Introduction

The need for better integration of environmental assessments (EAs) into the life cycle of approved projects has been discussed in the literature for as long as there have been EAs. Elements of this discussion have included demand for better follow-up, monitoring, adaptive management, quality control, and better integration of EA into regulatory processes.

Some of the problems with the current approach have recently been highlighted by the release of new research on the issue of methylmercury accumulation associated with hydro dams, specifically the Lower Churchill project in Labrador (Schartup, 2015). In short, the research suggests that predictions made during the EA about the accumulation of methylmercury were wrong, and that the risk of methylmercury contamination, in particular with respect to country food, is much greater than predicted. The findings raise doubt about the adequacy of the governments’ and proponent’s responses to the EA panel’s recommendations on methylmercury. More fundamentally, they demonstrate flaws in follow-up approaches of governments and proponents, and more broadly with respect to the post EA decision making process for approved projects.

The Lower Churchill EA, in the form of a joint federal-provincial panel review, took place between 2009 and 2011. In the interest of full disclosure, the author was one of the five panel members appointed to carry out this environmental assessment. The proposed project consisted of two hydro dams along the Churchill River in Labrador, one at Gull Island and one at Muskrat Falls. The project proponent was Nalcor, a provincial crown corporation. One of the two dams, the Muskrat Falls dam, has since been granted regulatory approval. Construction is under way, with impoundment currently anticipated in 2018.

To offer additional context for the discussion of appropriate follow-up and post EA decision making, the first section of this post identifies key conclusions made in the panel report with respect to methylmercury in Lake Melville. The second section identifies the panel recommendations that relate most directly to the methylmercury issue. It also identifies the responses to each recommendation by the federal and provincial government. A brief indication of government action to date to implement recommendations that were accepted is included, but may be incomplete do to limited information that was readily and publicly available. This is followed with a brief summary of the new scientific findings on methylmercury in Lake Melvile. The fourth section offers a preliminary assessment of the adequacy of the post EA actions with respect to methylmercury to date. The final section offers some thoughts on how to enhance follow-up in EA.

 

1. Panel Conclusions Related to Methylmercury in Lake Melville

In its 2011 report, the panel concluded that there was considerable debate and uncertainty over how far the effects of the project, including mercury, would extend downstream from the Muskrat Falls dam. More specifically, the panel report includes the following statements regarding the accumulation of mercury and methylmercury:

Nalcor’s position was that there was no feasible way to substantially reduce the formation of mercury in the reservoirs and that any risks to people who might eat the fish could be handled through consumption advisories. Natural Resources Canada challenged this, and recommended that Nalcor consider removing both vegetation and part of the soil layer around the new shorelines of the reservoirs. The Panel recognized that there were still many questions about this proposed mitigation measure but agreed that hydroelectric developers have a responsibility to find ways to reduce mercury at source if at all possible, and recommended that Natural Resources Canada and Nalcor collaborate to pilot test this approach. (Page 6, executive summary)

Nalcor had concluded that the Project would not have effects on the downstream environment past the mouth of the Churchill River and consequently did not extend the Assessment area beyond this point. This was challenged by a number of participants, and particularly the Nunatsiavut Government. The possibility of mercury moving downstream in sufficient quantities to contaminate fish and seal, and eventually require consumption advisories, was a particular concern. Participants also questioned whether subtle changes in suspended solids, nutrients or water temperature might, over the long-term, change the productivity of the river’s estuary. (Page 7, executive summary)

The Panel acknowledged that it is difficult to accurately predict downstream effects because there are very few long-term ecological studies of hydroelectric projects in northern environments. However, this underscores the need for a precautionary approach, particularly because Nalcor did not identify any feasible way to reverse either long-term adverse ecological changes or mercury contamination in the ecosystem. (Page 8, executive summary)

