In the world of environmental assessments, few words carry as much significance as "significant."
Simon Halfyard* knows that better than most. A biologist who works as an environmental consultant in British Columbia, he works for a company that was hired by a sub-consulting firm to do an assessment of the risks and impacts associated with a large-scale natural gas project on the province’s north coast, which was going to consume hectares of land. (He asked that his real name not be used for fear of reprisal.)
It became clear to him that a large amount of critical fish habitat was going to be lost to the footprint of the project.
“So in my interpretation of this, I declared this particular project to be a 'significant' risk,” he says. “You want to try and avoid significant effects.”
His assessment wasn’t well-received by his manager, who made it clear he was going to have to tone down his language and focus on the minimum requirements — to strive, Halfyard says, “for mediocrity.”
“‘You can’t say significant,’” Halfyard recalls being told by his manager. “‘You’re putting the project at risk.’”
The pressure persisted — from his own company, as well as the company that had sub-contracted them. Statements were removed from his report, and he was called out by the project manager as uncooperative in abrasive emails to his employer.
“I had two levels of censorship,” he says. “I didn’t understand why I should be unfairly pressured to undermine my professional judgment.”
Halfyard is one of several scientists who spoke to National Observer about their experiences with environmental assessments on major industrial projects that got approved after their proponents submitted dubious evidence in their applications. The consultants all experienced similar pressure to overlook evidence that might make it difficult for projects to get approved by regulatory agencies.
National Observer reached out to them over the past five months as part of an investigation into how federal and provincial officials review the environmental impacts of major industrial projects. The investigation was triggered by tips from several scientists about what they perceived as weaknesses in the current regulatory system. National Observer spoke to more than a dozen sources who held or continue to hold different positions in government and industry that are related to environmental reviews and oversight as part of this investigation.
The sources shared their knowledge and experiences with National Observer as lobbyists from Canada’s oilpatch pursued an aggressive campaign to persuade unelected senators to kill new federal legislation Bill C-69, which would overhaul how environmental assessments are done in Canada.
And despite claims from Alberta's UCP government and lobby groups such as the Canadian Association of Petroleum Producers (CAPP) that the federal legislation goes too far and would devastate the Canadian economy, several scientists with expertise in this field told National Observer that this proposed legislation is not even strong enough to prevent situations such as the one that affected Halfyard.
In the middle of his own experience, Halfyard’s manager told him he was a “brilliant biologist” during a performance review.
He responded by asking why then was he was being told to break the law by not reflecting his findings in his assessment. He’s a member of British Columbia’s College of Applied Biology — the first of its kind in North America. It was created by the provincial legislature in 2002 to regulate the professional conduct and competency of its members.
“My ethics are legislated under provincial law,” Halfyard says. “Our requirement is to uphold the interests of the public and the goals of environmental stewardship.”
Just over a week after putting the question of breaking the law on the table, he says he was called into the same office again and fired.
“I was challenged and ultimately lost my job because I was not cooperative. I was a liability for upholding my professional accountability.”
The project was not given the declaration of “significance” in the assessment. Halfyard doesn’t understand the resistance he faced, given that projects with that declaration can still go ahead.
A new environmental assessment regime
Environmental assessments for energy and transportation projects in Canada fall under provincial and federal regimes, depending on where the project is located and what it involves.
Federal Environment and Climate Change Minister Catherine McKenna introduced Bill C-69 in February 2018 to change project assessments to include more predictable and clearer timelines, decisions based on science and more Indigenous consultations, as well as a move to a “one project, one assessment” approach that co-ordinates with the provinces.
It will replace the Canadian Environmental Assessment Act, 2012 (CEAA 2012), which was introduced by the Harper Conservatives.
McKenna’s bill will overhaul the federal process by broadening investigations into proposed projects to look beyond environmental impacts to consider the public interest. Among other things, that includes the impact on Indigenous rights, contributions to sustainability and the impact on climate change targets.
The bill will also create a new watchdog — the Impact Assessment Agency of Canada (IAA). That would replace the three agencies that are responsible for federal environmental assessments, as set out in the proposed project list. Currently, the National Energy Board (NEB), the Canadian Nuclear Safety Commission and the Canadian Environmental Assessment Agency each have their own rules for assessments.
