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Environmental impact assessment and the promise of eco-pragmatism : a consideration of the Canadian Environmental… Sandgathe, Tracey Layne 2007

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E N V I R O N M E N T A L I M P A C T A S S E S S M E N T A N D T H E P R O M I S E O F E C O - P R A G M A T I S M : A C O N S I D E R A T I O N O F T H E C A N A D I A N E N V I R O N M E N T A L A S S E S S M E N T A C T by T R A C E Y L A Y N E S A N D G A T H E B . A . , The Un ive r s i t y o f Ca lgary , 1995 L L . B . , The Un ive r s i t y o f Calgary , 1999 A T H E S I S S U B M I T T E D I N P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F L A W S i n T H E F A C U L T Y O F G R A D U A T E S T U D I E S T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A October 2007 © Tracey L a y n e Sandgathe, 2007 A B S T R A C T Because of the potential for development to have negative environmental impacts, one of the most important questions addressed by environmental law and policy is whether and how to allow development to proceed. In Canada this question is answered primarily through environmental impact assessment ("EIA"). At the federal level, EIAs are required under the Canadian Environmental Assessment Act, S.C. 1992, c. 37 ("CEAA") for certain types of proposed projects and activities. Although C E A A ' s purposes include fostering both a healthy environment and economy, the Act does not provide any instruction on how to balance or choose between these goals in situations where both goals cannot be served. In 1999 Professor Daniel Farber developed a methodology he refers to as 'eco-pragmatism' in an attempt to create a means by which society's competing (and often contrary) values can be balanced and satisfactory trade-offs arrived at. In this thesis the differences between C E A A and eco-pragmatism are explored and consideration is given to whether eco-pragmatism might assist in resolving the value conflicts that often characterize EIAs. Of particular interest is whether Farber's approach might improve the C E A A framework and assist C E A A decision-makers in determining whether proposed projects should be approved. It is argued that although eco-pragmatism is. useful, it is not adequate i f the ultimate goal is environmental protection that is sustainable into the future. Both C E A A and eco-pragmatism focus on the mitigation of negative environmental effects, rather than on achieving long-term environmental gains or observing a minimum environmental standard. Accordingly, both arguably have the effect of slowing the erosion of environmental quality, but each fails to observe some sort of environmental 'bottom line' that would impose an ultimate limit on negative impact. It is suggested that an ultimate limit is a necessary (albeit difficult) element of environmental law. i i TABLE OF CONTENTS A B S T R A C T i i T A B L E O F C O N T E N T S i i i L I S T O F F I G U R E S v i L I S T O F A B B R E V I A T I O N S . , v i i A C K N O W L E D G E M E N T S v i i i D E D I C A T I O N i x 1. I N T R O D U C T I O N : 1. 2. T H E O R E T I C A L F R A M E W O R K ; ! .4 2.1 Ph i lo soph ica l Roo t s : : 4 2.1.1 Pragmat ism 4 2.1.2 Env i ronmenta l Pragmat ism 5 2.1.3 Faber ' s P ragmat i sm. ! 7 2.2 The Eco-pragmat ic F ramework 10 2.2.1 The Env i ronmen ta l Base l ine 13 2.2.2 Factor ing i n Lengthy T i m e H o r i z o n s 15 2.2.3 D e a l i n g w i t h Uncer ta inty ....16 2.2.4 D y n a m i c Env i ronmenta l Regu la t ion 17 2.2.5 Case Study: Reserve Mining ... 18 3. C A N A D I A N E N V I R O N M E N T A L A S S E S S M E N T A C T .22 3.1 Statutory Goa l s and Object ives 22 3.2 A p p l i c a t i o n 23 3.3 Assessment Types 25 3.4 D e f i n i n g the Scope o f the Project and the Assessment 30 3.4.1 Scope o f the Project 30 3.4.2 Scope o f the Assessment 33 3.4.3 Scope o f Env i ronmenta l arid Cumula t i ve Effects 34 3.4.3.1 Env i ronmenta l Effects '.. 34 3.4.3.2 Cumula t i ve Effects 36 3.5 Nature o f Env i ronmen ta l Effects 39 3.5.1 Whether Effects are Adver se : 40 3.5.2 Whether Effects are Significant.. . ' . 41 3.5.3 Whether Signif icant Effects are L i k e l y ..43 i i i 3.6 N e e d for the Project and Alternat ives ; 43 3.7 F o l l o w - u p Programs and Adap t ive management 44 4. T H E H I G H W O O D D E C I S I O N 46 4.1 C h o i c e o f C E A A D e c i s i o n 46 4.2 Introduction 47 4.3 The Li t t l e B o w Pro j ec t /H ighwood D i v e r s i o n P l a n : 51 4.4 Project A p p r o v a l s and the A p p l i c a n t 55 4.5 Pane l ' s V i e w o f Current Water Resource Management ....57 4.6 Pane l Imposed Threshold for De ta i l ed Assessment 60 4.7 Proposed D i v e r s i o n Plans 61 4.8 N e e d for Storage i n the H i g h w o o d B a s i n 64 4.9 D e c i s i o n and Di rec t ions o f the Pane l 66 4.10 Envi ronmenta l Effects o f the Three-Component Project 69 4.10.1 Assessment F ramework ....69 4.10.2 E x a m p l e s o f Speci f ic Env i ronmenta l Effects 72 4.10.2.1 Water Qua l i ty : 72 4.10.2.2 A q u a t i c Habitat and Fisheries 75 4.10.2.3 Prair ie Env i ronment Vege ta t ion and W i l d l i f e 79 4.10.3 Cumula t ive Env i ronmenta l Effects 83 4.10.4 A b o r i g i n a l Interests and Concerns 86 4.11 Recommendat ions o f Pane l and Federal Response 88 4.12 Second Joint Panel C o n v e n e d , 88 4.12.1 Progress Report #1 (June 2000) 89 4.12.2 Progress Repor t #2 (December 2000) 91 4.12.3 Progress Repor t #3 (June 2001) 92 4.12.4 Progress Report #4 (February 2002) and Status o f R e v i s e d P l a n 94 4.13 T h i r d Joint Pane l to be C o n v e n e d 96 5. C O M P A R I S O N A N D A P P L I C A T I O N .....98 5.1 Introduct ion '....98 5.2 C o m p a r i s o n o f Eco-pragmat i sm and C E A A 98 5.2.1 K e y N o r m . . 98 5.2.1.1 Farber 's C h o i c e o f P r imary N o r m .: 98 5.2.1.2 C E A A ' s P r imary N o r m 102 5.2.2 D e c i s i o n M e t h o d o l o g y 106 5.2.2.1 Eco-pragmat i sm ' s Env i ronmenta l Base l ine 106 5.2.2.2 C E A A ' s " B a s e l i n e " 108 (a) M i t i g a t i o n .• 109 i v (b) Just if icat ion I l l 5.2.2.3 Differences Be tween the Approaches 116 5.2.3 The Precautionary P r inc ip l e and Uncer ta in ty 117 5.2.3.1 Eco-pragmat i sm and the Implementat ion o f the Precautionary Pr inc ip le 117 5.2.3.2 C E A A and the Implementat ion o f Precautionary P r inc ip l e 118 5.2.4 Project Al ternat ives 122 5.2.5 P u b l i c Par t ic ipat ion 124 5.2.6 A d a p t i v e Management : 127 5.2.6.1 The " E c o " i n Eco-pragmat i sm 127 5.2.6 2 The C E A A A p p r o a c h to Adap t ive Management 129 5.2.7 Predic tabi l i ty and Cons is tency o f Dec i s ions 131 5.2.7.1 Certa inty under C E A A : 131 5.2.7.1 Certainty under Eco-pragmat i sm 134 5.3 L imi ta t ions o f Reserve Mining as a Case Study 135 5.4 A p p l i c a t i o n o f Eco-pragmat i sm to the L i t t l e B o w / H i g h w o o d Project 136 5.4.1 A p p r o a c h ...136 5.4.2 Leng thy T i m e H o r i z o n s 136 5.4.3 A d a p t i v e Management 137 5.4.4 Env i ronmenta l Base l ine -138 5.3.4.1 The D i v e r s i o n Plans 138 5.3.4.2 The Three-component Project ( T C P ) 139 6. C O N C L U S I O N 143 B I B L I O G R A P H Y '. 147 v LIST OF FIGURES Figure 1 L i t t l e B o w Project and H i g h w o o d D i v e r s i o n P l a n M a p v i L I S T O F A B B R E V I A T I O N S ABBREVIATION DEFINITION P A G E N O . C E A A Canadian Environment Assessment Act 1 C O S E W I C Commi t t ee o n the Status o f Endangered W i l d l i f e i n Canada 79 D F O Fisheries and Oceans Canada 44 E I A Envi ronmen ta l Impact Assessment 1 H M P H i g h w o o d R i v e r B a s i n Water Management P l a n 69 I F N Instream f l o w need 58 I F O Instream f l o w objectives 62 N R C B Natura l Resources Conserva t ion B o a r d 55 N R C B A Natural Resources Conservation Board Act 55 P A C P u b l i c A d v i s o r y Commit tee 90 S E A Strategic Env i ronmen ta l Assessment 24 T C P Three-component Project 60 T S C Techn ica l Sub-Commit tee 61 v i i A C K N O W L E D G E M E N T S I w i s h to acknowledge the faculty, staff and m y fe l low students at the U n i v e r s i t y o f B r i t i s h C o l u m b i a , a l l o f w h o m have made m y t ime at U B C an especial ly enjoyable one. In particular, I w o u l d l ike to express m y appreciat ion to Ian Townsend-Gau l t and S h i - L i n g H s u , w h o provided me w i t h thoughtful advice and went to great lengths to ensure m y t ime ly graduation. I also w i s h to thank W e s Pue for his perceptive comments . I a m grateful to the lawyers o f B o r d e n Ladner Gerva i s L L P , especial ly B o b Should ice and D o - E l l e n Hansen, w h o have k i n d l y supported me i n m y effort to pursue graduate studies w h i l e cont inuing to practice. I a m especial ly appreciative for the assistance g iven me by Sarah Fogarty, M i c a D o n n e l l y , N o r l a i n e W i l l i a m s o n , Caro le Ross and D o n n a W h i t e . I have been extremely fortunate to be supported by m y friends and fami ly . I a m par t icular ly thankful for the encouragement g iven to me by m y parents (Stan and O l i v i a W e b b ) , m y sister (Wendy W e b b ) and m y dear friends Jennifer A n d e r s o n and H o l l y Pomrnier . F i n a l l y , I w i s h to thank m y husband Dennis . I w o u l d not have been able to finish this thesis without his unwaver ing support, k i n d words and advice. v i i i To my parents ... ix 1. I N T R O D U C T I O N Because o f the potential for development to have negative environmental impacts, one o f the most important questions addressed by environmental p o l i c y and l a w is whether and h o w to a l l o w development to proceed. In Canada this quest ion is answered p r imar i ly through environmental impact assessment ("EIA"). E I A can be described i n general terms as a process o f dec i s ion-making that invo lves gathering informat ion and consider ing i n advance the anticipated environmental impacts o f a part icular undertaking. A t the federal l eve l , E I A s are required under the Canadian Environmental Assessment Act* ( "CEAA") for certain types o f proposed projects and activit ies. A l t h o u g h C E A A ' s purposes include fostering both a healthy environment and economy, the A c t does not provide any instruct ion on h o w to balance or choose between these goals i n situations where both goals cannot be served. A s a consequence, E I A s undertaken pursuant to the A c t can result i n confl ic t between what has been ca l led "the tradit ional adversaries i n environmental matters — property rights and non-use environmental values". In 1999 D a n i e l Farber developed a methodology he refers to as "eco-pragmat i sm" to address this type o f conf l i c t . 4 In essence, Farber presents a f ramework for ana lyz ing and m a k i n g environmental decisions that is rooted i n the ph i losophy o f pragmatism. Farber argues that his eco-pragmatic approach is suitable when consider ing "discrete actions", such as "con t ro l l ing a specif ic pollutant or approving a development project", but not as useful when attempting to " w o r k out long-term environmental p o l i c y i n a more hol is t ic w a y " . 5 A c c o r d i n g to Farber, eco-pragmatism i t se l f cannot solve environmental 1 S.C. 1992, c. 37 [hereinafter "CEAA"]. 2 See ibid., s. 4(1 )(b). 3 K. Hirokawa, "Some Pragmatic Observations About Radical Critique in Environmental Law" (2002) 21 Stan. Envtl. L.J. 225 at 227. 4 D.A. Farber, Eco-pragmatism: Making Sensible Environmental Decisions in an Uncertain World (Chicago: University of Chicago Press, 1999) [hereinafter Eco-pragmatism].: 5 D.A. Farber, "Building Bridges over Troubled Waters: Eco-pragmatism and the Environmental Prospect" (2003) 87 Minn. L. Rev. 851 at 879. 1 problems, but it can foster a legal context that is conducive to so lv ing these types o f p rob lems . 6 Through his eco-pragmatic approach, Farber is attempting to address what are arguably the most chal lenging issues i n environmental l a w and p o l i c y . H e is seeking a means by w h i c h society 's compet ing (and often contrary) values can be balanced and satisfactory trade-offs ar r ived at. A t some point, argues Farber, the costs o f protecting the environment outweigh the benefits - it is where this l ine should be d rawn that proves diff icul t . Farber states that there is no formula ic way to draw the l ine , but the approach to m a k i n g environmental decisions cannot be entirely ad hoc as there needs to be some coherent p o l i c y and un i formi ty o f dec is ion-making . In this thesis the differences between C E A A and eco-pragmatism are explored and considerat ion is g iven to whether eco-pragmatism might assist i n reso lv ing the value confl icts that often characterize E I A s . 7 O f part icular interest is whether Farber ' s approach might improve the C E A A framework and assist C E A A decis ion-makers i n determining whether proposed projects should be approved. In order to address these issues, this thesis is organized as fo l lows . In Chapter 2, ph i losophic pragmat ism and environmental pragmat ism are introduced br ief ly i n order to place eco-pragmatism w i t h i n its ph i losoph ica l context. F o l l o w i n g this introduct ion, eco-pragmatism is out l ined. In Chapter 3, the statutory goals, objectives and under ly ing pr inciples o f C E A A are set out. The chapter also explains when and h o w the A c t applies, focus ing i n particular o n h o w decisions concern ing proposed .projects are arr ived at. In order to explore i n more detail h o w C E A A is interpreted, Chapter 4 includes a summary o f a dec i s ion under C E A A . The dec is ion chosen addresses whether the L i t t l e B o w Project and H i g h w o o d D i v e r s i o n P l a n proposed by the A l b e r t a government i n 6 Ibid, at 854. ' • , 7 Eco-pragmatism does not yet appear to have been applied specifically to environmental impact assessment procedures. However, M.J. Angelo in "Embracing Uncertainty, Complexity, and Change: An Eco-pragmatic Reinvention of a First-Generation Environmental Law" (2006) 33 Ecology Law Quarterly 105 evaluates the U.S. Insecticide, Fungicide and Rodenticide Act from an eco-pragmatic perspective and J.B. Ruhl in "Is the Endangered Species Act Eco-pragmatic?" (2003) 87 Minn. L. Rev. 885 considers whether the U.S. Endangered Species Act can be described as eco-pragmatic. : 2 1996 should be recommended for approval (the "Highwood Decision") . Th i s dec is ion was chosen because it invo lves a significant and complex project and it was decided that certain aspects o f the undertaking should be approved w h i l e elements should not. In Chapter 5, C E A A and eco-pragmatism are compared. Chapter 5 also includes an appl ica t ion o f the eco-pragmatic methodology to the facts o f the H i g h w o o d D e c i s i o n . T h i s compar i son and appl ica t ion reveal some o f the strengths and l imita t ions o f each approach. Chapter 6 provides a b r i e f summary o f the conclusions reached. Canadian Environmental Assessment Agency and Natural Resources Conservation Board, Report of the NRCB/CEAA Joint Review Panel", Application #9601 - Alberta Public Works, Supply and Services, May 1998, Little Bow Project/Highwood Diversion Plan, Application to Construct a Water Management Project to Convey and Store Water Diverted from the Highwood River [hereinafter Highwood Decision]. •3 2. THEORETICAL FRAMEWORK 2.1 Philosophical Roots A s introduced above, "eco-pragmat ism" is the methodology developed by Farber i n his 1999 book o f the same name. 9 Farber ' s method has been described as approaching " theo ry -bu i ld ing" , 1 0 as " a new dec is ion m a k i n g ph i losophy for environmental l a w " 1 1 and as a possible new "paradigm for the next generation o f environmental l a w " . 1 2 In essence, Farber presents a f ramework for ana lyz ing and m a k i n g environmental decisions i n the context o f uncertainty that is based o n the phi losophy o f pragmat ism. In his book Farber does not exp la in ph i losophic pragmat ism or environmental pragmat ism i n any detail . E a c h o f these concepts is however introduced br ief ly b e l o w i n order to place eco-pragmatism w i t h i n its ph i losoph ica l context and to explore the foundations o f Farber ' s methodology. F o l l o w i n g this introduct ion, eco-pragmatism is out l ined. 2.1.1 Pragmatism Phi losoph ic pragmat ism appeared at the end o f the nineteenth century and "was in i t i a l ly intended to provide an alternative to foundat ional ism, i.e., the v i e w that there 13 are innate and indubitable beliefs upon w h i c h knowledge must be based". M i n t z explains that ph i losoph ica l pragmat ism is an "attitude or method o f thought" that is focused o n facts and consequences, rather than theories and pr inciples , and is characterized b y an "experient ia l , p rov i s iona l , and plural is t ic no t ion o f t ru th" . 1 4 Instead o f concern ing i t se l f w i t h theoretical constructs, pragmat ism is a f lexible ph i losophy that "relies o n act ion, See supra note 4. A.C. Flournoy, "In Search of an Environmental Ethic" (2003) 28 Colum. J. Envtl. L. 63 at 95 [hereinafter "In Search of an Environmental Ethic"]. "J.B. Ruhl, "Working Both (Positivist) Ends Toward a New (Pragmatist) Middle in Environmental Law" (2000) 68 Geo. Wash. L. Rev. 522 at 524 [hereinafter "Working Both Ends"]. J. Chen, "Symposium: The Pragmatic Ecologist: Environmental Protection as a Jurisdynamic Experience: Introduction" (2003) 97 Minn. L. Rev. 847 at 849. J. A. Mintz, "Some Thoughts on the Merits of Pragmatism as a Guide to Environmental Protection" (2004) 31 B.C. Envtl. Aff. L. Rev. 1 at 1. Ibid, at 3. 4 experimentat ion and workab le solutions". The flexibility inherent i n this approach flows f rom the general propos i t ion that human knowledge is l imi t ed and, as societies learn more, ethical questions and concerns change . 1 6 A c c o r d i n g l y , rather than resort to dogma to answer ethical questions or resolve disputes, pragmatists cont inual ly experiment to find solutions 1 7 that best serve ind iv idua ls and their communi t ies . Pragmat i sm's influence d imin i shed beginning i n the 1930s, but was rev ived i n the 1960s. In the 1980s a number o f legal scholars began to identify themselves as " lega l pragmat is ts" . 1 9 2.1.2 Environmental Pragmatism Starting i n the late 1980s, a group o f phi losophers and legal scholars began to apply pragmat ism to issues o f environmental ethics and questions concerning environmental l a w and p o l i c y . 2 0 The product o f this work , "envi ronmenta l pragmat ism", is not a single 21 v i e w , but encompasses " a cluster o f related and over lapping concepts". M i n t z observes that the var ious forms o f environmental pragmat ism share " a rejection o f the v i e w that 'adequate and workab le environmental ethics must embrace non-anthropocentr ism, h o l i s m , 22 * mora l m o n i s m , and, perhaps, a commitment to some form o f intr insic va lue ' " . A c c o r d i n g l y , the search for meta-theory is abandoned i n favour o f mora l p lu ra l i sm, w i t h an emphasis o n iden t i fy ing 1 the compat ib le aspects o f differ ing environmental theories. Because o f these attributes, the pragmatic approach has been described as a means o f r econc i l ing conf l ic t ing "environmental theories, priori t ies and tactics". H i r o k a w a observes that by rejecting the idea that theory leads to solutions, pragmatic th ink ing a l lows one to focus o n empi r i ca l Angelo, supra note 7 at 110. 16 Ibid, at Ml. 1 7 See K.A. Parker, "Pragmatism and Environmental Thought" in A. Light & E. Katz, eds., Environmental Pragmatism, (London: Routledge, 1996) 21 at 26-27 [hereinafter Environmental Pragmatism}; Angelo, supra note 7 at 111; and Mintz, supra note 13 at 5. 1 8 Mintz, ibid, at 2. 19 Ibid, at 2. 20 Ibid. 2 1 A. Light & E. Katz, "Introduction: Environmental pragmatism and environmental ethics as contested terrain", in Environmental Pragmatism, supra note 17 at 5. 2 2 Mintz, supra note 13 at 6, citing ibid, at 2. 2 3 Mintz, ibid, at 19-20. evidence and consider the consequences o f a part icular approach to environmental i ssues . 2 4 It is this emphasis o n consequences (e.g., the attainment o f environmental goals) that provides disagreeing environmentalists w i t h c o m m o n ground. Schroeder observes that uni f ied theories are not attractive to pragmatists because they fa i l to accommodate "conf l i c t ing and incommensurable values", w h i c h is what environmental p o l i c y - m a k i n g demands. M o r e o v e r , ' efforts to develop meta-theory have fai led. A c c o r d i n g to N o r t o n , . . . seeking a unified, monistic theory o f environmental ethics represents a misguided mission, a mission that was formulated under a set o f epistemological and moral assumptions that harks back to Descartes and Newton. A n assessment of the contribution o f environmental ethics to environ-mental policy in its first two decades is accordingly bleak. The search for a " H o l y G r a i l " of unified theory in environmental values has not progressed towards any consensus regarding what inherent value in nature is, what objects have it, or what it means to have such value. N o r have environmental ethicists been able to offer useful practical advice by providing clear management directives regarding difficult and controversial problems in environmental planning and management [footnote omitted]. 2 7 Other environmental pragmatists s imi la r ly v i e w any attempt to "resolve ultimate ph i losoph ica l issues" as fu t i l e . 2 8 B y abandoning the search for a uni f ied theory, environmental pragmatists are free to choose whatever ph i losoph ica l framework bests supports the goals o f environmental health and sustainabili ty i n any g iven situation - the "truth" (or the immutableness or • • • . - 9 0 ' . fixedness) o f a part icular theory is not important i n practice. Pragmatists are not attempting 30 to "accurately describe the w o r l d or uncover the values inher ing i n nature". Rather, they discuss and assess human values by asking whether the value i n quest ion is "useful" , and 2 4 2 5 2 6 2 7 2 9 3 0 Hirokawa, supra note 3 at 250. Mintz, supra note 13 at 20. C H . Schroeder, "Prophets, Priests, and Pragmatists" (2003) 97 Minn. L. Rev. 1065 at 1082-83. B.G. Norton, "Integration or Reduction: Two approaches to environmental values" in Environmental Pragmatism, supra note 17 at 106. See D.A. Kysar and J. Salzman, "Environmental Tribalism" (2003) 97 Minn. L. Rev. 1099 at 1132 [hereinafter "Environmental Tribalism"]. Mintz, supra note 13 at 9. Hirokawa, supra note 3 at 259. 6 31 they consider a be l i e f to be "true" w h e n it is i n fact useful. W h e n gauging usefulness, environmental pragmatists tend to emphasize social just ice. A c c o r d i n g to H i r o k a w a , i n order for environmental objectives to be attained, c o m m o n ground must be found not on ly w i t h i n environmental c i rc les , but also w i t h i n the greater communi ty . The author argues that "environmental l a w . . . operates i n the context of, and subject to, the pervasiveness o f the property p a r a d i g m . " 3 4 H i r o k a w a v i ews pragmat ism as a palatable midd le ground for ach iev ing changes that result i n the desired outcome (i.e., improved environmental l aw) wi thout requi r ing the substantial, and un l ike ly , shift away f rom the current property-based paradigm. H i r o k a w a argues that the usefulness o f environmental pragmat ism is i n its methods o f persuasion and its ab i l i ty to w o r k alongside the dominant paradigm. T h i s abi l i ty , i n H i r o k a w a ' s v i e w , is i n contrast to the ineffectiveness o f radical environmental crit iques (such as ecofemin i sm and deep eco logy) i n ach iev ing the incorporat ion o f environmental ethics into law. T o the pragmatist, " a theory is better w h e n it is successful, and a theory is on ly successful w h e n it finds its w a y into the l aw" . 2.1.3 Faber's Pragmatism A l t h o u g h pragmat ism and environmental pragmatic thought are not discussed at length i n Eco-pragmatism, one can easi ly recognize that Farber ' s w o r k is grounded i n 'in these. Farber encourages persuasion and discuss ion, stating that he hopes to "advance the conversat ion" through his approach. Farber does not bel ieve it " f ru i t fu l" to engage i n a d iscuss ion about the fundamental nature o f ethics i n order to address specific environmental Schroeder, supra note 26 at 1092. Mintz, supra note 13 at 20. See Hirokawa, supra note 3. Ibid, at 233. See ibid, at 225-28. Ibid, at 259. For a more complete discussion of how eco-pragmatism fits within pragmatism, see "Working Both Ends", supra note 11. Note that this thesis does not include a critique of Farber as an environmental pragmatist. For a critique of this nature, see L. Heinzerling, "Book Review: Pragmatists and Environmentalists" (2000) 113 Harv. L. Rev. 1421. Eco-pragmatism, supra note 4 at 14. 7 issues. In other words , he does not th ink it is product ive to try and answer P la to ' s question about the nature o f "the good" , and then use this answer to solve problems. Farber comments that it does not seem l i k e l y that we w i l l be able to settle the quest ion o f "the g o o d " any t ime s o o n . 4 0 S i m i l a r l y , Farber does not support the quest for "grand theories". Rather, he argues: A convincing analysis should be like a web, drawing on the coherence o f many sources, rather than a tower, built on a single unified foundation. Intelligent analysis requires the use o f theories, but as tools, not as ends in themselves. Environmental decisions involve a complex network o f scientific, economic, and norma-tive judgments. It is unlikely that we can construct a structure in which all o f these considerations w i l l point to a single conclu-sion. We can have better hopes o f building an interlocking web o f arguments that w i l l support a decision based on diverse, overlapping considerations. 