The Panel concluded that Nalcor did not carry out a full assessment of the fate of mercury in the downstream environment, including the potential pathways that could lead to mercury bioaccumulation in seal and the potential for cumulative effects of the Project together with the effects of other sources of mercury. The Panel also concluded that downstream effects would likely be observed in Goose Bay over the long term, caused by changes in sediment, nutrient supply and water temperatures. Therefore, the Panel recommended that Nalcor carry out a comprehensive assessment, with third-party review, of downstream effects before impoundment begins. The Panel also noted that, while Nalcor has committed to make its monitoring data public, often lessons learned from environmental effects monitoring of large projects are obscured because the results are not fully analyzed and remain difficult to access in the “gray literature”. Therefore the Panel recommended that Nalcor undertake to publish what it learns about possible long-term downstream effects. (Page 8, executive summary)

Nalcor committed to carry out an extensive aquatic monitoring program to verify its predictions and identify whether adaptive management would be needed. The Panel concluded that effective monitoring would be challenging because of the need for good baseline data, enough resources to support the needed level of effort over many years, and setting appropriate thresholds to trigger further action. The Panel recommended involving Aboriginal groups, stakeholders and independent experts in designing the program. (Page 8, executive summary)

In Goose Bay and Lake Melville, the Panel concluded that it was still uncertain whether methylmercury would bioaccumulate in fish and seal to levels that would require consumption advisories, especially considering the lack of baseline information. Recognizing the dietary and cultural importance of fishing and seal hunting in this area, the Panel concluded that there would be significant adverse effects on fishing and seal hunting in Goose Bay and Lake Melville should consumption advisories be required for that area. (Page 12, executive summary)

Should consumption advisories be required in Goose Bay and Lake Melville, the Panel concluded that the Project would have significant adverse effects on the pursuit of traditional harvesting activities by Labrador Inuit, including the harvesting of country food. (Page 12, executive summary)

At the time of the report, the information available to the panel about methylmercury production and biological uptake in Lake Melville was limited and largely based on Nalcor’s modelling work. In reports filed with the panel, Nalcor stated that with few potential exceptions, “Goose Bay dilutes any effects originating from upstream to “no measureable effects” level on the key indicator,” with no measurable effects defined as changes within the range of natural variability, stating that:

“Dilution in the area of Goose Bay is caused by freshwater inputs from a number of sources and by mixing with the salt water that enters Goose Bay from Lake Melville…The dilution predictions in the EIS are further refined by a modelling exercise conducted using the MIKE3 dispersion model (Oceans 2010). As stated in the EIS, the shallows at Goose Bay Narrows act as a hydraulic control that slow exchange with Lake Melville (Hatch 2008a) and likely provide at least a partial barrier to plankton and fish because of the abrupt vertical mixing of fresh and saline water at this location. In the case of increased mercury in fish (a potential effect of the project as predicted in the EIS), the main pathways are water, total suspended solids (TSS), plankton and fish. Water, TSS and plankton are progressively “diluted“ going downstream from Muskrat Falls and most sediment will settle out along the way; the Narrows will further “block” sediment, plankton, and fish to some degree. Many freshwater species cannot tolerate abrupt changes in salinity thus limiting their movement past the Narrows.” (IR JRP.166, page 3)

Consistent with these predictions, Nalcor set its assessment area boundaries for most component studies at the mouth of the Churchill riverine habitat, and excluded Lake Melville. As a result, Nalcor did not carry out detailed studies of the transport, fate, and bioaccumulation of mercury in Lake Melville. Nalcor predicted peak fish mercury concentrations of 2.3X and 4.8X fold above baseline values for fish in the reservoir based on historical and updated fish sampling information limited to the river stem. Nalcor also predicted that fish methylmercury concentrations in Goose Bay would be moderate compared to the river based on the dilution prediction described above.

