In the following post, we offer our conclusions on how to more effectively integrate cumulative effects into EA.  We view this as one of a number of critical issues for the reform of the federal EA process that is now underway. The full article by John Sinclair, Meinhard Doelle and Peter N. Duinker is available at:  http://ssrn.com/author=715387 

Over the last twenty-five years, considerable attention has been given to cumulative effects assessment (CEA) by practitioners, academics, and legislators. Yet, despite all this effort, CEA understanding remains weak, practice wanting and progress slow. CEA appears for some to be merely an irritant to the completion of a project-specific environmental assessment (EA). In this view, cumulative effects are ‘assessed’ as a purely legal obligation without practical merit, and the results recorded in a separate chapter – usually short – of the environmental impact statement (EIS). Invariably, the conclusion is that, if any cumulative effects at all are expected, they will be insignificant and therefore ignorable. In this post, we summarize the findings of our recent collaboration to explore solutions to the challenge of effectively integrating CEA into EA.

Our conception of CEA arises from the sustainability imperative, particularly ecological sustainability. This means that the focus of CEA should be on the condition of those elements of the biophysical environment that matter to us – in EA, these are called valued ecosystem components (VECs). The starting place, then, is that ecosystems and their components must be kept in good condition if proposed human activities that interact with such ecosystems and their components are to be sustainable. We plan, assess, evaluate, study, examine, and otherwise pay attention to VECs and their condition as we contemplate whether to undertake specific human activities.

Our resulting conception of cumulative effects is that they arise when two or more stimuli (or agents of change, or stressors, or causes) act together to influence the condition of a VEC. For example, a fish population in a river might be simultaneously affected by waterflow regulation, industrial water pollution, and fishing. Natural processes must be considered too; for example, a big hurricane could cause major flooding of the river in question. This view of cumulative effect is consistent with the definition recently published by the Canadian Council of Ministers of the Environment (CCME): “cumulative effect is a change in the environment caused by multiple interactions among human activities and natural processes that accumulate across space and time”. Based on these conceptions of cumulative effect, it seems reasonable to enter an EA process assuming that all effects of the human activities being assessed are cumulative.

To improve our collective ability to address cumulative effects satisfactorily, we argue that the impact-assessment community needs both sound CEA processes and adoption of a CEA mindset. The scholarly literature and the guidance materials on CEA abound with descriptions of CEA processes. While these can certainly be tweaked and improved, our stance is that the community of impact-assessment practitioners has not yet adopted a CEA mindset. Adopting a CEA mindset means that CEA should be at the heart of absolutely every assessment of VEC condition as influenced by human activity to ensure that we understand the relative contributions of various stressors and can decide when cumulative effects may foreclose future activities due to impacts on VECs (or require mitigation to make room for additional activities).

Our purpose is to describe and conceptualize a CEA mindset through describing and applying three critical lenses that focus the mindset. In doing so, we outline an approach to supporting VEC sustainability that recognizes CEA not as a matter of elite practice or preference if we had the time and money, but rather as the only way to begin to understand how to adjust human activities for a sustainable future.

In modelling the CEA mindset, we define project-level EA as assessment of a single and specific proposed human endeavor of a physical nature (see, for example, the definition of a project under the Canadian Environmental Assessment Act, and Doelle 2008). This makes project EA distinct from regional EA (REA) through its focus on a specific undertaking and distinct from SEA through its focus on a physical human activity. All EAs carried out under Canadian Environmental Assessment Act (CEAA) and most EAs carried out under provincial legislation in Canada would meet our definition of project EA.

Drawing on the broad and often conflicting strategic EA (SEA) literature, we define SEA as an umbrella for any EAs that go beyond traditional single-project EAs, but that focus on a collection of individual projects. For this paper, an SEA goes beyond individual projects, but it does not necessarily consider all human activities within a given region. An SEA can involve a specific industry sector or a number of industry sectors. If it is limited to one industry sector, it is closer to a project EA. As it approaches a full consideration of all human activities within the study area, it begins to resemble an REA.

The term REA has also been used in many contexts, creating confusion in the literature and among practitioners alike. For us, an REA is as an EA whose primary or sole defining feature is its regional scope and its focus on understanding the interactions between human activities and the natural world. This means that in just about all aspects other than its spatial limitations, an REA should be comprehensive and integrated. This also means that processes such as regional integrated planning and integrated management processes are forms of REA.

Our approach also recognizes that several other environmental planning and resource management activities are relevant to the CEA mindset and should be considered in the context of project EA, SEA, and REA activities. Examples include recovery plans for species at risk that identify actions that must be taken in an attempt to ensure a species’ survival and resource management plans that guide the uses of natural resources such as those developed for forest management or watersheds.