4 1 A l t h o u g h he shows a wi l l ingness to employ any and a l l theories and take into account a l l considerations, Farber emphasizes that his fo rm o f pragmat ism does not invo lve ad hoc dec i s ion-making based o n a balancing o f factors . 4 2 H e argues that al though such an approach might have appeal, because it appears unbiased and inc lus ive , it is an inadequate approach for setting environmental p o l i c y . 4 3 A c c o r d i n g to Farber, a l though there is no mechanica l w ay to answer diff icul t questions o f environmental p o l i c y and l aw, there is a need for an analyt ic f ramework w i t h i n w h i c h to make dec i s ions . 4 4 There is also a need for consistency and coherence i n environmental po l i c ies and decis ions over t i m e . 4 5 Farber 's a i m is to formulate an analyt ical f ramework w i t h i n w h i c h compet ing and often contrary values can be balanced and satisfactory trade-offs arr ived at. H e is attempting to address the confl ic t between what H i r o k a w a has ca l l ed "the tradit ional adversaries i n environmental matters - property rights and non-use environmental va lues" 4 6 R u h l , for example , has observed that since the 1970s: 3 9 See ibid, at 40-41.. 4 0 Ibid, at 40. 4 1 ft/d atlO. 4 2 Ibid, at 93. 4 3 . Ibid, at 93-94. 4 4 Ibid, at 10. 45 Ibid. 4 6 Hirokawa, supra note 3 at 227. 8 . . . two extreme and opposing philosophies - one devoted to protecting the economy and the other to protecting the environment - have waged a war o f annihilation that has left in its wake the mish-mash of laws, regulations, judicial opinions, and countless administrative decisions and policies that we today call environmental K y s a r and Sa l zman have referred to this po lar iza t ion as "environmenta l t r iba l i sm" . Schroeder, descr ib ing the two compet ing factions as "prophets" and "priests", writes: Crudely put, priests seek to optimize pollution, are relatively indifferent to the impact o f human alterations of the environment on nonhuman things (save those providing feedback that affects the satisfaction o f human wants), discount (literally) the interests of future generations and do not think there are limits to growth. Prophets seek to minimize pollution, care about human impacts on nonhuman things, worry about future generations, and believe there are limits to growth. These different convictions motivate different environmental objectives, different senses o f urgency, different assessments o f trade offs with other values, and so on . 4 9 Farber characterizes this confl ic t generally as a dispute "over the leg i t imacy o f the market-based method [i.e., cost-benefit analysis] as a mechan i sm for socia l c h o i c e " . 5 0 In other words , he v i ews the dispute as being over whether the market or pol i t ics is the best indicator o f what humans desire. Farber argues that " [ i ]n reali ty, both po l i t i cs and markets [our p r imary methods o f m a k i n g decisions] express the values o f the pub l ic , and both sources o f informat ion about societal values deserve considerat ion i n formula t ing pub l i c p o l i c y " . 5 1 H e writes: If we are to evolve a vision of environmental law fit for our society, we must recognize that we are deeply committed both to free markets and to democracy, as flawed as each may be on occasion. We need to find a way to draw on both sides in formulating environmental pol icy . 5 2 Farber argues that i n order for regulat ion to be durable, or " soc i a l l y susta inable" , 5 3 it must appeal to both sides o f the spec t rum. 5 4 A c c o r d i n g l y , he advocates 4 7 "Working Both Ends", supra note 11 at 523. 4 8 See "Environmental Tribalism", supra note 28. 4 9 Schroeder, supra note 26 at 1092, 50 Eco-pragmatism, supra note 4 at 41. 5 1 Ibid, at 37. 52 Ibid, at 58. 5 3 See ibid, at 13. 9 through eco-pragmatism a decision-making approach that he sees as being sufficiently in the "middle" to garner broad-based and sufficient support, yet reflective of what he views as society's primary norm. Farber writes that our "key norm" is that humans are entitled to a safe environment as well as to environmental preservation - "tempered by an awareness of competing goals".55 Flournoy describes Farber's approach as "an ethic of sustainability or an ecological utilitarian ethic".56 The latter being an ethic in which maximizing human welfare is central, but certain shortcomings of the "utilitarian ethic" approach (e.g., failure to address ecology, scientific uncertainty and the limitations of market economics) are addressed.57 The Eco-pragmatic Framework In Eco-pragmatism, Farber attempts to address the following questions: Which has priority: environmental values or economic needs? Rather than looking to which has priority, is a balancing of environmental values and economic needs necessary? If we are going to make trade-offs between environmental and economic values, how are these very different values to be assessed and measured? If there are significant costs associated with an environmental rule (e.g., lost jobs or a lower standard of living), when is such a rule justified? Should we approach environmental decisions with a presumption in favour of protecting the environment? Or should we start from a neutral position, with no preference for or against environmental protection? Who bears the burden of proving whether a rule is justified? How do we determine what we should spend (or forgo) today in favour of environmental benefits to be enjoyed by future populations? Ibid at 58. Ibid, at 199. "In Search of an Environmental Ethic", supra note 10 at 95. Ibid, at 80-81. 2.2 10 • H o w do we decide w h e n to take act ion to address potential environmental problems? M o r e speci f ica l ly , when there are uncertainties and unknowns (e.g., scientif ic uncertainties), h o w do w e k n o w w h e n it is appropriate to delay . tak ing action? H o w do we determine what types o f actions are appropriate i n such circumstances? • F i n a l l y , h o w do we a v o i d becoming " l o c k e d in to" outdated environmental C O pol ic ies and regulations? Farber argues that there tends to be two basic approaches to answering these types o f questions and m a k i n g environmental p o l i c y dec i s ions . 5 9 In s impl i f i ed terms, the first approach looks to economic eff ic iency and cost-benefit analysis (the "economic approach") as a means to address diff icul t environmental decisions. The other holds as paramount, i n a l l situations, pub l i c health and environmental qual i ty (the "po l i t i c a l approach"). Farber wri tes: Despite their conflicts, advocates o f both approaches share a belief that environmental policy can be based on a single over-riding value, whether that value is economic or environmental. Both sides seek rigid methods o f making environmental decisions, in which the correct answer is guaranteed i f only decision makers follow the right recipe. 6 0 A s discussed i n the jmmedia t e ly preceding section, Farber is o f the v i e w that there is lit t le u t i l i ty i n addressing environmental p o l i c y as a choice between these two approaches. 6 1 Firs t , engaging i n a debate over w h i c h o f these "ho l i s t i c theories" should be re l ied on does not actually provide answers to environmental problems. Second, according to Farber, neither approach is adequate because " i n reali ty, both market and po l i t i ca l mechanisms have f laws as expressions o f pub l i c interest". 6 3 Farber argues that markets do Eco-pragmatism, supra note 4 at 3 and 5-6. 5 9 See Ibid, at 6-9. 50 Ibid, at 9. 61 Ibid, at 7-9. 62 Ibid, at 9. 63 Ibid, at 42. 11 not, for example , adequately deal w i t h "pub l i c goods" such as air. Notwi ths tanding , Farber believes it w r o n g to ignore private preferences. 6 5 " W i l l i n g n e s s to pay"'(i.e., the market) conveys informat ion that "wi l l ingness to vote" (i.e., pol i t ics) does no t . 6 6 Farber argues that both pol i t ics and markets indicate pub l ic interest and, therefore, both are relevant and should be reflected in environmental dec i s ions . 6 7 A l t h o u g h Farber argues that both economic eff ic iency and environmental values are relevant, he emphasizes the latter i n his eco-pragmatic approach. Farber writes that we have a "key n o r m " - this being that humans are entit led to a safe environment as w e l l as to the preservation o f nature. 6 8 H e sees this n o r m as w e l l rooted in po l i t i ca l cu l ture . 6 9 A c c o r d i n g to Farber, our attitudes reflect a firm " b e l i e f in personal autonomy and phys ica l integrity, w h i c h are threatened by involuntary exposure to p o l l u t i o n " . 7 0 A l t h o u g h he recognizes that the compet i t ion among our values is complex , Farber is o f the v i e w that w e are pu l l ed more strongly by environmental values than by economic ones . 7 1 Farber argues that because we have an over r id ing commitment to environmental qual i ty , we should develop p o l i c y and address issues starting f rom this p o s i t i o n . 7 2 A s w i l l be expla ined i n further detail be low, Farber recommends that w e also employ feasibi l i ty considerations and cost-benefit analysis to a v o i d unreasonable decis ions that do not reflect society 's other values, par t icular ly those that are economic i n nature. A t some point , explains Farber, the costs o f protecting the environment ou tweigh the benefits -it is where this l ine should be drawn that is the di f f icul ty . Farber states that al though there is no formula ic wa y to draw the l ine, our approach to m a k i n g environmental decisions cannot Ibid, at 42-43. , Ibid, at 54. Ibid, at 64. Ibid, at 42. Ibid, at 199-200. Ibid, at 199. Note that although Farber is writing specifically about the United States, his comments are sufficiently North American to be used for the purposes of this thesis. Ibid, at 200. Ibid, at 201. Ibid, at 94. Ibid, at 4. 12 be entirely ad hoc - there needs to be some coherent policy. The main elements of Farber's suggested approach are summarized below. 2.2.1 The Environmental Baseline Farber is opposed to implementing a neutral (or cost-benefit based) baseline because it requires a value judgment that there is "symmetry" between those who pollute and those who are impacted.75 Farber argues that the public does not see such symmetry and public law since the 1970s has rejected the same. Implementing a neutral baseline would result in a presumption in favour of economic efficiency and would shift the burden to those who advocate in favour of non-economic values.77 Moreover, cost-benefit analysis is not truly neutral because it requires (as will be discussed below) decisions to be made during the calculations that involve value judgments.78 For these reasons, Farber argues for a baseline with a presumption in favour of environmental values. He states that the goal of his baseline is to provide a satisfactory way of arriving at decisions that is in line with our key • 7Q (environmental) norm. Farber is of the view that when the baseline proves to be decisive, it should be decisive in favour of this overarching norm, rather than subordinate norms relating to economic values. Farber qualifies his presumption in favour of the environment by making it rebuttable. As mentioned previously, Farber acknowledges that at some point the costs of protecting the environment outweigh the benefits. To determine when the presumption in favour of the environment should be rebutted, he proposes applying a hybrid of feasibility and cost-benefit analysis. Simply put, cost-benefit analysis looks not only for the least costly regulatory option, but the option that is the most economically efficient - i.e., provides the economically optimum level of environmental quality.8 0 Feasibility-based regulation 74 75 76 77 78 79 80 Ibid, at 10. Ibid, at 113. Ibid. Ibid, at 97. . Ibid, at 7-9. Ibid, at 113. See Ibid, at 7. 13 promotes instead the maximum feasible level of environmental quality. In other words, i f there is a threat or risk to the environment, it is to be eliminated to the extent "feasible", for example through the use of the "best available technology". Farber employs a combination of both methods because each, in his view, is inadequate when applied alone. Farber does however give feasibility analysis priority. In justifying the use of feasibility analysis over cost-benefit analysis for the purposes of his baseline, Farber identifies some of informational limitations associated with the latter: Cost-benefit analysis, because it is more quantitative and formalized, puts higher information demands on the analyst. We have to know not only that the risks are significant, but also just how high they are; not only that the costs are feasible, but also just what they w i l l run; not just that a number of deaths over a given period o f time is too high, but also what their monetary value is and how to discount it to present value. A n d we need to know all these things accurately enough to compare the magnitudes o f the relevant figures. It w i l l sometimes be clear that cost-benefit analysis comes out one way or the other, but more often, we w i l l simply be left unsure at the end o f the day. Someday, with a better information base, we may obtain more precision in cost-benefit analysis. But we are a long way from reaching that point today. [Emphasis in the original.] 8 2 Farber suggests that cost-benefit analysis can be best used as a "backstop" to avoid incurring disproportionate costs after considering feasibility. Farber reasons that we cannot fail to consider the costs of regulation, especially when the environmental risks are unclear - as the money spent could be better allocated elsewhere. . . r ' In short, Farber articulates a baseline that is in favour of the environment (thus reflecting our primary norm), but that is qualified by a combination of feasibility and cost-benefit analysis. He is proposing that significant risks to the environment be eliminated to the extent feasible, except when the costs of addressing such risks exceed the potential benefits. Farber describes his "environmental baseline" as a hybrid of feasibility and cost-benefit analysis, "designed to take advantage of the environmentalist tilt of the former and the 'reality check' of the latter".84 1 Ibid, at 70. 2 Ibid, at 168-69. 3 Ibid, at 7 1. 4 Ibid, at 114. 14 2.2.2 Factoring in Lengthy Time Horizons Farber recognizes that when addressing environmental problems, society and, in particular, regulators must-deal with significant periods of time. He accepts, as a given, that "we should give serious attention" to our own future needs and the needs of future generations. Farber states that although we cannot solve environmental problems for future populations, "[w]e will do well enough if we leave them a livable world and well-designed institutions with which to make their own choices".87 He recognizes that our society does o n value security, at least for our children and grandchildren, but acknowledges: Whatever may be true in the abstract about our duties to future generations, we know that people are wi l l ing to make some sacrifices for their descendants, but only within limits. A n y practical scheme o f environmental protection must function within those l imits . 8 9 Accordingly, Farber recommends the use of different methods for addressing various lengths of time in order to maintain support for - and foster social sustainability o f -environmental regulation. If the methods of addressing time horizons are not reasonable, argues Farber, they will not be accepted. There is a need to ensure that public support for the approach chosen is maintained, otherwise the goal of providing a "decent" environmental minimum to future populations will not be realized.9 0 Farber argues that because people are willing to make only limited sacrifices for their immediate descendents, our focus is best placed on the next generation or so, using a discount rate of approximately 1 or 2 per cent.91 With respect to populations in the far distant future, he suggests employing the concept of "environmental stewardship", arguing that discounting is not useful in these circumstances. The more distant into the future these types of calculations are projected, the more unreliable 85 Ibid, at 133. 86 Ibid, at 161. 87 Ibid. 88 Ibid. Ibid, at 153. See Ibid, at 203. Ibid, at 153 and 155-56. 92 Ibid, at 155. 89 90 91 15 they become. According to Farber, what is reasonable when dealing with very significant periods of time is merely to try to "avoid substantial risks of future disaster to remote descendents".94. 2.2.3 Dealing with Uncertainty Farber recognizes that environmental policy must be able to address uncertainties regarding the existence and level of environmental risk. He is attempting through his eco-pragmatic approach to formulate a framework to deal with uncertainty in environmental regulation that can accommodate changes in scientific and other information, avoid the making of irreversible (environmentally harmful) decisions, and also avoid "draconian" regulation of risk. 9 5 By way of illustration, Farber explores the difficulty associated with calculating the risk that a particular endangered species will become extinct.96 We may not, for instance, have sufficient information on the population of the species or on its reproductive success rate. As a result, modeling the extinction process for that species may prove rudimentary. Moreover, it is often very difficult to estimate with any accuracy the costs to an industry or to society of a particular regulatory approach implemented to protect an endangered species. Accordingly, reasons Farber, we cannot with any certainty perform n o a cost-benefit analysis of a regulatory option to assess whether it is cost-justified. Farber writes however: Although the uncertainty surrounding environmental polices is humbling, we are not completely in the dark. We do know that the likely level of risk is considerably larger in some situations than in others. We have at least crude information about compliance costs- and rough notions about what kinds of financial sacrifices people are willing to make ... We need to find ways to use what information we have to 9 3 9 4 9 5 9 6 9 7 Ibid. Ibid. Ibid, at 163-64. See Ibid, at 166-67. See Ibid, at 167. Ibid. 16 make sensible decisions, without forgetting the uncertainty surrounding those decisions." Farber suggests that regulatory agencies should bear the burden of establishing that the environmental risks they are regulating in respect of are significant and that their regulations and remedies are feasible.100 However, the burden of proof should be shifted to the polluter when the regulator has evaluated all available information and cannot with any certainty estimate the risks and the feasibility of potential remedies.101 In other words, Farber supports applying the "precautionary principle" in a way to shift the burden of proof to the polluter, thus requiring the polluter to show that its activities are harmless when uncertainty exists.102 Farber is of the view that burden shifting is useful in that it can function as a kind of "tiebreaker". Farber writes that the regulator's "hands should not be tied when it has evaluated all of the available evidence, but cannot make a confident risk estimate ... it should be free, in its best judgment, to implement reasonable regulations as a precaution against environmental hazards."104 2.2.4 Dynamic Environmental Regulation In order for environmental policy and regulation to be effective over time, Farber argues that it must be "dynamic". He suggests that our regulatory approach should be altered to be better able to take advantage of the continual improvements in scientific knowledge.105 An environmental regulatory regime should be able to "learn" (e.g., through experimentation and evaluation) and be ready and able to adapt.106 Farber suggests that discretion on the part of regulators can be a useful tool for promoting this type of flexibility. He cautions however that too much discretion may result in regulatory actions that are not in keeping with our "primary norm". 99 Ibid, at 168. 100 Ibid, at 173. m Ibid. >02 Ibid, at 171. 103 Ibid, at 173. 104 Ibid. 1 0 5 Ibid, at 164. 106 Ibid, at 179 and 184. 17 A l t h o u g h he does not advocate deregulation, Farber suggests that dec i s ion-m a k i n g might be better i f it were "decentral ized", either to the private sector or lower levels o f government, and made less c u m b e r s o m e . 1 0 7 Decent ra l iza t ion w o u l d , i n Farber ' s v i e w , 108 • a l l o w regulators to be more responsive to changing circumstances. In addi t ion to his arguments for more " n i m b l e " 1 0 9 and s impl i f i ed environmental l a w and p o l i c y , Farber advocates focus ing o n in i t i a l data co l l ec t ion (to determine the current l eve l o f environmental q u a l i t y ) 1 1 0 and o n moni to r ing and fo l low-up measures over t ime, w h i c h a l l o w corrective actions to be t a k e n . 1 1 1 Farber also supports de lay ing regulatory actions unt i l sufficient informat ion is available or taking on ly intermediate and l imi t ed actions unt i l adequate informat ion can be ga thered . 1 1 2 A l t h o u g h , he is i n favour o f err ing on the side o f caut ion w h e n deal ing w i t h environmental p o l i c y , he is aware o f the poss ib i l i ty that regulat ion can be too burdensome without real benefit and that this can erode pub l i c support for the regulat ion. A c c o r d i n g l y , Farber emphasizes the need to correct over-regulat ion to mainta in commitment and prevent "po l i t i ca l b a c k l a s h " . 1 1 3 Regula tory systems, Farber argues, need a bu i l t - in abi l i ty to address shortcomings - i.e., they require internal "correct ive m e c h a n i s m s " . 1 1 4 2.2.5 Case Study: Reserve Mining Farber chooses Reserve Mining Company v. United States115 ("Reserve Mining") as his case study for the purposes o f deve lop ing and app ly ing eco-pragmatism. The author explains that he has selected this dec i s ion because it, 107 Ibid, at 179-80. 108 Ibid, at 180. 109 Ibid, at 193. 110 Ibid, at 184, 111 Ibid, at 180. 112 Ibid, at 186-88. 113 Ibid, at 202. 114 Ibid. 1 1 5 514 F.2d 492 (8th Cir. 1975) (en banc). 18 . . . was the first major judicial confrontation with environmental risk. It raised troubling issues regarding scientific uncertainty, the difficulty o f balancing cost against public health, and the long-term nature o f environment-tal harms. 1 1 6 Farber goes o n to argue, Reserve Mining remains a leading case on the subject of risk regulation even today. Its dramatic facts make it an ideal vehicle for thinking about environmental risks and how they should be controlled. The court was confronted with a massive discharge of asbestos, a known carcinogen, into Lake Superior. But almost al l the medical evidence related to the danger o f airborne asbes-tos. Whether there was any health risk from asbestos in drinking water was unclear. Thus, the court was faced with a massive gamble at unknown odds. A t stake were hundreds o f millions of dollars versus the safety of the people o f Duluth, Minnesota. We could hardly invent a more arresting example of the quandary posed by environmental r i sks . 1 1 7 The facts o f the case can be brief ly summar ized as f o l l o w s . 1 1 8 The Reserve M i n i n g C o m p a n y ("Reserve") operated on the north shore o f L a k e Superior. The company had been issued a permit to mine taconite (a low-grade i ron ore) i n 1947 and had begun produc ing and distr ibuting ore i n 1956. The loca l communi t ies had a posi t ive relationship w i t h Reserve. The enterprise proved h igh ly profitable and was v i e w e d as "an economic savior for the r e g i o n " . 1 1 9 A n aspect o f the company ' s operations inc luded d ispos ing o f the mine ' s tai l ings (i.e., waste by-products) i n L a k e Superior. A l t h o u g h there was li t t le direct evidence o f harm to aquatic l i fe , studies o f the lake revealed that state water-quali ty l imi t s for i ron , lead and copper were be ing exceeded, as were the recommended l imi t s for z inc and cadmium. G i v e n the size o f the lake and its var ied uses, it was dif f icul t to establish w h i c h industries were at fault. Reserve was generally uncooperative w i t h regulators and mainta ined that it was not causing harm to the lake. A suit was eventual ly filed by the Env i ronmenta l Protect ion A g e n c y against the company. The suit i n i t i a l ly focused o n eco log ica l damage to L a k e Superior. It evo lved , however , into a case concerning the pub l i c health r isks associated w i t h asbestos i n the lake - D u l u t h ' s source o f d r ink ing water. 116 Eco-pragmatism, supra note 4 at 16. nlIbid. 1 1 8 This summary is based primarily on Farber's discussion of Reserve Mining, see ibid, at 16 to 34. 119 Ibid, at 17. 