Nalcor did not carry out direct sampling of methylmercury concentrations in water and plankton, but rather employed the mechanistic RESMERC model to predict concentrations in the river stem. The RESMERC model in turn predicted that methylmercury concentrations in the water column at the Muskrat Falls tailrace would roughly double to 0.08 ng/L from baseline values from 1999, and dilute at Goose Bay based on the dilution hypothesis presented above, transitioning to background levels relatively quickly in Lake Melville. Zooplankton methylmercury concentrations were predicted to follow this pattern, but potentially rise by a factor of two in the reservoir after flooding.

No data existed at the time of the panel report for methylmercury levels in sediments or benthic organisms in the study area. There was very limited data available regarding downstream impacts on methylmercury from hydroelectric developments at similar latitudes. Anderson (2011), introduced in the last days of the panel hearings, suggested that the creation of the Smallwood Reservoir on the same watershed as part of the Upper Churchill hydroelectric development in the 1970s may have been the cause of recently discovered elevated methylmercury concentrations in fish in Lake Melville, approximately 300 km downstream (acknowledging the data for this study was limited).

 

2. Key Panel Recommendations, Reponses & Actions

A number of the panel’s recommendations were specifically designed to address the issue of methylmercury contamination in Lake Melville in light of what was known at the time, and in light of the high degree of uncertainty about the potential impact on Lake Melville and on communities that relied on the area for country food. Some were designed to reduce the risk of methylmercury contamination. Others were designed to ensure the uncertainty about the impacts would be reduced. A third set of recommendations were designed to ensure that if the problem did turn out to be worse than predicted, decision makers would be in a position to implement effective adaptive management approaches to minimize the impacts. A final set of recommendations were of a general nature, but relevant to the issue of methylmercury in Lake Melville.

The following are some of the key recommendations, with a brief indication of the responses of the federal and provincial government to each recommendation, and actions taken on recommendations that were accepted:

 

RECOMMENDATION 4.5 Full clearing of the Muskrat Falls reservoir

The Panel recommends that, if the Project is approved, Nalcor be required to apply its ‘full clearing’ reservoir preparation option to the Muskrat Falls reservoir.

Provincial Response: Not accepted

Federal Response: Deferred to Province

 

RECOMMENDATION 6.5 Pilot study for methylmercury mitigation through soil removal

The Panel recommends that Natural Resources Canada, in consultation with Nalcor and, if possible, other hydroelectricity developers in Canada, carry out a pilot study to determine (a) the technical, economic and environmental feasibility of mitigating the production of methylmercury in reservoirs by removing vegetation and soils in the drawdown zone, and (b) the effectiveness of this mitigation measure. The pilot study should take place in a location where the relevant parameters can be effectively controlled (i.e. not in the Lower Churchill watershed) and every effort should be made to complete the pilot before sanction decisions are made for Gull Island. If the results of the pilot study are positive, Nalcor should undertake to employ this mitigation measure in Gull Island to the extent possible and monitor the results.

Provincial Response: Deferred to Federal Government and Nalcor

Federal Response: Agrees with intent, but suggests a university based research project, no federal commitment

Federal Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: No actions identified.

RECOMMENDATION 6.7 Assessment of downstream effects

The Panel recommends that, if the Project is approved and before Nalcor is permitted to begin impoundment, Fisheries and Oceans Canada require Nalcor to carry out a comprehensive assessment of downstream effects including:

• identifying all possible pathways for mercury throughout the food web, and incorporating lessons learned from the Churchill Falls project;
• baseline mercury data collection in water, sediments and biota, (revised modelling taking into account additional pathways, and particularly mercury accumulation in the benthos) to predict the fate of mercury in the downstream environment;
• quantification of the likely changes to the estuarine environment associated with reduction of sediment and nutrient inputs and temperature changes; and
• identification of any additional mitigation or adaptive management measures.

The results of this assessment should be reviewed by Fisheries and Oceans Canada and by an independent third-party expert or experts, and the revised predictions and review comments discussed at a forum to include participation by Aboriginal groups and stakeholders, in order to provide advice to Fisheries and Oceans Canada on next steps.

