SUSTAINABILITY ASSESSMENT AND CLIMATE CHANGE MARCH 22, 2012.

SUSTAINABILITY ASSESSMENT AND CLIMATE CHANGE

MARCH 22, 2012

OVERVIEW

• Limitations of Environmental Assessment – Climate Change as example

• Sustainability Assessment (The Gibsonian Approach)

• CEAA and Sustainability Assessment

• Sustainability Assessments by CEAA Panel Reviews

ENVIRONMENTAL ASSESSMENT LIMITATIONS • Narrow focus on significance of adverse

environmental effects

• Inattention to major environmental issues such as climate

• Ineffective cumulative effects assessment

• Failure to learn from experience

• Weak political commitment

• Trend to restrict application, scope and openness under the guise of streamlining

EA LIMITATIONS: CLIMATE CHANGE AND GHG EMISSIONS

• Kearl Oil Sands Mine $5 - 8 billion project by Imperial Oil

• 3.7 million tonnes of CO2 per year (comparable to 800,000 cars annually)

• 0.5% of Canada’s GHG emissions• Joint Panel Review: GHG emissions

would have no significant adverse effects on global climate

• Federal Court required Panel justify how an emissions-based regulatory approach would address GHGs issue

EA LIMITATIONS: CLIMATE CHANGE AND GHG EMISSIONS

• Other panel reviews (Joslyn North, Mackenzie Gas) have adopted same approach and reached same conclusion

• Project GHG emissions have no significant adverse effects on global climate

• Does this approach miss the point?• Mackenzie Gas Project Panel took

analysis further, applied sustainability approach to GHG emissions

SUSTAINABILITY CHALLENGE

• Humans using 50% more of biosphere’s carrying capacity than can be sustained

• Demands on biosphere still rising

• 1 - 2 billion humans lack material basics for reliable nutrition, health, opportunity

• Most benefits are going to the already comfortable

• These problems deeply interconnected


WWF Living Planet Report 2010, p.7


Number of Undernourished People in World


“Human and ecological well-being are effectively interdependent. Under all the layers of artifice and ingenuity, humans are ultimately and unavoidably dependent on biospheric conditions that are friendly to human life” Robert Gibson p. 173

OBJECTIVES OF SUSTAINABILITY ASSESSMENT

• Decisions must aim to avoid trend

toward deeper unsustainability

• Projects, plans, policies, programs must make net positive contribution to a desirable and durable future

• Must exceed merely avoiding and mitigating adverse environmental effects

BASIC INSIGHTS OF SUSTAINABILITY ASSESSMENT

• Comprehensive, including socio-economic and biophysical, short and long-term

• Precaution because systems are complex, predictions uncertain, surprise likely

• Minimizing negative effects not enough; positive steps to community, ecological sustainability is essential

• Corrective action woven together to serve multiple objectives

BASIC INSIGHTS OF SUSTAINABILITY ASSESSMENT

• Recognition of ecological limits and opportunities for innovation

• No to balancing, presuming compromises, trade-offs; yes to multiple reinforcing gains

• Universal but context-dependent - local ecosystems, institutions, preferences

• Means and ends intertwined, open-ended process with no end state to be achieved

CORE CRITERIA FOR SUSTAINABILITY ASSESSMENTS

• Socio-ecological system integrity

• Livelihood sufficiency and opportunity

• Intragenerational equity

• Intergenerational equity

• Resource maintenance and efficiency

• Socio-ecological civility, democratic governance

• Precaution and adaptation

• Immediate and long-term integration

TRADE-OFF RULES • Seek maximum net gains

• Place burden of argument on trade-off proponent

• Avoid all significant adverse effects

• Protect the future (do not displace negative effects to future generations)

• Provide explicit justification

• Use an open process

SUSTAINABILITY ASSESSMENT LINKS TO FEDERAL LAWS

• Investment Canada Act s.16.(1) “Net benefit to Canada” test for foreign investment seeking control of Canadian-owned business

• National Energy Board Act s. 52 Board may issue certificate for pipeline where it “is and will be required by the present and future public convenience and necessity” having to regard to considerations such as availability of oil/gas, existence of markets, economic feasibility, finances and “(e) any public interest that in the Board’s opinion may be affected by the granting or the refusing of the application

• Canadian Environmental Assessment Act

CEAA AND SUSTAINABILITY ASSESSMENT

• Are CEAA legal obligations limited to identifying and mitigating significant adverse environmental effects of projects?