19 G i v e n the science at the t ime (the case was heard i n the mid-1970s) it was diff icul t to determine the asbestos leve l i n L a k e Superior. M o r e o v e r , it was not k n o w n whether the consumpt ion o f asbestos was i n fact harmful . The tr ial judge p laced the burden o f p r o o f on Reserve, requir ing the company to establish that the leve l o f asbestos present i n the d r ink ing water was safe. G i v e n the uncertainties, Reserve was unable to meet its burden and the t r ia l judge issued a shut-down order. The extreme nature o f the court ' s remedy was (it w o u l d seem) based i n part on Reserve ' s conduct. The company had apparently g iven mis lead ing and inaccurate responses when questioned about the poss ib i l i ty and cost o f d ispos ing o f its tai l ings o n land, rather than i n the lake. The dec is ion o f the tr ial judge was appealed. The E i g h t h C i r c u i t stayed the shut-down order and went on to consider the evidence, conc lud ing that it c o u l d not be sure that asbestos i n d r ink ing water w o u l d cause an increase i n cancer rates. The court also found however that there was reasonable concern among med ica l professionals regarding the possible pub l i c health effects o f asbestos ingest ion, and this concern was sufficient to jus t i fy abatement o f the hazard on reasonable terms. The court, r ecogniz ing that a shut-down o f Reserve ' s operations w o u l d harm the company as w e l l as the communi ty , chose to a l l o w the company to continue operating - p rov ided Reserve shifted to land-based waste disposal . Farber observes that the courts i n Reserve Mining, . . . were faced with a difficult task in weighing an uncertain risk to public health against an approximately $200 mil l ion expenditure [on the part o f Reserve to alter its disposal practices]. The question posed by the case is how to go about making such trade-offs between safety and cost. Reserve Mining provides an excellent context in which to discuss why these choices are so hard, and what methods have been proposed for making them, and how we might go about solving these cases in a sensible way . 1 2 0 Farber adds that the case is , . . . a difficult case for several reasons, even apart from the scientific uncertainty about the extent o f the risk. The first is the difficulty o f somehow assessing the weight to give eco-nomic costs versus a possible public health risk. The values at stake are so different that we aren't sure how to compare them . . . The analytic difficulties are Ibid, at 33. 20 compounded by the temporal dimension o f environmental problems. The risks fac-ing the appeals court were very long-term, and it is hard to weigh risks that may not materialize for decades against money and jobs that w i l l be lost today. A l so , during the dispute, there were rapid changes in scientific knowledge - the asbestos threat to drinking water wasn't even known when the case began. We can expect future scientific knowledge to continue to change in dramatic and unexpected ways. 1 2 1 Afte r us ing Reserve Mining to i n fo rm his development o f eco-pragmatism, Farber applies his baseline to facts o f the case and arrives at the f o l l o w i n g conc lus ion : Under this hybrid approach, the proper decision in Reserve Mining seems clear. There was by all accounts a potentially seri-ous threat to health; it was technologically and economically possible to eliminate the risk; and the costs-benefit analysis was at least a close call , so that the company could not claim that the costs were patently disproportionate to the benefits. In short, the Eight Circuit had it right, given the information it had to work wi th . 1 2 2 1 Ibid, at 33-34. 'ibid, at 116. 21 3. CANADIAN ENVIRONMENTAL ASSESSMENT ACT 3.1 Statutory Goals and Objectives C E A A has a number of stated goals and objectives. The primary or overarching goal is to foster sustainable development. This concept is defined in the Act as "development that meets the needs of the present, without compromising the ability of future 123 generations to meet their own needs.'" Z J The purposes of C E A A specifically include encouraging authorities to take actions to "promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy".1 2 4 EIA is considered by the federal government to be a key element in the implementation of sustainable development because it provides a means of integrating environmental factors into planning and decision-making processes.125 Sustainable development is to be achieved in part by preventing those projects and activities to which the Act applies from causing "significant adverse environmental 126 effects". C E A A requires that harmful environmental impacts be avoided or minimized. The Act provides that government is committed to "anticipating and preventing the degradation of environmental quality" 1 2 7 and that C E A A is intended to ensure "projects are considered in a careful and precautionary manner" before they are approved.128 C E A A also has as an objective the enhancement of public participation in the EIA process. The Act provides that government is committed to facilitating public participation in the assessments conducted under C E A A and providing the public with access to the information upon which C E A A assessments are based.1 2 9 The Act's purposes 1 2 3 CEAA, supra note 1, s. 2(1). 124 Ibid, s.4(\)(b). 1 2 5 See CEAA, ibid, preamble and Government of Canada, Guide to Green Government (Ottawa: Minister of Supply and Services, 1995) at 11-12. 1 2 6 See CEAA, ibid., preamble and s. 4(1 )(a). 127 Ibid., preamble. 128 Ibid, s. 4(1 )(a). 129 Ibid., preamble. 22 speci f ica l ly include ensuring "opportunit ies for t imely and meaningful pub l i c par t ic ipat ion throughout the environmental assessment process". 3.2 Application C E A A applies, or is "tr iggered", i n circumstances where a federal 131 authority: (a) is itself, a project proponent; (b) provides f inancia l assistance to a project proponent; (c) disposes o f an interest i n land for the purposes o f a project; or (d) exercises certain regulatory duties, such as i ssu ing part icular permits or l i c e n c e s 1 3 2 required for a project to p r o c e e d . 1 3 3 The federal authorities exerc is ing these duties or functions become "responsible authorit ies" for the purposes o f the A c t and are required to ensure that an E I A is undertaken before a project caught by the A c t p roceeds . 1 3 4 A "project" is defined for the purposes o f C E A A as any "proposed construction, operation, modi f ica t ion , 135 decommiss ion ing , abandonment or other under taking" i n relat ion to a phys i ca l work . The def in i t ion also includes those activit ies that are unrelated to phys i ca l works that are l is ted i n the Inclusion List Regulations promulgated under the A c t . Ano the r set o f regulations, the Exclusion List Regulations, carves out exceptions to the requirement for an E I A for certain 137 types o f projects that are understood not to have significant environmental effects. 130 Ibid., s. 4(l)(cfK This reference to "timely and meaningful" participation was added to C E A A in 2003, see S.C. 2003, c. 9, s.2. The amendment was (according to the Agency) made in a response to the results of the "Five Year Review" of the Act, which highlighted the value of public participation: Canadian Environmental Assessment Act - Explanation of Amendments to the Act: October 2003, online: Canadian Environmental Assessment Agency <http://www.c«aa-acee.gc.ca/012/003/act-amendments_e.pdf> (date accessed: 18 April 2005) at 34 [hereinafter "Explanation of C E A A Amendments"]. Section 72 of C E A A specifically required that a comprehensive review of the legislation be undertaken five years after the Act was proclaimed in force (i.e., in January 2000). 1 3 1 A "federal authority" includes federal government ministers, departments and agencies, and certain Crown corporations, see C E A A , ibid., s. 2(1) for further detail. 1 3 2 See the Law List Regulations, SOR/94-636. 1 3 3 C E A A , supra note 1, s. 5(1). 134 Ibid., ss. 2(1) and 11(1). 135 Ibid., s.2(l). 1 3 6 SOR/94-637. For example, s. 25 of this regulation provides that the testing of military weapons outside of certain areas requires an EIA. 1 3 7 SOR/94-639. For example, s. 19 exempts the proposed construction of a farm water supply well or dugout that is not within 30m of a water body and would not involve the likely release of a polluting substance into a water body. 23 It is important to emphasize that G E A A does not apply to a l l areas o f federal ju r i sd ic t ion , on ly to certain speci f ica l ly identif ied areas o f federal dec i s ion-making . Further, the A c t applies on ly to proposed (rather than existing) phys ica l works and activit ies and does not apply to federal po l ic ies , plans and programs. A p p l i c a t i o n o f E I A to proposed governmental po l ic ies , plans and programs is referred to as "strategic environmental assessment" ( "SEA" ) . , It is generally agreed that an effective E I A system includes this type o f assessment . 1 3 9 S E A is currently the subject o f a non-binding Cabinet d i r e c t i v e . 1 4 0 The federal government has been severely c r i t i c ized for fa i l ing to include strategic assessment i n C E A A . 1 4 1 M o r e o v e r , accord ing to G i b s o n , S E A i n Canada " lacks transparency and has been w i d e l y i g n o r e d " . 1 4 2 S ince G i b s o n made these observations i n 2001 , there have been some improvements . The Cabinet direct ive was revised i n 2004 i n an effort to improve t ransparency. 1 4 3 P u b l i c statements must n o w be prepared w h e n a S E A has been carr ied o u t . 1 4 4 In addi t ion, the Canad ian Env i ronmenta l Assessment A g e n c y (or the "Agency") has stated i n its Sustainable Development Strategy 2007-2009 that one o f its key act ivi t ies dur ing See P.S. Elder, "Environmental and Sustainability Assessment" (1992) 2 J.E.L.P. 125 at 130 wherein the author argues that restricting the application of CEAA to proposed activities and works is a flaw in the Act. 9 See e.g. D.R. Boyd, Unnatural Law: Rethinking Canadian Environmental Law and Policy (Vancouver, B.C.: UBC Press, 2003) at 149-50 and R.B. Gibson, "The Major Deficiencies Remain: A Review of the Provisions and Limitations of Bill C-19, an Act to Amend the Canadian Environmental Assessment Acf (2001) 11 J.E.L.P. 83 at 101 [hereinafter "Major Deficiencies Remain"]. It is of note that the U.S. environmental impact assessment legislation, the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347, requires EIAs in respect of federal policies, plans and programs. 0 See Privy Council Office and Canadian Environmental Assessment Agency, Strategic Environmental Assessment: The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals - Guidelines for Implementing the Cabinet Directive (Ottawa: Minister of Public Works and Government Services Canada, 2004), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/016/directive_e.htm> (date accessed: 23 January . 2007) [hereinafter SEA Directive]. 1 See H.J. Benevides, "Real Reform Deferred: Analysis of Recent Amendments to the Canadian Environmental Assessment Act" (2004) 13 J.E.L.P. 195 at 196 [hereinafter "Real Refonn Deferred"]. 2 "Major Deficiencies Remain", supra note 139 at 101. For an example of strategic environmental assessment applied, see G. Lajoie and M.A. Bouchard, "Native involvement in strategic assessment of natural resource development: the example of the Crees living in the Canadian taiga" (2006) 24 Impact Assessment and Project Appraisal 211. 3 See SEA Directive, supra note 140 and Strategic Environmental Assessment, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/016/index_e.htm> (date accessed: 23 January 2007). 24 this period will be to promote SEA at the federal level. The Agency is responsible for administering C E A A , carrying out general EIA research and development, and providing advisory and administrative support to responsible authorities undertaking an EIA of a proposed project.146 3.3 Assessment Types C E A A provides for four levels or types of assessment: screening, comprehensive study, mediation and panel review. The objective of each type of assessment is to determine whether the project under review will be likely to result in significant adverse environmental effects. As will be considered in more detail below, the determination of the "significance" of any anticipated environmental effects is arrived at taking into consideration those mitigation measures (if any) the responsible authority considers appropriate in the circumstances.147 "Mitigation" is defined in the Act to mean "the elimination, reduction or control of the adverse environmental effects of the project, and includes restitution for any damage to the environment caused by such effects through replacement, restoration, compensation or any other means".148 Before discussing in detail the application of C E A A , each type of assessment will be introduced and briefly outlined. A screening level assessment is the most common of the four types of EIA conducted under C E A A . 1 4 9 If adequate information is not already available to screen a project, additional studies will be undertaken and information collected.1 5 0 The responsible authority may allow the public to participate at any time during a screening.151 After screening has been completed and a screening report prepared, the responsible authority must 1 4 5 Canadian Environmental Assessment Agency, Sustainable Development Strategy 2007-2009 (Ottawa: Minister of Public Works and Government Services Canada, 2006), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/017/0004/002/index_e.htm> (date accessed: 23 January 2007). 1 4 6 For details on the role and responsibilities of the Agency, see CEAA, supra note 1, ss. 61 to 70. 147 Ibid., s. 20(l)(a). This includes mitigation measures that would be implemented by another jurisdiction {e.g., a provincial, municipal or aboriginal government): ibid., s. 20(1.1). 148 Ibid, s. 2(1). J 1 4 9 Approximately 6,000 screenings are undertaken each year, see "Real Reform Deferred", supra note 141 at 212. 1 5 0 GEAA supra note 1, s. 18(2). 151 Ibid.,s. 18(3). 25 take one o f three actions. Where the project is not l i k e l y to result i n any significant adverse environmental effects, the responsible authority may a l l o w the project to proceed (i.e., exercise its duties or functions that resulted i n C E A A being triggered). The responsible authority must decline to exercise its authority to a l l o w the project to proceed where the project is l i k e l y to result i n significant adverse environmental effects that are no? jus t i f ied i n the c i r cums tances . 1 5 3 The third opt ion is referral o f the project to a media t ion or r ev i ew panel . The responsible authority must refer the project under r ev i ew i n a number o f situations. A referral must be made where there is uncertainty regarding the l i k e l i h o o d o f significant adverse environmental e f fec ts . 1 5 4 A referral must also be made where the project is l i k e l y to result i n significant adverse environmental effects and these effects can be j u s t i f i e d . 1 5 5 F i n a l l y , the responsible authority must refer the project to a media t ion or panel r ev iew where pub l i c concern warrants the r e f e r r a l . 1 5 6 It is wor th not ing it has been reported that between January 1995 and M a r c h 2001 on ly two projects undergoing screening were referred ( in both these cases the reference was to a r ev iew p a n e l ) . 1 5 7 It is also wor th not ing that al though the least r igorous fo rm o f environmental assessment is screening, significant projects can be rev iewed i n this way . F o r example , the E I A o f the f ixed l i n k bridge between 158 N e w B r u n s w i c k and Pr ince E d w a r d Island was undertaken by w a y o f screening. A comprehensive study involves a more complex assessment process. Projects that are subject to this type o f assessment are l isted i n the Comprehensive Study List Regulations.159 These projects are presumed to have the potential for significant adverse environmental effects. I f a project is l is ted i n the regulations, the responsible authority must consult w i t h the pub l i c i n order to determine the scope o f the project, the factors to be Ibid., 20(l)(a). Ibid, 20(l)(b). Ibid, s. 20(l)(c)(i). Ibid., s. 20(l)(c)(ii). Ibid., s. 20(l)(c)(iii). "Real Refonn Deferred", supra note 141 at 208. See S. Rutherford and K. Campbell, "Time Well Spent? A survey of Public Participation in Federal Environmental Assessment Panels" (2004) 15 J.E.L.P 71 at 73 [hereinafter "Time Well Spent?"]. SOR/94-638. For example, pursuant to these regulations CEAA applies to projects such as fossil fuel-fired electrical generating stations and to activities such as military exercises involving the low-level flying of fixed-wing jet aircraft: ss. 4(a) and 27. 26 considered dur ing the assessment and whether the project should be instead rev iewed by w a y o f media t ion or, panel r e v i e w . 1 6 0 F o l l o w i n g consultat ion, the responsible authority reports to the federal M i n i s t e r o f Env i ronment (the "Minister") and provides its recommendat ions o n whether the project should proceed as a comprehensive s tudy . 1 6 1 The M i n s t e r w i l l determine whether the project w i l l be returned to the responsible authority and the comprehensive study 1 fit*) continued, or w i l l be referred to a mediator or r ev iew panel . I f the E I A continues as a comprehensive study, a comprehensive study report w i l l be prepared and submitted to the Min i s t e r . The M i n i s t e r w i l l consider the report and issue a dec is ion statement communica t ing his or her op in ion o n whether the project w i l l be 163 l i k e l y to cause significant adverse environmental effects. The dec i s ion statement w i l l also describe the mi t iga t ion measures and any fo l low-up programs the M i n i s t e r considers necessary . 1 6 4 The M i n i s t e r w i l l then refer the project back to the responsible authority for a project dec is ion under section 37 o f C E A A . Sect ion 37, w h i c h also applies i n respect o f mediat ions and panel rev iews , is discussed be low. I f it is decided that an assessment w i l l be carr ied out through media t ion , the M i n i s t e r w i l l appoint an independent and impart ia l person w i t h the requisite experience to act as the med ia to r . 1 6 5 O n l y "interested parties" w i l l be entit led to participate i n the process. In other words , on ly those persons and entities that have an interest i n the outcome o f the assessment that is "neither f r ivolous nor vexat ious" w i l l be inc luded i n the negot ia t ions . 1 6 6 M e d i a t i o n w i l l o n l y be carr ied out i f a l l interested parties agree to participate i n the 0 CEAA, supranote 1, s. 21(1). Note that other opportunities for public participation are also provided for during a comprehensive study, see ibid., s. 21.2. 1 Ibid., s. 21(2). 2 Ibid., s. 21.1(1). In 2003 the Act was amended and it1 is no longer possible to refer a project undergoing a comprehensive study to a review panel at any time during the assessment, see S.C. 2003, c. 9, 12. After the Minister takes the decision to have the project assessed as a comprehensive study, it must be assessed in this manner. According to government, the change was made to "provide greater certainty and predictability to the comprehensive study process by eliminating the possibility of a second environmental assessment, by a review panel or a mediator, following completion of a comprehensive study": "Explanation of CEAA Amendments", supra note 130 at 89. 3 CEAA, ibid., s. 23(1). 4 Ibid. 5 Ibid., s. 30(1). 6 Ibid., s. 2(1). 27 167 process. Once the media t ion has been completed, the mediator w i l l prepare a report and submit a copy to the M i n i s t e r and to the responsible authority. The report must be taken into account by the responsible authority i n m a k i n g a dec is ion under section 37 o f the A c t . T o date, there have been no mediat ions under C E A A , and on ly o n e 1 6 9 under its predecessor 170 "• , process. Where a project is referred to a r ev iew p a n e l , 1 7 1 the M i n i s t e r w i l l appoint the panel m e m b e r s . 1 7 2 M e m b e r s must be unbiased, free f rom any conf l ic t o f interest and have knowledge or experience that is relevant to the project under rev iew. Sec t ion 34 o f C E A A sets out h o w an assessment is to be conducted by a rev iew panel . The panel must first obtain a l l the informat ion necessary for. the r ev iew and make this informat ion avai lable to the pub l i c . The panel must then h o l d hearings and prepare a report setting out its rationale, conclus ions and recommendat ions i n respect o f the project, i nc lud ing any mi t iga t ion measures and fo l low-up programs deemed necessary. R e v i e w panels generally have the powers afforded a court and may, for example , s u m m o n witnesses and order documents to be p r o d u c e d . 1 7 4 The panel prepares a f inal report, w h i c h is then submitted to the responsible authority for a dec i s ion under section 37 o f C E A A . A l t h o u g h the report is not b ind ing , 167 Ibid., s. 29(2). 168 Ibid., s. 32(1). 1 6 9 See T. Dyck, "Standing on the Shoulders of Rio: Greening Mediations under the Canadian Environmental Assessment Act" (2003) 13 J.E.L.P. 335 at 342-44. This sole mediation (which began in 1992) concerned the Sandspit Small Craft Harbour Project, located in British Columbia. 1 7 0 CEAA was preceded by the "Environmental Assessment and Review Process" ("EARP"). It was. through EARP that the federal government first implemented EIA in Canada. EARP was comprised of a number of Cabinet directives. The original directives were dated June 3, 1972 and December 20, 1973; a further directive was issued in 1977, see M.I. Jeffery, "The New Canadian Environmental Assessment Act - Bill C-78: A Disappointing Response to Promised Reform" (1991) 36 McGill L. J. 1070 at 1070. EARP was consolidated in 1984 as the Guidelines Respecting the Implementation of the Federal Policy on Environmental Assessment and Review, SOR/84-467 (June 22,1984). These guidelines, commonly referred to as "EARPGO", were repealed when CEAA came into effect on January 19, 1995. 1 7 1 Assessment by review panel is rare. According to Benevides between'1995 and 2001 only 11 panels were struck: "Real Reform Deferred", supra note 141 at 212. 1 7 2 CEAA, supra note 1, s. 33. 173 Ibid., s. 33(l)(a)(i). • • . ^ 174 Ibid., ss. 35(1) and (2). 28 government appears reluctant to disregard a panel's recommendations given the potential for • 175 the public to react negatively. In order to avoid regulatory duplication where an EIA is required under both 176 federal and provincial legislation, a "joint" panel review may be implemented. Joint panel reviews can also be undertaken where more than one federal body or agency has the jurisdiction to assess the environmental impacts of a proposed project.177 This type of joint • review is also possible where a project is subject (in whole or in part) to an EIA in both Canada and a foreign jurisdiction.178 In accordance with section 37 of CEAA, the responsible authority will decide to either allow a project under review to be carried out or refuse to exercise its duties or functions that would permit the project to proceed. A project that is likely to result in significant environmental effects will only be approved if those effects are "justified" in the circumstances. If the EIA has been carried out as a mediation or panel review, or has been carried out as comprehensive study and the Minister has issued a decision statement indicating that there are likely to be significant adverse environmental effects, the responsible authority will need to obtain the approval of Cabinet with respect to its decision.179 In the case of a mediation or panel review, the responsible authority is required to prepare a * 180 response to the report of the mediator or panel and submit this response to Cabinet. Once Cabinet has approved the responsible authority's response to the mediation or panel report, the authority may allow the project to be carried out where it is not likely to cause significant adverse environmental effects or, if the project is likely to cause such effects, the effects are justified in the circumstances.181 As will be discussed in further detail below, the Act does not define "significant" or "adverse", nor does it address in what circumstances significant adverse environmental effects would be "justified" and a project permitted to proceed. It is See Jeffrey, supra note 170 at 1087. 6 See CEAA, supra note 1, s. 40(2). 7 See ibid. 8 See ibid., s. 40(3). 9 CEAA, supra note 1, ss. 37(1.1) and (1.3). 0 Ibid, s. 37(1.1). 1 Ibid., s. 37(l)(a). 29 should be emphasizing that Cabinet is ultimately responsible for deciding whether to allow projects to proceed that are likely to result in significant adverse environmental effects. In other words, it is the final arbiter of whether environmentally harmful projects are justified. It has been reported that between 1995 and 2000, 99.9 per cent of the 25,000 EIAs conducted by the federal government were carried out as screenings, 46 projects were subjected to a comprehensive study, 10 projects were reviewed by a panel, and no mediations were carried out. 1 8 2 During this period, it would appear that over 99.9 per cent of the projects undergoing assessment were approved.183 Although this statistic may be accurate, it should be recognized that the extremely high approval rate may be (at least in part) a function of how the C E A A process seems to encourage proponents to remove projects from the assessment process early when those projects cannot be feasibly modified or their impacts sufficiently mitigated in order to obtain approval. 3.4 Defining the Scope of the Project and the Assessment Prior to conducting an EIA under C E A A , the responsible authority or Minister must "scope" the project and the assessment. In other words, the decision-maker must define precisely what the "project" is and which factors will be considered relevant for the purposes of carrying out the assessment. 3.4.1 Scope of the Project C E A A requires the responsible authority (or the Minister in circumstances of 185 a review panel or mediation) to determine the "scope of the project" to be assessed. If the Boyd, supra note 139 at 152. See also "Explanation of CEAA Amendments", supra note 130 at 95. Boyd, ibid, at 151. -Although there is data available on the number of assessments "terminated" in various years, it is unclear to what extent this category reflects situations where proponents have abandoned their projects because it appears unlikely these projects will be approved. For example see the statistical summary provided by the Agency on its Internet site for the fiscal year 2005-2006. During this period, the Department of Fisheries and Oceans (or DFO) was the responsible authority for 630 ongoing screening assessments, 727 screening assessments were initiated, 595 screening assessments were completed and 66 screening assessments were terminated: Statistical Summary - 2005-2006, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/010/stats0506_e.htm> (date accessed: 28 January 2007). CEAA, supra note 1, s. 15(1). 