Provincial Response: Deferred to Federal Government and Nalcor

Federal Response: Agrees with intent, DFO to require Nalcor to carry out multi-year monitoring and reporting before and after impoundment

Federal Government Actions Since Release From EA: Has collaborated with Nalcor and the provincial Department of Environment and Conservation on monitoring water quality parameters at five stations on the Churchill River and one station in Lake Melville. Has required Nalcor to carry out baseline sampling of fish and seals in Lake Melville as part of an EEMP to verify predictions made during EA (and ultimately implement consumption advisories if warranted).

Proponent Actions Since Release From EA: Some baseline sampling carried out downstream, but no sampling carried out in the part of Lake Melville that falls within the Labrador Inuit Settlement Area. Samples collected in four locations in the lower third of Lake Melville and two sample locations in Goose Bay related to the following three measures: seal abundance (aerial sampling in April), mercury burden in fish (gillnet sampling in August), mercury burden in ringed seals (sampling in April during hunt).

 

RECOMMENDATION 6.9 Development of the aquatic monitoring program

The Panel recommends that, if the Project is approved, Fisheries and Oceans Canada require Nalcor to organize a workshop with third-party facilitation and invited participation by Aboriginal groups, stakeholder organizations, knowledgeable local people, and independent experts from academic or equivalent organizations to review and advise on a detailed draft monitoring plan.

Provincial Response: Deferred to Federal Government and Nalcor

Federal Response: Agrees with intent, DFO responsibility, to be done as part of 6.6

Federal Government Actions Since Release From EA: Aboriginal groups, governments, and stakeholders were given an opportunity to comment on the aquatic environmental effects monitoring plan (EEMP).

Proponent Actions Since Release From EA: Nalcor prepared an aquatic environmental effects monitoring plan. It would appear that Nalcor did not make any substantive changes to the EEMP based on comments submitted other than minor changes to the seal sampling protocol.

 

RECOMMENDATION 8.5 Allowing local forestry operators to clear additional areas

The Panel recommends that, if the Project is approved, the provincial Department of Natural Resources require Nalcor to allow local forestry operators to clear timber from areas not otherwise scheduled to be cleared, provided they can demonstrate a safe approach. Nalcor should be required to pay the stumpage fees for the forestry operators salvaging the extra timber.

Provincial Response: Intent Accepted

Federal Response: Deferred to Province

Provincial Government Actions Since Release From EA: In 2013, the Province stated that the Department of Natural Resources was reviewing applications for developing timber from Muskrat Falls, but no additional progress or information could be identified.

Proponent Actions Since Release From EA: No actions identified.

 

RECOMMENDATION 13.9 Possible requirement for consumption advisories in Goose Bay or Lake Melville.

The Panel recommends that, if the Project is approved and the outcome of the downstream mercury assessment (Recommendation 6.7) indicates that consumption advisories would be required for Goose Bay or Lake Melville, Nalcor enter into negotiations prior to impoundment with the parties representing – as appropriate – Goose Bay and Lake Melville resource users. Depending on where the consumption advisories would apply, these could include Aboriginal groups, the Town of Happy Valley-Goose Bay, Mud Lake Improvement Committee, the Town of North West River and the community of Rigolet. The purpose of the negotiations would be to reach agreement regarding further mitigation where possible and compensation measures, including financial redress if necessary. This recommendation would also apply later in the process if the downstream mercury assessment indicated that advisories were not likely, but monitoring subsequently required their application.

Provincial Response: Intent Accepted

Federal Response: Deferred to Province and Nalcor

Provincial Government Actions Since Release From EA: Stated that no action was required as no elevations in methylmercury levels that would require consumption advisories were documented.

Proponent Actions Since Release From EA: No indications of any negotiations with Goose Bay and Lake Melville resource users to date. In a September 2015 interview (in response to the 2015 Schartup Study), Gilbert Bennett stated that they continue to believe in their own modeling, but if levels of methylmercury rise (unexpectedly), they intend to work with the appropriate departments and stakeholders to implement consumption advisories, if necessary.