• Or does CEAA call for or require consideration of broader sustainability issues in decision-making? Doelle pp. 136 – 141


• CEAA ss. 20 and 37 clearly require determination with respect to likelihood and significance of adverse environmental effects

• RA may take course of action to permit project to be carried out if no significant adverse environmental effects under s. 20 (and not justified in circumstances after panel review s. 37)

• Ss. 20, 37 don’t require RA to refrain from taking course of action if no significant adverse effects yet project otherwise unsustainable


• However, CEAA Preamble includes achieving sustainable development, integrating environmental factors into decision-making

• CEAA Purposes similarly broader than just “significant adverse environmental effects” s.4.(1)

– RAs to take decisions in line with sustainable development

– Projects to be precautionary

• Government duty to exercise powers in manner to protect environment and human health and apply precautionary principle s.4.(2)


S.16 factors reinforce sustainability perspective:

•Accidents and malfunctions

•Need, purpose and alternatives to project

•Capacity of renewable resources to meet present and future needs

•Comments from the public

DEVELOPMENT OF CEAA SUSTAINABILITY ASSESSMENT

• Can purposes of CEAA be met only if decision-makers consider more than whether project is likely to cause significant adverse effects?

• Do review panels have two functions?

– Determine whether project is likely to cause significant adverse environmental effects

– Advise government (based on sustainability assessment) whether to exercise discretion to make a decision that allows project to proceed

• Are these functions legal duties?

DID JOSLYN MINE JOINT REVIEW MAKE A LEGAL ERROR?

“The Panel finds that with an effective emergency response plan in place, it is unlikely that significant adverse environmental effects would occur as result of accidents or malfunctions associated with the project.” P.78 Panel Report

•Don’t “accidents and malfunctions” relate to the sustainability assessment duty, not the duty to identify significant adverse effects?

•Is this an error in law reviewable by courts?

SUSTAINABILITY ASSESSMENTS BY CEAA PANEL REVIEWS

• Voisey’s Bay Nickel Mine and Mill Joint Panel Review (1999)

• White’s Point Quarry and Marine Terminal Joint Panel Review (2007)

• Mackenzie Gas Project Joint Panel Review (2010)

• Lower Churchill Dam Joint Panel Review (2011)

VOISEY’S BAY

• Nickel mine and mill project on north Labrador coast proposed by Inco Ltd.

• Innu and Inuit traditional lands

• Multi-jurisdictional governance regime (Canada, Newfoundland and Labrador, Innu Nation, Labrador Inuit Association)

• Environmental assessment review by joint panel with formal EIS and public hearings

VOISEY’S BAY

VOISEY’S BAY

“It is the Panel’s interpretation that progress towards sustainable development will require the following: • preservation of ecosystem integrity, …• respect for right of future generations to sustainable use of renewable resources; and • attainment of durable and equitable social and economic benefits.”