Bill C-69 takes away the assessment powers of the NEB and nuclear commission, and gives responsibility for reviewing all major projects in Canada to the IAA.
The Calgary-based NEB will also be replaced with a new Canadian Energy Regulator governed by a cross-country board of directors.
The new legislation would also give the federal environment minister the power to veto a proposed project before an assessment starts, or once the review process has ended.
Alberta Premier Jason Kenney has vowed to challenge the legislation in court, while federal Opposition Leader Andrew Scheer said he would repeal the legislation if his Conservative Party is elected to form a government in the upcoming 2019 election.
Unelected members of the Senate Standing Committee on Energy, the Environment and Natural Resources voted on May 16 to make nearly 200 amendments to the bill, which had already passed through the House of Commons. Critics point out that language in some of the amendments is identical to what was put forward by oilpatch lobby groups, which strongly oppose the bill. But Trudeau's Liberals rejected many of amendments proposed by Conservative senators, sending their own version back to the Senate, which eventually accepted the bill, voting to pass it into law on June 20.
Even prior to the amendments, however, environmental consultants, stakeholders and scientists were concerned about significant issues that C-69 fails to address.
'Pressure to do things or say things that I didn’t think were true'
While Halfyard was operating under the provincial environmental assessment regime in British Columbia, Tom Manning* says the experience is no different under the federal regime.
A fisheries biologist who specializes in fish habitat, he started doing environmental assessments in the mid-1990s, but no longer does them in Canada.
He no longer does assessments for project proponents as he “felt that pressure to do things or say things that I didn’t think were true based on the science that I knew.”
His biggest issue with how things are handled in this country is that proponents hire environmental consulting firms, whose scientists assess a project’s impact as part of the process of getting the green light from regulators to move ahead.
“There’s an inherent conflict of interest there because the people paying the bills expect you to be able to permit a project. There are times when the science will tell you this is not a good project and it’s going to be damaging to the environment, to wildlife, fish or birds. And there (will) be pressure on you to go ahead and (recommend something that would allow regulators to) permit it anyway because the proponent, the developer, is paying you to do that,” Manning says.
In the United States, when a proponent applies for a project permit, the environmental impact assessment is done by a third party hired by the Environmental Protection Agency, so there is more independence from the project proponent.
“That’s the way it’s done everywhere else in the world,” he says. “(In Canada), there isn’t that independence.”
That means junior scientists who discover risks are told not to include damaging findings in their reports. Sometimes the project is simply taken from them. More senior scientists will probably be permitted to write what they’ve found in their report, but it just won’t be released, says Manning, who says he's had horrified looks from his bosses, insisting, ‘You can’t say that!’
“Then I’m like, ‘Well, that’s what the analysis shows, so that’s what’s going in my report,’” he says.
“They’ll pay your consulting fee, take your report and it’ll just get thrown in a bin somewhere and you won’t get a job with them again. If you speak up too much against the project, you’ll probably just get fired.”
These days, Manning works independently and only does environmental assessments for NGOs, governments or community groups.
“I don’t generally do them for developers because they use too much bias and pressure when I come up with a certain answer.”
Recommendations for independence
In August 2016, ahead of introducing Bill C-69, McKenna established an expert panel to review federal environmental assessment processes.
Among its recommendations was taking the hiring of consultants who conduct assessments away from proponents and instead have the government create an independent agency that would select them.
“That was rejected by the government,” says Martin Olszynski, an associate law professor at the University of Calgary.
“So there is nothing in the act that addresses it directly.”
Justina Ray, president and senior scientist at the Wildlife Conservation Society Canada, isn’t convinced the third-party route solves the problem, as governments will often hire the same consultants and sink into the same traps. While the process might be different, much depends on culture and the capacity to steward things properly, she says.
“Agencies can also get captured by industry. I’ve seen it time and again.”
For her, the key is a robust review process that holds proponents and consultants accountable for assessments and enhances transparency.
“If your work undergoes a rigorous review, you’re going to aspire to do a better job next time. I think many of these processes get away with relatively weak reviews, so that permits them to follow a formula, if you will, on these assessments, where they don’t get challenged sufficiently.”