What we suggest is a way of thinking about CEA – a mindset conceptualized through three critical lenses – technical, law and policy, and participatory – that bring focus to the mindset. The serious shortcoming of CEA practice rests not just in the lack of attention to the technical lens – as often established in the literature and review of EIS documents – but in also not recognizing that meaningful CEA requires much more than just good science. The CEA mindset cannot just be legislated – legislation will just help to guide and encourage thinking toward the mindset by attending to what has been agreed to be important – but the mindset itself is an ethos of CEA that all engaged in CEA processes must embrace. Focusing and deliberating on each of the elements we have identified for each lens is essential to sound CEA practice. Our analysis of the development decision processes and resource management activities around the Bay of Fundy is illustrative of the current weaknesses and the imminent possibilities.

We have also suggested a pathway for thinking about how the different types of planning and decision-making might be coordinated and implemented in a way that provides greater assurance that a full suite of cumulative effects will be considered, thereby nurturing more-sustainable outcomes. Other recent considerations of CEA practice at least recommend shifting cumulative considerations from the project EA tier to the REA, which is in line with our suggested coordination. The CEA mindset establishes that ongoing planning and assessment processes need to focus on CEA at each level and more thoughtfully integrate the technical results of the work done in each process.

Our suggestions are merely a start at resolving issues of VEC sustainability and we have left open some vexing questions that require more discussion and research. For example, we have not considered how specifically to address foreclosure of future options if the capacity of a VEC to absorb change or further impact has been taken up by approved and to-be-approved activities. Another example relates to how errors in the prediction of the effects of the activities being assessed influence what may be foreclosed in the future. Another set of issues relates to the roles of project proponents, the public, and governments in ensuring an appropriate CEA mindset in each of the processes we have discussed.

These outstanding questions provide the fodder of future research while the work of implementing the CEA mindset can begin in earnest. In the Canadian context, we suggest that the mindset approach to CEA be considered by provincial decision-makers, industry, non-government organizations, and the interested public as they gather to review the provincial project EA processes, which many are currently doing, and engage more generally in resource decision-making. There seems to be little debate on the importance of considering cumulative effects; rather, the concerns noted at the outset of the paper are related to how to do CEA effectively, efficiently and fairly.

The best approach is to apply a CEA mindset and harness and coordinate the resources committed to and resulting from multiple decision processes toward considering cumulative effects. If CEA is a mindset carried into every process of assessment or planning for activities in ecosystems, we may have a chance to arrest some of the ecological degradation we see happening all around despite the abundant good intentions and hopes of current assessment and planning processes. Collectively, we must find ways to effectively consider and mitigate the cumulative effects of human activities if we are to make genuine progress on achieving a more sustainable society.

 

Meinhard Doelle,

Professor, Schulich School of Law

To download some of my other publications on EA, see http://ssrn.com/author=715387.  

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.  

By: Martin Olszynski and Meinhard Doelle

Case commented on: Ontario Power Generation Inc. v. Greenpeace Canada et al, 2015 FCA 186

In this decision, a majority of the Federal Court of Appeal (Justices Trudel and Ryer) overturned a ruling of the Federal Court (Justice Russell) finding that the environmental assessment of Ontario Power Generation’s (OPG) Darlington New Nuclear project conducted by a Joint Review Panel failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (since replaced with the Canadian Environmental Assessment Act, 2012 SC 2012 c 19). Justice Russell found gaps in the Panel’s assessment (specifically with respect to hazardous substances emissions, spent nuclear fuel, and a failure to consider the effects of a severe ‘common cause’ accident) that in his view were unreasonable in light of the purpose and scheme of the Act. The majority of the Federal Court of Appeal, on the other hand, endorsed a more formal approach to judicial review in this context, holding that reasonableness was a “low threshold” (para 151) such that a panel need only give “some consideration” to a project’s environmental effects (para 130) to be reasonable; it is only where a panel “gives no consideration at all” that its assessment will be deemed unreasonable (para 130). Justice Rennie dissented, agreeing with Justice Russell with respect to hazardous substances emissions (paras 48 – 50) and endorsing the latter’s characterization of CEAA as a two-step decision-making process that is intended to be evidence-based and democratically accountable (para 52). Because of its potential to seriously undermine the effectiveness of the federal environmental assessment regime, this post focuses on the majority’s approach to reasonableness review in this context. Both of us previously commented on Justice Russell’s decision in separate blog posts (and one of us wrote up a full case comment on it (forthcoming in the Dalhousie Law Journal).

