May 19, 2017

Regulating development: Energy, environmental changes and the law

As energy companies explore more unconventional locations and try to tie into more markets, the law is failing to keep up and should be made more transparent, say UCalgary legal experts.

Citizens are demanding a stronger voice in the legal system in Alberta (and Canada-wide) as issues arise that range from parks and species protection to energy-related drilling and pipelines, says Shaun Fluker, an associate professor in UCalgary's Faculty of Law.

“I don’t think the law is keeping pace, either federally or provincially, with what the public wants,” Fluker says. “It is struggling to find a way to regulate intensified energy development, while at the same time giving people a meaningful opportunity to have their say. Public participation must be better integrated into the energy project decision-making process.”

“We’re seeing it play out in the big pipeline hearings, where some people feel wronged and shut out of the process,” adds Fluker, whose Environmental Law Clinic won a City of Calgary environmental achievement award in 2016 for engaging the community. “It’s a real social challenge. When the law is inadequate, no one wins.”

More than eight years ago, when Fluker started to take a close look at access to the legal system for people in Alberta’s environmental community, he discovered that most of them didn’t have the funds to hire counsel. Many people he spoke with back then felt shut out of the legal system when trying to do battle over issues such as pollution.


UCalgary's Public Interest Law Clinic helped protect critical fish habitat in Alberta in 2015.

Environmental law clinic spurs justice

Fluker launched the Environmental Law Clinic at the university in 2011. The clinic gives law students the chance to work with people in the community as well as practise their legal skills, while providing environmentally minded community members with legal resources.

The environmental clinic work now operates as part of the Faculty of Law’s Public Interest Law Clinic. The clinic’s work has had significant legal impacts, both federally and provincially, Fluker says.

In one instance, students represented two environmental groups in civil proceedings against the federal Department of Fisheries and Oceans. The federal government had failed to comply with its legal duty to issue a Critical Habitat Order under the federal Species at Risk Act to protect the nearly extinct westslope cutthroat trout in Alberta’s rivers and lakes.

The result? The federal government issued the Critical Habitat Order in late 2015, a win for the clinic students, Alberta conservationists, the public at large, and of course the threatened westslope cutthroat trout.

When the Government of Alberta moved to protect the ecologically diverse and sensitive wildlife habitat in the Castle area in southern Alberta as two parks, banning forestry and mining, it came on the heels of of the federal Critical Habitat Order.

“In my view, the centerpiece of that (Castle) effort is the cutthroat trout habitation protection order that we worked on,” says Fluker. “The provincial government has been able to build on that. Having that order there is giving those protected areas a backbone that I’m not sure they would have explicitly had otherwise.”

Fluker says there is more work to be done. Particularly, the province needs to make its environmental impact assessment process more transparent. “Currently, it obfuscates rather than making things easy to understand for people and even lawyers. We are interested in shining more light in this area.”

Environmental decision-making a challenge

Martin Olszynski, assistant professor of law at the University of Calgary, who specializes in environmental, natural resources, and water law and policy, also believes the law is not keeping pace with developments in the areas of energy and the environment.

“The biggest challenge is the lack of transparency in environmental decision-making,” says Olszynski, who has been recently appointed to serve on the Council of Canadian Academies Expert Panel on Integrated Natural Resource Management.

“Whenever I have embarked on an empirical study of any kind, the first step has almost always been the filing of an access to information request (referred to as a "freedom of information" request provincially). Without taking for granted the mere availability of such tools, these processes introduce delays, sometimes up to two years, and uncertainty.”

It would be much more efficient if this information was made public at the outset through an online registry, which is now a fairly simple thing to do, he says.


Big energy development projects aren't always the worst environmental offenders, say UCalgary expert

Small projects can have big impacts

When it comes to examining the challenges facing environmental laws both provincially and federally, the devil is in the details.

“The fundamental problem with most Canadian environmental laws, including many of Alberta's environmental laws, is that they focus almost exclusively on ‘big’ projects, or activities that are likely to result in ‘significant’ environmental harm,” says Olszynski.

“Yet, they ignore almost entirely the thousands of individually innocuous projects and activities that, cumulatively, science tells us are equal, if not greater, drivers of environmental degradation.”

While there has been some progress at the provincial level – for example, Alberta's land use planning framework – this defect is in play with respect to the 2012 changes to the fish habitat provisions of the federal Fisheries Act, says Olszynski.

Those changes effectively reduced the number and kinds of projects in and around fish-bearing waters that will require authorization from the Department of Fisheries and Oceans (DFO).

Consequently, the DFO has less input into, and less knowledge about, projects and activities that are very likely having an impact on watershed health, says Olszynski.

“The result can only be the further degradation of Canada's watersheds, with implications not just for the fishery resource, which in 2010 generated over $8 billion in economic activity, but for the overall quality of our water and environment.”

Olszynski has appeared before several Parliamentary and Senate Committees in the context of various environmental matters to discuss his research, most recently, the Parliamentary Standing Committee on Fisheries and Oceans in the context of its review of the Fisheries Act. He also appeared before the Expert Panel appointed to review Canada's environmental assessment regime. The reports from these hearings have yet to be released.

Most of his research has a pragmatic bent. He practiced environmental law with the federal government for almost six years, because he knew that he wanted to research and teach environmental law and policy.

The law school’s award-winning blog, ABlawg, helps him build bridges into the wider community while informing government decision-makers.

Environmental law faces technological challenges 

The other way in which environmental law is not keeping up with developments is with respect to technology, especially advances in Geographic Information Systems (GIS) and IT, says Olszynski.

“We are seeing some progress, and Alberta's oil sands information portal is a good example, but there is a lot that could be done to make our regulatory regimes more accurate and efficient.” 

He wants to see access to real-time information about environmental conditions throughout the province and the country sooner rather than later, to ensure that management decisions reflect the reality on the ground. While Alberta's land use framework is working towards this goal, there is still a long way to go, including improving the laws and regulations that put it all in motion, he says. 


Regulations that protect the environment are necessary and shouldn't be seen as obstacles

Obstacles to environmental law progress

One of the biggest obstacles to change is the prevalence of outdated notions about environmental regulation, especially its dismissal as simply burdensome "red tape" intended to thwart economic development, says Olszynski.

“Regulation is necessary in an energy and resource intensive world,” he says.  “Without a doubt, some regulations are more burdensome than they need to be. But moving towards better regulation requires giving our regulators some breathing room to experiment with different approaches, none of which is possible if any and all regulation is deemed negative at the outset.”

In addition, all of the players relevant to environmental law and policy – including the scientists, engineers, policy wonks and lawyers – need to do a better job of speaking to and working with one another, he says.

“All of us possess relevant knowledge and information but it can be impenetrable to those outside of our own field of expertise," says Olszynski. "We need to do a better job of knowledge brokering and applying our various perspectives to help solve the pressing matters of the day.”

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Shaun Fluker is an associate professor in the University of Calgary's Faculty of Law. His research generally focuses on access to the legal system for persons who advocate for environmental protection, the implementation of environmental norms in law, the regulation of environmental markets, and the selected issues in administrative law. View Shaun's publications

Martin Olszynski is an assistant professor in the University of Calgary's Faculty of Law. His primary teaching and research interests are in environmental, natural resources, and water law and policy. View Martin's publications

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