Experts say Senate changes to environmental assessment bill are worse than Harper-era legislation

The Narwhal
By The Narwhal
June 10th, 2019

Following intensive lobbying by the oil and gas industry, the unelected Canadian Senate has approved more than 180 controversial amendments to Bill C-69. Experts describe the amendments as incoherent, badly drafted and an attempt to dodge climate change considerations.

By Sarah Cox, for The Narwhal

Alberta Premier Jason Kenney calls Bill-69 the “No More Pipelines Act” and says he’ll take the proposed environmental impact legislation to court if it becomes law.

“This bill does not need a nip and tuck,” Kenney told Canadian senators in May. “It needs major reconstructive surgery or it needs to be put out to pasture.”

True to Kenney’s wishes, the bill — which introduces new rules for reviewing major projects like mines and pipelines following the gutting of environmental assessment legislation by the former Stephen Harper government — received far more than a nip and tuck in the Senate.

Major reconstructive surgery came in the form of 187 amendments approved by the Senate on Thursday evening, following intense lobbying led by the oil and gas industry and an in-person appeal by Kenney. The new premier travelled to Ottawa only days after he was sworn in, telling members of the Senate’s energy committee that Bill C-69 was the “culmination of a full-frontal attack” on Alberta’s economic prosperity.

But the Senate’s surgery is so extreme, with many of its wide-ranging amendments mirroring requests from the oil and gas industry, some verbatim, that environmental law experts say Canada would be better off leaving the Harper-era environmental assessment legislation in place.

“Unless the vast majority of those amendments are rejected, then it’s worse than what we have right now,” University of Calgary law associate professor Martin Olszynski said.

“What’s happened now is just ridiculous,” Olszynski, who specializes in environmental law, told The Narwhal.

“The [Senate] changes are not thought out. . .They’re essentially putting so many holes in the ship that it won’t even hold water.”

Senate amendments are ‘badly drafted’

Bob Gibson, a University of Waterloo professor in the department of environmental and resource studies, examined the fine print of every one of the Senate’s 187 amendments to Bill C-69 and wrote a detailed 20-page analysis.

He recommended that virtually all the amendments be rejected.

“A lot of the amendments are badly drafted,” Gibson said in an interview. “The amendments to me look like a large portion of it is driven by political optics more than substantive consideration.”

“I think a lot of it is fairly profoundly cynical. And I think a lot of it is ill-informed.”

Bill C-69 addresses an election campaign promise made by the Liberals to make environmental assessment credible again. The Harper government virtually dismantled Canada’s environmental assessment process, drastically reducing the number of federal assessments among other major cuts.

Following a report from an expert panel that travelled across the country, hearing from stakeholders in 21 cities, federal Environment Minister Catherine McKenna introduced Bill C-69 in February 2018, saying the new legislation would ensure “more timely and predictable project reviews” that would attract investment and development.

The 340-page bill replaces the Canadian Environmental Assessment Agency with the Impact Assessment Agency of Canada. The bill also makes changes to the Navigable Waters Act and overhauls the beleaguered National Energy Board, replacing it with a Canadian Energy Regulator.

The new impact assessment agency would review all major projects in the country, assessing not just the environmental impacts but also the social, economic and health impacts, as well as the effects on Indigenous peoples.

The bill establishes timelines for assessments and requires that impacts on Indigenous rights and culture be considered early on in the planning process.

Experts say Bill C-69 is not ‘anti-pipeline’

Both Olszynski and Gibson said Bill C-69 is neither anti-pipeline nor pro-pipeline.

“Since the current federal government bought a pipeline out of devotion to getting resources to market — and/or retaining associated votes — it’s a safe bet that they don’t intend for C-69 to be anti-pipeline,” Gibson said.

Indications are that more pipeline and oil and gas projects would be exempted from environmental review under Bill C-69 than under the existing law, Gibson said.

Olszynski pointed out that the proposed Impact Assessment Act, like all of its predecessors, is “entirely procedural in nature. It sets out a decision-making process only.”

The amendments come as members of the Red Chamber test their power to influence laws following reforms introduced by the Trudeau government that are intended to make the unelected Senate less partisan. A majority of senators now sit as independents.

The amended Bill C-69 will go to Parliament for consideration next week, but if MPs make any changes to the Senate amendments the bill will bounce back to the Senate for approval.

Typically the Senate would approve a bill at that point, but legislative deadlock is possible and Bill C-69 will die on the order paper if it has not been passed into law before the current legislative session ends (scheduled for June 21).

Many amendments are at the request of the oil and gas industry

Olszynski described the majority of the Senate committee amendments as akin to putting Bill C-69 through “some kind of incoherence-generating machine.”

“They’ve just essentially attacked various aspects, various provisions,” he said. “Much of it is at the request of the oil and gas industry, [and] some of it is from the independent senator’s group who I think failed to appreciate just how complex and interconnected all these different parts are.”

As one example, Olszynski pointed to a Senate amendment that would require the new assessment agency to respect something called a  “principle of proportionality” — involving the time and money proponents spend on studies during an assessment.

Olszynski said he is not aware of the existence of a “principle of proportionality” in environmental assessment regimes anywhere in the world.

He said it’s hard to imagine a “more uncertain” provision given that critics of Bill C-69 say they want more certainty in environmental legislation.

The idea of proportionality is bound to generate conflict, litigation and delay, Olszynski said.

“Proponents will balk at every additional study or information request, claiming disproportionality,” he wrote in an analysis of Bill C-69. “If adopted, this provision would become a major pinch point in every contentious assessment.”