 

Background

Briefly, in the fall of 2006 Ontario Power Generation applied to the Canadian Nuclear Safety Commission (CNSC) for a site preparation license for several new reactors at its existing Darlington nuclear plant in Bowmanville, Ontario. Application for this license, as well as for authorizations under the federal Fisheries Act, RSC 1985 c F-14 and the Navigable Waters Protection Act, RSC 1985 c N-22 (now the Navigation Protection Act), triggered the application of the then CEAA. The project was referred to a joint review panel in 2008. Following 284 information requests (IRs) and seventeen days of hearings in the spring of 2011, the panel submitted its final report to the Minister in August of that same year, concluding that the project was not likely to result in significant adverse environmental effects. The applicants challenged the adequacy of the environmental assessment shortly thereafter.

For the purposes of this post, the relevant part of Justice Russell’s decision is that dealing with the Panel’s treatment of hazardous substance emissions. After reviewing the record, Justice Russell noted Environment Canada’s complaint that notwithstanding several information requests, remaining gaps in OPG’s submission prevented that department from assessing the project’s effects with respect to effluent and storm water management (at paras 257 – 259). The Panel itself noted that “OPG did not undertake a detailed assessment of the effects of liquid effluent and storm water runoff to the surface water environment” but that OPG “committed to managing liquid effluent releases in compliance with applicable regulatory requirements and to applying best management practices for storm water” and on this basis concluded that significant adverse environmental effects were not likely to result (at paras 264 – 265). According to Justice Russell, such an approach was not consistent with the legislation:

[275] In essence, the Panel takes a short-cut by skipping over the assessment of effects, and proceeding directly to consider mitigation, which relates to their significance or their likelihood. This is contrary to the approach the Panel says it has adopted…and makes it questionable whether the Panel has considered the Project’s effects at all in this regard.

Also for the purposes of this post, the relevant section of CEAA, 1992 is section 16, which set out the required considerations for every kind of environmental assessment under the Act:

16.(1) Every screening or comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of the following factors:

(a)    the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out;

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

 

The Majority’s Approach to Reasonableness Review

 There was no dispute that Justice Russell chose the appropriate standard of review, i.e. reasonableness (para 122). The issue was whether he applied it correctly. Before considering his approach, however, the majority first engages in what Professor Paul Daly has criticized as post-decision ‘judicial supplementation’: after-the-fact reformulations of administrative decisions that makes them more consistent with courts’ preferred rationale for a given result (see Paul Daly, “The Scope and Meaning of Reasonableness Review” (2015) 52(3) Alberta Law Review at 20 – 21 (forthcoming)). According to the majority, although the Panel

…made no specific finding that it had complied with the consideration requirements in paragraphs 16(1)(a) and (b) of the Act…it is our view that…the Panel must be taken to have implicitly satisfied itself that it was in compliance with those statutory requirements. In applying the reasonableness standard to this question, we must…determine whether the Panel’s implicit conclusion that it had complied with the consideration requirements is reasonable.” [citing the Supreme Court of Canada in Agraira v. Canada (Public Safety and Emergency Preparedness),  2013 SCC 36  at para 53, which Professor Daly criticizes in his piece] [emphasis added].

The majority then cites two decisions from fifteen years ago as determinative of the appropriate approach to reasonableness review in this context. In the first, Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263, Justice Rothstein (as he then was) stated at paragraph 26: “The use of the word ‘shall’ in subsection 16(1) indicates that some consideration of each factor is mandatory” (emphasis added by the majority in Greenpeace). The second decision was by Justice Pelletier (as he then was) in Inverhuron & District Ratepayers’ Assn. v. Canada (Minister of the Environment), [2000] F.C.J. No. 682 (QL) at paragraph 71:

It is worth noting again that the function of the Court in judicial review is not to act as an “academy of science” or a “legislative upper chamber”. In dealing with any of the statutory criteria, the range of factual possibilities is practically unlimited. No matter how many scenarios are considered, it is possible to conceive of one which has not been. The nature of science is such that reasonable people can disagree about relevance and significance. In disposing of these issues, the Court’s function is not to assure comprehensiveness but to assess, in a formal rather than substantive sense, whether there has been some consideration of those factors in which the Act requires the comprehensive study to address. If there has been some consideration, it is irrelevant that there could have been further and better consideration. (Emphasis added by the majority)

According to the majority, this means that “the type or level of consideration that the Panel was required to give to those effects was simply…‘some consideration.’ It follows…that a failure of the Panel to consider…environmental effects can only be established if it is demonstrated that the Panel gave no consideration at all to those environmental effects.” (at para 130, emphasis added).

Applying this “low threshold” (at para 151), and acknowledging that “[c]learly, the consideration by the Panel of the environmental effects of [hazardous substances emissions] was not undertaken to the same depth or extent as were other environmental effects” (at para 153), the majority concluded “that this lesser degree of consideration nonetheless constitutes ‘some consideration’ of the environmental effects” (ibid).