 

RECOMMENDATION 13.10 Consumption advisory implementation

The Panel recommends that, if the Project is approved and fish and seal monitoring indicates that consumption advisories are required, Nalcor:

• follow Health Canada guidelines regarding the establishment of human mercury hazard quotient levels and fish consumption advisories;
• consult with Aboriginal Affairs and Northern Development Canada regarding best practices for the communication of advisories;
• consult with Aboriginal groups and affected communities regarding an effective approach to the communication and implementation of consumption advisories that ensures that affected communities have an understanding of the quantities and types of fish that can be consumed safely and the health benefits of including fish in one’s diet;
• ensure that notifications of the consumption advisories are placed at regular intervals in easily visible locations along the shorelines of affected water bodies;
• ensure that consumption advisories are updated as necessary to reflect any changes detected in mercury levels in fish or seal; and
• provide publicly accessible, up-to-date and accurate information through the internet, radio, newspapers and other means regarding the health risks of mercury and the status of the advisories.

Provincial Response: Intent Accepted

Federal Response: Deferred to Nalcor

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: No actions identified, but a commitment to communicate in the human health risk assessment plan.

 

RECOMMENDATION 13.11 Human health and mercury monitoring

The Panel recommends that, if the Project is approved, Nalcor, in collaboration with Health Canada and the provincial Department of Health and Community Services:

• consult with Aboriginal groups and affected communities regarding the approach to be taken to baseline and follow-up mercury testing and the communication of results for each group; and
• establish baseline human mercury levels in Churchill Falls, Upper Lake Melville communities and Rigolet, with consideration given to offering blood tests as well as hair samples for Innu participants, due to inconsistencies noted in the correlation between hair sample results and dietary consumption.

If consumption advisories are required, it is further recommended that Nalcor ensure that a human health mercury monitoring program is established concurrently with the issuing of consumption advisories. This monitoring would continue until five years after the lifting of consumption advisories, or until such time as determined by Health Canada, and would be overseen by the Monitoring and Community Liaison Committee described in Chapter 15.

Provincial Response: Intent Accepted, Nalcor should take the lead

Federal Response: Deferred to Province and Nalcor

Provincial Government Actions Since Release From EA: No actions identified, but a commitment to work with stakeholders to implement consumption advisories if necessary.

Proponent Actions Since Release From EA: A human health risk assessment (HHRA), also known within the regulatory process as a human health environmental effects monitoring plan, was completed in 2014. The plan included hair samples and dietary surveys for country and store-bought foods in downstream communities.

 

RECOMMENDATION 13.12 Dietary surveys

The Panel recommends that, if the Project is approved and consumption advisories are required as a result of mercury levels in fish or seal, Nalcor conduct ongoing dietary surveys as an integral part of the mercury monitoring program, including fish, seal, caribou and other country food. Dietary surveys should be conducted concurrently with regular mercury testing in affected communities to determine the effectiveness of the consumption advisories and the overall impact on fish and country food consumption.

Provincial Response: Intent Accepted

Federal Response: Deferred to Province and Nalcor

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: A human health risk assessment (HHRA).

 

RECOMMENDATION 13.13 Research on mercury in country food

The Panel recommends that, if the Project is approved, the provincial Department of Labrador and Aboriginal Affairs, in consultation with Health Canada and Aboriginal groups, initiate a study of (a) the extent of country food contamination by mercury and other contaminants and (b) human consumption levels of country food, particularly in areas where people are also exposed to mercury in fish, to identify the potential risks to human health in Labrador.

Provincial Response: Intent Accepted, work should be led by Nalcor along with its work on previous recommendations

Federal Response: Deferred to Province

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: A human health risk assessment (HHRA).