Earlier this year, a study by Adam Ford, a professor of biology at the University of British Columbia, found that companies in the oilsands were using inconsistent scientific methods in their own assessments, and rarely subjecting their work to independent verification.
Ford, who grew up in Calgary, looked at 30 different oilsands assessments conducted between 2004 and 2017 as part of his research.
In an interview, he told National Observer that his research found that companies were using different ways to measure wildlife habitat in their assessments. The research also found that the oilsands companies who actually got their work reviewed independently had less confidence about being able to mitigate damage caused by their projects.
"It would be far more efficient as a whole if they co-ordinated on how to do the science," he said. "That would make everybody’s job so much easier. It would be much easier to review the projects."
Instead, he said that companies are all using different models, which he said makes no sense from either a scientific or economic standpoint.
"It’s inefficient for the industry and I think it makes for questionable assessment."
Looking for birds when they're not around
In 2008, Matt Farrell*, a wildlife ecologist, was hired to do an environmental assessment for a company in the Alberta oilsands that was looking to expand an extraction site.
The focus was on a threatened species of birds in the boreal forest, and the prime window for finding them ranged from the middle of May to the middle of July. It was up to the proponent who’d hired him to decide when the surveys occurred, and he was brought in to do the first one on July 8.
“When you go out to do wildlife surveys, you’re interested in knowing whether the wildlife is there or not. And it just seemed to me like maybe they didn’t want to know,” he says.
“We didn’t detect any on the surveys we did, but I would be very hesitant to say that there are no birds there of that species because I don’t think that we surveyed for them properly.”
Of his first survey on July 8, Farrell says: “If you wanted to actually survey for it properly you'd have to be surveying before then."
But even if the birds were there, he and his team wouldn’t have detected them because the birds were unlikely to be singing or responding to the playbacks they were using that far into the breeding season.
“I don't know if that was intentional or not, or if it was sort of a rush thing where they just needed somebody to be out there as soon as possible. On paper, everything that (the proponent) did was legitimate and sort of met the rules that are required. But in my mind, it was sort of the minimum required. It could've been done a lot better.”
In his report, Farrell recommended surveying again the following year from the mid-May to mid-July.
“I don’t remember hearing back from them about the recommendations in this one,” he says.
The science in Canadian assessments 'sucks'
Generally speaking, Olszynski says, the science in Canadian environmental assessments “sucks.”
When Bill C-69 was before the House Standing Committee on Environment and Sustainable Development, an amendment by Green Party Leader Elizabeth May was adopted to add a duty for all actors on the government side — scientists, panels and agencies — to act in a manner that “adheres to the principles of scientific integrity, honesty, objectivity, thoroughness and accuracy.”
“It really should have applied to proponent scientists as well,” says Olszynski, who appeared before the expert panel, commented on its terms of reference and was commissioned by it to write policy briefs. He also appeared before the House and Senate committees studying the bill.
“But I think it’s still an improvement.”
As for the current state of things, he’s clear that he doesn’t think consultants are bad people.
“I think they’re in a dynamic here that’s very difficult to undo. My hope is that by recognizing that their work will be subject to scrutiny by people who are subject to that kind of duty, it will exert a downward pressure on proponents. And consultants will have something to push back with against proponents.”
The language in May's amendment is borrowed from the United States, where the duty of scientific integrity has existed as part of the process for 30 years. But in Canada, Olszynski notes, the courts have taken a laid-back approach to assessments, not wanting to wade into the science, and instead deferring to government reports that are built on proponent reports.
“All of that has created a perception in the consulting community — or at least among the lawyers working for proponents, who are then leaning heavily on those consultants — that they don’t need to do much work here. It doesn’t have to be robust or rigorous because no one is going to touch it with a 10-foot pole.”
Olszynski compares the situation to one in which lawyers for a company that is being audited advise the auditors about what’s appropriate.
“That just doesn’t work, yet we have this reality where we know proponent lawyers are advising consultants. That’s not addressed by (Bill C-69).”
While there was a push during consultations and hearings to force more data-sharing and install a more rigorous approach to data review, it didn’t get translated into the bill — despite a recommendation from the expert panel.
