A Surprisingly Simple Solution to Canada’s Stalled Energy Debate

If you feel exhausted by Canada’s fevered debates about oil pipelines, liquefied natural gas terminals, renewable energy projects and mines, there just might be relief in sight.

Right now, the federal government is reviewing its environmental assessment (EA) process. Yes, it’s reviewing its reviews. And while that might sound kinda boring, it could actually revolutionize the way Canada makes decisions about energy projects.

My highest hope is that Canada will take advantage of this once in a lifetime opportunity … and take a really visionary approach to environmental assessment,” said Anna Johnston, staff counsel at West Coast Environmental Law.

That could include implementing something called “strategic environmental assessment,” which creates a forum for the larger discussions about things like oil exports, LNG development or all mining in an area.

So instead of the current environmental assessment process, in which pipeline reviews have become proxy battles for issues such as climate change and cumulative effects, there’d actually be a higher-level review designed specifically to examine those big-picture questions. 

This week, the panel that will help determine the future of environmental decision-making arrives in B.C. at the end of its cross-country tour.

We spoke to Johnston — who is part of the advisory council providing advice to the panel — about the review, how strategic environmental assessment could help move Canada’s energy conversation out of gridlock and how Canadians can get involved.

Q: Why does this review matter to everyday Canadians?

What we saw with CEAA 2012 [the changes to environmental assessment made under the Harper government] was that it was a real erosion of democracy and it put Canadians’ environment at risk.

We’re in the middle of this national conversation about what we’re going to do about climate change, for example, and we’re seeing protests across the country about projects that have gone through environmental assessment largely because people have felt like the environmental assessment was inadequate and there was a lack of transparency and accountability in the review process.

Good environmental assessment allows the public to have a meaningful say.

The public really cares about climate change and they really care about their ability to have a say. So it’s about trusting government and it’s about knowing that you’re able to have a say and influence decisions.

But then it’s also about, on this other level, how are we going to get to carbon neutral by 2050? Environmental assessment is the main tool for making decisions about proposals that affect the environment.

There’s a lot of concern that no matter how good the [climate] plans might be that we need to make sure they influence the project-level decisions.

Q: How should we best grapple with those big societal questions?

Right now we’re grappling with them at the project level. So when Kinder Morgan or Energy East proposes a pipeline to take tarsands bitumen to tidewater all of these concerns come up at that project level, where it takes an incredibly long time and the reviewing bodies and the proponent argue it’s outside of the scope of the assessment.

The solution is to create a forum for those policy-level discussions where you have essentially an environmental assessment of a government policy or a plan to have oil to tidewater, without tying that conversation to a particular project.

Right now we’re trying to have these really high-level national conversations about climate change, tarsands, at the same time as in a project-level assessment, getting down into the weeds of whether or not a pipeline should be sited here, maybe on a different route, what are the impacts on a particular species?

So it’s just putting way too much into one basket.

Best practices in environmental assessment say you have to begin with what’s called a strategic environmental assessment. And that’s where you have those policy discussions. Once you get that strategic assessment that has examined those bigger picture policy-level issues then those assessments can provide guidance at the project level.

So it might be that if we’d had a national conversation about oil to tidewater 10 years ago, we would have been able to decide as a country that that was not a viable idea, that it was going to bring us away from any reasonable goals to do our fair share on climate change and that we’d never approve a project. And that would have saved everybody a ton of money and a ton of time.

Q: How does a strategic environmental assessment actually work? In some senses, aren’t those policy-level decisions typically political decisions?

Yea, they are political decisions but we already have a requirement that government plans, policies and programs that require ministerial approval get a strategic environmental assessment. That requirement is set out in the cabinet directive.

The problem is that it’s not being followed. The auditor general and the commissioner of environment and sustainable development have found that time and time again that government departments and agencies are not doing strategic environmental assessments in the vast majority of cases.

So it’s already required, the government has already acknowledged the importance of it. It’s just that we need to put that requirement into legislation so that there’s more accountability.

There’s another kind of strategic environmental assessment where you are doing a regional scale environmental assessment, but you narrow it in some way so you might only be looking at all mining in an area, or all oil and gas in an area, and you come out with a regional-scale plan for how you want that kind of development to occur.