VOISEY’S BAY

“Therefore in reviewing the EIS and other submissions, the Panel will consider:• the extent to which the Undertaking may make a positive overall contribution towards the attainment of ecological and community sustainability, both at the local and regional levels;…”

WHITE’S POINT QUARRY AND MARINE TERMINAL

• Proposed basalt quarry and shipping terminal on Digby Neck, Bay of Fundy

• 50-year project life, about 30 direct jobs, little public revenue

• Canada/Nova Scotia joint panel, hearings• March 2005 guidelines adopted

sustainability test with ecosystem approach and precautionary principle

• Panel recommended against project approval, governments agreed


• Implications for sustainable community futures for Digby Neck and coastal Nova Scotia

• Implications for Bay of Fundy shipping, endangered species protection, fisheries

• Implications for provincial mining policy (e.g. royalties)

• NAFTA appeal

MACKENZIE GAS PROJECT

• Natural gas, gas liquids pipelines, gathering system, three natural gas anchor fields

• 1220 km - Mackenzie Delta to northern Alberta

• Estimated cost $16.3 billion, 2-3 years construction, 20-50 years operation

• Aboriginal participation in pipeline consortium

• Review by joint panel - CEAA, MVRMA, IFA

MACKENZIE GAS PROJECT

“In preparing for public hearings, the Proponent, Interveners and other participants should be aware that the Panel will evaluate the specific and overall sustainability effects of the proposed project and whether the proposed project will bring lasting net gains and whether the trade-offs made to ensure these gains are acceptable in the circumstances.”

– JRP Determination on Sufficiency 18 July 2005

MGP SUSTAINABILITY ASSESSMENT

Five key issue categories•Cumulative biophysical effects•Cumulative socio-economic effects•Equity effects•Legacy and bridging•Cumulative impacts management/ preparednessPlus interactions, trade-offs

MGP SUSTAINABILITY ASSESSMENT

• Project could contribute to sustainability if 176 recommendations carried out

• Must anticipate and pre-empt adverse cumulative effects

• Must manage pace, scale of development

• Must maximize lasting gains (use direct revenues from depletion of non-renewable resources for use as bridge to more durable future)

MGP CLIMATE CHANGE AND SUSTAINABILITY ASSESSMENT

• Panel: GHG emissions are important component of Project’s contribution to sustainability

• Findings– Direct Project GHG emissions– End Use of Gas, Life-cycle Impacts– Project Contribution to Sustainability

MGP - DIRECT PROJECT GHG EMISSIONS

• NEB require as certificate condition GHG emissions reductions targets if federal regulations not in place Rec. 8-6

• NEB require that GHG emissions be included in Project monitoring program with annual reporting against targets Rec. 8-7

• Canada should develop laws reducing GHG emissions to meet or exceed targets in Climate Change Plan for Canada Rec. 8-8

MGP - END USE OF GAS, LIFE-CYCLE IMPACTS

• End use of gas (e.g., fuel tar sands, displace coal-fired generating) relevant to Panel’s mandate, such as life-cycle impacts

• Use of gas for carbon-intensive fuels is “undesirable”, “squanders valuable attributes of natural gas as transition fuel”

• Unpersuaded MGP gas to fuel oil sands

• Did not require offsetting of GHG emissions: needs comprehensive approach

MGP – CONTRIBUTION TO SUSTAINABILITY

• Mandating carbon neutrality, intervening in market to specify end uses not resolvable project-by-project

• Canada adopt implementation strategy that optimizes natural gas as transition fuel and ensures gas is preferentially used to replace carbon-intensive, polluting fuels Rec.8-9

• Agency develop GHG emissions guidance document in which sustainability is over- arching objective Rec.8-10

FEDERAL RESPONSE TO MGP PANEL RECOMMENDATIONS

Federal government and NEB rejected virtually all of the Panel’s forward looking recommendations, including those on

• anticipating cumulative effects

• managing pace and scale of induced development

• directing revenues from depletion of non-renewables as a bridge to more durable future

HAS SUSTAINABILITY ASSESSMENT PEAKED?

• Recently established panel reviews (Joslyn North, Jackpine Expansion) ignore sustainability

• Marathon PGM Mine EIS Guidelines do refer to “net ecological, social and economic benefits of project”

• House Environment Committee’s CEAA Report ignores sustainability

• Balancing economy/environment is back

SUSTAINABILITY ASSESSMENT AND CLIMATE CHANGE MARCH 22, 2012.

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