Senate amendments downplay climate change considerations

The Senate amendments would also require that a project’s impacts on the environment and climate change be considered on a global level.

Before any amendments, Bill C-69 would require decision-makers to consider the extent to which a project would hinder or contribute to meeting Canada’s climate change commitments.

But projects do not have to help Canada meet those commitments. Nor would major projects be rejected if they make it more difficult for Canada to meet commitments, according to the original bill.

“When you look at even the most massive greenhouse gas emissions emitting plants they are all insignificant on a global level,” Olszynski said.

He pointed to Shell Canada’s Jackpine oilsands mine north of Fort McMurray as an example of the argument that carbon emissions from a major Canadian project should be discounted in light of global emissions. Shell argued that greenhouse gas emissions associated with the expansion — roughly the equivalent of putting 281,000 new cars on the road a year — were negligible because they only represented .5 per cent of Alberta’s total emissions.

Gibson said the “great elephant in the room” with the Senate amendments is climate change, pointing out that the science says we have to be down to net zero greenhouse gas emissions globally by 2050 to avoid catastrophic climate change.

“Understandably, the oil sector, including the pipeline interests, would much rather not have climate mentioned in the assessment law, or to have it delayed and muted by a long-extended and heavily lobbied policy exercise,” Gibson said. “They may get their wish. That is the thrust of some of the Senate amendments.”

“But that won’t delay actual climate change or associated damage and outrage. Nor will it make new bitumen extraction operations and new dilbit [diluted bitumen] pipelines a better bet for investors who can see ahead to stranded assets, or to Albertans who wonder how the Alberta economy will support their children.”

Syncrude operation in Alberta’s oilsands north of Fort McMurray. Photo: Louis Bockner / Sierra Club BC

Oil and gas industry lobbied senators intensively

Shortly after the Senate voted to accept the amendments — as proposed by the Senate committee on energy, the environment and natural resources — Kenney tweeted his approval, saying he was “very pleased.”

In a subsequent statement, Kenney noted that the amendments adopted by the Senate were proposed by the Alberta government, the Canadian Association of Petroleum Producers and the Canadian Energy Pipelines Association.

Lobbying of senators by the oil and gas industry intensified as Senate committees considered Bill C-69 and Bill C-48, which formalizes a decades-old moratorium on large oil tanker traffic off B.C.’s north coast. The Senate approved Bill C-48 on Thursday, after the bill was rejected by the Senate transport committee following ‘exhaustive’ industry lobbying.

From February 9, 2018 — the day after McKenna introduced Bill C-69 — to June 6, 2019, CAPP lobbied senators 29 times on issues pertaining to the environment, according to the federal lobbyist registry. Some of CAPP’s lobbying efforts involved multiple senators at once.

Sixteen individual oil and pipeline companies and groups also lobbied a slew of individual senators from November 2018 to the end of April 2019, reporting a total of 122 lobbying communications with senators, including with more than one senator at a time, according to the registry.

Those companies and groups included Enbridge, Imperial Oil, TransCanada and the Canadian Energy Pipeline Association.

The original Bill C-69 would improve government accountability for final decisions

The Alberta government and the oil and gas industry have also criticized Bill C-69 for allowing political discretion when it comes to making final decisions about large projects.

But Gibson pointed out that Cabinet decision-making is already “veiled from public view.” The impact assessment act is stronger than previous legislation because it sets out specific criteria for making final decisions about major projects, including consideration of the impact on Indigenous peoples, he noted.

The new legislation would compel Cabinet to provide reasons for its decisions and justify them while currently those reasons are “just a black box,” Gibson said.

“Because there’s this broad suite of things you have to look at, and because there have to be reasons set out, there is more control of the political discretion than there is in the current act and there was in the previous 1995 one.”

Harper’s environmental assessment rules ‘did not work to deliver approvals’

Yet another criticism is that Bill C-69 will slow approvals for pipeline and oil and gas projects.

But legislation introduced by the Harper government has not resulted in timely approvals for projects such as the Northern Gateway or Trans Mountain pipelines, Olszynski and Gibson both noted.

Harper’s environmental assessment legislation was broken in the sense that it gave approvals, “but they weren’t credible approvals,” Gibson noted.

“CEAA did not work to deliver approvals and shovels in the ground for major projects. The assessment process from 2012 approved Northern Gateway and approved Trans Mountain. But those approvals were not sustainable. They failed before the courts.”

“One of the objectives of the new legislation was to have more credible process that would lead to decisions that were less likely to fail in the longer haul before the courts.”

Bill C-69 sets timelines for project decisions  — a maximum of 300 days for smaller projects with fewer assessment requirements and 600 days for larger projects, down from the current 730 days.

Bill C-69 would keep Harper-era rule to scrutinize only Canada’s largest projects

Olszynski calls the unamended bill a “marginal” improvement over existing legislation. One of his main concerns is that Bill C-69 does not restore the pre-Harper era rules about which projects merit federal environmental assessment because it applies only to major projects.

Before 2012, about 3,000 environmental assessments a year were conducted at the federal level, ranging from screenings to far more intensive panel reviews.

“We’ve just had this massive deregulation on the landscape,” Olszynski said.

“You’ve essentially put a black box over 98 per cent of the activity that you used to know about. That’s what we lost. You’ve lost that understanding. . . Post 2012, the federal government only knows about the biggest projects.”

Olszynksi said while individual large projects are important “it’s the cumulative effect of all those smaller projects that are as important, if not more important, if you’re really interested in managing landscapes and managing ecosystems.”

Other News Stories