There’s pretty broad consensus among not just environmental groups, but also among industry groups, that doing those kinds of regional-scale assessments would really ease the burden on proponents, on the public, on indigenous peoples, on government, because it would mean first of all that we’re creating a vision for what we want development in the region to look like and how we want the environment in the future to look like and then set out these pathways for how to get there.

Then we’d have that strategic-level guidance for the project-level assessments. It would ease the burden at the project level.

Q: Would this work for something like the development of LNG, for instance?

Yea, that’s the perfect example of where we should have done a strategic EA.

Right at the very first whisperings of LNG in B.C., we should have done a strategic EA of LNG in B.C., figured out whether we should have LNG at all — could we have LNG and achieve our climate obligations and goals?

Are there particular communities who would like to have LNG? Are there particular environments that could sustain an LNG facility? Are there particular environments that are a no-go zone? Many would say that Lelu Island should have been flagged right off the bat as a no-go zone.

If we had done that at the very outset, then when the project proponents come along, they’d have the guidance from a strategic EA that would have said: maybe we can have one or two in B.C. Here are the different temporal spacings they’d need to occur in and here are the locations, the pipeline routes and the LNG facility locations where it might work. And then once you get to the project-level EA you’re looking much more closely at the specifics.

Q: Do you feel hopeful about the outcome of the review?

Yes, I feel hopeful. I think the biggest challenge that this panel is facing right now is how to drill down to really concrete recommendations to the government. So they’re hearing a lot of things … at the 50,000-foot level … and the difficulty for them will be drilling down to a more practical implementation level.

Q: Will fixing the environmental review process really solve our problems? Or ultimately do we need that to come from the political level?

I think you need both. You need elected decision makers making good decisions for the people who voted them in. But you can’t rely exclusively on them so we need to have good processes. And that’s one of the main purposes of environmental assessment.

Q: What is the thinking about recommendations — should they be binding?

There are two schools of thought on that … the minister probably should retain some sort of discretion but I think that the legislation needs to set out much more explicitly the criteria by which she makes her decisions … right now, our decision-making process is the minister concludes: “Will this project result in significant adverse impacts and, if so, are they justified?”

And the justification decision is made by cabinet behind the dark curtains of cabinet, where they get to take into consideration anything, even beyond the environmental assessment, including political considerations.

Tweet: ‘The black box of the justification decision is what really undermines public confidence in the EA process’ http://bit.ly/2fv5G5O #cdnpoliThat black box of the justification decision is what really undermines public confidence in the process.

So you can have ministers making decisions, but the legislation should really clearly set out the decision-making criteria, so that the public, so that indigenous people, so that proponents know exactly what this project needs to achieve in order to get approved.

Q: What are the biggest points of push back from industry?

One of the things I’ve been hearing from industry is that they think the provinces should be entrusted exclusively to do environmental assessments where they have jurisdiction or where there’s shared jurisdiction. I don’t share that view. I think you get better processes when you have both parties, or all parties, at the table, collaborating, drawing on the highest standards of process.

Q: Who should participate in these hearings?

Anyone who is concerned about the environment, who has experience with environmental assessment, anyone who was shut out of the Kinder Morgan [Trans Mountain] environmental assessment or had to fill out those long forms, and anybody who has concerns about how the public is engaged in decision-making.

There are two different types of public process: there are the hearings, which are a little bit more formal and you get one-on-one time with the panel for 15 minutes. And then there are the workshops, which more people are able to attend and it’s more of a dialogue on key questions on federal EA and I think that it’s really important that the panel get a diversity of experiences and a diversity of voices.

This isn’t just for experts for sure.  

More Resources

- The panel is holding sessions in Kamloops, Fort St John, Prince Rupert, Vancouver and Nanaimo, finishing up on December 15. Find out how to get involved.

- The panel’s report will be released on Jan. 31, 2017, followed by the release of the Fisheries Act review in mid to late February and the review of the National Energy Board on March 31. *UPDATE: In December, the panel’s deadline was extended until March 31. There will also be a 30-day public comment period on the report.

- Read Johnston’s full participant’s guide for the environmental assessment review.

This interview has been condensed. 

Image: Prime Minister Justin Trudeau via Prime Minister's Photo Gallery

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