 

Discussion

In our view, the majority’s approach in Greenpeace (and in the cases on which it relies) places the bar far too low in terms of judicial supervision of the environmental assessment process required by CEAA (both the prior and current regime). While we would agree that in some cases the range of factual possibilities might be practically unlimited, it does not follow that reliance on a single factual possibility or scenario is sufficient. The goalpost in each case should be whether the assessment is reasonable in light of the particulars of the project being assessed and the kind of environmental effects that it can reasonably be expected to cause, something that the judiciary is perfectly capable of assessing (as further discussed below). The majority’s ‘some or none’ approach, on the other hand, champions “formal rather than substantive” review for fear of becoming an academy of science (Inverhuron, at para 71) – something we thought Canadian courts had abandoned long ago.

In our view, the fear of becoming an academy of science is misplaced. There are numerous cases, in the environmental assessment context specifically but also environmental law more generally, where courts have efficiently and effectively engaged in a more substantive review of science-based decisions without becoming academies of science. With respect to environmental assessment, the Federal Court’s decision in Pembina Institute v. Canada 2008 FC 302 (CanLII) readily comes to mind. In the course of reviewing a panel’s treatment of the greenhouse gas emissions of an oil sands project, Justice Tremblay-Lamer was puzzled by the panel’s reliance, without justification or explanation, on intensity-based emissions caps as mitigation measures in light of the fact that under such an approach total emissions can actually continue to rise. In the course of her reasons, she noted that while panels are owed deference, this deference is not unlimited: “deference to expertise is only triggered when those conclusions are articulated” (at para 75, citing Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at para 62). With respect to environmental law more generally, one can refer to any number of cases under the Species at Risk Act, SC 2002, c 29 [SARA]. For example, in Adams v. Environment, 2011 FC 962, the court reviewed the Minister’s decision not to recommend an emergency protection order for woodland caribou and found that her conclusion, that western populations could be replaced by eastern populations, “came ‘out of the blue’” (at para 67). Under the Greenpeace majority’s formal approach, such unsubstantiated conclusions on critical issues would constitute ‘some consideration’ and would therefore risk flying under the reasonableness radar. It is hard for us to accept that Parliament intended such a result.

In addition, while concerns about becoming an “academy of science” have been cited a number of times, few courts (if any) have reflected on the very specific – if not peculiar – procedural context in which this phrase was written. Vancouver Island Peace Society v. Canada [1992] 3 F.C. 425 involved the application of CEAA’s predecessor, the Environmental Assessment and Review Procedures Guidelines Order ((EARPGO),to visiting naval vessels that were either nuclear-powered or which carried nuclear weapons. The government applied to have the judicial review application converted into an action because, in its view, there would be “many difficult issues of fact to be determined as to whether there are ‘significant’ ‘potentially adverse environmental effects’…” (at para 3). In other words, the government assumed that it was “the responsibility of the Court to sit on appeal from the factual determinations of the ‘initiating department’” (at para 5). It is this role, and specifically with respect to findings of fact including gauging public concern, that Justice Strayer rightfully rejected in this case, which becomes clear when one considers the relevant passage in its entirety:

[14] For these reasons I am unsympathetic to the arguments…that there are difficult technical factual determinations to be made which will require pleadings and a trial and the cross-examination viva voce of experts and others. It is not the role of the Court in these proceedings to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected. Whether society would be well served by the Court performing either of these roles, which I gravely doubt, they are not the roles conferred upon it in the exercise of judicial review under section 18 of the Federal Court Act. [emphasis added].

Although “academy of science” is obviously a strong turn of phrase, it is equally clear that Justice Strayer was reacting to an extreme proposition and that his decision should not be understood as precluding all substantive inquiry into the EA process; as noted by the Federal Court of Appeal in Inverhuron & District Ratepayers Ass. v. Canada (Minister of The Environment), 2001 FCA 203  (CanLII), to do so “would risk turning the right to judicial review…into a hollow one.” For Justice Sexton in that case, this meant ensuring that the Minister had “a reasonable basis for arriving at her decision” (citing Athabasca Chipewyan First Nation v. British Columbia Hydro & Power Authority, 2001 FCA 62  (CanLII)).

That being said, we readily acknowledge that the case law is mixed in terms of what this means or requires. Consequently, we conclude by strongly urging a return to first principles. Many of these are set out in the Greenpeace case comment referred to at the outset of this post, including the fundamental role for political accountability envisioned by environmental assessment legislation in nudging governments towards more environmentally-sustainable decision making. A return to first principles might also include the explicit application of the purposive approach to the interpretation and application of the Act, something that to our knowledge is relatively rare in the CEAA jurisprudence. Justice Rennie’s dissent exhibits some elements of such an analysis (at para 51) but stops short. With respect to section 16 specifically, this would include recognizing not only the cost and time of environmental assessment (as many courts have), but also that all of this would be for naught if only ‘some consideration’ of environmental effects is required, an outcome that seems particularly egregious in the context of panel reviews, which as the courts in Pembina Institute (at para 17) and MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2 (at para 14) noted represent the highest intended level of intensity, or rigor, of environmental review under the legislation.