 

RECOMMENDATION 15.5 Lower Churchill Project Monitoring and Community Liaison Committee

The Panel recommends that, if the Project is approved, prior to the start of construction, the provincial Department of Environment and Conservation appoint a Monitoring and Community Liaison Committee, using a community-based nomination process. Nalcor, through the Department, should provide the Committee with sufficient resources to allow for staff support, expenses and a modest honorarium for non-government participants, acquisition of independent expert advice, and adequate communication with community residents including occasional public forums. The mandate of the Committee would be set out in the Authorizing Regulation and the Federal-Provincial regulatory plan. The Committee would operate throughout the construction period and for the first ten years of the operating period, at which point the continuing need for the Committee should be reassessed by the Department in consultation with the Committee, the communities and Nalcor.

Provincial Response: Intent Accepted, committee to be set up by Nalcor

Federal Response: Deferred to Province and Nalcor

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: A community liaison committee was established by Nalcor but with no decision-making authority.

 

RECOMMENDATION 15.7 Adaptive management

The Panel recommends that, if the Project is approved, adaptive management for Project specific or cumulative effects, whether conducted by Nalcor, governments, or in combination, include the following components:

• commitment to a proactive approach to adaptive management;
• clearly defined impacts thresholds to clarify where and when adaptive responses would be necessary;
• implementation and contingency plans and resources to enable responsive action especially in areas where effect predictions are thought to be uncertain and where predictive errors may have serious consequences;
• transparent process for setting and adjusting monitoring and management priorities; and
• provision for regular review of adaptive management effectiveness, adjustment of related monitoring and responses to focus on significant continuing concerns.

Provincial Response: Intent Accepted, but warning that some elements (such as socio-economic impact thresholds) may not be possible

Federal Response: Commitment to ensure that adaptive management is incorporated into federal approvals, permits and authorizations required for the Project.

Provincial Government Actions Since Release From EA: No actions identified.

Federal Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: A commitment to annual review of the EEMPs and major review every five years. Mention of commitment to adaptive management, but no specific review commitments are stated in HHRA, as “contingency plans are not anticipated” (HHRA, page 18). Post EEMP baseline reports on their website as they become available.

 

RECOMMENDATION 15.8 Complaints resolution

The Panel recommends that, if the Project is approved, before the start of construction, Nalcor develop a complaints resolution process, in consultation with the Monitoring and Community Liaison Committee, to address concerns relating to possible adverse Project effects on individuals, and to be implemented during construction and operations. The process could include the following:

• easy access for individuals to bring concerns or complaints to Nalcor via a toll-free phone number, website and other appropriate means;
• dedicated Nalcor staff support to receive, process and respond to complaints;
• a tracking process with response time targets;
• third-party adjudication in the event that complaints cannot be otherwise resolved to the satisfaction of both Nalcor and the complainant; and
• a system to report on complaints received and how they were resolved.

Provincial Response: Intent Accepted, commitment to have a process in place during construction and operation

Federal Response: Deferred to Province and Nalcor

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: No public information about a complaints process found, other than complaints in relation to employment opportunities, for which Nalcor can be contacted about this via email/phone.

 

RECOMMENDATION 16.1 Regionally integrated cumulative effects assessment

The Panel recommends that, if the Project is approved, the provincial Department of Environment and Conservation, in collaboration with the provincial Department of Labrador and Aboriginal Affairs and other relevant departments, identify regional mechanisms to assess and mitigate the cumulative effects of current and future development in Labrador.

Provincial Response: Intent Accepted, focus on future development

Federal Response: Deferred to Province

Provincial Government Actions Since Release From EA: No actions identified.

Proponent Actions Since Release From EA: No actions identified.

 

3. 2015 Schartup Study on Methylmercury in Lake Melville

The recently released academic research by Schartup et al. (2015) sheds new light on the fate of methylmercury in Lake Melville. The researchers collected water, soil and biota samples to establish baseline levels of mercury, methylmercury and ancillary parameters in the Churchill River and Lake Melville to create mercury and methylmercury mass budgets for Lake Melville. The study found that rivers are a major source of mercury to Lake Melville and make up more than 85% of total inputs.