“We’ve been told there will be a policy essentially of open data, but time will tell,” Olszynski says.
While the existing Canadian Environmental Assessment Registry allows access to some information, including proponents’ environmental impact statements, the underlying data is missing most of the time.
“It makes it hard to scrutinize the conclusions if you don’t have the underlying data,” Olszynski says.
So, he wonders, why not open this up to what’s called sunshine enforcement?
“The reality is that it’s hard for the regulator. They can’t scrutinize everything the proponents submit to them, but if you put it on a public registry that’s easily accessible, and enlist the public and academics and researchers in your efforts, we are then diving into that data because we want that for our own purposes. So we can then identify issues with compliance or non-conformity.”
The levels of rigour and transparency are no different after the assessment phase. There are always terms and conditions under the Environmental Assessment Act that require monitoring reports and follow-up reports, which Olszynski says are very hard to get your hands on.
“As it currently stands, you very often have to file an ATIP (Access to Information and Privacy request) to get that information. That just isn’t the way it’s supposed to be. A lot people feel strongly it should be made public.”
He’s done his own research showing that while proponents commit to adaptive management during the assessment process, they never follow through and actually do it.
“That’s why we’re left with tailings ponds and this idea that we really don’t know how to remediate them.”
And in some cases, mitigation commitments are made with no data to back up their effectiveness.
'Industry will figure it out'
Petr Komers, who has been running his own Calgary-based environmental consulting company for nearly 20 years, says the scientific community is somewhat hopeful that the science and the rigour of the review process will improve under C-69 — but the scientists are not holding their breath.
“It’s nice to talk about scientific integrity, but at the end of the day if it’s all you do, that can be in the eye of the beholder,” he says. “We need stronger language, something more concrete. What statistics? What analysis? Over what period of time? What geographic area? I’ve been battling with regulators for decades now saying you need to be more descriptive, but they rebut it.”
Komers, also a co-author on the recent study of oilsands project assessments that was led by Ford, recounts a conversation he had with a former director of the Alberta Energy Regulator (AER), who was adamant they didn’t want — or need — to be prescriptive.
“‘We believe the industry and engineers will figure it out,’” Komers recalls him saying.
“That’s the reality on the ground.”
Just a year ago, he testified at a hearing before the AER on behalf of the Fort McKay First Nation. The community was opposed to a pilot project by Prosper Petroleum Ltd. in the Moose Lake Management Area and the impact it might have on vegetation, water and wildlife — specifically caribou and moose.
It was considered a pilot project because it would pump out less than 12,000 barrels of oil a day, which meant it only required the lowest level of impact assessment, known as a screening.
“I’m even coy in saying that, as it implies a proper study,” Komers says, noting a screening can be done from a computer at a desk.
Appearing before the AER on behalf of the First Nations community, Komers pressed the proponent about its assessment report and whether any wildlife surveys had been done as part of it. The proponent said they hadn't done any and were relying on data gleaned from existing literature and other surveys.
In contrast, as part of their population viability analysis of moose and caribou in the area, Komers and his team had used vegetation data, mostly based on remote sensing, to quantify the availability of habitat, and old satellite images of the area to show how it’s changed over the past two decades.
“We can exactly calculate how the vegetation on the land is changing. We have data we gathered ourselves,” he says. “There is a negative trajectory of habitat for moose and caribou and other old growth species — it’s declining, there’s no two ways about it.”
Komers says the Fort McKay First Nation is “quite business-savvy and not against the oilsands, per se.” In fact the community has existing agreements with industry. But residents were already seeing the impact of development on the conservation area — and they wanted to reverse those effects, not add to them, to ensure they still had a safe place for their traditional land use.
“Here, they drew a line in the sand,” he says, noting it was clear the impact on the area wasn’t going to be reversed by adding another project to the mix.
The proponent said it had a mitigation plan in place that would reverse the project’s impact, something Komers pressed them on, as no one on the proponent side had gone into the field, nor did they present any scientific, peer-reviewed literature to support their claims.
“They just don’t have the data that would tell you whether, or to what degree, a certain mitigation measure is successful,” he says. “And yet, in the hearings and in their submission, they claimed that their project will not have any such effects.
