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Strict timelines for environmental assessments, but not for government

February 13, 2014

It feels a bit like déjà vu. 

Once again we’re faced with a federal government study that was highly relevant to the environmental assessment of the Enbridge pipelines and tankers project, but which was not considered in the assessment because it was released too late.

On January 29 we posted an Environmental Law Alert noting that earlier in the month Environment Canada had released a detailed report that not only confirms that diluted bitumen can sink in the presence of sediment, but tells us a bit more about other challenges associated with cleaning it up.  Given that these issues are relevant to the level of risk posed by Enbridge’s pipelines and tankers project, we questioned why the Environment Canada report was released after the Enbridge Joint Review Panel (“JRP”) had concluded its hearings and made its recommendation. 

Also on January 29, another report was making headlines, this time commissioned by Transport Canada to assess the risk of pollution from crude oil spills in Canadian marine waters, including the waters off BC’s coast.  The Transport Canada report was originally dated November 2013, and subject to some media commentary in early December, although the updated version is dated January 2014.

Transport Canada has not posted the report on its website; if you are interested in reading it you can email marinesafety-securitemaritime@tc.gc.ca and request a copy of the study entitled: “Risk Assessment for Marine Spills in Canadian Waters - Phase 1: Oil Spills South of the 60th Parallel”.  (I note in passing that, if the Transport Canada report had been submitted during the Enbridge JRP process, it would have been publically accessible online through the Canadian Environmental Assessment Agency or National Energy Board websites, but that is not the case). (Update: February 17th.  One possible explanation for Transport Canada's decision not to post the report to the website is the size of the file - well over 100 MB.  By splitting the file into 3 parts and reducing its size, we have been able to upload the full report for your convenience.  Pages 1-124Pages 125-156. Pages 157-256.)

Like the Environment Canada report, the Transport Canada report is highly relevant to the issues that were before the Enbridge JRP.  In fact, the Transport Canada report directly considers the marine risks posed by Enbridge’s pipelines and tankers proposal, concluding for example that Enbridge’s project would raise the Environmental Risk Index rating for the nearshore zones in the vicinity from “very low” to “very high.”  The Environmental Risk Index is defined as “The combination of the probability [of spills] and environmental sensitivity calculations.”

The Transport Canada report also examines the potential long term effects of oil spills, stating that:

In most environmental habitats, recovery is completed within 2-10 years after a spill event, but in some exceptional cases, such as in salt marshes, effects may be measurable for decades after the event (Kingston, 2002). In the case of the Exxon Valdez oil spill in Prince William Sound (Alaska, USA) in 1989, the persistence of sub-surface oil in sediments and its chronic exposure continues to affect some of the wildlife through delayed population reductions, indirect effects and trophic interactions 20 years beyond the acute phase of the spill (EVOSTC, 2010)… Even after the full ecological recovery of the aquatic resources, fisheries can be far from reestablished, as is still the case for herring fisheries in the Exxon Valdez spill area (Sumaila et al., 2012; EVOSTC, 2010). As reviewed by GENIVAR (2013), negative perceptions associated with the quality of fishery products, even for fisheries that have not been contaminated and also for regions not directly affected by the spill, can be far more important than the direct economic losses. This also holds true for the tourism sector and all other related spinoff sectors.

In contrast, the Enbridge JRP stated the following at page 129, volume 2 of its report:

The Panel finds that a large spill would not cause permanent, widespread damage to the environment…  Scientific studies after the Exxon Valdez spill indicated that the vast majority of species recovered following the spill and that functioning ecosystems, similar to those existing pre-spill, were established.  Species for which recovery is not fully apparent, such as Pacific herring, killer whales, and pigeon guillemots, appear to have been affected by other environmental factors or human influences not associated with the oil spill. Insufficient pre-spill baseline data on these species contributed to difficulties in determining the extent of spill effects.

Would the Transport Canada report have made a difference to the Enbridge JRP’s conclusion?  Perhaps not.  Indeed, a number of intervenors presented considerable evidence about the long-term effects of oil spills in marine environments, including evidence pertaining to the Exxon Valdez spill in Prince William Sound, which did not sway the JRP.  But should intervenors and the general public have been able to review, test and apply the Transport Canada report in the context of the JRP hearings?  Absolutely.  After all, it is a federally-commissioned report that is directly relevant to the issues that the Enbridge JRP was considering.

The same goes for the Environment Canada report on the behavior of spilled bitumen.  In our previous post we wrote:

The… interesting observation related to Environment Canada’s recently released report on diluted bitumen is that Environment Canada was not able to complete the research and table it in the hearing stage of the environmental assessment process.  Doubtless Enbridge would have wanted to respond to it, and many of the interveners would have had submissions related to this important evidence.

Why couldn’t the NEB wait a few months until the report was completed to hear evidence on this report?  And, assuming that the federal government had a legitimate reason for waiting to release the Environment Canada report, why couldn’t the panel wait for its release before finalizing their report?

The answer is that, under the transitional provisions of the new Canadian Environmental Assessment Act, 2012,the federal government established a deadline of December 31, 2013, for the Enbridge JRP’s report and recommendation.  The Enbridge JRP concluded its hearings in June 2013 and squeaked out its report shortly before the Christmas break.  From now on, other project proposals that begin assessment by Joint Review Panel after the Canadian Environmental Assessment Act, 2012 came into force are subject to stricter 24-month timelines, while “standard” environmental assessments have a 12-month timeline.  Minister of Natural Resources Joe Oliver stated that these timelines were enacted: “To provide certainty and predictability that will encourage investment that leads to jobs and economic growth”.

In circumstances where there are significant risks, uncertainties or other complicating factors, hard and fast cookie-cutter timelines for environmental assessments can do the Canadian public a disservice.  This is well-demonstrated by the federal government’s apparent inability to meet its own deadlines in the Enbridge JRP scenario with regard to the Transport Canada and Environment Canada reports. 

One might legitimately ask how the federal government can justify imposing strict timelines on the Enbridge JRP to release its report, while itself disregarding those timelines by releasing not one, but two federally-commissioned studies after the close of the JRP’s hearings that directly address issues the JRP was considering.  Those federal studies were relevant, but they won’t be considered by intervenors and the public as part of the environmental assessment. 

The only conclusion I can draw is that either the Enbridge JRP was moving too fast, or the federal government was moving too slow.  Either way, the public loses.

By Gavin Smith, Staff Lawyer

West Coast Environmental Law Association

Photo courtesy of Andrew S. Wright / www.cold-coast.com.