Results show that strong stratification in the lake with a low salinity (fresh) surface layer means that mercury transported in freshwater from rivers binds to terrestrial organic matter and travels in the surface waters as far as the Labrador Sea, where greater mixing occurs. In contrast to most estuarine systems where methylmercury is primarily produced in sediment and diffuses into the water column, the largest methylmercury source to Lake Melville now appears to be production in the stratified surface waters.

The research suggests that stratification in the lake creates microbial ‘hotspots’ that accumulate on neutrally-buoyant marine snow. Methylating bacteria and multiple trophic levels of plankton are concentrated within these thin layers, which accelerates bioaccumulation of methylmercury. While methylation rates were below detection at the river sampling sites, they were highest in the stratified waters at the river mouth.

The study also reports results from experimentally flooding sample soil cores from inland dry soils and river shore with Churchill River water. The study estimates that flooding of the Muskrat Falls reservoir will increase inputs of methylmercury from the river to Lake Melville by 25-200% annually. It would appear that this is a low estimate as the vegetation from the cores was removed and the experiment was stopped after 5 days while methylmercury levels were still increasing. It also appears to be based on a diffusive flux, rather than an advective flux, which is what will happen during actual flooding of the reservoir (prior research indicates that advective fluxes are generally 5-10x higher than diffusive fluxes). As a result, the study suggests that actual increases may be higher.

In short, the study suggests that methylmercury production in the Churchill River or in other locations used for calibrating the models do not reflect the unique environmental characteristics of Lake Melville. Direct measurements seem to show that rather than being diluted by Lake Melville, methylmercury production and uptake is concentrated. The permanent stratification of Lake Melville constrains primary productivity, methylation and several levels of the food chain into a narrow zone that effectively increases biological exposures. The results suggest that this system is especially vulnerable to increased inputs of both methylmercury and inorganic mercury that can be methylated in the water column.

 

4. Discussion: Assessment of Post EA Decision Making

It is important to separate the assessment of the government response to panel recommendations at the time of the report from an assessment of whether the post EA approach by the federal and provincial governments are adequate in dealing with the implications of the 2015 Schartup study. The former has to be assessed based on the information available at the time, whereas the effectiveness of the follow-up program and how decision makers are responding to the 2015 Schartup study can be assessed in light of the current state of knowledge, as post EA decision making processes need to be designed to respond effectively to such new information.

It is clear from the previous section that some of the panel’s recommendations on methylmercury were rejected, and it seems that others that were accepted have not been effectively implemented to date. The former is, of course the prerogative of governments, but it would seem reasonable to expect decision makers to now carefully reflect on these decisions in light of important new information, such as the 2015 Schartup Study.

With respect to implementation of accepted recommendations, lack of clarity in the government response makes an objective assessment difficult. For many recommendations, governments indicated that they accepted the “intent” of the recommendations, but no appropriate action appears to have been taken. It seems clear that in order to ensure proper accountability, a more specific response is required from governments. If the intent of a recommendation is accepted, but the government does not agree with the specific steps proposed to achieve the intent, it should be required to identify specific alternative steps to achieve the intent, and be clear about what it understands the intent to be. Governments need to specify what they accept and what they don’t accept, so that they can be held accountable for their decisions and their actions. In this case, this is simply not possible given the vague nature of the government responses to a number of the recommendations.

Furthermore, transparency of the implementation of accepted recommendations needs to be enhanced, so that members of the public and the research community can track the steps governments have taken in response to accepted recommendations. The 1995 version of the federal EA statute (CEAA 1995) included a requirement for governments to give reasons for rejecting panel recommendations. This requirement was essential to government accountability.

