RAFFERTY – ALAMEDA AND ENTRENCHMENT OF ENVIRONMENTAL ASSESSMENT LAW CML 4103 FEBRUARY 9, 2012 Stephen Hazell

Overview First Hour – Comparison of U.S. and Canadian Federal Legislative Development in EA –National Environmental Policy Act of 1969 –Environmental Assessment and Review Process Guidelines Order Second Hour – Rafferty-Alameda and Entrenching Federal Environmental Assessment Law

National Environmental Policy Act of 1969 (U.S.) Legislative response to community opposition to interstate highway construction and Santa Barbara oil spill Purpose - ensure that environmental factors are weighted equally with other factors in federal decision-making, including a multidisciplinary approach to considering environmental effects

NEPA Preamble "To declare national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation..."

NEPA Key Sections Declares national environmental policies and goals Establishes action-forcing provisions for federal agencies to enforce those policies and goals Establishes Council on Environmental Quality (CEQ) in President’s office

NEPA Process Agency determines that proposed action (federal funding or permit for project) is covered by NEPA Three levels of analysis: –preparation of Categorical Exclusion (CE) –preparation of Environmental Assessment (EA), Finding of No Significant Impact (FONSI) –Preparation/drafting of Environmental Impact Statement (EIS)

NEPA Categorical Exclusion Agency determines that action does not individually or cumulatively have a significant effect on quality of the human environment CE’s listed by Agency based on experience with environmental impacts Application of CE must be in the absence of extraordinary circumstances (such as wetlands)

NEPA Environmental Assessment Provides sufficient evidence and analysis for determining whether to prepare an EIS, and facilitates preparation Aids agency's compliance with NEPA when no EIS necessary Determination of Finding of No Significant Impact (FONSI) follows EA No public participation

NEPA Environmental Impact Statement More detailed evaluation of environmental impacts compared to EA Components include consideration of alternatives, and public and other federal agency input into preparation of EIS (such as comment on draft EIS) EIS may proceed without EA where action will undoubtedly have adverse affects or is controversial

NEPA Enforcement Includes no criminal or civil sanctions Enforcement through judicial remedies sought by communities, proponents etc

Keystone XL and NEPA

State Department determined that Permit is major federal action that could have significant impact on environment State Department preparing EIS under NEPA, coordinating with federal and state agencies Draft EIS released April 16, 2010 Public comment period closed July 2, 2010

Keystone XL and NEPA Environmental Protection Agency determined (July 16, 2010) that Draft EIS was inadequate –Purpose and need too narrowly crafted –Air and water impacts not fully analyzed –Pipeline safety procedures inadequate Supplemental Draft EIS April 2011 Final EIS August 2011

Keystone XL and NEPA State Department decides that further information required for pipeline routing, delays national interest determination until 2013 (November 10, 2011) Congress legislates that President make decision within 60 days (December 23, 2011) President denies permit to Keystone XL (January 18, 2012)

Keystone XL and NEPA Keystone XL project ($7 billion) to carry 700,000 barrels tar sands oil from Hardisty Alberta to Cushing Oklahoma Presidential permit issued by Secretary of State required to construct petroleum facilities connecting U.S. to foreign country based on “national interest” NEPA triggered by permit application

Environmental Assessment and Review Process Guidelines Order Environmental Assessment and Review Process (EARP) established by federal Cabinet in 1973, strengthened by Cabinet Directive in 1977 NEPA-style legislation opposed, based on concerns about litigation, delayed decision-making, reduced flexibility for government, power grab by Environment Department

Environmental Assessment and Review Process Guidelines Order Charles Caccia appointed Environment Minister in 1983, pressed for federal EA statute Order in Council in June 1984 (final Trudeau government decision) reflected internal government conflict on issue of legally binding EA rules

EARPGO – Similarities to NEPA Applies to “proposals” not “actions” Proposals are initiatives, undertakings or activities for which Canada has a decision-making responsibility Projects not having adverse environmental effects excluded Initial assessments akin to EAs under NEPA, no public input

EARPGO – Similarities to NEPA If initial assessment determines that proposal has adverse environmental effects that are insignificant or mitigable, proposal may proceed If initial assessment finds significant adverse effects, proposal referred to Environment Minister for detailed review FEARO’s role similar to CEQ

EARPGO – Differences with NEPA EARPGO provides for public review by a panel, with public hearings as well as public input and comment on EIS prepared by proponent Conventional wisdom - EARPGO not mandatory Why else would term “Guidelines” be used?