30 project is a physical work, the responsible authority or Minister also determines which related operations or undertakings are to be considered relevant for the purposes of the assessment. Hobby has observed: The challenge in determining the scope o f a project is to find the balance between artificially separating related undertakings or activities for the purposes o f an environmental assessment (which has been described as "project splitting") and casting the net too widely to include undertakings or activities that are remotely related to the triggered project and that are typically matters within the jurisdiction o f the province where the project is located. 1 8 7 The Canadian courts have found that the responsible authority or Minister enjoys a great deal of discretion in defining project limits and identifying which activities are related. For example in Friends of the West Country Assn. v. Canada (Minister of Fisheries and Oceans)™* the proponent sought approval to build two bridges along a road recently constructed to transport logs to its mill from its forestry operations. Although the bridges, road, mill and forestry operations were interdependent, the Federal Court of Appeal ultimately held that the responsible authority was entitled to identify each bridge as a separate project and exclude from consideration the associated road, mill and forestry operations. This example illustrates that the nature and extent of the potential environmental impacts considered in an EIA will vary greatly depending upon how narrowly the project is defined by the responsible authority or Minister and what related operations or undertakings the decision-maker considers relevant. Although C E A A itself does not provide any guidance, the (non-binding) Responsible Authority's Guide provides a test intended to assist responsible authorities and * • 189 the Minister in determining the scope of a project. The guide states that in order to ensure some consistency in the scoping of projects, decision-makers should consider applying the Ibid., s. 15(3). B. Hobby et al., Canadian Environmental Assessment Act: An Annotated Guide, looseleaf (Aurora: Canada Law Books Inc., 2000) at 11-65. (1998), 28 C.E.L.R. (N.S.) 97 (F.C.T.D.), affd (1999), 248 N.R. 25 (F.C.C.A), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 585, online: QL (SCCA) [hereinafter The Friends of West Country Trilogy]. Canadian Environmental Assessment Agency, The Canadian Environmental Assessment Act: Responsible Authority's Guide (Ottawa: Minister of Supply and Services Canada, 1994) [hereinafter Responsible Authority's Guide]. A copy of the guide can be found online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/013/0001/0008/contents_e.htm> (date accessed: 29 January 2007). 31 "pr inc ipa l project/accessory" tes t . 1 9 0 Firs t , considerat ion should be g iven to what the p r inc ipa l project is . A c c o r d i n g to the guide, the p r inc ipa l project must a lways be inc luded w i t h i n the scope o f the project and it w i l l be either the undertaking i n relat ion to a phys ica l w o r k or the phys ica l ac t iv i ty that tr iggered C E A A . 1 9 1 Second, the responsible authority or M i n i s t e r should include w i t h i n the project 's scope any other works or activit ies that are accessory to the p r inc ipa l project. The f o l l o w i n g cri ter ia are intended to assist i n m a k i n g this determination: interdependence: .If the principal project could not proceed without the undertaking of another physical work or activity, then that other physical work or activity may be considered as a component o f the scoped project. linkage: I f the decision to undertake the principal project makes the decision to undertake another physical work or activity inevitable, then that other physical work or activity may be considered as a component o f the scoped project. 1 9 3 The A g e n c y ' s Operat ional P o l i c y Statement O P S - E P O / 1 - 1 9 9 8 also gives some direct ion o n project scoping by setting out a number o f issues or factors that may be o f assistance w h e n determining the scope o f a p ro jec t . 1 9 4 F o r example , the responsible authority or M i n i s t e r may want to take into considerat ion the descr ipt ion o f the project p rov ided by the proponent. It is also recommended that the responsible authority or M i n i s t e r consider whether addi t ional assessments under p rov inc i a l E I A legis la t ion w i l l be carr ied out i n respect o f some aspects o f the overa l l undertaking. Th i s m a y assist i n establ ishing the boundaries for the federal assessment and prevent regulatory dupl ica t ion . Canad ian courts - by f inding that a responsible authority has nearly un l imi t ed discret ion to define a proposed project and identify related undertakings - have decl ined to provide any guidance w i t h respect to project scoping. Interestingly, A m e r i c a n courts have apparently taken a more supervisory and activist role w i t h respect to the implementa t ion o f 190 Ibid, at 18. 191 Ibid. 192 Ibid. 193 Ibid. 194 Operational Policy Statement OPS-EPO/1-1998 (September 25, 1998): Establishing the Scope of the Environmental Assessment, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/013/0002/scoping_e.htm> (date accessed: 28 January 2007). 32 EIAs under C E A A ' s U.S. equivalent, the National Environmental Policy Act}95 Jeffery argues that Canadians would perceive similar intervention as an "unwarranted intrusion into the administrative and regulatory realm of government".196 Whether this is an accurate statement is certainly debatable. It can however be said that C E A A has been drafted in such a way so as to avoid administrative review. 1 9 7 3.4.2 Scope of the Assessment Section 16(1) of C E A A sets out the following list of factors that must be considered during each EIA: (a) the environmental, including cumulative, effects of the project; (b) the significance of the environmental effects; (c) public comments that are received in accordance with the Act; (d) measures that are technically and economically feasible that would mitigate any significant adverse environmental effects; and (e) any other matters considered to be relevant to the assessment. This list comprises the basic minimum for an assessment under the Act. As Hobby has observed, the responsible -authority or 198 Minister has "considerable latitude" in defining the scope of an assessment. Section 16(2) requires that the following additional factors be considered when an assessment is carried out by way of comprehensive study, panel review or mediation: (a) the purpose of the project; (b) alternative means of carrying out the project that are technically and economically feasible - and the environmental effects of any such alternatives; (c) the need for, and the requirements of, any follow-up program in respect of the project; and (d) the capacity of renewable resources that are likely to be significantly affected by the project to meet the needs of present and future populations. Hobby correctly comments that these added mandatory factors are required in the context of comprehensive Jeffery, supra note 170 at 1071-72. The U.S. legislation is cited at supra note 139. Jeffery, Ibid, at 1072. To successfully challenge a CEAA decision it is necessary to establish that the decision was "patently unreasonable", see for example: Union of Nova Scotia Indians v. Canada (Attorney General) (1996), 22 C.E.L.R. (N.S.) 293 at 320 (Fed. T.D.).. Hobby, supra note 187 at 11-76. For example, in The Friends of West Country Trilogy the Federal Court of Appeal made it clear that the responsible authority is not restricted to considering only those environmental effects that emanate from sources within federal jurisdiction, supra note 188. See in particular, (1999), 248 N,R. 25 (F.C.C.A).at para. 34. 33 studies, mediations and panel reviews because of the potential for projects undergoing these types of assessments to result in greater harm to the environment than screened projects.199 3.4.3 Scope of Environmental and Cumulative Effects According to the federal government, the assessment process in Canada "has advanced beyond consideration of impacts on individual species and environmental issues to examination of the cumulative effects of human activities on ecosystems" and "[fjhis includes assessing and reviewing projects to ensure that long-term land use objectives are met on a larger regional planning basis."200 As indicated in the preceding subsection, each EIA must include a consideration of the environmental effects of the project under review and "any cumulative environmental effects that are likely to result from the project in 201 combination with other projects or activities that have been or will be carried out". The responsible authority, or the Minister in the circumstances of a review panel or mediation, 909 determines the scope of these factors. Although C E A A includes a definition of "environmental effect", it does not provide a definition of "cumulative environmental effects". Each type of effect will be discussed in turn. 3.4.3.1 Environmental Effects "Environmental effect" is defined in C E A A to mean any change that the project may cause in the natural environment and the effect of any such change on other 9 Hobby, ibid, at 11-85. 0 Environment Canada, Learning from Nature: Canada - The Ecosystem Approach and Integrated Land Management: A Canadian contribution to the land use dialogue at the Eighth Session of the United Nations Commission on Sustainable Development, April 24 to May 5, 2000, online: Sustainable Development Information System <http://www.sdinfo.gc.ca/reports/en/monograph 13/landnat.cfm> (date accessed: 15 April 2005). 1 CEAA, supra note 1, s. 16(1 )(a). 2 Ibid., s. 16(3). 34 factors such as health and soc ioeconomic c o n d i t i o n s . 2 0 3 / Penney argues that by "prec lud ing considerat ion o f direct soc ioeconomic effects, this . . . [definition] prevents the k i n d o f integrated, comprehensive impact assessment w h i c h is often most relevant to affected c o m m u n i t i e s " . 2 0 4 In addi t ion to direct soc ioeconomic effects, others have argued that the 90S def in i t ion o f environmental effect should be expanded to include cul tural considerations. A l t h o u g h not speci f ica l ly p rov ided for, direct socia l ( inc lud ing cultural) and economic effects cou ld (at least arguably) be considered under sect ion 16(l)(e) o f C E A A . T h i s is a ' ca tch -a l l ' p rov i s ion that a l lows considerat ion o f any matter that m a y be relevant to an assessment that is not already identif ied as such by the A c t . F o r example , the A g e n c y ' s reference guide for the assessment o f environmental effects on heritage resources provides that responsible authorities may, r e ly ing on section 16(l)(e) , "choose to assess effects o n phys ica l and cul tural heritage that result f rom a project but do not result f rom a change i n the environment caused by the project". Information o n h o w environmental effects m a y be scoped and evaluated for the purposes o f an E I A is contained i n a number o f guidance documents, i nc lud ing a The full definition of the term is as follows: '"Environmental Effect' means, in respect of a project, (a) any change that the project may cause in the environment, including any change it may cause to a listed wildlife species, its critical habitat or the residences of individuals of that species, as those terms are defined in subsection 2(1) of the Species at Risk Act, (b) any effect of any change referred to in paragraph (a) on (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes by aboriginal persons, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance, or (c) any change to the project that may be caused by the environment, whether any such change or effect occurs within or outside Canada": ibid., s. 2(1). "Environment" is defined to mean "... the components of the Earth, and includes (a) land, water and air, including all layers of the atmosphere, (b) all organic and inorganic matter and living organisms, and (c) the interacting natural systems that include components referred to in paragraphs (a) and (b)": ibid. S. Penney, "Assessing CEAA: Environmental Assessment Theory and the Canadian Environmental Assessment Act" (1994) 4 J.E.L.P. 243 at 263. See also A. Nikiforuk, "The Nasty Game": The Failure of Environmental Assessment in Canada, (Walter & Duncan Gordon Foundation Toronto, 1997) at 10. See e.g. "Major Deficiencies Remain", supra note 139 at 99. Canadian Environmental Assessment Agency, A Reference Guide for the Canadian Environmental Assessment Act: Assessing Environmental Effects on Physical and Cultural Heritage Resources (Ottawa: Minister of Supply and Services Canada, 1996) at 3-4. This guide is an appendix to Responsible Authority's Guide, supra note 189. 35 207 document entitled: A Guide'on Biodiversity and Environmental Assessment. This guide provides that when scoping environmental effects, a responsible authority or the Minister should first identify the potential environmental effects on biodiversity of the proposed 208 project and then determine the spatial and temporal boundaries of the assessment. For example, the decision-maker should consider what species may be impacted by the project and how much of their habitat will likely be eliminated or altered.209 Consideration should then be given to the extent of these impacts. For example, the decision-maker should explore whether the impacts will be localized or whether the impacts might extend to the larger, regional ecosystem.210 If the potentially impacted species include migratory species, the spatial parameters of the assessment should reflect this fact. With respect to time parameters, 211 the guide suggests considering historical trends in species and habitat loss. 3.4.3.2 Cumulative Effects It has been argued that the most significant threat to the environment arises from the cumulative effects of existing and anticipated development, rather than from the environmental impacts of individual projects.212 It has been suggested, therefore, that identifying the projects and activities that should be included in a cumulative effects assessment is key to the government's ability to influence development planning and limit environmental damage.213 The federal government appears to recognize the importance of cumulative effects because it has required that these effects be considered under C E A A . 2 1 4 Green observes, however, that C E A A "provides no intelligible principle upon which the 2 0 7 Canadian Environmental Assessment Agency and Biodiversity Convention Office, A Guide on Biodiversity and Environmental Assessment (Ottawa: Minister of Public Works and Government Services Canada, 1996), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/017/images/ CEAA_19E.PDF> (date accessed 28 January 2007) [hereinafter A Guide on Biodiversity]. For a list of guidance materials available, see Guidance Materials, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/012/newguidance_e.htm> (date accessed 28 January 2007). 208 A Guide on Biodiversity, ibid, at 4. 209 Ibid, at 6-7. 210 Ibid, at 7. 211 Ibid. ' 2 1 2 See "Major Deficiencies Remain", supra note 139 at 92-93 2 1 3 A. Green, "Discretion, Judicial Review, and the Canadian Environmental Assessment Act" (2002) 27 Queen's L.J. 785 at 787. 2 1 4 See CEAA, supra note 1, s. 16. 36 responsible authority can base its dec i s ion o f w h i c h other projects to take into 9 1 S considerat ion". The courts have conf i rmed that a responsible authority (or the Min i s t e r ) is indeed afforded significant latitude under C E A A to include or exclude projects and other 216 activit ies when per forming a. cumulat ive effects assessment. Green argues that the decis ion-maker can, as a result, " theoret ical ly restrict its analysis to projects i n the immediate area o f the proposed project, or w i d e n it to inc lude projects at the other end o f the c o u n t r y " . 2 1 7 . In 1994 the Federal Env i ronmenta l Assessment R e v i e w Off ice (the A g e n c y ' s predecessor) recognized that techniques to address cumula t ive environmental effects were insufficient and a guide entitled: A Reference Guide for the Canadian Environmental Assessment Act: Addressing Cumulative Environmental Effects (the "Cumulative Effects 9 1 R Guide") was prepared. The guide provides that al though the phrase "cumula t ive environmental effects" is not defined i n C E A A , there is assistance to be found i n the 219 defini t ions o f "environment" and "environmental effect". A c c o r d i n g to the guide, the effects to be considered are those expected to be produced by the project under r ev iew that 990 w i l l act i n " combina t ion" w i t h the effects o f other exis t ing or future projects and activit ies. 221 T o act i n combina t ion w i t h one another, effects must "accumulate" or somehow "interact". W i t h respect to future effects, the Cumula t i ve Effects G u i d e provides that, at a m i n i m u m , the effects o f other projects that have been approved should be considered, but that it w o u l d be prudent to consider the effects o f other projects that are i n a government Green, supra note 213 at 787. 6 See The Friends of West Country Trilogy, supra note 188. 7 Green, supra note 213 at 787. 8 Federal Environmental Assessment Review Office, A Reference Guide for the Canadian Environmental Assessment Act: Addressing Cumulative Environmental Effects (1994), online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/013/000 l/0008/Cumulative-Environmental-Effects_e.pdf> (date accessed 29 January 2007) at 135 [hereinafter Cumulative Effects Reference Guide]. This guide is an appendix to Responsible Authority's Guide, supra note 189. 9 Cumulative Effects Reference Guide, ibid, at 136-137 0 Ibid. at. 137. See CEAA, supra note 1, s. 16(l)(a), which provides that an assessment must include consideration of the environmental effects of the project, including "any cumulative effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out" [emphasis added]. 1 Cumulative Effects Reference Guide, ibid, at 137'. 37 / approvals process. The guide suggests that projects and activities not subject to an approval process should also be considered if there is a high degree of certainty that they will 99^ be carried out. The Cumulative Effects Guide emphasizes, however, that only those cumulative environmental effects that are "likely" need be considered.224 The guide confirms that there is no formula, but that thought should be given to both the quality and quantity of the evidence regarding future projects in determining whether to take these projects into account.225 The Agency's Operational Policy Statement OPS-EPO/3-1999 provides the following additional guidance and clarification concerning future projects: The A c t does not require consideration o f hypothetical projects, but [responsible authorities] may chose to do so at their discretion. Information concerning the cumulative effects o f the project under assessment combined with hypothetical projects may contribute to future environmental planning. However, it should not be the determining factor in the environmental assessment decision under the A c t . 2 2 6 The Cumulative Effects Guide recognizes that there will be uncertainty when attempting to assess cumulative effects (e.g., in respect of scientific methodologies and techniques, accuracy of data and knowledge of a particular environment)".227 The guide 998 advises that where uncertainty exists, it should be clearly stated in the assessment report. The guide also provides that "[a]vailable information and best professional knowledge and 99Q judgment should be used". The guide acknowledges that in most circumstances "only qualitative assessments of cumulative environmental effects will be possible".2 3 0 The Cumulative Effects Guide suggests that follow-up programs in respect of cumulative effects Ibid, at 138. Ibid. Ibid, at 138. Ibid, at 153. Operational Policy Statement OPS-EPO/3-1999 (March 1999): Addressing Cumulative Environmental Effects under the Canadian Environmental Assessment Act, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/013/0002/cea_ops_e.htm> (date accessed 29 January 2007). Cumulative Effects Reference Guide, supra note 218 at 140. -Ibid, at 141. Ibid, at 140-141. Ibid, at 141. 38 may be appropriate where the findings of the cumulative effects assessment is characterized by uncertainty.231 The Cumulative Effects Guide recognizes that the temporal and geographical boundaries used greatly affect the nature of a cumulative effects assessment. For example, i f the boundaries are drawn widely, the assessment will be more superficial and entail a greater degree of uncertainty.232 If, however, smaller boundaries are used, detail is favoured to the exclusion of a broader consideration of effects.233 The guide provides that boundaries for assessments will necessarily vary depending upon the effects being considered. For example, the boundaries for assessing cumulative air impacts will differ from those used for an assessment of cumulative impacts on wildlife or water resources.234 The guide states that spatial boundaries should include the area likely to be affected that is beyond the actual site of the project and that temporal boundaries may extend beyond the period in which the proposed project is expected to be constructed and operated.235 Criteria for determining spatial and temporal boundaries include a consideration of what information is actually available and the likelihood that additional information may be obtained. The guide emphasizes that boundaries should be drawn in a reasonable fashion and that this may necessitate public input. 2 3 7 The Cumulative Effects Guide also recognizes that "boundaries may influence the determination of significance, because a cumulative environmental effect 2 3 8 may be very significant locally, but of little significance regionally". 3.5 Nature of Environmental Effects C E A A does not provide any specific guidance on how to determine whether a project under review is likely to cause significant adverse environmental effects. However, the document entitled: A Reference Guide for the Canadian Environmental Assessment Act: 231 Ibid, at 148-149. 2 3 2 Ibid, at 144. -233 Ibid. 2 3 4 Ibid. 2 3 5 Ibid. 236 Ibid. 2 3 7 Ibid, at 145. . 238 Ibid. 39 Determining Whether A Project is Likely to Cause Significant Adverse Environmental Effects (the "Significance Guide") suggests the f o l l o w i n g (somewhat obvious) approach: (1) decide whether the environmental effects are "adverse"; (2) decide whether the adverse environmental effects are "s ignif icant" ; and (3) decide whether the significant adverse environmental effects are " l i k e l y " . 2 3 9 E a c h o f these steps is discussed be low. It has been reported (and is wor th emphasiz ing) that screenings, w h i c h comprise nearly a l l assessments, rarely result i n a f ind ing that there are l i k e l y to be significant adverse environmental i m p a c t s . 2 4 0 M o r e o v e r , it has also been reported that a l l projects screened are app roved . 2 4 1 Th i s pattern is t roubl ing because the government i t se l f recognizes that screenings apply to a w i d e range o f projects that vary greatly i n their potential for adverse environmental effects. It is also t roubl ing because the Commis s ione r for the Env i ronment and Sustainable Deve lopment has found that the informat ion p rov ided i n many screening reports is not sufficient to enable one to actual ly ascertain whether a l l o f the poss ib ly significant impacts were considered dur ing the assessment. 3.5.1 Whether Effects are Adverse The Signif icance G u i d e provides that the usual manner o f determining whether the environmental effects o f a proposed project are "adverse" is to compare current environmental quali ty w i t h anticipated post-project environmental q u a l i t y . 2 4 4 T h i s can be accompl ished , for example, by tak ing into considerat ion • potential changes i n the 2 3 9 - Federal Environmental Assessment Review Office, A Reference Guide for the Canadian Environmental Assessment Act: Determining Whether A Project is Likely to Cause Significant Adverse Environmental Effects (1994), online: Canadian Environmental Assessment Agency <http://www.ceaa.gc.ca/013/0001 /0008/Adverse-Environmental-Effects_e.pdf> (date accessed 29 January 2007) at 187 [hereinafter Significance Guide]. This guide is an appendix to Responsible Authority's Guide, supra note 189. 2 4 0 Boyd, supra note 139 at 152-53. 2 , 1 Ibid. 2 4 2 See "Explanation of CEAA Amendments", supra note 130 at 109. 2 4 3 Commissioner of the Environment and Sustainable Development, Report to the House of Commons (Ottawa: Minister of Public Works and Government Services, 1998) at paras. 6.6 to 6.7. This report is available online: Office of the Auditor General of Canada <http://www.oag-bvg.gc.ca/domino/reports. nsf/html/c8menu_e.html> (date accessed 18 September 2007). 244 Significance Guide, supra note 239 at 187. 