One of the purposes of any follow-up and monitoring program is to identify whether predictions made during the EA turn out to be accurate, and to ensure an adequate response to such prediction errors. It seems clear from the 2015 Schartup Study that the predictions made by Nalcor with respect to methylmercury have now been shown to be inaccurate. What is troubling is that there does not appear to be a mechanism in place to ensure an effective adaptive management response that considers what can be done at this stage of the project to address the risk of methylmercury contamination in Lake Meville. If this impression is accurate, this is a serious flaw in the follow-up and monitoring approach that needs to be addressed, both for this particular project and more generally. Legislative reform would appear the most appropriate solution in the long term, but more immediate government action is clearly needed for the Muskrat Falls project.

It is striking how many of the recommendations of the Panel were deferred by one of the two levels of government to the other level of government, and, in some cases, to the proponent. The unwillingness of governments to share and accept responsibility to ensure the effective implementation of recommendations is striking, and is clearly contributing to the poor record of implementation. Efforts by the panel to address this problem through its recommendations for authorizing regulations (15.1), and a joint regulatory plan (15.2) appear to have been ineffective in addressing this issue. This is another area where better legislative guidance is warranted.

 

Conclusion: Improving Post EA Decision Making

The importance of follow-up has long been recognised in the literature. Not much has happened, however, to make effective use of follow-up in the post EA decision making process. It is important not to forget that EA decisions are based on predictions about consequences, not based on actual consequences. That means unless there are effective follow-up processes in place, unpredicted consequences will go unregulated and unmitigated, and we will not learn to make better predictions in the future.

Academic literature identifies five objectives of follow-up:

• Ensure terms and conditions of EA approval are met
• Verify environmental compliance and performance
• Cope with unanticipated changes and circumstances
• Adjust mitigation and management plans accordingly
• Learn from experience and improve EA process and project planning and development over time.

It is important to focus and tailor follow-up to specific projects and their needs. This makes it more difficult to develop legally binding criteria for the design of a follow-up programme. There is a need for some discretion to ensure follow-up programs are suitable for the specific project. However, the experience to date, as illustrated here, has been that discretion is not always exercised effectively, at least in part because changing course after project approval takes time and resources. The challenge from a law reform perspective is to develop specific legally binding requirements for follow up (and other post EA decisions) where possible. Where discretion is needed for the design and implementation of effective follow-up programs, laws need to include reasonable measures to safeguard against inappropriate exercise of discretion, such as principles to guide decision making, transparency, and access to justice.

What can be done to provide a better legal framework for follow-up and other post EA decision making? First, the default should be that a follow-up program that tracks predictions and compliance with conditions is required. This could be achieved through a reverse onus approach that requires a follow-up programme unless it is demonstrated that such a program is not needed. Similarly, the essential elements of a sound follow-up program and other post EA decisions should be set out in law. The requirements need to address both the accuracy of predictions and compliance with terms and conditions. The program needs to be designed to ensure an appropriate response to a discovery that a prediction made during the EA turns out to have been wrong.

A key element of an effective follow-up approach is that regulators also have to be informed of the results of the follow-up programmes and need to be required to respond appropriately when follow-up results show EA predictions were wrong. CEAA 2012 already provides for an EA approval to implement the final project decision under the Act, though this was not the case under the version of CEAA in force at the time of the Lower Churchill panel review. What is missing in the current legislation are standard conditions for every EA approval granted specifically designed to ensure an appropriate response to a finding that predictions have turned out to have been wrong.

Among the standard conditions of an EA approval should be that the scope of any follow-up programme needs to be adequate to test all key predictions made during the EA, and that the results are shared with all regulators with a view to requiring regulators to respond to any unexpected consequences. Adequate EA approval or regulatory powers are needed to ensure decision makers are clearly identified and empowered, and are required to amend EA or regulatory approvals when unexpected consequences are identified, either through a project specific monitoring or follow-up program, or through independent research.

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute

To download some of my publications on EA including some previous reflections on the Lower Churchill Panel Review, see http://ssrn.com/author=715387.