We agree entirely that it is not the role of the courts to substitute their own views about the significance (or not) of projects’ environmental effects (see Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage), [2001] 2 FCR 461 at para 78, referring to whether projects should be authorized or not) but in Greenpeace the pendulum has swung much too far the other way. On this point, we can do no better than to cite some of the leading authorities in administrative law with respect to deference more generally:

[W]hile reviewing courts should normally show a measure of deference to a specialist agency’s interpretation of its enabling statute, it is appropriate to scrutinize more closely those decisions that seem contrary to the interests of those intended beneficiaries of the legislation or to that aspect of the public interest that the legislation was enacted to protect. Examples include…the protection offered by various statutory programs to members of the pubic in their capacities as…breathers of air and drinkers of water.

G. Van Harten, D. Mullan, G. Heckman and J. Promislow, Administrative Law: Cases, Texts and Materials 7^th ed, (Toronto: Emond, 2015) at 27.

Failure to assess the readily foreseeable environmental effects of a project, such as the hazardous substance emissions of a nuclear plant, is a clear example of a decision contrary to the interests of CEAA’s intended beneficiaries, i.e. the Canadian public. As noted by Justice Russell, it renders both public accountability and public participation more difficult (at paras 237 and 249, respectively). If anything, it furthers the interests of government agencies and proponents, whose poor track record of taking environmental considerations into account was the impetus for environmental assessment legislation in the first place.

Martin Olszynski, B. Sc. (Biology), LL.B., (U of Saskatchewan), LL.M. (U of California at Berkeley)
Assistant Professor, Faculty of Law, University of Calgary
Faculty Page:
http://law.ucalgary.ca/law_unitis/profiles/martin-olszynski

Meinhard Doelle, BSc (Dalhousie), LLB (Dalhousie), LLM (Osgoode), JSD (Dalhousie), Professor of Law, and Associate Dean, Research, Schulich School of Law, Dalhousie University, Director, Marine & Environmental Law Institute.
Faculty Page: http://www.dal.ca/faculty/law/faculty-staff/our-faculty/meinhard-doelle.html

I have reviewed many trade arbitration rulings over the years, primarily those under the WTO and NAFTA that have implications for environmental law. The recent ruling under Chapter 11 of NAFTA regarding the Whites Point Quarry proposed by Bilcon in Dibgy Neck, Nova Scotia, is the first such ruling where I have personal knowledge about the factual context within with the ruling was made. I gained this personal knowledge as I was asked, at times, to give legal advice to a number of intervenors in the Whites Point EA process. I also have a long-standing academic interest in EA, which has led me to followed all major environmental assessments in my home province, and beyond. I appeared as an independent witness before the Whites Point Panel to offer advice on the legal parameters of the Panel’s work. Finally, I have been involved in other EAs on behalf of proponents, intervenors, and as a panel member.

The insight this unique situation has provided me into the work of this NAFTA Chapter 11 challenge is nothing short of frightening. I have found a NAFTA Tribunal that lacked, with the exception of the dissenting member, even a basic understanding of the legal context within which the decisions it was asked to rule on where made. It also lacked any real appreciation for the factual context within which the decisions being challenged were made. Some of these shortcomings are pointed out in the dissent, however, they go much further.

I will try, in this post, to highlight some of the difficulties with the NAFTA tribunal’s findings. However, a full appreciation of the problem is only possible for those who are willing to read the full majority and dissenting opinions, as well as the Whites Point Panel report, the Panel’s terms of reference, the proponent’s environmental impact statement, the Panel’s information requests, and the proponent’s responses. Only then is it possible to appreciate how different the picture painted by the majority of the NAFTA tribunal is from what actually transpired and why.

The NAFTA tribunal majority’s core difficulty with the Whites Point Panel’s report was twofold. First, the Whites Point Panel focussed its reasons for rejecting the project on its conclusion that the proposed project was inconsistent with “core community values”. Second, the Panel, once it concluded that the project would result in significant adverse environmental effects that could not be justified, did not suggest measures to mitigate adverse effects to the extent possible in case the federal and provincial government decided not to follow the panel’s main recommendation to reject the project. On both issues, the majority reached its conclusion in large part based on “expert legal advice” filed on behalf of the proponent, advice which seems to have offered a one sided interpretation of the federal EA process, and no meaningful legal interpretation of the provincial EA process. Perhaps more importantly, it seems clear that the “expert legal advice” was completely misunderstood and misapplied by the majority of the NAFTA tribunal.