40 environment such as habitat loss or the pollution of waterways.245 To make a comparison, information on current environmental conditions collected through environmental monitoring prior to the construction of the proposed development is needed.246 The guide states that the project proponent should supply the information that is necessary to enable the responsible 947 authority or Minister to make a finding on adversity. -3.5.2 Whether Effects are Significant Although the Significance Guide provides that there is no mechanical way to determine significance, and that each assessment will be unique, the guide does emphasize 94R that significance is determined after taking into account possible mitigation measures. The court in Alberta Wilderness Assn. v. Express Pipelines Ltd. confirmed the correctness of this approach, reasoning: "there can be no purpose whatever in considering purely hypothetical environmental effects when it is known and proposed that such effects can and will be mitigated by appropriate measures".249 The Significance Guide includes the following list of criteria that may be useful when characterizing the significance of a particular impact: Magnitude: An effect will be significant i f it is "major or catastrophic", but may be 9S0 insignificant i f it is "[m]inor or inconsequential". Included in this analysis is a 9S1 consideration of cumulative environmental effects. Geographic extent: Effects that are widespread may be considered significant while 9S9 negative impacts affecting a relatively small area may not be significant. 245 Ibid, at 187 and 189. 246 Ibid, at 187. • ™ Ibid. 248 Ibid, at 186. This approach is in keeping with the express requirements of the Act, see CEAA, supra note 1, ss. 20 and 37. 2 4 9 (1996), 137 D.L.R. (4th) 177 (F.C.A.) at 182 (leave to appeal to S.C.C. application discontinued March 20, 1997). 250 Significance Guide, supra note 239 at 188. 251 Ibid. 2 5 2 Ibid, at 190. 41 Cumulative environmental effects should be considered when undertaking this analysis. Duration and frequency: An effect may be significant i f it is long-term or frequently occurring.2 5 4 Future adverse effects may also be viewed as significant, depending on the likelihood that these effects will occur. 2 5 5 Reversibility: A n environmental effect that is reversible may be insignificant whereas an irreversible effect may be more significant. Ecological context: If the environment is already compromised, an effect may be 9S7 significant when it would otherwise not be characterized as such. The Significance Guide suggests that it may also be useful when determining whether potential environmental effects are significant to consider whether the project will comply with federal, provincial and municipal standards, guidelines and objectives.258 If these are satisfied, the effects may be characterized as insignificant.259 The guide recognizes however that most effects are not governed by legislation or policy and, even where these apply, they are not necessarily sufficient to protect the environment. Quantitative risk assessment may also be used in deciding when environmental effects are significant. According to the Significance Guide, quantitative risk assessment "is often used to determine the significance of the risks to human health from ionizing radiation and carcinogenic chemicals. Its use is restricted to agents that have • 969 predictable dose-response (or exposure-effect) relationships". This risk assessment 253 Ibid. 2 5 4 Ibid. 255 Ibid. 256 Ibid. 2 5 7 Ibid. 258 Ibid, at 190-191. 2 5 9 Ibid, at 190. 2 6 0 Ibid, at 190-191. 261 Ibid, at 191. 2 6 2 Ibid. . 42 technique involves a determination of "acceptable risk", which may be indicative of the significance of an effect. In other words i f there is an acceptable risk, the environmental impact may be characterized as insignificant. 3.5.3 Whether Significant Effects are Likely The Significance Guide provides there are two criteria considered helpful when determining whether significant adverse environmental effects are "likely". The first is the probability of occurrence. If there is a high probability that significant adverse environmental effects will occur, they are likely. 2 6 4 Conversely, i f there is a low probability that such effects will occur, they are unlikely. 2 6 5 The guide recommends that, whenever possible, project proponents should be required to use statistical methods to determine the likelihood of adverse environmental effects.266 Where it is not possible or feasible to use numerical methods, the guide provides that the responsible authority or Minister "must use a qualitative approach to determining likelihood, based on their best professional judgement".267 3.6 Need for the Project and Alternatives Section 16(l)(d) of C E A A allows for the consideration of any other matters relevant to an assessment, such as the need for the project and alternatives to the project. Section 16(2) requires that the purpose of the project and alternatives to the project be considered where the project is undergoing a comprehensive study, mediation or panel review. Only those alternatives that are technically and economically feasible need to be • 268 considered. The project proponent is responsible for presenting evidence on need and alternatives. There is no guidance in the Act on this aspect of an assessment. Case law indicates that where a responsible authority chooses to consider project need and alternatives in the context of a screening, the authority will be permitted a great deal of discretion in how 2 6 3 Ibid, at 191-192. 264 Ibid, at 193. 2 6 5 Ibid. 266 Ibid, at 194. 267 Ibid. 2 6 8 CEAA, supra note 1, s. 16(2)(b). 43 it approaches the assessment. Case l a w also indicates that the project alternative w i t h the • 970 least environmental r isk need not be selected. 3.7 Follow-up Programs and Adaptive management A " fo l low-up p rogram" is defined i n C E A A as a program for ver i fy ing the accuracy o f the assessment o f a project and determining the effectiveness o f any mi t iga t ion 971 measures employed . A l t h o u g h unde rMhe A c t fo l low-up programs are required for assessments that are conducted by w a y o f comprehensive study, panel r ev iew or media t ion , there is no requirement to implement a fo l low-up program after a project has been 979 screened. It has been reported that approximate ly f ive per cent o f screened projects include fo l low-up programs. A responsible authority has discret ion w i t h respect to the content and scope o f fo l low-up programs. C E A A does not provide any specifics w i t h respect to fo l low-up programs, nor do any o f the regulations under the A c t . C E A A does however a l l o w the responsible authority to impose fo l low-up measures under federal legis la t ion that the authority is not act ing u n d e r . 2 7 4 F o r example , Fisheries and Oceans Canada ("DFO") as the responsible authority for a part icular project cou ld issue a permit under the Fisheries Act275 that includes fo l low-up measures directed at the protect ion o f migratory birds; species typ ica l ly dealt w i t h by the Canadian W i l d l i f e Service under the authority o f the Migratory Birds Convention Act, 1994.216 C E A A has been amended to provide that the results o f a fo l low-up program may be used to implement "adaptive management" or to improve the qual i ty o f E I A 269 See. Sharp v. Canada (Transportation Agency), [1999] 4 F.C. 363 (C.A.). 2 7 0 See Inverhuron & District Ratepayers' Assn. v. Canada (Minister of Environment) (2000), 191 F.T.R. 20 (T.D.) at para. 81, affd (2001), 273 N.R. 62 (F.C.C.A.) [hereinafter Inverhuron & District Ratepayers' Assn.]. 2 7 1 CEAA, supra note 1, s. 2(1). 2 7 2 Ibid.,.ss. 38(1) and (2). 2 7 3 Boyd, supra note 139 at 153. 2 7 4 CEAA, supra note 1, s. 38(3). 2 7 5 R.S.C. 1985, c. F-14 2 7 6 S.C. 1994, c. 22. 44 generally. T h i s reference to adaptive management was added to the A c t i n 2003. A d a p t i v e management, accord ing to the federal government, invo lves "the implementa t ion o f n e w or modi f i ed mi t iga t ion measures over the life o f a project to address unanticipated environmental effects" and a l lows for the "adopt ion o f improved mi t iga t ion measures (e.g., due to technological advances) over the l ife o f a p ro jec t " . 2 7 9 The government is o f the v i e w 980 that an effective fo l low-up program w i l l determine the need for adaptive management. It has been argued that such post-decis ion moni to r ing to ver i fy predict ions and a l l o w for the 281 adjustment o f mit igat ions measures is essential to the E I A process. ' CEAA, supra note 1, s. 38(5). 8 See S.C. 2003, c. 9, s. 18. 9 "Explanation of CEAA Amendments", supra note 130 at 115. 0 Ibid. 1 See B. Karkkainen, "Toward a Smarter NEPA: Monitoring and Management Government's Environmental Performance" (2002) 102 Colum. L. Rev. 903 [hereinafter "Towards a Smarter NEPA"]. 45 4. THE HIGHWOOD DECISION 4.1 Choice of CEAA Decision A s discussed i n Chapter 3 (and w i l l be further discussed i n Chapter 5), a significant amount o f discret ion is delegated to responsible authorities car ry ing out E I A s under C E A A . The Canad ian courts have (as prev ious ly indicated) been reluctant to undertake detailed j u d i c i a l reviews o f h o w discret ion has been exercised by decis ion-makers under the A c t . In short, the courts have l imi t ed their reviews to ensuring that C E A A is appl ied (when it must be) and that responsible authorities have f o l l o w e d the process set out i n the A c t - regardless o f h o w vague the provis ions o f the A c t might b e . 2 8 2 A s Green has observed, the degree o f discret ion delegated to responsible authorities and the l imi t s o f j u d i c i a l r ev iew give rise to the potential for inconsistent decisions to be made under C E A A . 2 8 3 ' A n example o f this inconsis tency can be seen i n the decisions o f the Federal Cour t (Tr ia l D i v i s i o n ) i n Friends of the West Country Assn. v. Canada (Minister of Fisheries 284 and Oceans) and Manitoba's Future Forest Alliance and Donald V. Sullivan v. The Minister of the Environment et al. The court considered s imi la r facts i n these cases (both i n v o l v e d the assessment o f proposed bridges i n logg ing areas), yet came to a different conc lus ion i n each. In Friends of the West Country, the court he ld that the responsible authority was required under C E A A to include both the bridge and the related road i n its assessment. In Manitoba's Future Forest Alliance, the court deferred to the responsible authority 's dec i s ion not to include i n its assessment the road associated w i t h the proposed See Bow Valley Naturalists Society v. Canada (Minister of Canadian Heritage) (1999), 175 F.T.R. 122 (T.D.), aff d [2001] 2 F.C. 461 (C.A.); and Inverhuron & District Ratepayers' Assn., supra note 270. Note that the approach of the Canadian courts differs from that of the American courts. The courts in the U.S. have engaged in more detailed reviews and have interpreted the laws governing EIAs in such a way that the cases provide a more coherent body of law concerning assessment requirements: see Jeffery, supra note 170 at 1071-72. Green, supra note 213 at 785. Supra note 188. (2000), 170 F.T.R. 161 (T.D.). See Green, supra note 213 at 787-88 for a more thorough discussion of the inconsistencies found in these cases. 46 bridge. A s ment ioned i n Chapter 3, the Federal Cour t o f A p p e a l i n Friends of the West Country u l t imately found (contrary to the tr ial court ' s decision) that the responsible authority was entitled under C E A A to exclude the associated road f rom its considerat ion o f the bridge. G i v e n the amount o f discret ion delegated responsible authorities under C E A A and the deference afforded these decis ion-makers by the courts, this thesis w i l l focus o n one decis ion, rather than attempt to catalogue numerous decisions i n an effort to identify patterns in ' the practices o f responsible authorities. It is most product ive to rev iew i n detail a single dec is ion that addresses a significant and controversial project (i.e., a project considered b y a rev iew panel) where the decis ion-makers conclude that certain elements o f the proposed project should be approved w h i l e other elements should not. T h i s type o f dec i s ion is useful because it reveals a broad spectrum o f reasoning, thus p rov id ing sufficient facts upon w h i c h to apply and evaluate eco-pragmatism. The dec i s ion selected (the H i g h w o o d Dec i s ion ) has these characteristics and is par t icular ly useful because it invo lves a situation o f compl ica ted resource management that invo lves compet ing demands. The dec i s ion is summar ized be low. 4.2 Introduction The H i g h w o o d and Li t t l e B o w r iver basins are located i n southwestern Albe r t a . The headwaters o f the H i g h w o o d R i v e r are situated a long the eastern slopes o f the R o c k y Moun ta ins and the r iver drains an area o f approximate ly 4000 k m 2 before f l o w i n g into 9 R 7 the B o w R i v e r . The H i g h w o o d R i v e r is characterized by excellent water qual i ty and the r iver supports one o f the most valuable sport fisheries i n A l b e r t a . 2 8 8 The H i g h w o o d R i v e r ' s f lows are seasonally variable as a consequence o f a large spr ing freshet result ing f rom 9 R O snowmelt . The r iver is also characterized by annual var iabi l i ty , due to year ly fluctuations i n snow pack and p rec ip i t a t i on . 2 9 0 The H i g h w o o d basin is prone to both f looding and drought . 2 9 1 2 8 7 Highwood Decision, supra note 8 at 4-2. 288 Ibid, at 4-14. 289 Ibid, at 8-6 and 4-2. 290 Ibid at 4-3. 291 Ibid, at 4-4 and 8-6. 47 Although the Little Bow River drains an area that is approximately 50 per cent larger than the Highwood River basin, the Little Bow River captures significantly less water.292 Flows from the,Little Bow River and Mosquito Greek (the Little Bow's main 9Q^ tributary) amount to less than 10 per cent of the flow of the Highwood River. The Little Bow River captures less water because it is located primarily on the prairies and receives less annual precipitation.294 Like the Highwood River basin, the Little Bow River basin is drought prone.2 9 5 9Q/T Aboriginal groups have traditionally used the Little Bow River basin. By the late 1800s, Europeans had settled both the Highwood and Little Bow river basins and were attempting to manage surface water in order to address episodes of flooding and drought.297 Since as early as 1898, water has been diverted from the Highwood River to the Little Bow River to enhance the flows of the latter for domestic use and agricultural production.298 The domestic, municipal and agricultural users of water in the Little Bow River basin have always considered these diversions essential.299 The flow of the Little Bow River and the riverine environment it supports are artificial by-products of intense water management, and the ecosystem is currently more rich than it would be naturally.300 The diverting of water to the Little Bow River had a minimal impact on the Highwood River until • • 301 the 1970s, when mechanized irrigation was introduced in the Little Bow River Basin. At ^09 this time there also began a period of low water flow and drought. The low flows of the 2 9 2 Ibid, at 4-3. 293 Ibid. 294 Ibid, at 8-6. 295 Ibid. 296 Ibid, at 4-3 and 4-4. 297 Ibid. 298 Ibid, at 2-1. 2 9 9 Ibid, at 3-1. 3 0 0 Dr. S.B. Rood, G.M. Samuelson & S.G. Bigelow, "The Little Bow Gets Bigger - Alberta's Newest River Dam" (2005) 13:1 Wild Lands Advocate 14-17 [hereinafter "Alberta's Newest River Dam"]. 3 0 1 Highwood Decision, supra note 8 at 3-1. 302 Ibid. 48. 1970s and the 1980s had a negative impact on the aquatic environment and reduced the water available to all users along the Little Bow River. The quantity of water diverted from the Highwood River to the Little Bow River is generally considered to be less of an issue than is the timing of these diversions.304 Additional water is usually required in the Little Bow River basin in the summer months when the Highwood River is at its lowest.3 0 5 The greatest volume of water is diverted between May and September. This coincides with the irrigation season. It also overlaps with the period (between July and August) when water is needed in the Highwood River to maintain water temperatures, dissolved oxygen levels and physical habitat for fish. 3 0 8 In the past, fish kills have been associated with low flows, high air temperatures and low oxygen levels. 3 0 9 Although there is some uncertainty in the relationship between diversion flows and water quality, two general observations have been made. First, diversions do not have a beneficial impact on the Highwood River and, second, it is more likely that harmful 311 temperature changes will occur as flow is decreased during diversions. Most of the time the Highwood basin has adequate water, however, low flow i n events give rise to drought conditions and water demand exceeds supply. Although it is not possible to predict precisely when droughts will occur, they tend to occur once every 20 to 40 years. Dry periods have occurred close together in the past, which is particularly serious from both a water quantity and quality perspective.314 Diversions have been 303 Ibid, at 4-6. 304 Ibid, at 3-1. 305 Ibid. 306 Ibid, at 4-16. 307 Ibid. 308 Ibid. 3 0 9 Ibid, at 4-18. Fish kills were reported in the following years: 1977, 1979, 1983, 1984, 1985 and 1988: Ibid. 310 Ibid, at 4-17. 3uIbid. at 4-16. 312 Ibid, at 4-39. 313 Ibid, at 4-40. 3 , 1 Ibid. 49 frequently restricted in the past in order to protect the Highwood River. 3 1 5 When restrictions are imposed agricultural production in the Little Bow River decreases, municipalities suffer a decline in water quality and the Little Bow River basin ecosystem becomes stressed due to the lack of water. Even with diversions from the Highwood River, the water supply in the 317 * . . . Little Bow River basin has not been considered reliable. A moratorium on irrigation expansion in the Little Bow River basin was imposed in 1977, notwithstanding the unexploited agricultural capacity of the area.3 1 8 The moratorium was lifted in 1981, but reinstated in 1983. The moratorium has had the effect of capping development in the basin that depends on the intensive use of water.3 2 0 Although demand for water in the Highwood River basin is small compared to the demand placed on the Little Bow River basin, consumption of water in the Highwood basin has been increasing since the 1970s.321 Much of the water is used for industrial, municipal and domestic purposes, rather than for irrigation.3 2 2 In 1985 a moratorium on irrigation licences was imposed and, in 1990, the moratorium was extended to other types of water licenses.323 Notwithstanding the limited and variable water supply, there exists an expectation that the population of both basins will continue to grow and agricultural production will expand.3 2 4 315 Ibid, at 3-1. 316 Ibid. 317 Ibid. 318 Ibid, at 3-1 and 4-5. 319 Ibid, at 4-5. 320 Ibid, at 4-7 and 8-7. 321 Ibid, at 4-5. 322 Ibid, at 4-5 and 4-6. 323 Ibid, at 4-6. In August 2006, the Alberta government announced the implementation of a Crown reservation of water under the South Saskatchewan River Basin Water Management Plan. Under the plan, the government is no longer issuing new water licences for the Oldman, Bow and South Saskatchewan sub-basins. The stated intent is to protect the resource and encourage Albertans to use water more efficiently. Unallocated water has been placed under a Crown reservation and water will only be allocated from this reservation for the following: water conservation objectives, water storage of peak flow, licences that were pending at the time the reservation was put into place, and First Nations Reserves: News Release: Alberta implements water management plan for the South Saskatchewan River Basin (August 30, 2006), online: Government of Alberta <http://www.gov.ab.ca/acn/200608/2043260C967C4-CBB8-C14F-F0EFFFCE8E-F4EF81 .html#backgrounder> (date accessed: 22 January 2007). 3 2 4 Highwood Decision, ibid, at 3-2 and 3-3. 50 Alberta Environment, a department of the Government of Alberta, is responsible for issuing water licences and controlling water diversions from the Highwood River to the Little Bow River. 3 2 5 The works constructed to carry out these diversions are i n / -governed by the Diversion Operating Guidelines (the "Diversion Guidelines"). Alberta Environment has repeatedly revised these guidelines.327 Revisions are undertaken to reflect changes in water usage and supply, as well as environmental conditions such as water temperatures and dissolved oxygen levels. 3 2 8 Alberta Environment has adopted somewhat of a cautionary approach329 and the Diversion Guidelines typically restrict water diversions during low flows periods to protect the Highwood River. 3 3 0 Despite its efforts, the provincial government has acknowledged that its past water management practices have adversely affected the Highwood River. 4.3 The Little Bow Project/Highwood Diversion Plan In 1988 the Government of Alberta announced that it would implement a system to store spring run-off in the Highwood River and Little Bow River systems for 332 subsequent use in the Little Bow River basin during low flow periods. The goal of the new system is to address existing water supply challenges and to accommodate an increase in water consumption.333 At the time of the announcement, the region had been experiencing periodic water shortages and the number of competing demands meant that not all water users had a reliable supply. 3 3 4 Conflict existed between satisfying the human demand for 325 Ibid at 8-7. Note that at the time of the Highwood Decision, "Alberta Environment" was named "Alberta Environmental Protection". For ease of reference, the department's current name is used throughout this thesis. 526 Ibid 327 Ibid, at 8-7 and 4-10. 3 2 8 See Ibid, at 4-10 to 4-13. 329 Ibid, at 4-17. 330 Ibid, at 8-7. 331 Ibid, at 8-8. 3 3 2 Ibid, at 2-2: 333 See Ibid, at 3-1. 334 Ibid, at 3-2. 51 water and ensuring sufficient water to mainta in aquatic habitat, par t icular ly dur ing hot and l i e dry periods. A water management project and p lan for convey ing and storing water diverted f rom the H i g h w o o d R i v e r dur ing h i g h f l o w periods was eventual ly developed and announced i n 1996. Referred to as the L i t t l e B o w Pro jec t /High w o o d D i v e r s i o n P l a n (the "Project" or the "Little Bow/Highwood Project"), the undertaking is intended to ensure a rel iable water supply for the maintenance and development o f agriculture, industry and communi t ies . The Project is to remedy the historic pattern o f over a l loca t ion , w h i l e at the same t ime a l l o w i n g addi t ional water to be diverted f rom the H i g h w o o d R i v e r to accommodate a future increase i n i r r igat ion i n the Li t t l e B o w R i v e r basin. The f o l l o w i n g components comprise the Project (see F igure 1): • Little Bow River Dam and Reservoir. Cons t ruc t ion o f a d a m (25 m high) and a reservoir (capable o f ho ld ing 61,675 cubic decameters o f water) approximate ly 20 k m west o f the t o w n o f C h a m p i o n . The L i t t l e B o w R i v e r D a m w i l l be filled f rom natural runof f i n the L i t t l e B o w R i v e r bas in and water diverted f rom the H i g h w o o d R i v e r . • Highwood Diversion Works and Canal: Cons t ruc t ion o f a canal and d ivers ion works i n the t own o f H i g h R i v e r . These works triple the capaci ty o f the exis t ing works (from 100 cfs to 300 cfs), thereby increasing the vo lume o f water avai lable to be diverted f rom the H i g h w o o d R i v e r to the Li t t l e B o w R i v e r dur ing peak f lows i n the spring. The increased capacity w i l l result i n less demand dur ing the summer when the f lows o f the H i g h w o o d R i v e r tend to be l o w . 3 3 9 335 /hid 336 Backgrounder: Little Bow Project/Highwood Diversion Plan, online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.ca/media/backgrou/1998/hq-ac62_e.htm> (date accessed: 13 November 2006) [hereinafter "Backgrounder Little Bow Project"]. 3 3 7 Highwood Decision, supra note 8 at 3-1. 338 Ibid, at 4-29. . 3 3 9 "Backgrounder: Little Bow Project", supra note 336. 52 • Clear Lake Diversion Works and Canal: Cons t ruc t ion o f d ivers ion works and a canal approximately 15 k m east o f the t o w n o f Stavely. The canal (10 k m i n length) w i l l a l l o w Clea r L a k e and a number o f wetlands a long its route to be f i l l ed by natural spr ing run-of f when f lows i n the nearby M o s q u i t o Creek are h igh . L o w f l o w condit ions contributed to the disappearance o f C lea r L a k e i n 1 9 8 5 . 3 4 0 • Expansion of Woman's Coulee Reservoir. Enlargement o f the exis t ing W o m a n ' s Cou lee R e s e r v o i r . 3 4 1 The reservoir w i l l be increased f rom 361 to 6,283 cubic decameters o f water. T h i s is accompl i shed through the construct ion o f upper and lower dams and a return canal to the H i g h w o o d R i v e r . The W o m a n ' s Cou lee Reservo i r was o r ig ina l ly constructed i n 1949 and upgraded after be ing taken over by the Government o f A l b e r t a i n 1 9 7 7 . 3 4 2 • Highwood Diversion Plan and Expanded. Diversion Plan: The Project includes an operating p lan for the proposed components and the already exis t ing W o m a n ' s Cou lee D i v e r s i o n (the "Highwood Diversion Plan"). Because it was predicted that the p lan w o u l d result i n water deficits an addi t ional p l an (the "Expanded Diversion Plan") was also d e v e l o p e d . 3 4 3 T h i s supplemental p lan relies o n expanded water storage i n W o m a n ' s Coulee (as described i n the preceding bullet) to address the predicted d e f i c i t s . 3 4 4 The d ivers ion plans shift water divers ions f rom l o w f l o w periods (dur ing the summer) to periods o f h i g h run -o f f . 3 4 5 u Highwood Decision, supra note 8 at 3-1 and 4-6. 1 At the time of the Highwood Decision the coulee was referred to as the "Squaw Coulee". Many considered the name offensive, see ibid, at 4-4 and 8-47. Following the release of the Highwood Decision, the area was renamed the "Woman's Coulee". The current name is used in this thesis. 2 See ibid, at 4-5. 3 Ibid, at 8-11. 4 Ibid, at 4-30. 