Challenges facing Initial Panel Reviews Panel reviews in late 1970s and 1980s problematic Chaired by Executive Chairman of FEARO (s. 23 EARPGO), often included initiating department members But Panel members required to be “unbiased”, free of “conflict of interest” and “political influence” (s. 22)

Challenges facing Initial Panel Reviews Wreck Cove Hydro-Project (Cape Breton) Panel Review didn’t start until construction well-advanced Panel procedures for Point Lepreau (New Brunswick Nuclear Power Facility watered down to accommodate financing and construction schedule

Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda Project February 1986 – Rafferty-Alameda project proposed Two dams in Souris River basin to control floods Souris river is international waterway, flowing south into North Dakota, looping back north into Manitoba

Rafferty – Alameda Project Environmental Effects Loss of critical riparian habitat for endangered, threatened, rare species Mercury contamination, eutrophication of reservoirs Concern that reservoirs might not fill due to higher evapotranspiration from shallow, long (22km) reservoirs

Rafferty – Alameda Project Federal Decision Making Boundary Waters Treaty International Rivers Improvement Act Fisheries Act Navigable Waters Protection Act Souris Basin Development Authority and Saskatchewan attempted to shut feds out of review process (30 days to respond to draft EIS)

Rafferty – Alameda Project SBDA Environmental Impact Statement Failed to consider environmental effects in Manitoba and North Dakota Inadequate data on filling times for reservoirs Inadequate for licence under International Rivers Improvement Act

Rafferty – Alameda Project Federal Engagement January SBDA applies for International Rivers Improvement Act licence Canadian Wildlife Federation, federal NDP call for federal EARP environmental assessment June Environment Minister refuses to apply EARGO, issues licence Elizabeth May resigns

Canadian Wildlife Federation Cases (Rafferty No. 1) Linda Duncan (Environmental Law Centre, now MP) first to declare view that EARPGO was mandatory CWF counsel (me) proposes that CWF initiate judicial review, obtain board support CWF line up local co-applicants (Geske, Dolecki to avoid standing issues

Canadian Wildlife Federation Cases (Rafferty No. 1) November CWF files application for judicial review in Federal Court seeking certiorari and mandamus against federal Environment Minister Tetszlaff brothers (land owners) also file statement of claim Advantages of judicial reviews/actions by way of statement of claims?

Canadian Wildlife Federation Cases (Rafferty No. 1) Legal Arguments favouring “Mandatory” interpretation –Use of word “shall” throughout indicates intention that EARGO binds all to whom they are addressed, including Minister –Applies to wide range of activities over which feds decide; must be mandatory –“Applies to any proposal” s. 6 –Exceptions provided s.7,8,11(a)

Canadian Wildlife Federation Cases (Rafferty No. 1) Legal Arguments opposing “Mandatory” interpretation –Ordinary meaning of Guidelines connotes discretion on part of decision-maker –Minister of the Environment Act permits the Minister to issue guidelines for use by regulatory bodies in the exercise of their powers not binding orders or regulations

Canadian Wildlife Federation Cases (Rafferty No. 1) Federal Court Trial Division quashed Iicence under International Rivers Improvement Act, issued certiorari and mandamus order that EARPGO be applied Federal Court of Appeal upheld Trial Division ruling

Canadian Wildlife Federation Cases (Rafferty No. 2) Environment Canada prepares Initial Environmental Evaluation, adverse environmental effects are “moderate” IRIA licence reissued CWF initiates second judicial review application arguing that independent review panel should have been appointed because “significant” effects

Canadian Wildlife Federation Cases (Rafferty No. 2) Environment Canada prepares initial assessment, which determines adverse environmental effects are “moderate” IRIA licence reissued CWF initiates second judicial review application arguing that independent review panel must be appointed because assessment determined effects are “significant”

Canadian Wildlife Federation Cases (Rafferty No. 2) Federal Court orders panel review be established within month, does not quash IRIA licence “Moderate” environmental effects not insignificant, therefore must be significant Minister appoints panel, but SBDA starts construction

Outcomes from Rafferty-Alameda Dozens of judicial review applications (including Oldman) follow based on decision that EARPGO is mandatory Federal government commits to federal statute, and introduces Bill C-78 in June 1990 Resources and authority of FEARO increase dramatically