Lets look at the issue of “core community values” first. The NAFTA tribunal majority essentially seems to conclude that the concept of “core community values” was a methodology or test the Whites Point Panel applied to the project that was not consistent with the federal and provincial EA legislation it operated under, and that the proponent was not advised that its proposed project would be subjected to this methodology in the EIS guidelines or anytime before the hearings. First, as the dissent points out, “core community values” was not a methodology or a test, but rather was a phrase the Whites Point Panel developed to summarize its conclusions about the socio-economic effects of the project, having first applied the established test of “likely significant adverse environmental effect” in accordance with the terms of reference it was given.

To fully understand what happened, it is important to go back to the federal and provincial EA legislation under which the Whites Point Panel was established. The federal Act, CEAA 1995 (since repealed), included a definition of environmental effect that is focused on biophysical changes and socio-economic changes that result from biophysical changes. Under CEAA 1995, socioeconomic effects that are not linked to biophysical changes caused by a proposed project are not environmental effects, though they may still have relevance for decision makers (such as in the context of whether significant adverse effects are justified in the circumstances). Under the provincial EA process, all socio-economic effects of a project are considered environmental effects. As is common for joint review panels in this situation, the terms of reference for the Whites Point Panel define environmental effects broadly, consistent with the provincial definition, essentially leaving it up to the federal decision maker to sort out which effects identified by the Whites Point Panel are considered to be environmental effects for purposes of the federal decisions under CEAA. This means that when the panel report uses the term environmental effect, it includes all socio-economic effects of the project.

This is important because it means that when the majority talks about the Whites Point Panel’s failure to conduct a proper analysis of the proposed project’s likely significant adverse effects including mitigation and somehow replacing this analysis with the test of “core community values”, it ignores the fact that the Whites Point Panel was asked to consider the full range of “environmental effects”, not just biophysical effects and socio-economic effects that flow from biophysical effects. In other words, the Whites Point Panel’s careful analysis about the socio-economic effects of the project on the surrounding communities that the majority is so critical of is doing exactly the analysis the majority criticises the Whites Point Panel for not doing. It so happens that the Whites Point Panel identifies significant “socio-economic” rather than “biophysical” environmental effects. It concludes that the various biophysical effects can be mitigated so that they do not cross the significance threshold. The report is clear in applying appropriate and well-established methodologies to its analysis of the socio-economic effects of the project. As pointed out by the dissent, the concept of “core community values” only appears toward the end of the report, making it clear that it is a way of summing up the Whites Point Panel’s conclusions rather than a methodology for evaluating the project.

The second issue the majority seems to focus on is the Whites Point Panel’s decision not to offer recommendations on how to mitigate the effects of the project should government decision makers chose not to follow the panel’s main recommendation to reject the project. The proponent’s experts are correct that this was unusual. However, it must be pointed out that what was unusual about this was that the Whites Point Panel recommended rejecting the project. In spite of both provincial and federal EA processes (and the terms of reference for this panel) making it very clear that one of the possible outcomes of an EA is to reject a project outright, this had been rare before the Whites Point Panel, though it is clearly contemplated in both federal and provincial legislation. There is furthermore nothing in federal or provincial law or in the terms of reference of the Whites Point Panel that would require this panel to offer recommendations on mitigation measures once it recommended that the project not proceed. There were really no precedents to point to prior to Whites Point to make a case for an established practice in case of an outright rejection of a project by a panel, to offer mitigation recommendations in the alternative. Finally, any suggestion that it was not the role of the Whites Point Panel to recommend whether the project should proceed or not, is inconsistent with federal and provincial legislation and with the panel’s terms of reference.

What panels are required to do is to consider mitigation measures proposed by the proponent in determining whether the project is likely to cause significant adverse effects. The majority is confusing these two issues by suggesting repeatedly that the Whites Point Panel failed to consider mitigation in its significance analysis. The panel clearly considered mitigation proposed by the proponent in determining whether individual effects were likely to be significant, even thought the majority repeatedly suggests that the panel failed to do this.  What the panel refused to do was to offer recommendations on how the project might proceed, because it concluded that it should not.

As pointed out by the dissent, the Whites Point Panel concluded that no individual effect of the project in isolation was likely to be significant, but that the overall socio-economic impact of the project on the local community would likely be adverse and significant. As previously pointed out, these socio-economic effects of the project were, according to the terms of reference and according to the NS Environment Act, environmental effects. What is less clear is which of the socio-economic effects identified by the Whites Point Panel were environmental effects under CEAA. This, as discussed next, was an issue for the federal decision-maker, the Minister of Fisheries, not for the panel.