53 Figure 1: L i t t l e B o w Project and H i g h w o o d D i v e r s i o n P l a n M a p Taken from Canadian Environmental Assessment Agency and Natural Resources Conservation Board, Report of the NRCB/CEAA Joint Review Panel, Application #9601 - Alberta Public Works, Supply and Services, May 1998, Little Bow Project/Highwood Diversion Plan, Application to Construct a Water Management Project to Convey and Store Water Diverted from the Highwood River, Map 1.1 at page 1-4. Reproduced with the permission of the Minister of Public Works and Government Services Canada, 2007 and the Natural Resources Conservation Board, 2007. 54 4.4 Project Approvals and the Applicant The Government of Alberta initiated the Project and is the party ultimately responsible for it. Alberta Transportation and Infrastructure (the "Applicant") assumed responsibility for constructing the Project.3 4 6 The Applicant also assumed the role of Project proponent and responsibility for obtaining the necessary regulatory approvals. Following construction, Alberta Environment assumes operational control of the Project.3 4 7 A number of federal and provincial authorizations were required in connection with the Project before the Applicant could commence construction. In particular, approval was needed under section 4(d) of the Alberta Natural Resources Conservation Board Act (the "NRCBA").348 This Act creates the Natural Resources Conservation Board ("NRCB"), whose purpose it is to review projects that have the potential to affect Alberta's natural resources. Section 4(d) provides that water management projects require approval under the Act. Before granting such an approval, the N R C B must be satisfied that the project is in the public interest, having regard to the social and economic effects of the project and the anticipated effect of the proposed project on the environment.349 350 The Project also required certain approvals under the federal Fisheries Act 351 • and Navigable Waters Protection Act because of the potential for the Project to impact 3 4 6 See ibid, at 1-2. Note that at the time of the Highwood Decision, the Applicant was named "Alberta Public Works, Supply and Services"; it was renamed "Alberta Infrastructure", and then became "Alberta Transportation". The department is now referred to as "Alberta Transportation and Infrastructure". For ease of reference, the Applicant is referred to by its current name in this thesis. 3 4 7 See The Province of Alberta, Natural Resources Conservation Board Act, Natural Resources Conservation Board, In the Matter of a project of Alberta Public Works, Supply and Services for approval to construct a water management project (the project) to convey and store water diverted from the Highwood River, Approval No. 8, ibid, at B-3 [hereinafter Approval No. 8]. 3 4 8 See Highwood Decision, ibid, at 1-1. At the time of the decision, the NRCBA was cited to S.A. 1990, c. N-5.5; it is now R.S.A 2000, c. N-3. The relevant section reference [i.e., s. 4(d)] remains the same. Subsequent references to the NRCBA in this thesis are cited to R.S.A 2000, c. N-3. Note that there are a number of i other statutes and policies that apply in respect of the Project, and other approvals were necessary: see ibid. at 2-1 to 2-13. These additional approvals are not discussed. 3 4 9 NRCBA, ibid., s. 2. 3 5 0 Supra note 275, s. 35(2). As will be discussed, this section requires authorization be obtained under the Fisheries Act prior to the construction of works that affect fish habitat. 3 5 1 R.S:C. 1985, c. N-22, s. 5(1). Section 5(1) prohibits the construction of works in, on, over, under, through or across navigable waters without first obtajning approval. 55 fisheries resources and transportation. The need for these approvals " t r iggered" the appl ica t ion o f C E A A , and D F O ( w h i c h became the responsible authority for the purposes o f the A c t ) init iated a comprehensive s t u d y . 3 5 2 The comprehensive study process was ul t imately converted to rev iew by an environmental assessment panel . The M i n i s t e r o f Fisheries and Oceans ini t iated this change (or upgrade) i n the type o f assessment because o f concerns over the potential environmental effects o f the Project and the potential for the i c i t Project to impact the lands and tradit ional values o f Firs t Na t ions . Because o f over lapping federal and p rov inc i a l ju r i sd ic t ion , the M i n i s t e r o f Fisheries and Oceans requested that the rev iew o f the Project under C E A A be j o i n e d w i t h the N R C B ' s r e v i e w . 3 5 4 A Joint Federa l /Prov inc ia l R e v i e w Panel (the "Panel") was constituted to deal w i t h both the N R C B A and C E A A processes and a pub l i c hearing concerning the Project was he ld f rom N o v e m b e r 12, 1997 to January 9, 1 9 9 8 . 3 5 5 The Panel made pub l i c its f indings i n a report issued i n M a y o f 1998 (i.e., the H i g h w o o d D e c i s i o n or the "Report"). 3 5 6 The Report sets out the f indings, recommendat ions and condi t ions o f the Panel under both the N R C B A and C E A A . In short, the Pane l makes a determination as to whether the Project is i n the publ ic interest under the N R C B A and makes recommendat ions regarding the granting o f approvals under the Fisheries Act and Navigable Waters Protection Act?51 F o r those matters fa l l ing under the N R C B A , the Pane l ' s approval o f the Project is subject to the consent o f A lbe r t a ' s Lieutenant Governor i n C o u n c i l , and any condit ions imposed by the Pane l are b ind ing on the A p p l i c a n t . 3 5 8 Pursuant to C E A A , the Pane l makes 359 recommendations to the federal M i n i s t e r o f Env i ronment and D F O . It should be emphasized that l ike any other panel constituted for the purpose o f app ly ing C E A A , the 3 5 2 See Highwood Decision, supra note 8 at 1-1,1-5 and 2-8. 353 Ibid, at 1-1. 354 Ibid. Joint Federal/Provincial Review Panels are created through an agreement between both levels of government. These agreements address the constitution of the panel, cost-sharing arrangements, conduct of the proceedings and related administrative issues. 355 Ibid, at 1-2, 1-5 and 8-2. 3 5 6 Note that as of January 1, 2007 there do not appear to be any scholarly articles referring in any detail to the Highwood Decision. 3 5 7 Highwood Decision, supra note 8 at2-11. 358 Ibid, at 1-2. 359 Ibid 56 Panel does not have the ju r i sd i c t ion to grant approvals under the Navigable Waters Protection Act or the Fisheries Act. Rather, the need for these approvals triggers the appl ica t ion o f C E A A , and C E A A is appl ied i n an effort to ensure that environmental effects are considered before the appropriate authorities grant these federal approvals. . It should also be emphasized that it can prove diff icul t when r e v i e w i n g the Repor t to determine whether a part icular aspect o f the Pane l ' s reasoning is based o n C E A A or o n the N R C B A . The Pane l i t se l f states " i t w i l l not make continuous dist inct ions throughout [the] report between the powers and mandates o f each j u r i s d i c t i o n " . 3 6 1 4.5 Panel's View of Current Water Resource Management \ ^ The Pane l ' s evaluat ion o f the Project inc luded an assessment o f A l b e r t a Env i ronmen t ' s pre-Project water management practices. T h i s evaluat ion p rov ided part o f the baseline f rom w h i c h to begin the analysis o f the Project 's potential environmental impacts. The evaluat ion revealed that managing water i n the H i g h w o o d and L i t t l e B o w basins to both protect the environment and meet human demands has proven d i f f i c u l t . 3 6 2 The Pane l observes that "[a]ttempts to manage the scarce resource among compet ing demands have not met and can not meet a l l demands . . . [a]t t imes there is just not enough water". The Panel finds that the H i g h w o o d and Li t t l e B o w R i v e r basins have been managed i n such a w a y that the avai lable water has been over a l l o c a t e d . 3 6 4 The Pane l describes A l b e r t a Env i ronmen t ' s past water management practices as questionable because the department has a l l o wed water to be w i t h d rawn or diverted f rom the H i g h w o o d R i v e r dur ing l o w f lows, w h i c h can result i n a negative impact o n f ish habi ta t . 3 6 5 It appears to the Panel that such practices are contrary to p rov inc i a l po l ic ies , the federal Policy for the Management of Fish Habitat and section 35(1) o f the Fisheries Act, 0 The application of the Navigable Waters Protection Act is beyond the scope of this thesis and will not discussed in any detail. 1 Highwood Decision, supra note 8 at 1-2. , 2 See ibid, at 4-13. 3 Ibid, at 8-7. . 4 Ibid, at 4-2. 5 Ibid, at 8-8 and 4-19. 57 w h i c h provides that it is an offence to carry o n any w o r k or undertaking that results i n the "harmful alteration, d isrupt ion or destruction o f f ish habitat". In the Pane l ' s v i e w , it constitutes the destruction o f f ish habitat to remove water f rom a r iver i f f i sh habitat is severely d imin i shed . • • -The Panel also observes that the H i g h w o o d R i v e r has been managed without an overa l l management p lan and management objectives, and wi thout an understanding about h o w to manage current and future demands for water. M o s t o f the t ime there is sufficient water i n the H i g h w o o d basin to protect environmental values and meet consumpt ive demands . 3 6 9 Howeve r , under the current circumstances, the Pane l is o f the v i e w that dur ing l o w f l o w events (i.e., droughts) those w i t h exis t ing licenses w o u l d not have their needs met and some o f these users w o u l d suffer socia l and economic hardship. Moreove r , i n the case o f a serious drought, even domestic and m u n i c i p a l users (who enjoy pr ior i ty rights to water) 371 might be at r isk. The Panel observes that i f a l l o f the water l icence commitments were satisfied and the D i v e r s i o n Guide l ines fo l lowed , the "instream f l o w need" (or "IFN") requirements developed under the South Saskatchewan River Basin Water Management Policy w o u l d not be m e t . 3 7 2 In general terms, an I F N ca lcula t ion identifies the quantity and qual i ty o f water necessary to sustain a healthy aquatic environment and/or meet human needs. I F N requirements and the p o l i c y are discussed i n further detail be low. U n d e r l o w f l o w condi t ions, no water cou ld be diverted to l icence holders i f the I F N were to be protected. Therefore, meet ing the I F N dur ing periods o f drought w o u l d mean that water is unavai lable for human u s e . 3 7 4 366 Fisheries Act, supra note 275 and ibid, at 8-8. 3 6 7 Highwood Decision, ibid, at 4-19. 3 6 8 Ibid, at 8-8 and 8-9. 3 6 9 Ibid, at 4-39. 3 7 0 Ibid, at 8-9. 371 Ibid. 372 Ibid. 373 Ibid. 3 7 4 Ibid. 58 A c c o r d i n g to the Panel , a failure to meet the I F N is not acceptable because it is contrary to sustainable development pr inc ip les and Fisheries Act r equ i rements . 3 7 5 The 376 Panel is o f the v i e w , however , that satisfying basic human needs for water is also essential. The Panel observes that "[pjast resource al locat ions require current resource managers to meet basic human requirements for d r ink ing water and to honour l i censed water rights k n o w i n g that i n do ing so they are r i sk ing the habitat that supports a w o r l d class sport f i s h e r y " . 3 7 7 The Pane l finds that I F N requirements and water for basic human needs "ought not to be p layed o f f against each other". The Panel is o f the op in ion that wi thout further act ion, there can be no l i f t ing o f the 1983 mora tor ium. In addi t ion, the Pane l believes that i f extremely dry condit ions 380 occur, the exis t ing situation " is intolerable and does not reflect sound management". The Panel finds that "attempts to resolve water shortages that inherently i n v o l v e d trade pffs * • 381 between cr i ter ia that cannot and should not be compromised , were fundamentally f lawed" . M o r e speci f ica l ly , "the Panel does not bel ieve that it is appropriate to attempt to trade-off water rights protected i n laws and p rov inc i a l po l ic ies , domest ic and m u n i c i p a l water requirements, and I F N supported by federal l aws" . U l t ima te ly , the Pane l concludes that it 383 is not acceptable to continue current management practices into the future. In keeping w i t h its characterization o f A l b e r t a Env i ronmen t ' s water management practices, the Panel accepts the A p p l i c a n t ' s arguments regarding the need for the Project and its jus t i f ica t ion. . The Pane l is o f the v i e w that some manner o f water management project is required i n the H i g h w o o d , L i t t l e B o w and M o s q u i t o Creek basins i n 375 Ibid at 8-9 and 4-41. 376 Ibid, at 4-41. 377 Ibid, at 8-9. 378 Ibid. 379 Ibid. 380 Ibid. 381 Ibid, at 8-11. 3 8 2 Ibid. 383 Ibid, at 4-19. 384 Ibid, at 8-3. 59 order to address over a l loca t ion i s sues . 3 8 5 The Pane l states that it recognizes the need to protect the I F N requirements o f the H i g h w o o d R i v e r i n order to safeguard water quantity and quali ty, as w e l l as the need to both protect and increase water supply for human use and 386 consumpt ion. 4.6 Panel Imposed Threshold for Detailed Assessment The Panel , e m p l o y i n g sustainable development as its frame o f reference, identifies three k e y pr inc ip les that serve as a threshold for further considerat ion o f the Project 's e f fec ts . 3 8 7 The Pane l articulates these pr inciples (or criteria) as fo l lows : First, water management projects must respect existing riparian rights and water licenses, and should not result in loss or injury to existing water rights. Second, water management projects must be able to meet basic environmental criteria to avoid significant adverse effects. Third, water management projects must be able to meet current and future needs for domestic, riparian, and municipal needs, and other consumptive uses. These environmental, social, and economic considerations are basic to the determination o f the public interest. A project must be able to meet these criteria to be worthy o f detailed consideration by the Panel with respect to project effects. 3 8 8 A s w i l l be discussed be low, the Pane l finds that the A p p l i c a n t ' s proposed operational plans for d iver t ing water dur ing l o w f lows do not meet its stated threshold and w o u l d not be considered further. The Pane l concludes, however , that the structural elements o f the L i t t l e B o w R i v e r D a m and Reservoi r , the H i g h w o o d D i v e r s i o n W o r k s and C a n a l , and the Clea r L a k e D i v e r s i o n W o r k s and C a n a l (the "Three-component Project" or "TCP") can be considered independently o f the d ivers ion plans and that these aspects o f the Project do meet the three cri ter ia o f sustainabili ty. A c c o r d i n g l y , the Pane l went o n to consider the T C P i n detail . 385 Ibid. 386 Ibid. 387 Ibid, at 8-5 388 Ibid. 389 Ibid, at 4-38. 60 4.7 Proposed Diversion Plans In 1990 the Government of Alberta introduced the South Saskatchewan River Basin Management Policy.390 The policy addressed IFNs for rivers within the South Saskatchewan basin. As indicated above, an IFN calculation determines the "amount of water, flow rate, water level, or water quality that is required in a river ... to sustain a healthy aquatic environment or to meet human needs such as recreation, navigation, waste assimilation, or aesthetics".391 The policy set out two categories of I F N . 3 9 2 The first identified preferred flows, which are intended to be met most of the time and serve to protect desirable instream uses.3 9 3 The second defined minimum flows, which are sufficient to protect basic water quality during drought conditions.394 In connection with the policy, a "Preliminary IFN" was developed for the lower Highwood River. 3 9 5 The Preliminary IFN included both a preferred flow and minimum flow calculation. The former was intended to produce the maximum physical fish habitat, while the latter identified those flows sufficient to prevent fish kills. The IFN calculations were the responsibility of the Technical Sub-Committee (the " T S C " ) of the Highwood River Public Advisory Committee.3 9 7 The Preliminary IFN developed by the TSC was used to prepare an operating plan for the proposed components of the Project and the existing Woman's Coulee Diversion. 3 9 8 Because it was predicted that this plan (i.e., the Highwood Diversion Plan) would result in IFN deficits, the Expanded Diversion Plan was Ibid at 4-20. There is currently a newer policy in place, see Alberta Environment, Approved Water Management Plan for the South Saskatchewan River Basin (Alberta) (August 2006), online: Alberta Environment <http://www3.gov.ab.ca/env/water/regions/ssrb/pdf7SSRB_Plan_Phase2.pdf> (date accessed: 15 November 2006) [hereinafter Current Basin Plan]. 3 9 1 Current Basin Plan, ibid, at 23. 3 9 2 Highwood Decision, supra note 8 at 4-20. 393 Ibid. 394 Ibid. 3 9 5 Ibid. 396 Ibid, at 4-25. 397 Ibid, at 4-20. The TSC included representatives of Trout Unlimited, the Little Bow Water Users Association, the Lower Highwood Residents' Association, and the Highwood Irrigators. 398 Ibid, at 4-29. 61 also developed. T h i s supplemental p l an re l ied o n an expansion o f the W o m a n ' s Coulee Reservoi r to address water d e f i c i t s . 4 0 0 In essence, the plans w o u l d have the effect o f shift ing divers ions f rom l o w flow periods (during the summer months) to periods o f h igh run-o f f . 4 0 1 D u r i n g the development o f the P re l imina ry I F N , the T S C found that consumpt ive demands c o u l d not be met i f the I F N were to be fu l ly protected and it requested that government lower the standard o f environmental p r o t e c t i o n . 4 0 2 Because compromises were w o r k e d into the calculat ion, the Pane l v i e w s the I F N arr ived at by the T S C as a determination o f " instream flow object ives" (or "IFOs"), rather than a true I F N . 4 0 3 The Panel explains that w h i l e a sc ient i f ical ly der ived I F N w i l l p rovide a science-based benchmark to consider consumptive use trade-offs against, an I F O represents a compromise between consumptive demands and actual instream needs . 4 0 4 The Pane l finds that the A p p l i c a n t ' s arguments regarding the environmental acceptabil i ty o f the d ivers ion plans questionable because, according to the Panel , the " I F O i t se l f is a compromise and any failure to meet this objective is twice removed f rom the I F N " . 4 0 5 The Pane l observes that the H i g h w o o d D i v e r s i o n P l a n w o u l d not meet the m i n i m u m Pre l iminary I F N 100 per cent o f the t ime; and less than 50 per cent o f the t ime i n Augus t through O c t o b e r . 4 0 6 M o r e o v e r , i f a scientif ic I F N were used instead as the measure, the results w o u l d be w o r s e . 4 0 7 The Expanded D i v e r s i o n P l a n and the Expanded W o m a n ' s Coulee , w h i c h were proposed as a means o f deal ing w i t h the failure o f the H i g h w o o d D i v e r s i o n P l a n to meet the P re l iminary I F N , w o u l d meet the m i n i m u m Pre l iminary I F N , but they w o u l d not satisfy an I F N based o n s c i e n c e . 4 0 8 399 Ibid, at 8-11. ' • 400 Ibid, at 4-30. 401 Ibid. 4 0 2 Ibid, at 4-28. 403 Ibid. 404 Ibid, at 4-27 to 4-28. 4 0 5 Ibid, at 4-28. 406 Ibid, at 4-33. 4 0 7 Ibid. 408 Ibid. 62 In addi t ion to concerns over h o w the P re l imina ry I F N was arr ived at, analysis presented dur ing the hearing revealed that under the H i g h w o o d D i v e r s i o n and Expanded D i v e r s i o n plans irrigators located i n certain areas w o u l d experience an increase i n water d e f i c i t s . 4 0 9 These deficits w o u l d occur because o f an emphasis o n main ta in ing the Pre l iminary I F N . 4 1 0 A l t h o u g h the A p p l i c a n t downplayed these deficits, the Pane l finds that the A p p l i c a n t ' s assessment o f r i sk was incorrect and that the deficits were more serious than the A p p l i c a n t perceived them to b e . 4 1 1 F o r example , the A p p l i c a n t argued that water shortages are voluntar i ly shared among irrigators under A l b e r t a Env i ronmen t ' s current water mastering practices, w i t h the effect that the impacts are d i lu ted and the harms on ind iv idua l irrigators r e d u c e d . 4 ' 2 H o w e v e r , evidence at the hearing indicated that j un io r licensees bear a greater burden w h e n water shortages occur than do more senior irrigators 4 1 3 The Pane l comments that "creating deficits larger than those experienced before the project for certain water users, w h i l e reducing or e l imina t ing deficits for others and creating opportunities for i r r igat ion expansion, is inappropr ia te" . 4 1 4 The Pane l concludes, therefore, that the d ivers ion plans fa i l to respect exis t ing water rights and, as a result, cannot satisfy its sustainabil i ty t h r e sho ld . 4 1 5 The Pane l also considered whether the H i g h w o o d D i v e r s i o n and Expanded D i v e r s i o n plans w i l l meet both current and future needs for consumpt ive purposes (e.g., domestic , r iparian, mun ic ipa l and i ndus t r i a l ) . 4 1 6 E v e n w i t h implement ing the Expanded D i v e r s i o n P l a n , r iver f lows w o u l d be l o w and conveyance f lows not a lways m a i n t a i n e d . 4 1 7 (Conveyance f lows refer to the amount o f water necessary to ensure that water can be phys i ca l ly w i thd rawn f rom a r iver , i.e., pump intakes are submerged, and to provide for 409 Ibid, at 4-31 and 4-32. 410 Ibid, at 4-43. 4 , 1 Ibid, at 4-34. 4 1 2 Ibid, at 4-32. 4 1 3 Ibid, at 4-34. 4 1 4 Ibid, at 4-43. 4 1 5 Ibid. 416 Ibid. 4 1 7 Ibid. 63 emergencies, unauthorized water withdrawals and other contingencies. ) Insufficient conveyance flows lead to poor water quality for domestic and municipal users and, according to the Panel, any failure to build in contingencies for unforeseeable demands is "not prudent".419 The Panel finds that the plans do not adequately address current and future consumptive demands because water quality is not ensured.420 In short, the Panel concludes that the Diversion Plan does not deal sufficiently with current water deficits, and nor does it address future water requirements.421 In addition, the plan does not respect current water rights, does not meet the minimum Preliminary IFN 422 requirements, and results in poor water quality due to low conveyance flows. Although the Expanded Diversion Plan is an improvement over the Diversion Plan (because it will meet the minimum Preliminary IFN), it does not respect existing water rights and will similarly result in poor water quality because of low conveyance flows. Neither plan, according to the Panel, is sustainable (i.e., meets basic environmental criteria, respects existing water rights and meets current and future needs).424 As a consequence, the Panel refuses to support either plan 4 2 5 4.8 Need for Storage in the Highwood Basin Because the proposed diversion plans were found not to satisfy its sustainable development threshold test, the Panel considered other options to manage water supply and use. 4 2 6 The Panel observes that there was little to no public support for alternatives such as demand-side management, canceling existing water licences - even with compensation, altering agricultural practices, and capping population growth and development (including 418 Ibid, at 4-9. 4 1 9 Ibid, at 4-33, 4-43 and 4-44. 4 2 0 Ibid, at 4-44. 421 Ibid. 4 2 2 Ibid. 423 Ibid, at 8-12.. 4 2 4 Ibid, at 4-44. 425 Ibid. 426 Ibid. 64 agr icu l tu re ) . 4 2 7 T o meet sustainable development objectives, the Pane l concludes that 428 addit ional water storage i n the H i g h w o o d basin w i l l be necessary. The Panel considered the proposed E x p a n d e d W o m a n ' s Cou lee Reservoi r project as a means o f p rov id ing the requisite addi t ional storage. The Pane l finds that the expansion w o u l d on ly meet the m i n i m u m Pre l iminary I F N i f some l icensed water users experienced deficits and conveyance f lows were r e d u c e d . 4 2 9 In other words , current demands w o u l d not be m e t . 4 3 0 D u r i n g the pre-hearing conference, the Pane l directed the A p p l i c a n t to investigate alternatives to the proposed expans ion that w o u l d meet its cr i ter ia o f sustainabil i ty (i.e., meet I F N requirements, l icence al locat ions, conveyance f lows and predicted future d e m a n d s ) 4 3 1 U l t ima te ly , a "Super" E x p a n d e d W o m a n ' s Coulee Reservo i r was p r o p o s e d . 4 3 2 The Panel concludes that addi t ional storage i n the H i g h w o o d R i v e r bas in is required i n the interests o f sustainable deve lopmen t . 4 3 3 The Pane l finds that the Super Expanded W o m a n ' s Coulee Reservoi r c o u l d meet current water needs, but might not meet future needs for water and protect the environment at the same t i m e . 4 3 4 T a k i n g into considerat ion unforeseen contingencies and an updated I F N based o n science, the Panel decides that more storage capacity than w o u l d be p rov ided by the "super" expans ion m a y be r e q u i r e d . 4 3 5 The Pane l is o f the v i e w " a series o f storage opportunities may ul t imately be needed i n the bas in over the long term to meet future water d eman d " . 4 3 6 In the end, the Panel declines to make a f inal determination o n this element o f the Project because addi t ional informat ion and further pub l i c consultat ion is necessary . 4 3 7 It is not surprising that the Panel 427 Ibid, at 8-12. 428 Ibid. 4 2 9 Ibid, at 4-45. 4 3 0 Ibid, at 8-13. 431 Ibid. 4 3 2 Ibid. 433 Ibid, at 4-56. 434 Ibid, at 8-14. 4 3 5 Ibid. 436 Ibid, at 8-15. 4 3 7 Ibid, at 4-48 and 8-14. 