As energy companies explore more locations and markets, energy development increasingly touches lives and creates new challenges with regards to balancing economic, social and environmental good. Martin Olszynski, assistant professor of law at the University of Calgary, looks at whether our laws are keeping up in the areas of energy and the environment, and if they need to be made more transparent. Watch the full webinar recording at http://go.ucalgary.ca/2017-06-20EnergyEnvironmentLawWebinar_LPRegistration.html

1. Energy and the environment:
Are our laws keeping up?
Martin Olszynski
Assistant Professor
Faculty of Law
June 20, 2017

2. Martin Olszynski
Faculty of Law
 Assistant professor of law
 B. Sc. (Biology), LL.B, LL.M
(Environmental Law)
 Research focus includes
habitat protection,
environmental assessment,
adaptive management, and
climate change liability
 Has published in various
law journals, including
most recently the
University of British
Columbia Law Review and
the Georgetown
Environmental Law Review

3. Overview
 The energy/environment nexus
 3 challenges for environmental law:
• Set and enforce effective limits on environmental pollution
and degradation;
• Manage cumulative effects;
• Learn from doing;
 Preliminary issue: Transparency (lack thereof)
 Are Canada’s environmental laws keeping up?
• Effective?
• Cumulative effects?
• Learning from doing (Adaptive Management)?
 Conclusions, recommendations and further reading

4. The energy/environment nexus
 Links between energy development and environmental
pollution/degradation are well established:

5. Environmental laws should:
 Set and enforce effective limits on
pollution/degradation;
 Manage the cumulative effects of various
development on the landscape;
 Recognize uncertainty and learn from/by doing;
But first…

6. Transparency

7. Transparency
 Necessary to assess effectiveness of current laws
• Examples
1. Fisheries Act section 35 prohibition and authorization
for impacts to fish and fish habitat
2. CEAA 2012 section 67 requirement for “informal”
environmental assessment for projects on federal
lands
3. Approvals under Alberta’s Environmental Protection
and Enhancement Act (EPEA)

8. Transparency (cont’d)
1. Fisheries Act section 35
• Prohibits impacts to fish and
fish habitat unless authorized
by Minister or by regulations;
• Prior to 2013, guided by 1986
Policy for the Management of
Fish Habitat;
• Overarching goal: net gain
of fish habitat
• Principle of No Net Loss
(NNL) on a project basis
• Required
compensation/offset
habitat);
Photo credit:
http://portadam.com/cofferdam-projects/pipeline-crossing-projects/

9. Transparency (cont’d)
 Very difficult to assess performance
• Annual reports on implementation of section 35 but
information is of limited use (but not no use)
• Auditor General Report (2009)
• “We found no documentation to show that [DFO] had followed up
or evaluated the effectiveness of it decisions—that is, whether
implementing the conditions of the ministerial
authorizations…had resulted in no net loss of habitat.”
• DFO does not make authorizations public (including terms
and conditions)
• Requires Access to Information Act requests (aka ATIP
requests)

10. Transparency (cont’d)
2. CEAA, 2012 “Federal Lands” EA requirement
• Section 67: Requires federal authorities to determine
whether or not a project is likely to result in significant
adverse environmental effects (SAEE) where such a project is
carried out on federal lands
• Section 71: federal authorities must report on their activities
under this section

11. Transparency (cont’d)
 2014-2015 Reports by Federal Authorities with
Obligations under Section 71 of the Canadian
Environmental Assessment Act, 2012
• DFO: “There have been no determinations made where
a project on federal lands was likely to cause [SAEE].”
• Parks Canada: “In the last year, there have been no
determinations made where a project on federal lands
was likely to cause [SAEE].”

12. Transparency (cont’d)
 ATIP request sent 30 Aug. 2016 for documentation supporting s. 67
determinations
 Parks Canada: List of approximately 1200 projects deemed not likely to result
in SAEE (November 2016)
DFO: List of at least 675 projects deemed not likely to result in SAEE (January
2017)
TC: Still pending (!)

13. Transparency (cont’d)
 EPEA approvals under
Alberta’s Environmental
Protection and
Enforcement Act
• Main permitting
vehicle for
environmental effects
caused by various
projects, including oil
sands (mines and in
situs) and coal mines
• Authorization viewer is
of limited use to non-
proponents

14. Effectiveness (including enforcement)

15. Effectiveness?

16. Effectiveness? (cont’d)

17. Effectiveness? (cont’d)

18. Enforcement?

19. Managing cumulative effects?
 Fisheries Act section 35 referrals v. authorizations

20. Managing cumulative effects? (cont’d)
0
2000
4000
6000
8000
10000
12000
14000
Figure 5: Total Habitat Activity (2001/02 - 2013/14)
Total Proponent
Activity
Referrals
Written Advice (LoAs
and OS)
OS Notifications and
Class Authorizations
Authorizations

21. Managing cumulative effects? (cont’d)

22. 22
Managing cumulative effects? (cont’d)

23. Learning from doing
(“Adaptive Management”)

24.  Ubiquitous invocation in the
context of environmental
assessment (EA) and
mitigation for major natural
resources development
 Mackenzie Gas Pipeline, N.W.T
 Lower Churchill Hydro-electric
Project, NL
 Northern Gateway Project, B.C.
 Prosperity (II) Metal Mine, B.C.
 All recent oil sands projects, AB
Learning from doing?
“Adaptive Management”

25. Adaptive Management (cont’d)
 Survey (August 2015): 60 active projects on CEA Registry
relying on adaptive management for 1+ environmental issue
 Average # project EAs under CEAA, 2012 (2012-2015): 66
 ~ 91% projects
25

26.  Adaptive management
(AM)
• “a planned and
systematic process for
continuously improving
environmental
management practices
by learning about their
outcomes.” CEAA, 2013
 The primary goal is to
reduce uncertainty
Adaptive Management (cont’d)

27. Adaptive Management (cont’d)

28. Adaptive Management (cont’d)

29. Adaptive Management (cont’d)

30. Adaptive Management (cont’d)

31. Conclusions, recommendations, and
further reading

32. Conclusions & recommendations
 Canada’s environmental laws are not keeping up with
energy development (things got worse in 2012);
 Lack of transparency is a fundamental problem:
• Inhibits assessments of effectiveness;
• Transparency would also drive better performance;
 Need to transition from individual project focus to
regional approaches (some progress in Alberta on this
front)
 Need to take learning seriously
• Rigorous implementation of adaptive management

33. Further reading (selected)
 "Failed Experiments: An Empirical Assessment of Adaptive
Management in Alberta's Energy Resources Sector" (2017) U.B.C. Law
Review (Forthcoming)
 "Authorized Net Losses of Fish Habitat Demonstrate Need for
Improved Habitat Protection in Canada" (2017) Can. J. Fish. Aquat. Sci.
(Forthcoming) (with Dr. Brett Favaro)
 “From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada's New
Approach to Fish Habitat Protection Laws” (2015) 28(1) J. Env. L &
Prac. (SSRN)
 “Environmental Assessment as Planning and Disclosure Tool:
Greenpeace Canada v. Canada (Attorney General)” 38(1) (2015)
Dalhousie Law Journal ( SSRN)
 “Ancient Maxim, Modern Problems: De Minimis, Cumulative
Environmental Effects and Risk-based Regulation” (2015) 40:2 Queen's
LJ 705 (SSRN)