Ten Canadian conservation groups say it's time for Environment and Climate Change Minister Catherine McKenna to use her existing powers to assess "many environmentally harmful" industrial projects before they come up for federal approval.
The groups sent the message in a five-page letter, obtained by National Observer, that challenges the government's position that it is moving as fast as it can to fix flaws in Canada's environmental laws. The letter provides a glimpse into some of the diplomatic lobbying from prominent environmental groups challenging the government's green agenda at a time when most have publicly backed federal Liberal policies.
While the letter praised the government for launching a major review of Canada's environmental laws, it said the initiative hasn't gone far enough to tackle the threat of climate change. Under existing legislation, McKenna has the power to act immediately by requiring screenings for different categories of projects, including those that might result in high levels of heat-trapping carbon pollution. The letter's signatories said that many of these projects are slipping through the cracks without a federal review, despite a series of interim changes brought in by the Liberal government as a temporary fix.
"Unfortunately, many environmentally harmful projects falling under federal authority will receive no environmental assessment at all during the public review and legislation development period — which could take several years," said the letter, dated Aug. 30, 2016. "Other environmentally harmful projects subject to (existing legislation) may receive inadequate review due to the weaknesses of the current law."
Harper overhauled environmental reviews after industry lobbying
The federal government used to screen thousands of industrial projects every year to determine whether they might be environmentally harmful, but that changed after oil and gas industry lobbyists pressured former prime minister Stephen Harper's government to overhaul the system.
One internal federal analysis at the time noted how some industry lobbyists saw a controversy brewing over the Northern Gateway oilsands pipeline project, proposed by Enbridge Inc. as an "opportunity" to push the "need for regulatory reform."
Much of the industry wish list became part of a massive piece of legislation more than 400 pages long, that rewrote most of Canada's conservation laws, including the Canadian Environmental Assessment Act. Behind closed doors, the Harper government was saying that getting new oil and gas pipelines built was "top of mind" in the changes adopted in 2012.
Things didn't work out as planned and several major pipelines were stalled by mounting opposition from Indigenous communities, local mayors and landowners who accused the government of rigging the system to favour big oil companies.
The Canadian Environmental Law Association called the changes made under Harper "an unjustified and ill-conceived rollback of federal environmental law." Staff counsel at the Environmental Law Centre Brenda Heelan Powell said much the same to National Observer, adding that “it took a fairly small subset of environmental assessments that used to be done and turned it into the list of what could be done."
"We went from having thousands of environmental assessments — often, some of them very small and quick — to having a situation where the estimates in 2012 were maybe 50 or 60 assessments done per year instead of thousands.”
Prime Minister Justin Trudeau's Liberals swept to power in the 2015 election with promises to clean up the mess they said Harper made of Canada's environmental laws and to restore public confidence in the government's oversight of industry.
The Trudeau government established a panel to review the Environmental Assessment Act in June. However, the federal government won’t make any substantial changes to legislation until after the panel delivers its recommendations in January, 2017.
But environmentalists want action now. The letter sent in late August asks McKenna to act as soon as possible by adding interim measures to the Canadian Environmental Assessment Act that go beyond the measures added in January to cover the pipeline review process for projects such as TransCanada Corp.'s Energy East pipeline and Kinder Morgan's Trans Mountain expansion.
The measures recommended in the new letter, signed by Nature Canada, Ecojustice and the Environmental Law Centre, among others, would require energy companies to submit emissions information to the government on proposed projects, namely major-emitters of more than 100,000 tonnes of greenhouse gases per year, steam-assisted gravity drainage oil sands projects, and hydraulic fracturing development.
Heelan Powell said the interim measures proposed by the Environmental NGOs (ENGOs) letter will fill the gaps in federal legislation “where there’s no requirement to have an assessment of the climate change impacts of the project.”
Small fix with the "stroke of a pen”
Nature Canada conservation director Stephen Hazell said that when the Harper government passed the Canadian Environmental Assessment Act of 2012, it effectively tried to "build in maximum political flexibility so that Harper could do whatever he wanted, whenever he wanted.” Now that built-in flexibility should be used to increase the quality of environmental assessment, Hazell said.
He added that McKenna could, with a "stroke of the pen, essentially require that companies that are putting forward high-carbon projects submit to the federal environmental process." Canada wasted 10 years under the Harper administration, Hazell said, and the government should act now in order to address gaps in environmental assessment legislation.