65 sees addi t ional informat ion and consultat ion as necessary: The Pane l had, i n effect, mod i f i ed the Project by requir ing addi t ional storage. 4.9 Decision and Directions of the Panel A s set out above, the Pane l finds that neither the D i v e r s i o n nor the Expanded D i v e r s i o n p lan is sustainable and, as a result, it refuses to approve the plans under the N R C B A or recommend them for approval under C E A A . 4 3 9 Notwi ths tand ing that the plans are an integral element o f the Project, the Pane l does not reject the Project outright because o f its dec i s ion not to approve the plans. Rather, the Pane l chooses to evaluate the T C P and defer any further considerat ion o f the plans unt i l they can be r e v i s e d . 4 4 0 A s it d i d w i t h the d ive rs ion plans, the Pane l considered whether the T C P met its sustainabili ty threshold. The Panel concludes that the threshold is m e t 4 4 1 A c c o r d i n g to the Panel , the L i t t l e B o w R i v e r Reservo i r and C lea r L a k e project components do not appear to impinge o n current water rights and l icences because divers ions are to occur at t imes w h e n f lows are h igh and there is sufficient water to satisfy a l l outstanding l icences 4 4 2 In addi t ion, the divers ions are to occur w h e n there is a relative abundance o f water and any adverse effects o n the environment are expected to be i n s ign i f i c an t . 4 4 3 F i n a l l y , the Pane l was not presented w i t h any evidence to suggest that current and future needs w i l l not be met by the T C P . 4 4 4 Because the threshold is met, the Pane l considered the environmental effects o f the T C P i n depth. (This aspect o f the Pane l ' s dec i s ion is discussed i n a subsequent section.) The Panel reasons that it can separate the T C P f rom the plans - and consider the T C P independently - because it sees a d is t inc t ion between: (a) satisfying i r r igat ion expansion i n the lower L i t t l e B o w R i v e r bas in and near C lea r L a k e by diver t ing and storing water dur ing the spring freshet and at other t imes o f h igh f l ow; and (b) addressing lack o f 4 3 8 For further discussion, see "Alberta's Newest River Dam", supra note 300. 4 3 9 Highwood Decision, supra note 8 at 4-44. 4 4 0 1U;A o t « i e 4 4 0 Ibid, at 8-18. 441 Ibid. 4 4 2 Ibid.. < 443 Ibid. 4 4 4 Ibid. 66 water dur ing l o w f l o w i n the upper L i t t l e B o w R i v e r , lower H i g h w o o d R i v e r and lower M o s q u i t o Creek b a s i n s . 4 4 5 The Panel asserts that it has "careful ly examined the relationship between the operation o f the H i g h w o o d D i v e r s i o n works and the expansion o f i r r igat ion through the proposed Li t t l e B o w R i v e r Rese rvo i r and near C lea r L a k e " . 4 4 6 The proposed increase i n the capacity o f the d ivers ion works is intended to divert and store the spr ing freshet . 4 4 7 A c c o r d i n g l y , the locat ion and size o f the works was determined to take advantage o f h igh f l o w events, and these factors, reasons the Pane l , are not affected by operating plans intended for periods o f l o w f l o w . 4 4 8 D u r i n g l o w f lows, water for i r r igat ion w o u l d be obtained f rom storage and the addi t ional d ive rs ion capacity w o u l d not be used 4 4 9 Therefore, according to the Panel , an increase i n the storage capacity o f the L i t t l e B o w R i v e r Reservo i r and C lea r L a k e is not relevant to the capacity and operational plans associated w i t h divers ions f rom the H i g h w o o d R i v e r dur ing l o w f l o w even t s . 4 5 0 It was the d ive rs ion rates contained i n the plans that appl ied dur ing l o w f lows that were unacceptable to the Panel . A t the t ime o f the H i g h w o o d D e c i s i o n , the T C P was expected to take two or three years to construct, w h i c h was (the Pane l anticipated) sufficient t ime to prepare a new d ivers ion p l a n . 4 5 1 Th i s per iod o f t ime w o u l d also a l l o w the A p p l i c a n t to complete an assessment o f the environmental , socia l and economic effects o f the Super Expanded W o m a n ' s Coulee Reservoi r and update its comparat ive analysis o f the other potential storage sites w i t h i n the H i g h w o o d R i v e r B a s i n . 4 5 2 The Pane l is o f the v i e w that construct ion o f the 445 448 Ibid. Ibid. Ibid. Ibid. ' • Ibid. Ibid. Ibid, at 4-38. -Natural Resources Conservation Board Order No. 9601-1, reproduced in the Highwood Decision, ibid, at C-2 to C-4 [hereinafter Board Order No. 9601-1]. The order is also available online: "Decisions under the N R C B A : Alberta Public Works, Supply and Services. - Little Bow - Highwood Water Diversion Project", online: Natural Resources Conservation Board <http://www.nrcb.gov.ab.ca/nrp/Decisions.aspx?id=166> (date accessed: 17 February 2007) [hereinafter " N R C B A Decisions"]. 67 T C P can proceed w h i l e the issues o f addi t ional storage and a d ivers ion p lan for l o w f l o w events are dealt w i t h . 4 5 3 T o provide a f ramework for addressing these outstanding issues, the N R C B members o f the Panel issued B o a r d Order N o . 9601-1 4 5 4 The order required that addi t ional informat ion be. prepared by the App l i can t , i nc lud ing : (a) a reassessment o f I F N s for the H i g h w o o d R i v e r ; (b) an analysis o f the feasibi l i ty o f storage at the W o m a n ' s Cou lee site, i nc lud ing a comparative analysis o f this and two other storage sites; and (c) a revised d ivers ion p lan that w i l l meet consumptive needs and I F N s at t imes o f l o w f l o w . 4 5 5 Th is informat ion was to be presented to the Panel w i t h i n 12 months (i.e., before June 1 9 9 9 ) . 4 5 6 The Pane l sets out i n the H i g h w o o d D e c i s i o n a number o f directions concerning the preparation o f the revised d ivers ion p lan and the assessment o f the Super Expanded W o m a n ' s Coulee and alternative water storage s i t e s . 4 5 7 F o r example , the Panel directs that the d ivers ion p lan be revised to take into account addi t ional storage and to meet the cri teria o f a "sound water management project", these being: • The [science-based] I F N is observed at all times in the Highwood. • Exist ing licence commitments are upheld. Adequate conveyance flows are maintained in both the upper Little B o w River . . . and Lower Mosquito Creek . . . • K n o w n future demands are met. • Consideration is given for possibly reserving water for future [unknown] requirements. 4 5 8 4 5 3 Highwood Decision, ibid, at 8-19. 4 5 4 Board Order No. 9601 -1, supra note 452. 4 5 5 Report of the NRCB/CEAA Joint Panel Review Application #9801 - Alberta Infrastructure, February 2002: Highwood Storage and Diversion Plan Review of Progress Toward Meeting Board Order 9601-1 at 1 [hereinafter Progress Report #4]. Note that all of the progress reports referred to herein are available online, see "NRCBA Decisions", supra note 452. 4 5 6 Board Order No. 9601-1, supra note 452. 4 5 7 See Highwood Decision, supra note 8 at 9-1 to 9-6. 458 Ibid, at 4-55 and 9-2. 68 The Panel also requires that a "detai led process p l a n " for comple t ing the H i g h w o o d R i v e r B a s i n Water Management P l a n (the "HMP") be prepared and filed w i t h the N R C B and the A g e n c y so that it can be considered w h e n the outstanding storage and d ivers ion p lan matters are addressed . 4 5 9 A l b e r t a Env i ronment had commit ted i n 1991 to prepare the H M P and draft terms o f reference for the p lan were released i n 1993 4 6 0 The plan was intended to improve overa l l water management i n the H i g h w o o d R i v e r B a s i n , foster the sustainabili ty o f aquatic and r ipar ian ecosystems and ensure an adequate supply o f water for a l l u ses . 4 6 1 The H M P was be ing developed under the assumption that addi t ional water w o u l d be diverted. to the Li t t l e B o w R i v e r b a s i n . 4 6 2 A l b e r t a Env i ronmen t had been wa i t ing for a dec i s ion o n the Project before m o v i n g forward w i t h the H M P because the p lan w o u l d be impacted by the Pane l ' s dec i s ion to approve or not approve the P r o j e c t 4 6 3 The Panel directed that the process p lan for preparing the H M P observe its three cri ter ia o f sustainable water management . 4 6 4 The Pane l also required the process p l an address certain issues, i nc lud ing a l l point and non-point source po l lu t i on i n the basin, anticipated future development i n the bas in and various fisheries management i s sues . 4 6 5 B o a r d Order N o . 9601-1 provides that the detai led process p lan for the H M P must inc lude specific t imelines for comple t ing the H M P p lann ing process w i t h i n two years (i.e., before June 2000). 4.10 Environmental Effects of the Three-Component Project 4.10.1 Assessment Framework T a k i n g into account the requirements o f C E A A , the Pane l articulates the scope o f the E I A for the Project as fo l lows : 459 Ibid, at 9-3. 460 Ibid, at 4-53. 461 Ibid. 4 6 2 Ibid, at 4-53 and 4-54. 463 Ibid, at 4-53. 464 Ibid, at 4-56. 4 6 5 Ibid. 69 The environmental effects o f the Project that the Panel w i l l consider include, but are not limited to effects upon, the following: flora and fauna; water quality and quantify; groundwater; fish and fish habitats; migratory birds and migratory bird habitats, and vulnerable, threatened or endangered species; and w i l l include the effects o f a change in the environment upon: impact on navigation both upstream and downstream of the Project; aboriginal and non-aboriginal land use and related interests. 4 6 6 In consider ing these potential impacts, the Panel focuses its attention o n whether any o f the effects w i l l be l i k e l y to occur ( in a cumulat ive fashion) w i t h i n the "regional e c o s y s t e m " . 4 6 7 The Pane l defines this ecosystem as the L i t t l e B o w R i v e r , lower M o s q u i t o Creek and lower H i g h w o o d R i v e r b a s i n s . 4 6 8 The Panel also considers the potential for the Project to affect areas outside o f these basins. F o r example , the Pane l considers whether the T C P might have an impact on the O l d m a n R i v e r and the operation o f the O l d m a n R i v e r D a m . 4 6 9 In addi t ion, the Pane l is cognizant o f indirect or secondary impacts, as w e l l as those impacts occur r ing at or adjacent to the Project site. A c c o r d i n g to the Pane l , it should: . . . have some regard for the inevitable secondary impacts arising, for example, from the provision of water from the proposed three-component project. The effects o f changing the flow regime in the upper Little B o w River might be an example o f a direct effect having potential consequences in the upper Little B o w River basin. Increased availability o f a stable water supply, previously difficult to obtain, might be an example of an indirect effect having potential consequences in the basin [emphasis or iginal] . 4 7 0 In conduct ing its assessment, the Pane l emphasizes that ecosystems are d y n a m i c . 4 7 1 The Panel asserts that it assesses the environmental impacts o f the T C P tak ing into considerat ion historic , current and predicted future environmental condi t ions i n the lower H i g h w o o d R i v e r , the upper L i t t l e B o w R i v e r and M o s q u i t o Creek basins 4 7 2 The Pane l 468 469 470 471 472 "Canadian Environmental Assessment Act: Panel Terms of Reference, Joint Review Panel - Little Bow Project/Highwood Diversion Plan Southwestern Alberta", reproduced in Highwood Decision, ibid, at A-2 and A-3. Highwood Decision, ibid, at 8-21. Ibid. Ibid, at 8-23. Ibid, at 8-21. Ibid, at 8-20. Ibid. 70 recognizes that these basins have experienced natural stresses, have been exploi ted by humans i n the past, and are under considerable pressure g iven current demands for w a t e r . 4 7 3 The Pane l notes that i n the N R C B ' s past decisions the B o a r d has recognized that it is diff icul t , and often imposs ib le , to predict h o w an ecosystem and its var ious components w i l l respond to a project 's impacts 4 7 4 The Pane l also recognizes that even where the response cou ld (theoretically) be predicted, there is often a lack o f informat ion and other types o f diff icul t ies that make it imposs ible to determine the l i k e l y effects an impact w i l l have 4 7 5 The Panel is aware that E I A s are inherently uncertain and it deals w i t h the challenge o f this uncertainty by: . . . concentrating on the potential response of ecosystem components about which more is known, by examining evidence before it about the historical record o f the ecosystem under consideration and similar ecosystems elsewhere, and by making conservative assumptions in the face o f uncertainty. B y these means, the Panel has arrived at qualitative assessments o f the risk that ecosystems w i l l undergo changes o f state and has examined the potential of management measures to control or avoid unwanted changes. 4 7 6 W i t h respect to such changes, the Pane l states that it is most concerned "about the r i sk o f large, potential ly undesirable changes that m a y be diff icul t or imposs ib le to r eve r se" . 4 7 7 The Panel u l t imately finds that the T C P w o u l d l i k e l y result i n both posi t ive and negative environmental impacts 4 7 8 A number o f these impacts are discussed be low. It should be noted that because a dec i s ion o n the d ivers ion p lan was postponed unt i l the p lan c o u l d be revised, the Pane l had to make a number o f assumptions about the operation o f the final p lan for the purposes o f consider ing the effects o f the T C P . 4 7 9 The Pane l characterizes its assumptions as " cau t i ous" . 4 8 0 The Pane l expects that the future r ev iew o f the revised 4 7 3 Ibid, at 8-20 and 8-21. 474 Ibid, at 8-21. 4 7 5 Ibid. 476 Ibid. 4 7 7 Ibid. 4 7 8 Ibid, at 8-20. 4 7 9 See Ibid, at 5-2, 5-3, 5-45 and 5-46. 4 8 0 Ibid, at 5-3. 71 divers ion p lan w i l l not reveal effects any greater than those assumed by the Pane l for the AQ 1 purposes o f its assessment. 4.10.2 Examples of Specific Environmental Effects 4.10.2.1 Water Quality A l t h o u g h the Pane l considered water quantity i n the W o m a n ' s Coulee Reservoir , M o s q u i t o Creek, C lea r L a k e and H i g h w o o d R i v e r , on ly its considerat ion o f water quali ty w i l l be discussed. T h i s aspect o f the Pane l ' s dec is ion is suff iciently instructive and representative o f the Pane l ' s reasoning for the purposes o f this thesis. It should also be noted that not a l l aspects relating to water qual i ty are summar ized be low, on ly water qual i ty as it relates to the Li t t l e B o w R i v e r and proposed L i t t l e B o w Reservo i r is discussed. A g a i n , it is necessary to h ighl ight on ly certain elements o f the Pane l ' s d iscuss ion i n order to explore the Pane l ' s reasoning and its appl ica t ion o f C E A A . The A p p l i c a n t evaluated water qual i ty impacts by compar ing predicted post-Project water qual i ty (determined through model ing) w i t h the B o w R i v e r Water Qua l i t y Task Force ' s 1991 water qual i ty objectives and federal and p rov inc i a l guidel ines. These standards apply for a variety o f water uses (e.g., domestic , agriculture, industr ial and ecosystem conservation). I f the post-Project qual i ty o f the water was predicted to fa l l b e l o w the acceptabil i ty thresholds set out i n the objectives and guidel ines, the effect o f the Project was characterized as " m a j o r " ; 4 8 4 The Pane l finds that the mode ls used by the A p p l i c a n t to predict impacts were " l i k e l y the most appropriate avai lable predictors". The Pane l adds that " [no twi ths t and ing some var ia t ion i n results among different experts ( w h i c h reflected different assumptions regarding input variables), the predict ions var ied i n degree, but del ivered consistent trends". 481 Ibid. 4 8 2 Ibid, at 5-3 and 5-6. 483 Ibid, at 5-3. 484 Ibid. 485 Ibid:at 5-8. 4 8 6 Ibid. 72 In order to assess the potential effects o f the T C P on water qual i ty, the Pane l had to first identify the baseline water qual i ty condi t ions. The Panel observes that there is "progressive degradation o f H i g h w o o d water as it travels d o w n M o s q u i t o Creek and the L i t t l e B o w -River". ' The Panel expresses serious concern over the deterioration o f water qual i ty i n the upper L i t t l e B o w R i v e r . 4 8 8 The sources o f po l lu t ion identif ied as impac t ing water qual i ty include increased l ives tock product ion and the release o f treated sewage by m u n i c i p a l i t i e s . 4 8 9 A c c o r d i n g to the Pane l , a part icular p rob lem, and cause o f po l lu t ion , is the Frank L a k e wetlands p r o j e c t . 4 9 0 Frank L a k e is used as a tertiary treatment system to " p o l i s h " effluent f rom a number o f sources . 4 9 1 Eff luent loading has, however , increased to the point where the lake cannot assimilate the po l lu t ion and over f low discharges f rom the lake ( w h i c h are natural occurrences) are causing contaminat ion d o w n s t r e a m . 4 9 2 The most prevalent pollutant is excess phosphorus, w h i c h has the effect o f accelerating the growth o f aquatic plants and a lgae . 4 9 3 Discharges f rom the lake into the L i t t l e B o w R i v e r have been observed dur ing h igh run-of f y e a r s . 4 9 4 The operat ion o f the L i t t l e B o w R i v e r Reservoi r w i l l mean that po l lu t ion co l lec t ing i n Frank L a k e w i l l be pe r iod ica l ly discharged into the L i t t l e B o w R i v e r and w i l l eventually accumulate i n the r e se rvo i r . 4 9 5 A c c o r d i n g to the Pane l , immediate remedia l ac t ion is necessary to address effluent load ing i n Frank L a k e . 4 9 6 In the Pane l ' s v i e w , the situation is "envi ronmenta l ly unsustainable, s imi la r to the current unsustainable si tuation w i t h over-a l locat ion o f w a t e r " . 4 9 7 487 ibid. 488 Ibid, at 8-23. 4 8 9 Ibid. 4 9 0 Ibid, at 8-23 and 8-24. 491 Ibid. 4 9 2 Ibid, at 8-24 and 5-10. 4 9 3 Ibid, at 5-10. 4 9 4 Ibid. 4 9 5 Ibid, at 5-15 and 5-16. 4 9 6 Ibid, at 8-24. 497 Ibid, at 5-11. 73 The Panel finds that the.benefits associated w i t h the construct ion o f the L i t t l e B o w R i v e r Reservoi r w i l l be l imi t ed i f water po l lu t i on is not addressed . 4 9 8 The accumula t ion o f po l lu t ion i n the reservoir cou ld , according to the Panel , result i n a significant adverse environmental effect o c c u r r i n g . 4 9 9 F o r example , mode l ing indicates a "clear and consistent" trend toward eutrophication (i.e., the water w i l l become enriched w i t h nutrients result ing i n an increase i n b io log i ca l a c t i v i t y ) . 5 0 0 I f the reservoir were to become hypereutropic (i.e., the water were to become very r i c h i n minera l nutrients and plant growth) , the cost o f treating the water for domestic and m u n i c i p a l purposes w o u l d increase; the p l u g g i n g o f i r r iga t ion equipment w i t h weeds and algae w o u l d occur more often; and there w o u l d be a rise i n the frequency o f fish k i l l s due to a n o x i a . 5 0 1 In addi t ion, the water released f rom the reservoir w o u l d have a negative impact o n f ish located downstream. The T C P cannot be modi f i ed to address or mitigate the accumula t ion o f po l lu t ion i n the reservoir. The Panel believes po l lu t ion should , therefore, be dealt w i t h through the implementa t ion o f regional mi t iga t ion and protect ion p l a n s . 5 0 4 It supports the polluter-pays pr inc ip le stating that the costs o f deal ing w i t h water po l lu t i on should be borne by those w h o are responsible for the po l lu t ion (e.g., munic ipa l i t ies , loca l farmers, and indus t ry ) . 5 0 5 The Panel notes that continuous water moni to r ing w i l l be necessary to ensure that good water qual i ty, once achieved, is m a i n t a i n e d . 5 0 6 In order to protect water qual i ty i n the reservoir, the Pane l recommends bas in-wide pub l i c par t ic ipat ion to identify and p l an for the management o f water po l lu t i on i n the region. • The Pane l suggests that A l b e r t a C A O Envi ronment lead a water qual i ty ini t iat ive and commence a water qual i ty protect ion plan. A l b e r t a Env i ronment expressed confidence that remediat ion o f the background (or baseline) 498 Ibid, at 8-24. 499 Ibid. 500 Ibid, at 5-16 and E-6. 501 Ibid. 502 Ibid, at 5-16. 503 Ibid. 504 Ibid, at 8-24 and 8-25. 505 Ibid. 506 Ibid, at 8-24. 507 Ibid. 508 Ibid. 74 condition was possible. Under its N R C B A jurisdiction, the Panel imposes an obligation on the operator of the Project (i.e., the Province of Alberta) to ensure that water quality monitoring is undertaken to confirm (to the satisfaction of Alberta Environment) that water released from the Little Bow Reservoir meets water quality and fisheries objectives.510 The Panel concludes that the TCP will not adversely affect water quality in the Little Bow River in a significant way. 5 1 1 Although the discharge of polluted water from Frank Lake could lower the quality of water in the upper Little Bow River and the proposed reservoir, the members of the Panel accept Alberta Environment's commitment (made during the hearings) to deal with the problems associated with the Frank Lake wetlands project.512 4.10.2.2 Aquatic Habitat and Fisheries The Panel recognizes that fish habitat and fish populations in the Highwood River, the upper Little Bow River and Mosquito Creek have been negatively impacted by past activities.5 1 3 With respect to the Highwood River, the Panel states that the objective should be to achieve (post-Project) water quality conditions that are "no worse" than the conditions that would have occurred naturally.514 At the time of the Highwood Decision, there was little available information about fish populations in the Highwood River. 5 1 5 Consequently, the Applicant was unable to assess the potential for the TCP to impact these populations and, as a result, its EIA was modeled on the potential for the Project to impact fish habitat.516 The Applicant recognizes, however, that "the relationship between habitat and the productivity of the fishery is uncertain".517 The Applicant and the Panel were both aware that factors besides habitat 5 W Ibid, at 5-16. 5 1 0 Approval No. 8, supra note 347 at B-4. 5 1 1 Highwood Decision, supra note 8 at 8-26. 512 Ibid. 513 Ibid. 514 Ibid, at 5-36. 515 Ibid, at 5-31. 516 Ibid. 517 Ibid. 75 quality, such as angling pressure, affect fish populations and that the EIA would not 518 necessarily predict with accuracy the Project's potential to impact fish populations. The Panel notes with interest that this problem was "forgotten" by the Applicant in its economic assessment, "where a direct relationship between habitat gains, population size and economic benefits was assumed".519 In assessing the Project's effects on Highwood River fish habitat, the Panel states that because a "fully quantitative analysis ... would have been unworkable for purposes of impact assessment ... a less rigorous, qualitative approach was used which combined quantitative prediction with profession judgement". The Panel also notes that there were areas of uncertainty. For example, during the hearing there was disagreement about whether water temperature would be affected by curtailing diversions from the Highwood River. 5 2 1 The Applicant conceded that the evidence was equivocal and proposed ^ S99 that computer modeling be set aside and controlled experiments undertaken. The Panel supported this approach, recommending that the operator "develop an estimate of the error associated with its temperature predictions and adopt a lower temperature management response threshold".523 The Panel comments that the Operator of the Project should be able to show that curtailing diversions would lower water temperatures and be effective in preventing harm to fish. 5 2 4 . . . . . . The Panel requires (under the N R C B A ) that the diversion works on the Highwood River incorporate fish screens and that the Applicant prepare and implement a fisheries mitigation and enhancement plan for the T C P . 5 2 5 The plan, according to the Panel, should reflect input from the public and the appropriate government agencies and should be 518 Ibid, at 5-31 and 5-41. 5 1 9 Ibid, at 5-31. 520 Ibid, at 5-32. 521 Ibid.at5-35. 5 2 2 Ibid. 523 Ibid, at 5-36. 524 Ibid. 525 Ibid, at 8-27. 76 rev iewed by A l b e r t a Env i ronment , i n consultat ion w i t h D F O . The Pane l provides a list o f - C O ! factors that emerged f rom the hearing that it required be addressed by the plan. The list includes considerat ion o f the feasibi l i ty and desi rabi l i ty o f managing or establishing certain fisheries, habitat compensat ion and the ongo ing moni to r ing o f the effectiveness o f mi t iga t ion and enhancement efforts. The plan , states the Pane l , is to be developed as early as possible by the proponent so that it can be taken into considerat ion i n the f inal design and operation o f the TCP.3" The Pane l also requires that the proponent undertake addi t ional mode l i ng and water qual i ty moni to r ing to be certain that water released f rom the L i t t l e B o w R i v e r Reservoi r meets water qual i ty and fisheries management ob j ec t ives . 5 3 0 W h e n consider ing whether f ish cou ld be sustained i n the L i t t l e B o w R i v e r Reservoir , the Pane l was not w i l l i n g to re ly too heavi ly o n the proponent 's predict ions * 531 regarding phosphorous loading. The A p p l i c a n t assumed that the accumula t ion o f po l lu t ion i n F rank L a k e w o u l d be sufficiently m i t i g a t e d . 5 3 2 The Pane l comments , however , that the "success o f measures to control point source po l lu t ion , par t icular ly f rom Frank L a k e and c o o non-source po l lu t ion f rom agriculture i n the basins is not a forgone conc lus ion . " The Panel notes, " s i m p l y p r o v i d i n g more water for i r r igat ion, domestic consumpt ion , fisheries, w i ld l i f e , recreation and other uses, without everyone do ing their utmost to protect the qual i ty o f the water and the r iver ine environment, w o u l d be a los ing p r o p o s i t i o n " . 