Environmental assessment reconsidered

BC’s new Environmental Assessment Act needs teeth and scientific certainty to avoid disasters of the past.

REBUILDING PUBLIC TRUST in environmental assessments is a tough sell, given BC’s recent history. Environment Minister George Heyman, who has shepherded the new Environmental Assessment Act into law, is doubling down on efforts to convince British Columbians that it represents a new era of science-based decisions.

The new rules are being intensely scrutinized by scientists, environmental groups and Indigenous communities looking for assurances that science will truly be the priority and that decisions will be made transparently and without bias.

The Mount Polley tailings pond collapse in August 2014

While there is general agreement that the new legislation is a vast improvement over the old rules, written by the former Liberal government in 2002, there are gaps that critics say will continue to give undue weight to the findings of experts paid by industries with deep pockets, exacerbated by the lack of mandated peer reviews, and the possibility that government could approve projects without Indigenous consent.

Environmental assessments of major resource and development projects over the years have been marked by accusations of shaky science, First Nations anger, and glaring omissions of vital local information, all of which have fed suspicions that decisions are influenced by industry-paid experts whose self-interest lies with ensuring projects are approved, rather than protecting the environment.

Those suspicions are justified, according to University of British Columbia researchers who studied 10 recent assessments of major projects in BC and found that thresholds for environmental damage were exceeded or skirted, but projects were still given a green light.

“For us, and I think for a lot of people, the biggest implication of our work is showing the bias and unscientific practice used in the environmental impact process,” said Gerald Gurinder Singh, UBC senior research fellow of the Institute for the Oceans and Fisheries. “The process ostensibly uses science as a mean to evaluate impacts to make informed recommendations, and what we show is that the science is incredibly flawed,” said Singh, one of the authors of two studies looking at environmental impact assessments. He noted that one of the biggest problems is the conflict of interest involved in having proponents hire consultants.

Such findings will come as no surprise to many British Columbians, who have witnessed the systemic dysfunction. Think back to the Mount Polley tailings dam collapse, which sent 24 million cubic metres of sludge and mine tailings into nearby waterways and lakes—something an expert panel later concluded was due to a flawed dam design. Or recall the Shawnigan Lake contaminated soil dump that was approved after expert engineering advice from a company that was later found to have a profit-sharing deal with the proponent. Or the Prosperity Mine proposal, which was twice rejected by the federal government, but approved by BC despite First Nations objections to a highly controversial plan to drain a lake to store waste rock, engendering well-documented adverse environmental effects.

Then there was the claim by experts hired by Pacific Northwest LNG that there were no salmon in the eelgrass beds at Flora Bank, despite clear evidence the area was used as a nursery for juvenile salmon.

Heyman is emphasizing that the new measures will bring about a strong and transparent environmental assessment process, based on science. Experts and professionals who provide advice on a project will be more carefully regulated than in the past, and Indigenous communities will be involved from the early stages of a proposal, allowing potential hurdles to be identified before full hearings get underway. “The general public and Indigenous communities will be able to participate meaningfully and companies will be able to get good projects reviewed and ready more quickly,” Heyman said in a statement.

BC Environment Minister George Heyman

The First Nations Leadership Council acknowledges that the new rules set the stage for a different relationship, but also notes the proposed Act needs to go further to meet standards of the UN Declaration on the Rights of Indigenous Peoples as it still allows projects to proceed if consent is withheld by Indigenous Nations. “[But] it represents an important step and, if properly implemented, will lead to fewer legal conflicts and better developed projects by fully including First Nations at all stages of development,” said Robert Phillips, a member of the First Nations Summit’s political executive.

The legislation, which passed in November, will come into effect in the fall of 2019 and is now awaiting regulations, meaning changes and tweaks can still be made within the basic framework.

Critics want the regulations to strengthen scientific independence and tighten loose language that says government must “consider” elements such as community input and greenhouse gas emissions, but allows wriggle room to ignore that information.

“One concern we voiced right at the beginning is the lack of requirement for scientific rigour,” said Simon Fraser scientist Michael Price. Price was one of a group of 180 university academics and science professionals who wrote to Heyman in November recommending that information used to assess environmental risk should be collected by qualified, independent professionals—not those with a vested interest in the project—and then reviewed by scientists. All information and data leading to a decision should then be made public, the letter recommends.

The letter says the scientists are encouraged by the changes, but “the continued lack of scientific independence, peer review and transparency in the evaluation of a given project’s risk to the environment will serve only to further undermine public confidence.”

“If you read the bill, when it comes to the input of science, it is always an option,” said Price. “That will continue to undermine public trust and put the environment at risk, which boggles my mind a little,” continued Price, who fears that, if decisions are not based on transparent, sound, independent science, disasters of the past, such as Mount Polley, could re-occur.

Stronger language would have gone a long way to building public trust, Price said. “I’m not sure we are going to get there when things remain options rather than requirements.”

That ambivalence is echoed by Gavin Smith, West Coast Environmental Law staff lawyer, who notes positive changes, such as First Nations involvement, but believes the lack of requirements is a red flag. Greenhouse gas emissions must be considered, for instance, but, Smith pointed out, ministers can then decide to ignore the evidence, and there is no approval test or binding criteria for ministers to approve or reject a project, so decisions can appear arbitrary, politicized and unjust.

A ministry spokesman said it will be mandatory to consider the impact of projects on climate targets, and ministers will be required to provide reasons for their decisions.

Another area involving concern around options rather than requirements is the need for studies of cumulative impacts, as opposed to looking at a single project in isolation—something vital in areas where mining and other resource development has turned the landscape into a patchwork of roads and industrial development.

Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre, agrees the new rules are an improvement, but he too sees a series of flaws. He’s especially concerned that proponents could provide the bulk of the evidence. “He who pays the piper calls the tune…I think the lynchpin of this thing is the lack of assurance that the body of evidence is going to be objective,” he said. “You can’t have a body of evidence that is solely paid for by the company and expect to get an objective analysis.”

Under the new system, Sandborn noted, proponents will produce their experts and the information will then go to a technical advisory committee, but that will be made up largely of government scientists who are unlikely to have the specific expertise of the company experts. He predicts, “these company experts will be able to dance around the technical experts.”

A ministry spokesman said the technical advisory committee could be made up of government and non-government experts.

A truly objective process—although one that is unlikely to gain political support—would see the government fund critics of a project to the same extent that the company is funding their experts, Sandborn suggested. “It is absolutely wrong to have multi-national companies spending multi-millions on experts, and then have that expertise vetted by experts that are hired on the basis of cupcake sales,” he said.

The bill requires a community advisory committee to be formed for each project. Sandborn said those committees need to be able to name experts who are sensitive to community issues to the technical advisory committee.

Gerald Singh of the Institute for the Oceans and Fisheries suggested one solution would be for industry to pay into a central fund, administered by government, which is then used to hire experts to review projects. “I think in terms of first steps, that would be good. There needs to be more oversight on the quality of the research being done, and an independent body of experts is one way,” he said.

As criticism and cautious optimism solidify, all eyes will be on the regulations and how many tweaks government is willing to make to address the concerns. The devil will truly be in those details, said environmental lawyer Smith.

Judith Lavoie is an award-winning journalist specializing in the environment, First Nations, and social issues. Twitter @LavoieJudith