert Panel on Environmental Assessment , released on April 5 )?  According to the Natural Resources Canada press release: “Over the next few months, the Government of Canada will review the expert panel’s report in depth along with the reports from the other three environmental and regulatory reviews to inform the development of next steps.”

Reports re environmental regulation arrive to positive response – next up in May: the Expert Panel on modernizing the National Energy Board

The Government of Canada launched four reviews of government environmental and regulatory processes in June 2016, and recently, the appointed Expert Panels have begun to deliver their reports.  The Report of the Parliamentary Standing Committee on Fisheries and Oceans  was released on February 24   – to a welcoming review by West Coast Environmental Law:  “We are pleased that the Committee has listened – to First Nations, to conservation and community groups, to scientists and concerned citizens across the country – and has recommended reinstating the Fisheries Act’s key prohibition on habitat alteration, disruption and disturbance .

Canada 2017 expert panel report building-common-ground-pdfThe Report of the Expert Panel on Environmental Assessment was released on April 5, and is open for public comment – only until May 5 at www.letstalkea.ca/.  The report, Building Common Ground: A New Vision for Impact Assessment in Canada   incorporates a fundamental idea in its title:   what is now “environmental assessment” should become “impact assessment”.  The Panel recommends that:  an Impact Assessment Commission should be established as an independent, arm’s length government agency, “with a broad leadership mandate to conduct project, region-based and strategic-level assessments.  …. The Commission would also be mandated to generate its own independent science so that assessments are evidence-based and agency-led… and the Panel should commit to  ensuring that the projects are not developed without the early involvement of potentially affected Indigenous peoples and the public. ”

One  of the first responses to the Expert Panel comes from Chris Toellofson at the Pacific Centre for Environmental Law and Litigation (CELL) , who states: “the Panel deserves kudos for both for its ambitious commitment to process, and the innovative and balanced way it has charted the law reform road ahead.” The article continues with a thorough summary and analysis of the report, including: “Our biggest concern with the Report is that it has mainly focused on procedures, values and governance – and has therefore not engaged with some of the substantive legal tests that must be embedded in a federal assessment law to give it real traction. For example, the Report does not address the need for assessments to include “worst case scenario” modeling, and only briefly touches on the need for “alternatives” assessment. These legal requirements, as our experience in the Northern Gateway, Kinder Morgan, and Pacific NorthWest LNG reviews underscore, can be of critical importance, both scientifically and legally.”

WCEL env assessment summit coverWest Coast Environmental Law (WCEL) also responded positively though briefly, calling the report “not perfect but a step in the right direction”, and calling on the government to translate the recommendations into law quickly.  WCEL had convened a Federal Environmental Assessment Reform Summit meeting in Ottawa in May 2016, attended by approximately 30 of Canada’s leading environmental assessment experts, academics, lawyers and practitioners.  The summary of those discussions  was published in August 2016, and offers a context for any review of the recommendations of the government`s Expert Panel report.

Next up in May:  the Report of the Expert Panel regarding the Modernization of the National Energy Board , scheduled to be delivered to the Minister of Natural Resources on or around May 15, 2017.   Anticipating that release,  Ecojustice published a blog,  Modernizing the National Energy Board : Let’s get it right  on April 4, which states : “Today, the NEB is riddled with systemic failures. Some of the most glaring problems include, no flexible timelines for reviews, lack of inclusive public participation, and limitations on public hearings such as no cross-examination and no meaningful consideration of climate change impacts…The NEB, as we’ve come to know it, is dominated by industry insiders and conventional industry perspectives. As a result, it fails to objectively evaluate the need for, and the consequences of, new oil and gas projects. As we transition to a decarbonized energy system in which we are less likely to build new oil and gas infrastructure, the NEB’s role — chiefly concerned with regulating oil and gas and in particular interprovincial and international pipelines — should diminish. In other words, the NEB should get out of the business of environmental assessment….  The NEB’s function should be limited to technical matters traditionally within its regulatory expertise (related to pipeline safety, for instance). It could also turn its attention to technical plans for decommissioning and remediating energy infrastructure, such as pipelines, that are redundant in a decarbonizing economy.”

Recent Research into Climate Policy questions

The Trottier Energy Futures Project released a report, authored by the Canadian Academy of Engineering and the David Suzuki Foundation, in June 2016.  Canada’s Challenge & Opportunity: Transformations for Major Reductions in GHG emissions  uses systems analysis to discuss 11 separate scenarios with the goal of achieving the 80-per-cent GHG reduction by 2050. The paper  casts doubt on the “timely availability of technology and associated infrastructure”, but considers the technical and economic barriers less important as the political and social/cultural – success will demand major change to a low-economy lifestyle.  It concludes…”the project demonstrates that substantial progress can be made by 2030 using currently available systems to reduce GHG emissions. Key areas include significantly increasing the supply of electricity and biomass/biofuels in order to displace fossil fuels in all five end-use sectors, decarbonizing electricity production by switching to non-emitting sources, enabling transfers of electricity between provinces and territories, and implementing a comprehensive program of energy conservation and efficiency measures. In addition, as several provinces and the federal government have already committed to implementing carbon pricing, a national climate strategy, along with regulations and incentives that support innovative GHG-reduction technologies and initiatives, may be within reach.”    A detailed summary and analysis of the Trottier report from Canadian Energy Systems Analysis Research (University of Calgary)  is here .

Top Asks for Climate Action: Ramping up Low carbon communities  was released by the Columbia Institute in B.C. in June,  and makes the case for local climate leadership.  It itemizes what local governments need from  federal, provincial and territorial governments to realize climate action, clustered in the themes of capacity building; smart growth; harnessing local energy; reducing carbon pollution from the building sector, and from the transportation sector. The policy actions highlighted in the report are the result of an extensive literature review and survey of more than 100 locally elected officials.

Sustainable Prosperity has released a series of blogs and papers arguing that environmental regulation, if well-designed and flexible, can stimulate clean innovation and boost corporate competitiveness. (The Porter Hypothesis).  Green Tape Measures Up   is an Issue Summary released in June 2016; the related Policy Brief Environmental Regulation and Innovation: Select case studies of the Porter Hypothesis (November 2015) reviews seven recent case studies from four industrial sectors in the EU and U.S.  to support the argument.

News updates for June 2016: Canada

 REVIEW OF THE NEB AND ENVIRONMENTAL ASSESSMENT:   On June 20, the Federal government announced  a “Comprehensive Review of Environmental and Regulatory Processes” , involving six ministries: Fisheries and Oceans; Environment and Climate Change; Transport;  Science and Innovation; Indigenous and Northern Affairs; and Natural Resources. A dedicated website houses consultation documents and allows for public input,  since “Consultation will be at the core of this review”.  An expert panel will review the National Energy Board and submit its findings in early 2017; similarly, another panel will review the Environmental Assessment Agency .  The Navigation Protection Act and the Fisheries Act will be reviewed by parliamentary committees starting in the Fall 2016, with a report due January 2017.   See the CBC  or the National Observer    for summaries.

CANADA AND G7 NATIONS PLEDGE TO END FOSSIL FUEL SUBSIDIES: At the G7 Summit in Japan at the end of May, member nations, including Canada, set  a deadline to end government support for coal, and  oil and gas by 2025. The text of the Final Leaders’ Declaration  doesn’t define “subsidy” and  leaves wiggle room by indicating “inefficient” subsidies (see page 7).  And an article in The Guardian singles out Britain for new North Sea tax breaks, Japan for coal expansion,  and Canada for extending subsidies for natural gas production in the February 2016 budget.