In short, the Whites Point Panel did exactly what it was asked to do. This leaves the question whether provincial and federal decision-makers made appropriate decisions based on the report. In this regard, it is clear that the NAFTA tribunal had no understanding of the provincial EA process, and it seems to acknowledge this. The proponent’s legal experts similarly are limited in their expertise to CEAA. Having said this, there is no legal basis on which to challenge the provincial decision. Because of the broad definition of environmental effect (that includes all socio-economic effects), and the broad discretion left to the provincial Minister to decide whether to approve a project, there is no question that the provincial Minister acted within his legal authority when he followed the recommendation of the Whites Point Panel to reject the project.

A more interesting legal question is whether the federal decision maker, in the form of the Minister of Fisheries (with approval of the Cabinet), had the legal authority to reject the project in light of the Whites Point Panel’s conclusions and recommendations. CEAA states, essentially, that if a project is likely to cause significant adverse environmental effects, and those effects cannot be justified in the circumstances, the Minister may not approve the project. If significant adverse environmental effects are justified, the Minister may approve the project. The Act is silent on whether the Minister has discretion to reject the project in case where the project does not cause a significant adverse environmental effect, but is otherwise not deemed acceptable, such as because of adverse socio-economic impacts. What is clear is that in such a case, the Minister has the ability to approve the project.

In this case, we don’t have a clear separation of socio-economic effects of the project that would fall under the definition of environmental effect under CEAA and those that would not. We also have the somewhat unusual situation of a panel concluding that the overall socio-economic effect of the project is significantly adverse, rather than pinpointing one individual effect as significant. Added to all this is the Ministers discretion to reject the panel’s conclusions and recommendations (with an obligation to offer reasons), and its regulatory discretion under the Fisheries Act, and we are left with a complex set of legal questions about whether the federal Minister of Fisheries had an appropriate basis on which to reject the project. The situation does raise legitimate legal questions, but there is far from a clear answer, and it is clear that a NAFTA tribunal is not the place to resolve them.

The proponent had every opportunity to challenge the federal decision through a judicial review application before the Federal Court. This would have been a wonderful opportunity to clarify a number of issues that practicing lawyers and legal academics have been debating for 20 years. None of this rich literature, by the way, much of it peer reviewed and supporting what the Whites Point Panel and the federal Minister did in this case, was referenced in the NAFTA ruling. The failure of the proponent to pursue any of the legal remedies available to it in Canada should have resulted in the dismissal of this case, as it leaves too much legal uncertainty for the NAFTA tribunal to deal with. There may be cases where this is not a problem, but in this case, the failure to explore readily available domestic remedies put the NAFTA tribunal in an impossible situation.

There are many other aspects of this ruling that are troubling. The suggestion that Whites Point Panel members may have been biased is key among them, as all three have a long-standing reputation of honesty and integrity, and the chair is among the most experienced panel chairs in the country. The comparative analysis carried out by the majority of the NADTA tribunal to show that the proponent was treated differently on the basis that it was a foreign company, is also very troubling and deserves a much more detailed review than is possible here. I will just briefly comment on two project EAs the tribunal relies upon. One was the reference to the Sable Offshore Energy Project, without acknowledging that the Sable Panel was a joint process with the quasi-judicial National Energy Board, and therefore was the exception rather than the norm for CEAA panels. The second example was a local LNG proposal involving a marine terminal that was only subjected to a screening, without any reference to the fact that this decision has been criticised in the literature.

The more general point is that these comparisons are made without adequate consideration of the factual and legal context. They cannot offer a meaningful basis for reaching any conclusion on whether the proponent in this case was treated better or worse than proponents in other cases. This leads me to making one final point. I have been involved in many EAs over the years. I have worked for proponents, I have represented intervenors, and I have served on panels. In all my experience, proponents have always worked hard to gain support for their project, and to respond to reasonable requests for information, particularly from members of the panel. The Whites Point Quarry review process is the only EA that I recall where this did not happen. It is troubling to see the Whites Point Panel blamed for the proponent’s mismanagement of the EA process.  It seemed clear throughout that the proponent thought that it was entitled to and was guaranteed to get approval for its project because of assurances from the province. It failed to understand that EA is actually a decision making process that depends on proponents being constructive participants in the process. Unfortunately, this ruling, if unchallenged, seems to vindicate the proponent’s approach.

A copy of the NAFTA ruling and other key documents are available at: http://tinyurl.com/odkqayo

To download some of my publications on EA, see http://ssrn.com/author=715387.  