"This is not going to solve all of our climate change problems," he told National Observer. "It’s a small piece of the puzzle, but it would help create additional momentum and send a signal to developers of oil and gas projects that the federal government is going to be paying very close attention to the greenhouse gas emissions from their proposed projects — not just the ones that are already up and running.”
Over 200 First Nations in B.C., Manitoba and Quebec have also said they are unsatisfied with the new principles the government introduced in January, noting that they weren't consulted even though one of the principles outlined the need for enhanced consultation with Indigenous peoples.
The letter from the 10 environmental groups says their recommendations could bolster Indigenous relations and “help restore public confidence in environmental assessment processes during the review and legislative period.” One of their recommendations would require the government to give early-warning to Indigenous communities when a company proposes a project on their traditional land.
Hazell said doing so “helps keep them in the loop and gives them more time to respond to these project statements.”
Apart from Alberta, Hazell said no Canadian jurisdiction has an adequate assessment process for hydraulic fracturing projects. He thinks the federal government should use the interim measures recommended in August to assess fracking proposals as well.
“[The interim measures] would put companies who are preparing LNG projects or new oil sands projects or new pipelines on notice that the federal government is going to demand that they provide them with information about the carbon emissions from these proposed projects,” he said in an interview.
The Canadian Environmental Assessment Agency (CEAA) said in a statement to National Observer that the environmental assessment review panel is “engaging broadly” with Indigenous communities, along with industry, environmental groups, and the public.
Any hope for interim measures?
McKenna hasn't formally responded to the letter. While the CEAA said McKenna will respond to its own recommendations "at a later date," an additional response from the CEAA added that McKenna may also designate specific projects for review that fall outside the scope of the measures announced in 2016 if she thinks they “may cause adverse environmental effects, or that public concerns related to those effects warrant the designation.”
Many of the organizations who signed the letter are also engaging in the environmental assessment review process alongside the federal government, Nature Canada, Ecojustice, and the Environmental Law Centre among them.
Jason MacLean, an assistant professor and environmental law scholar at Lakehead University who focuses on climate change policy, said that environmental organizations in Canada seem to have split since the Liberals took power. Some of his colleagues have taken to calling the two camps “push versus pull.”
On one side are those who push, or groups that continue to push the government to keep its promises. The other camp consists of those who pull, or organizations who are “taking advantage of the fact that the government is at least willing to sit down and talk to them.”
MacLean said that after 10 years of Harper, many organizations relish the opportunity to engage with government.
And Heelan Powell suspects much of the focus of other environmental groups is about taking part in the government's environmental assessment review process.
“It’s not to say that [we are] no longer concerned with having the interim measures put in, it’s just that the review process is ongoing and we need to participate in that,” she said.
But MacLean is fearful that the Liberals are using consultation as a cloak, when they’ve already made up their minds to approve projects that are “environmentally retrograde” like Kinder Morgan's Trans Mountain pipeline expansion.
“People who are getting involved through these processes, and they’re doing so in good faith, on the belief that the government is doing so in good faith. It’s too soon to say for sure, but I’m very, very skeptical that a process is actually being used for the reasons the government said it’s setting up the processes.”
No more Band-Aids, cry Enviros
When the federal government announced the interim measures to the pipeline review process in January this year, they said in a statement that these measures were “the first part of a broader strategy to review and restore confidence in Canada’s environmental assessment processes.” It added that “Canadians understand that a review and changes will take time.”
At the time, some environmental groups said those measures fell short, calling them "Band-Aid" solutions to a deeper problem. Ecojustice argued that while the measures were part of the Liberal government's mandate to rebuild public trust in the environmental assessment process, they were only a small step toward healing "the trauma of the Harper government's environmental law rollbacks.”
Hazell said that additional interim measures are necessary to restore trust in federal environmental assessments, since it will take a relatively long time to bring new legislation into force. But until changes recommended by the environmental assessment's review panel are implemented, the CEAA said project reviews will be guided by the interim measures announced in at the beginning of 2016.
Among MacLean's biggest asks for new environmental assessment legislation is the greater integration of assessment and sustainability. He said this may be Canada's once-in-a-generation chance to get this legislation right, but that many environmentalists are concerned the government won't make the necessary changes.
“The landscape has changed, and the urgency and severity around climate change has changed," he explained. "This is the opportunity to put a regime in place that does more than make bad projects a little less bad through mitigating their biophysical impacts, and instead really takes a hard look and see whether or not projects should actually proceed and only give them permission if they’re actually making a net contribution to sustainability.
"The interim measures announced by the government in January don’t come even remotely close to doing that.”