“The regulators accepted their claims, saying that, ‘Yeah, the proponent has mitigations in place and so the environment will be sufficiently protected.’ Our whole point was there is no data supporting those claims. They dismissed our evidence in favour of accepting the unsubstantiated, undocumented claims by the proponent.”
What’s more, the proponent tried to show Komers’ findings overstated the project’s impact.
“It was very odd,” he says. “The decision by the AER rebutted all of our calculations of vegetation disturbance and wildlife population declines. If we’re wrong, we’re wrong. That’s the scientific process: if they have better analysis and data and show we did our calculations wrong. But they simply stated that we overestimated the effects and the proponent has limitation measures in place.
“It was very blatantly a biased assessment that the panel decided to disregard our numerical, data-driven evidence, but accepted the verbal claims without any scientific underpinning.”
The Fort McKay First Nation has appealed the decision, and it’s now before the courts.
Komers says this is a case where “even with the Canadian Environmental Assessment Act changing, it wouldn’t have an effect.”
Under current law, proponents are required to measure the effectiveness of mitigation and bring data to demonstrate that their efforts have worked.
“To this day, that’s extremely rare,” he says. “You can’t measure anywhere in the oilsands where this condition on an approval has been complied with — not for wildlife or vegetation ecology.”
Once a forest and land cover has been disturbed, especially if that includes the soil, Komers says it’s very hard to return it to how it was before. While a proponent can put in some soil and plants, the best that can be accomplished is the creation of what’s known as a novel ecosystem.
“I can confidently say that in terrestrial ecology we are not aware of any example, despite us asking, were you can say a pre-disturbance condition has been achieved.”
He says that in areas where there were once 150 to 200 species of vegetation, after reclamation there are maybe 15 or 20.
“You have about 10 per cent of the diversity,” Komers says. “To a layperson in the oilsands, you can see a reclaimed forest and think it looks OK. To an ecologist, it looks poor.”
He recalls one time walking through a reclaimed forest with a group of elders. They repeatedly commented on how quiet it was, as there were no birds.
“You hope the wildlife comes back, but what you end up with is an ecosystem composed of different species, usually fewer species. They’re usually more tolerant of human activity — white-tailed deer, coyotes, magpies — as opposed to the wolves and cougars, which are old-growth species.”
Failure to address transparency, cumulative impacts
If passed, the new federal environmental-assessment regime will stay in line with the changes made by the Conservative government in 2012 and only apply to major projects, leaving thousands of other proposed projects in Canada to fall under provincial regimes. Olszynski says the recent project list put out by the federal government is the same as the current one — and in some cases actually weaker in the sense that it raises the threshold. For instance, it will capture fewer mining projects than the current regime does.
That’s not great news from a transparency perspective, as some provincial acts, including in Ontario, don’t require that the identity of those reviewing assessments be disclosed.
“It doesn’t make those reviews transparent to the public or interested parties, but (proponents) will respond to the reviewers. That often leaves them in a cherry-picking situation whereby they are taking only certain points and addressing them in their responses, even though the reviewers had been much more detailed and perhaps critical,” says Ray of Wildlife Conservation Society Canada.
Currently, she says, it’s difficult to see what concerns were raised in the course of a review or how they were addressed, if at all. Even when she knows there have been a large number of letters submitted to the regulator outlining significant concerns and issues, “none of those see the light of day.”
“That really has to improve, and I don’t know how this regime will improve that because it’s a lot about capacity and culture of the agency,” Ray says.
“The agency needs to be able to disclose the reasons for its decision. That has happened to a limited extent in Bill C-69.”
For her, the biggest hole in the legislation is its failure to address the cumulative effects of projects. In her view, the focus of assessments is still far too narrow and doesn’t look at the big picture beyond the effects of the project at hand, to account for past and future ones. Effects can be additive, with the impacts of multiple projects on top of one another, or the project itself may contribute to or aggravate cumulative effects. That can happen by inducing growth by bringing in a road that allows other projects to come into the same area.
“When a project starts, it’s already starting with a legacy of impact. It has to take that into account into its baseline conditions much better than it does right now,” Ray says.
