Appeals to the EAB - Understanding Alberta's Environmental Appeal Process
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The Regional Director of Alberta Environment has authorized an activity to take place in your area. You disagree with the approach taken by the Director. What recourse do you have? On February 11th Jason Unger, Staff Counsel with the Environmental Law Centre, discussed appeals of the Director’s decision to the Alberta Environmental Appeals Board.
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Appeals to the EAB - Understanding Alberta's Environmental Appeal Process
- 1. Public Participation – Part II Public Participation in Environmental Decision Making in Alberta: Part II Appeals to the EAB ELC Webinar February 11, 2010 Jason Unger Staff Counsel
- 2. Public Participation – Part II About the ELC • A charity operating since 1982 • Our mission: To ensure that laws, policies & legal processes protect the environment. • 2 goals: – Good environmental law & policies – Effective public participation
- 3. Public Participation – Part II What we can do for you • Legal information & lawyer referrals • Presentations • Library • Research & law reform
- 4. Public Participation – Part II Purpose of the Guide A Guide to Public Participation in Environmental Decision-making in Alberta – http://www.elc.ab.ca/pages/InformationResources/ MaterialsAvailabletoDownload.aspx?id=879 • Facilitate public participation – Informing decision-makers – Engaging communities and individuals • Procedures • Strategies – Standing – Effectiveness
- 5. Public Participation – Part II Part II - The appeal process Notice of Appeal filed Approval/licence with EAB Mediation Preliminary motions hearing Successful Notice of hearing mediation Application to Intervene Submission of written materials Appeal hearing Hearing discontinued EAB report and recommendations
- 6. Public Participation – Part II Practical issues –before and after NoA Collecting & analyzing evidence Meeting deadlines Finding & preparing witnesses Preparing written and oral submissions Keeping a record
- 7. Public Participation – Part II Notice of Appeal Notice of Appeal Legislative basis Decision being Timelines appealed Contents -decision notice Signature and 30 days Address for service 7 days WA licence WA approval EPEA app Concerns & impacts Extensions? Statement of concern Directly affected Remedy
- 8. Public Participation – Part II EAB Resources • Rules of Practice – http://www.eab.gov.ab.ca/pub/Rules-August- 2008.pdf • Decisions – http://www.eab.gov.ab.ca/decisions.htm – Contact directly for more recent decisions • Mediation – http://www.eab.gov.ab.ca/mediation_about.ht m
- 9. Public Participation – Part II Mediation • Voluntary • Cost minimization • Flexible remedies – Conditions beyond jurisdictional constraints • Without prejudice Issues • Public scrutiny & setting “precedents” • Enforcement = Court
- 10. Public Participation – Part II Pre-hearing matters • Preliminary motions – Stay of the Director’s decision – Interim costs – Standing – “directly affected” – Disclosure
- 11. Public Participation – Part II Pre-hearing matters • Determination of issues • Determination of redundancy with other hearing processes
- 12. Public Participation – Part II Interveners • Apply to EAB – Explain how intervention will be “value added” • Interest & expertise related to issues, history in area, membership in the area • Distinguish evidence from main party –uniqueness of evidence • Indicate which side you support
- 13. Public Participation – Part II Hearing preparation • EAB procedure letter Hearing – Time lines for the hearing Opening statement – Witnesses – Order Oral testimony Closing argument • Written submission – approval and the process – Facts - environmental effects • reports (attached as exhibits) – Argument -how the facts justify outcomes – Relief – Proposed witnesses
- 14. Public Participation – Part II Evidence during the hearing Oral testimony Written submission & exhibits Your evidence Other parties’ evidence Your testimony Supporting witnesses Cross examination Concise & clear Leading Not leading Facts & impacts Admissions – impacts, gaps Witnesses perspective & uncertainties Facts & expertise Credibility Redirect – clarify anything as a result of cross examination
- 15. Public Participation – Part II The evidence “battle” • Competing experts • Relevance & probative value of evidence • Uncertainty – Probability of harm – Causation • Evidence problems – Cumulative effects – Policy questions
- 16. Public Participation – Part II Opening Statement & Closing Arguments • Summary – Relevant issues – Relevant evidence & witnesses – How the appeal should be resolved • Closing – in light of evidence presented why your argument should be accepted by the EAB – relief – costs
- 17. Public Participation – Part II Relief – opposition & conditions Standards Monitoring/reporting Post activity Operational limits Timing and reporting Specifics of reclamation (specific standards) requirements (incident and standards regular) Storage/use/disposal of Timeline for waste/contaminants Sampling techniques to be decommissioning used Continuous improvement Amount of security (if requirements Substances to be tracked legislatively required) Emergency plans and Nature of monitoring (point Post closure monitoring management systems source and ambient) Conditions for re-entry Site requirements Transparency & data and remediation availability
- 18. Public Participation – Part II Costs • Who pays? If anyone – Typically the proponent – Government only if they acted in bad faith • Record keeping – Time – Receipts
- 19. Public Participation – Part II Costs • Justification – Need – Complexity – Relevance of evidence
- 20. Public Participation – Part II The Result • Report and Recommendations • Minister’s decision • Post decision impacts
- 21. Public Participation – Part II Support the ELC • Registered charity – donations receive a tax receipt • 100% of donations fund ELC public programs https://www.elc.ab.ca/pages/SupportELC/default.aspx CRA Registration Number - 11890 0679 RR0001
- 22. Public Participation – Part II Questions? • Phone: 780-424-5099 or 1-800-661-4238 • E-mail: elc@elc.ab.ca or cchiasson@elc.ab.ca • Web: www.elc.ab.ca • Blog: http://environmentallawcentre.wordpress.com • Facebook: http://www.facebook.com/environmentallawcentre • Twitter: https://twitter.com/ELC_Alberta • To sign up for e-mail updates, visit: http://www.elc.ab.ca/pages/home/Notification.aspx.
- 23. Public Participation – Part II To access these materials Visit our website: http://www.elc.ab.ca to download the slides and a session recording.