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute

On May 14, 2014, Justice Russell of the Federal Court of Canada released the most recent decision on the federal EA process. The project involves the Darlington New Nuclear Power Plant Project (Project) proposed by Ontario Power Generation (OPG), at the heart of which is the proposed refurbishing of the Darlington Nuclear Power Plant. The applicants challenged the adequacy of the EA carried out by a Joint Review Panel under the Canadian Environmental Assessment Act (CEAA, 1992). While the case involves the 1992 version of the Act that was repealed in 2012, it grapples with a number of issues that are still relevant under CEAA, 2012.

At the core of the case is the tension between the requirement in section 11(1) of CEAA 1992 to ensure that an EA is conducted “as early as practicable in the planning stages of the project and before revocable decisions are made” and the obligations of the Panel to ensure that the s. 16(1) and (2) factors are given meaningful consideration. A key issue in the case is whether enough details about a project and its environmental effects are available to the Panel, for it to be able to carry out a meaningful assessment of the projects environmental effects. The court confirms in this regard that the EA must take place at a time when the environmental implications of a project can be fully considered.

The focus of the dispute was over the failure of the proponent to identify specific technologies and design options it intended to apply in the refurbishing of the Darlington nuclear plant. The proponent instead identify a number of technology and design options, and offered boundaries in terms of environmental impacts within which it proposed the project could operate regardless of which of the technology or design options it would ultimately choose.

The decision by Justice Russell confirms that it is the Panel’s Terms of Reference (TOR) that is the key document to determine the scope of the assessment, not the proponent’s project description, and not the EIS Guidelines issued by the Minister, though the latter is recognized by the court as a potential source of information about the Minister’s intention, presumably in case the TOR are unclear. The court correctly points out that the EIS Guidelines are issued to the proponent as the basis for preparing the EIS, not to the Panel. Only the TOR are issued to the Panel as direction on the scope.

In the Darlington case, the Court essentially concludes that the TOR and the EIS Guidelines offered every opportunity for the Panel to get enough information about the various options under consideration by the proponent to be able to fully consider the environmental implications of the project proposed. The fact that there were multiple technology options was not a problem, as the Panel, through the TOR, was given a clear mandate to explore the environmental implications of each of the options put forward by the proponent, and the proponent, through the EIS Guidelines, was given clear direction to provide the information needed for the Panel to fully consider the environmental implications of the technology options under consideration.

For the court, the case therefore comes down to the question whether the EA carried out by the Panel constituted a proper consideration of the project’s environmental implications. The court sees value in encouraging EAs to be carried out early. As a result, it is prepared to accept, in principle, the Panel’s approach in this case of assessing the project based on a plant parameter envelope approach, an approach that does not focus on the specific environmental effects of each technology or design option, but one that instead considers whether all technologies or design options under consideration will have environmental effects within certain acceptable parameters. The justification for accepting this approach, rather than wait until the proponent has selected a specific design option and a specific reactor technology, is that it would push the EA to a later stage in the project design.

The court does, however, accept the applicant’s position that the plant parameter envelope approach is not a justification for failing to comply with the scope and recommendation requirements of section 16 and 37 of CEAA and with the TOR. Furthermore, the Court concludes that the reliance by the Panel on the promised effectiveness of proposed future mitigation, without first considering the potential environmental effect of key elements of the project and the specific mitigation options available to address the effects, is contrary to the Panel’s obligation under CEAA to fully consider the environmental implications of the proposed project. The Panel is entitled to rely on an approach that considers general boundaries in terms of environmental impacts of a range of design or technology options, but it must still have sufficient evidence to be able to determine that the options are within the acceptable range, rather than rely on general commitments to mitigate environmental effects to keep them within an acceptable range.

The court identifies three areas of deficiencies.

1. The failure of the Panel to insist on a bounding scenario analysis for hazardous substance emissions, in particular liquid effluent and stormwater runoff to the surface water environment, and for the sources, types and quantities of non-radioactive wastes to be generated by the project;
2. The Panel’s inadequate treatment of the issue of radioactive waste management; and
3. The Panel’s conclusion that an analysis of the effects of a severe common cause accident at the facility was not required at this stage, but should be carried out prior to construction.

In these three key areas, it was not enough for the Panel to establish acceptable standards for the project to meet and impose general mitigation obligations to implement mitigation measures to meet those standards, or to recommend future studies to confirm that the project could operate within acceptable limits. Rather, the Panel had to first understand the environmental impacts of the range of design options, and then has to consider for each the potential to reduce the environmental impact to below the significance threshold. This, the Panel failed to do in these three critical areas.

The court requires the Panel to complete its work with respect to the three deficiencies identified before government decision makers can make final project decisions. For a copy of the decision, see: http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/71634/1/document.do

 

Meinhard Doelle,

Director, Marine & Environmental Law Institute