Komers says the cumulative effects of projects in Alberta, where countless projects undergo screenings rather than a full environmental impact assessment, is “huge,” and well-documented in peer-reviewed literature and government reports.
“The caribou have been declared as non-sustainable in Alberta (as a result of habitat loss), and that’s Environment Canada saying that, not me.”
Provisions calling for a broader regional approach have been part of the law since the 1990s, but it’s usually individual project assessments that get burdened with gauging the broader implications, so they’ve been only dealt with in a limited fashion to date. Bill C-69 isn’t going to improve that.
While the legislation mentions and enables regional assessments, which are the only place cumulative effects can be seriously studied, Ray says even those provisions are “weak.”
“There are no instructions or anything about the conditions where they really should be triggered. You could and should develop those in regulations, but that hasn’t occurred yet,” she says. “Many of us are disappointed. You can imagine a scenario where it might never happen unless there’s some key triggers.”
Her concern is compounded by the fact that plenty of projects in Ontario won’t ever trigger the federal framework, leaving them to be assessed under the provincial act, which doesn’t even mention cumulative effects or regional assessments.
By not looking at the bigger picture, “We’re missing the forest for the trees,” Ray says.
Industry group calls new process 'poison'
Given the concerns raised around independence in the proponent-consultant relationship and the robustness of the science in environmental assessments, National Observer asked the Canadian Environmental Assessment Agency whether Canadians could have faith in the new system. The agency was also asked why the recommendation to create more independence in the system, by having a third-party hire consultants instead of proponents, was rejected.
The agency didn’t provide an answer, but in a written statement said that it “works to ensure that all environmental assessments of major projects are rigorous, science-based processes.”
“The proposed new Impact Assessment Act, currently before Parliament, is intended to ensure that decisions on projects continue to be guided by robust science and evidence,” said spokesman Kevin Crombie.
“The government is committed to timely, evidence-based decisions reflecting the best available science, Indigenous knowledge and community knowledge.”
He noted the agency collaborates with experts in other federal departments — including Fisheries and Oceans Canada, Environment and Climate Change Canada and Natural Resources Canada — to review scientific studies presented by project proponents. Under the new impact assessment process, Crombie says government scientists would review any studies provided by companies, while other mechanisms would allow science reviews by independent third-party experts.
“Among measures related to science and transparency, proposed regulations would require proponents to provide information on the individuals who prepared the Impact Statement Report. This would provide the public with information about the report’s authors and their expertise,” Crombie says.
“We would also make science available to all Canadians, not just experts, by providing public plain-language summaries of the facts that support assessments.”
National Observer also sent detailed questions about the experiences of consultants to CAPP, which calls itself the voice of Canada's upstream oil, oilsands and natural gas industry. The association refused to comment for this story.
The industry group has been a vocal opponent of the proposed changes to the current assessment regime, insisting it "will make the regulatory process more complicated, time-consuming, legally vulnerable and, ultimately, erode public and investor confidence."
In February, CAPP president and CEO Tim McMillan told the Senate committee that, given existing barriers to investment, changes to the regulatory system could be detrimental to the future of major projects.
"Canada has lost and will continue to lose investment and jobs if we do not have a system with clear rules, clear timelines and decisions that stick. The livelihoods of Canadian families and communities are at stake."
The Canadian Energy Pipeline Association (CEPA) also declined to answer questions, but in its submission to the House Standing Committee on Environment and Sustainable Development, called the bill regulatory “poison.”
“It is difficult to imagine that a new major pipeline could be built in Canada under the Impact Assessment Act,” the lobby group wrote.
“We are concerned that the government has effectively frustrated regulatory reform in order to advance their climate change agenda and has baked broad policy subject matters into an otherwise very technical decision-making process. CEPA does not see anything within the Impact Assessment Act that will attract energy investment to Canada.”
With files from Trish Audette-Longo and Mike De Souza
* Names have been changed to protect the identity of sources
This investigation is part of a special National Observer report about oversight of regulated industries, in collaboration with the Corporate Mapping Project — a research and public engagement initiative, jointly led by the University of Victoria, Canadian Centre for Policy Alternatives and the Parkland Institute, and supported by the Social Science and Humanities Research Council of Canada.