5 3 4 A c c o r d i n g to the Pane l , voluntary ac t ion o n the part o f the pub l i c is needed, as w e l l as government a c t i o n . 5 3 5 D F O ' s Policy for the Management of Fish Habitat requires the proponent o f a project that may have harmful effects o n fish habitat to take steps to a v o i d these effects or, i f 526 Ibid. 527 Ibid. 528 Ibid. 529 Ibid. 530 Ibid, at 8-28. 531 Ibid, at 5-39. 532 Ibid. 533 Ibid, at 5-41. 534 Ibid, at 6-40. 535 Ibid. 11 harm is unavoidable , undertake some form o f compensat ion so that there is no net loss o f f ish habi ta t . 5 3 6 The A p p l i c a n t argued that the T C P w o u l d result i n a net increase i n fish habi ta t . 5 3 7 The Pane l concludes, however , that there is too m u c h uncertainty w i t h respect to the proponent 's predic t ion and suggests that fisheries regulators careful ly assess this c l a i m o f habitat ga in w h e n r ev i ewing the fisheries mi t iga t ion and enhancement p lan . T a k i n g into account a l l o f the mi t iga t ion efforts, the Pane l finds that there w i l l be no net loss o f fisheries product ive c a p a c i t y . 5 3 9 Moreove r , the Pane l concludes that ins ta l l ing fish screens o n the H i g h w o o d R i v e r , re-establishing the C lea r L a k e fishery and establishing a fishery i n the L i t t l e B o w R i v e r Reservo i r w i l l have an overa l l beneficial effect on the fisheries located i n H i g h w o o d , upper L i t t l e B o w and M o s q u i t o Creek b a s i n s . 5 4 0 In its recommendat ions to the federal government for the purposes o f C E A A , the Panel cites the requirements o f the N R C B approval regarding the integration o f fisheries considerations i n the design and operation o f the T C P . 5 4 1 The Pane l is o f the v i e w that the fisheries mi t iga t ion and enhancement p lan , w h i c h is a condi t ion o f the N R C B ' s approval , w i l l g ive D F O sufficient informat ion to determine whether its "no-net-loss o f habitat" p o l i c y w i l l be met through the required mi t iga t ion measures . 5 4 2 The N R C B approval also stipulates that the fisheries habitat compensat ion p lan required by D F O be comple ted as an element o f the mi t iga t ion and enhancement p l a n . 5 4 3 The Pane l recommends D F O and loca l residents assist the A p p l i c a n t w i t h the development and evaluat ion o f the fisheries mi t iga t ion and enhancement p l a n . 5 4 4 536 Ibid, at 8-28. 537 Ibid. 538 Ibid. 539 Ibid.-540 Ibid. 541 Ibid, at 9-7. 542 Ibid. See also Approval No. 8, supra note 347 at B-7. 5 4 3 Highwood Decision, ibid, at 9-7. 544 Backgrounder, Federal Response to the Environmental Assessment Report of the NRCB-CEAA Joint Review Panel on the Little Bow Project/Highwood Diversion Plan, online: Fisheries and Oceans Canada <http://www.dfo-mpo.gc.ca/media/backgrou/1998/response_e.htm> (date accessed: 22 January 2007), Recommendation 3 [hereinafter Federal Response Backgrounder]. 78 4.10.2.3 Prairie Environment Vegetation and Wildlife There are a number o f potential ly serious environmental impacts associated w i t h the T C P . W h e n the Li t t l e B o w Reservoi r is f looded, a large contiguous patch o f m i x e d grass prairie measuring approximately 885 hectares (2,187 acres) w i l l be des t royed . 5 4 5 The f looding o f the reservoir w i l l also destroy approximately 33 k m (20 mi les ) o f wate r fowl staging and nesting habitat, mule deer fawning habitat, hawk and songbird habitat and smal l m a m m a l habi ta t . 5 4 6 The Pane l observes that some mi t iga t ion o f the damage is possible i f sites near the reservoir are managed i n a w a y that native plants and animals are res to red . 5 4 7 A c c o r d i n g to the Pane l , the Clea r L a k e project component w i l l also have negative impacts because it w i l l result i n the e l imina t ion o f 75 ha (185 acres) o f m i x e d grassland (due to the construct ion o f a canal) and the convers ion o f 106 ha (262 acres) o f m i x e d grassland to wetlands (as a result o f f l o o d i n g ) . 5 4 8 A l t h o u g h these impacts w i l l affect numerous species that are dependent o n the grassland environment, the Pane l concludes that the C lea r L a k e project component cou ld , nonetheless, compensate for the loss o f water fowl habitat caused by the Project o n the L i t t l e B o w R i v e r . 5 4 9 The Pane l recognizes that care must be taken when consider ing habitat t rade-offs . 5 5 0 It is not clear f rom the dec i s ion h o w the Pane l is to determine w h i c h trade-offs are acceptable. The Pane l emphasizes that a number o f the species that w i l l be adversely affected by the C lea r L a k e project component (e.g., bu r rowing o w l s and ferruginous hawks) are considered endangered or vulnerable, and have been l isted by the Commi t tee o n the Status o f Endangered W i l d l i f e i n Canada ("COSEWIC").551 The Pane l notes: The burrowing owl population of Alberta, which is roughly half o f the Canadian population, is believed to be between 432 and 864 pairs and declining. A n y loss of breeding pairs at these low numbers would be considered a major impact for this. 5 4 5 Highwood Decision, supra note 8 at 8-29. „ 546 Ibid. 547 Ibid. 548 Ibid. 549 Ibid. 550 Ibid, at 8-30. 551 Ibid, at 8-29 and 5-49. 79 endangered species. The ferruginous hawk cannot tolerate human disturbance. It is listed as vulnerable in Canada, having lost 40 per cent o f its Alberta range and 50 per cent o f its population. 5 5 2 In l ight o f this evidence, the Pane l finds that unless the potential effects o f the Project on endangered or vulnerable species can be mitigated, these impacts w i l l constitute significant adverse environmental e f fec ts . 5 5 3 The Panel believes that the measures proposed by the A p p l i c a n t to par t ia l ly mitigate effects o n bur rowing o w l s and ferruginous hawks are "responsible p recau t ions" . 5 5 4 These mi t iga t ion measures w o u l d include restricting construct ion near nests and relocat ing nests when necessary . 5 5 5 Interestingly, the Panel reaches its determination about the reasonableness o f the mi t iga t ion measures w h i l e observing that the most recent b i rd surveys o f the project area are out o f date and suggesting that new surveys be under taken . 5 5 6 V i e w i n g the Project 's potential impacts o n vegetation and w i l d l i f e as a whole , the Panel characterizes the loss o f contiguous b locks o f m i x e d grassland as a "major adverse effect because so litt le o f this native ecoregion r e m a i n s " . 5 5 7 M o s t native grassland areas i n the v i c in i t y o f the Project have, according to the Pane l , been destroyed by agriculture and other deve lopment s . 5 5 8 The loss o f r ipar ian habitat is also to be g iven "great weight" , i n the Pane l ' s op in ion , because "the b io log i ca l s ignif icance o f r ipar ian zones is k n o w n to be is disproportionate to their a r e a " . 5 5 9 In order to mitigate the potential environmental effects o f the Project d o w n to acceptable levels , the A p p l i c a n t prepared a habitat compensat ion p lan . The p l an is intended to mitigate the Project 's effects on native grasslands by preserving as m u c h grassland as possible i n areas adjacent to the proposed Li t t l e B o w R e s e r v o i r . 5 6 0 The p l an also includes 552 Ibid, at 5-49. 553 Ibid. 554 Ibid. 555 Ibid. 556 See Ibid. 557 Ibid, at 8-29. , 558 Ibid, at 5-42. 559 Ibid, at 8-29. 560 Ibid. 80 steps that w o u l d be taken to enhance exis t ing habitat near C lea r L a k e . 5 6 1 A c c o r d i n g to the App l i can t , the implementa t ion o f its habitat compensat ion p lan w o u l d result i n a net gain i n the value o f habitat, notwithstanding a net loss o f habitat area. The A p p l i c a n t argued that, potential ly, there w o u l d be no net loss o f habitat, "expressed as a product o f habitat value and area". The Pane l d i d not agree. The Panel finds that the proposed habitat compensat ion p lan w o u l d result i n on ly partial compensat ion for the loss o f grassland and r ipar ian hab i ta t . 5 6 4 The Pane l characterizes the impacts, even w i t h mi t igat ion, as a permanent loss i n the value o f the areas a f fec ted . 5 6 5 The Panel describes the loss o f habitat as "major" and as " long- term adverse impacts" that cou ld not be fu l ly m i t i g a t e d . 5 6 6 A c c o r d i n g to the Pane l , it has to " w e i g h this adverse impact against the Project 's benefits i n assessing the pub l i c interest w i t h respect to the entire [pro jec t ]" . 5 6 7 D u e to the scale, the Pane l concludes that it w o u l d not be feasible to attempt to mitigate fu l ly the loss o f habitat b y replacing what is to be lost w i t h new habitat rec la imed f rom cult ivated land. A s a result, the Panel supports a part ial mi t iga t ion through the preservation, enhancement and possible addi t ion o f habitat near C lea r L a k e and i n other a reas . 5 6 9 The Panel requires (pursuant to its N R C B A jur i sd ic t ion) that the proponent seek approval f rom A l b e r t a Env i ronment for its habitat compensat ion program and that the program, once approved, be i m p l e m e n t e d . 5 7 0 The Panel also identifies a number o f mi t iga t ion goals that should be incorporated into the p lan (e.g., no net loss o f m i x e d 561 Ibid. 562 Ibid. 563 Ibid. 564 Ibid. 565 Ibid. 566 Ibid. 567 Ibid. 568 Ibid, at 8-29 and 8-30. 569 Ibid, at 8-30. 5 7 0 Ibid. Note that there is an emphasis by the Panel on creating mitigation plans with oversight and/or approval from (or at least cooperation with) various government agencies. The Panel also promotes public participation in the preparation of these plans and the seeking of input from relevant non-governmental organizations such as Ducks Unlimited, see ibid, at 8-30 and 8-31. 81 grassland habi ta t ) . 5 7 1 The Pane l chooses, however , not to prescribe the methods to be undertaken b y the proponent to achieve these g o a l s . 5 7 2 The Pane l is o f the v i e w that those who are responsible for f inding means o f ach iev ing mi t iga t ion should be permitted f l ex ib i l i ty . Presumably, the Pane l adopts this approach because the proponent is the one most fami l ia r w i t h the project under r ev iew and is best able to alter the project or its operation to effect ively carry out mi t igat ion. U l t ima te ly , the Panel concludes that "the residual environmental impacts o f the [ T C P ] c o u l d be substantially mit igated by a successful compensat ion p l a n " . 5 7 4 The Panel recognizes, however , that this assumption " w i l l on ly be warranted i f an adequate p lan is successfully i m p l e m e n t e d " . 5 7 5 The Panel notes that there were diff icul t ies w i t h a s imi la r p lan implemented at P ine Cou lee . (The P ine Coulee Project i n v o l v e d the construct ion o f a smal l dam o n W i l l o w Creek, south o f Ca lgary . ) The Pane l is concerned about whether the A p p l i c a n t ' s p l an is " r e a l i s t i c " . 5 7 7 Because o f the challenges encountered w i t h the P ine Coulee habitat compensat ion plan , the Pane l suggests that the proponent consider addi t ional methods o f compensat ion not set out i n its appl icat ion - such as the use o f conservat ion 578 easements. Because the Pane l considers the habitat compensat ion p lan to be integral to the successful mi t iga t ion o f the effects o f the T C P , it requires (under the N R C B A ) that the proponent undertake moni to r ing as w e l l as the re-evaluation o f its predict ions and management practices i f such moni to r ing reveals unexpected r e su l t s . 5 7 9 The acceptance o f 571 Ibid, at 8-30. 572 Ibid. 513 Ibid. 574 Ibid. 575 Ibid. 5 7 6 See "Alberta's Newest River Dam", supra note 300. 5 7 7 Highwood Decision, ibid, at 5-47. 578 Ibid, at 8-30. 579 Ibid. 82 the habitat compensation plan is conditional and the proponent is required to show tangible results.580 In its recommendations to the federal government for the purposes of C E A A , the Panel finds that the loss of mixed grass habitat will adversely affect certain bird 581 * species. In addition, although the Clear Lake element of the project may compensate for the loss of waterfowl habitat on the Little Bow River, it will result in the loss of mixed grass prairie and shorebird habitat.582 Species that will be affected include rare and endangered species.583 Notwithstanding, the Panel finds that the TCP will not, in respect of threatened, rare and endangered species, result in any significant adverse environmental effects.584 The Panel is of the view that mitigation, through a habitat compensation plan, will be satisfactory. The Panel recommends, however, that Environment Canada participate in the C O / " mitigation efforts by providing its expertise and advice. The Panel is of the opinion that some of the lost grasslands cannot be replaced.587 Additional lands may need to be set aside, according to the Panel, to ensure that there is adequate replacement of lost habitat.588 4.10.3 Cumulative Environmental Effects As required under C E A A , the Panel evaluates the Project's potential to give cog rise to cumulative environmental effects. The Panel approaches this assessment by taking into consideration the: (a) baseline ecosystem conditions (which include the impacts of prior developments and activities), (b) expected impacts of the Project on the baseline ecosystem conditions, and (c) current and future use of "the riverine ecological resources".590 The geographic scope for considering the cumulative effects of the Project is the South 580 Ibid, at 5-50. 581 Ibid, at 9-8. 582 Ibid.. 583 Ibid. 584 Ibid. 585 Ibid. 586 Ibid. See also Federal Response Backgrounder, supra note 544, Recommendation 5. 5 8 7 Highwood Decision, ibid, at 9-8. 588 Ibid. 5 8 9 See ibid, at 8-4. 590 Ibid, at 8-4 and 8-32. 83 Saskatchewan R i v e r B a s i n , focusing i n particular o n the management o f the H i g h w o o d R i v e r , L i t t l e B o w R i v e r and lower M o s q u i t o Creek bas in s . 5 9 1 The Panel describes the (pre-Project) environmental baseline condi t ions o f the Project area as fo l lows : • unsustainable resource use for over 100 years; • loss o f native grasslands; • loss o f habitat for prairie an imal species; • poor water qual i ty due to po l lu t ion f rom point and non-point sources; • reduced f ish habitat dur ing l o w f l o w condi t ions due to water divers ions; • land use practices dur ing the 1980s contributed to the disappearance o f C lea r L a k e ; • an over-a l locat ion o f water resources; and • the alteration o f archaeological sites by development and other landscape changes . 5 9 2 The Panel is o f the v i e w that the baseline environmental condi t ions are a result o f a general ly unsustainable approach to resource management. A c c o r d i n g to the Pane l , "water supply and consumptive demands must be brought into b a l a n c e " . 5 9 4 S i m i l a r l y , the Pane l states that water wi thdrawals and po l lu t i on must be "understood and managed w i t h i n acceptable l imi t s that reflect the natural capacities o f the e n v i r o n m e n t " . 5 9 5 In short, the Pane l believes that g iven the unsatisfactory nature o f the environmental baseline, any new 591 Ibid, at 8-4. 592 Ibid, at 8-32. 593 Ibid. 594 Ibid. 5 9 5 Ibid. 84 water management project i n the basins should move the relat ionship between humans and the environment towards sustainabili ty. H a v i n g identif ied the baseline environmental condi t ions , the Pane l considered whether any o f the Project ' s expected impacts w o u l d act cumula t ive ly w i t h these condit ions and result i n significant adverse environmental effects. F o r example , the Pane l finds that the Project w o u l d result i n the loss o f m i x e d grassland and that this loss w o u l d contribute to the overa l l decl ine o f m i x e d grassland i n the reg ion - a major adverse e f fec t . 5 9 6 The Panel concludes however that w i t h mi t iga t ion the residual adverse effects c o u l d be reduced to i n s ign i f i c an t . 5 9 7 In respect o f some impacts, the Panel finds that the Project (wi th mit igat ion) w i l l improve the baseline condi t ions, notwithstanding that some o f the mi t iga t ion measures re l ied upon cannot be enforced by the P a n e l . 5 9 8 Where it has sufficient ju r i sd ic t ion , the Panel imposes obl igat ions on responsible authorities to mitigate the Project 's e f fec ts . 5 9 9 Where the Pane l does not have ju r i sd ic t ion , it makes recommendations that w o u l d ( i f carr ied out) reduce possible cumulat ive e f fec ts . 6 0 0 F o r example , the Pane l promotes the development o f a basin-wide po l lu t ion prevent ion program to address the cumulat ive effects o f phosphorous load ing i n the Li t t l e B o w R i v e r . 6 0 1 The Pane l ul t imately concludes that "the cumula t ive impact o f this Project and a l l other exis t ing water uses i n the bas in w o u l d not cause addi t ional significant adverse impacts on the aquatic environment o f the L i t t l e B o w and H i g h w o o d r iver b a s i n s " . 6 0 2 In reaching its conclus ions the Panel applies a f ramework o f "sustainabil i ty o f ecosystems over t i m e " . 6 0 3 The Panel finds that al though the T C P is not expected to rectify a l l water supply issues i n the L i t t l e B o w basin, it. cou ld improve s u p p l y . 6 0 4 S i m i l a r l y , the 596 Ibid. 597 ibid. 5 9 8 See ibid, at 8-32 and 8-33. 5 9 9 Ibid, at 8-33. 6 0 0 Ibid. 601 Ibid, at 8-34. 6 0 2 Ibid. 6 0 3 Ibid, at 8-4. 6 0 4 Ibid, at 8-32. 85 Panel finds that the T C P w i l l not resolve a l l o f the adverse cumula t ive effects on the environment caused by previous development activit ies arid water management approaches, but it w i l l "set the stage" for addressing at least some o f these problems and w i l l generally improve c o n d i t i o n s . 6 0 5 Interestingly, the Pane l refuses to accept a l i m i t on future development. It states: .. . increasing demands for water in the Highwood and Little B o w River basins is inevitable, especially in terms of municipal growth . . . [hjowever, the Panel has concluded that the establishment o f an I F N for the Highwood River and an approved operating plan for the project is the best way o f ensuring that environmental water requirements are better met in the future. 6 0 6 The Panels seems to take some comfort i n the fact that the amount o f addi t ional water that the Project w i l l make avai lable for i r r igat ion is consistent w i t h the l imi t s o n i r r igat ion expansion i n the B o w R i v e r B a s i n imposed by the South Saskatchewan Basin Water Allocation Regulation. ' ' 4.10.4 .Aboriginal Interests and Concerns608 The Pane l concludes that the Project w i l l not have a negative impact o n the economic w e l l be ing o f the Pe igan or B l o o d Firs t N a t i o n s . 6 0 9 Rather, the Project w i l l l i k e l y address potential water shortage issues to the benefit o f a l l , i nc lud ing Firs t N a t i o n s . 6 1 0 Howeve r , the creation o f the Li t t l e B o w Reservo i r w i l l , accord ing to the Pane l , result i n "s ignif icant residual adverse environmental effects leading to socia l and cul tural losses for abor iginal people, par t icular ly the B lack foo t Fi rs t N a t i o n s " . 6 1 1 M o r e o v e r , these losses, the 605 Ibid, at 8-33. 606 Ibid, at 8-34. 6 0 7 Alta. Reg. 307/1991. See Highwood Decision, ibid. 6 0 8 Note that under its NRCBA jurisdiction, the Panel addresses various social effects that are expected to result from the TCP. These effects include impacts on transportation, water supply and use, municipal water disposal, navigation, land use planning, as well Aboriginal interests. For example, the creation of the Little Bow Reservoir requires the relocation of the Little Bow Hutterian Brethren. This colony has a significant agricultural operation and is comprised of 101 residents. The Panel characterizes this relocation as perhaps the reservoir's "major single adverse social impact": Highwood Decision, ibid, at 6-5. 609 Ibid, at 8-46. 6 , 0 Ibid. 611 Ibid, at 8-47. 86 Panel recognizes, cannot be fu l ly mit igated and the effects are cumulat ive i n that they add to other losses o f archaeological resources. Firs t Na t ions argued dur ing the pub l i c hearing that some areas should not be subject to development because, i f developed, these places can no longer be used for their 613 cultural and spiri tual purposes. The Pane l recognizes the potential loss o f cul tural resources and geography, but seems to accept that addi t ional water management projects are necessary, g iven the broader pub l i c in teres t . 6 1 4 The Pane l reasons that "the losses for Fi rs t Na t ions people must be acknowledged, resources identif ied to mitigate and reduce as m u c h o f the loss as possible, sites preserved wherever possible , and impacts kept to a m i n i m u m " . 6 1 5 A c c o r d i n g l y , the Pane l imposes condit ions to mitigate the i m p a c t s . 6 1 6 F o r example , a two-hearth teepee r ing that w o u l d otherwise become submerged is to be relocated before the * 6 1 7 ' Li t t l e B o w Reservo i r is f i l l ed . In addi t ion, and i n order to address some o f the impacts o f the Project, the Pane l requires addi t ional research into the cul tural losses that w i l l occur f\ 1 R should the T C P proceed. It is o f the v i e w that an interpretive area and educat ion programs are necessary to record the importance to Firs t Na t ions o f the L i t t l e B o w region and to record the culture losses that have occurred as a result o f development over the past c e n t u r y . 6 1 9 A l t h o u g h the Project w i l l , i n the Pane l ' s v i e w , i n v o l v e the loss o f special sites, a sense o f place and artifacts, it recommends that the Project proceed. The Pane l concludes, a l though the Project w i l l have adverse environmental effects leading to socia l and cul tural losses, it w o u l d "not have significant adverse effects o n the environmental interests * 621 and concerns o f the abor iginal people, i nc lud ing the effects o n water". The Pane l notes that the Pe igan are engaged i n l i t iga t ion w i t h the P rov ince and are c l a i m i n g pr ior water rights 612 Ibid. 6 1 3 Ibid. 614 See Ibid. 615 Ibid, at 8-47. 616 Ibid, at 9-9. 617 Ibid, at 8-50. 618 Ibid at 8-47. 6 1 9 Ibid. 6 2 0 Ibid, at 9-9. 621 Ibid, at 8-47 and 9-9. 87 and al locat ions for i r r igat ion purposes. The Pane l observes that, " i t is clear that the Pe igan value the economic importance and benefits that i r r iga t ion development b r i n g s " . 6 2 3 The Pane l also recognizes that a massive i r r igat ion project on the Pe igan Reserve w o u l d have significant environmental impacts s imi la r to those o f the Project, but l i ke ly ' g rea t e r . 6 2 4 4.11 Recommendations of Panel and Federal Response A t the conc lus ion o f its rev iew, the Pane l makes s ix m a i n recommendations to the federal government i n respect o f the T C P , a number o f w h i c h were mentioned i n more detail above. W i t h the approval o f the G o v e r n o r - i n - C o u n c i l , the responsible authority (i.e., D F O ) - i n consultat ion w i t h Env i ronment Canada, the Department o f Hea l th , the Canad ian Env i ronmenta l Assessment A g e n c y , and the Department o f Indian Af fa i r s and Nor the rn Deve lopment - prepared a wri t ten response to the Pane l ' s recommendat ions. The federal government accepted or acknowledged a l l o f the Pane l ' s recommendat ions, w i t h on ly a few mino r clar if icat ions. The government agreed that it was n o w i n a pos i t ion to consider (wi th suitable mi t iga t ion and/or compensation) granting approvals for the T C P under the Fisheries Act and Navigable Waters Protection Act. In accepting the Pane l ' s recommendations, the federal government agreed that D F O and Env i ronment Canada w o u l d provide the A p p l i c a n t w i t h advice and assistance i n order to facilitate the implementa t ion o f the necessary mi t iga t ion and habitat compensat ion measures. The federal government also supported the development o f an interpretive program to identify and acknowledge those cul tural losses that w o u l d be suffered by Firs t Na t ions impacted by the Project. 4.12 Second Joint Panel Convened O n M a r c h 22, 2000 a second jo in t panel (the "Second Panel") was established under the N R C B A and C E A A to assess both the opt ion o f storage at W o m a n ' s 6 2 2 Ibid, at 8-51. 623 Ibid. 6 2 4 The information contained in this paragraph is taken from: Federal Backgrounder, supra note 544. Ibid. 6 2 5 88 Coulee and a revised d ivers ion p lan for the Project. The Second Pane l also assumed responsibi l i ty for moni to r ing the progress o f the A p p l i c a n t i n p r o v i d i n g the outstanding informat ion required by B o a r d Order N o . 9 6 0 1 - 1 . 6 2 7 It has been reported that a new panel was convened because the or ig ina l members o f the Pane l were unavai lable . The Second Pane l , encountering a number o f delays and diff icul t ies , issued progress reports to keep the rev iew process m o v i n g forward and to in fo rm the pub l i c o f developments. These reports are summar ized be low. ' 4.12.1 Progress Report #1 (June 2000) The A p p l i c a n t requested an extension o f the June 1999 deadline to meet the condi t ions o f B o a r d Order 9601-1 i n M a y 1999 and M a r c h 2 0 0 0 . 6 2 9 A pub l i c meet ing was he ld on A p r i l 19, 2000 to consider a possible e x t e n s i o n . 6 3 0 F o l l o w i n g this meeting, the s-'i 1 Second Pane l ' s first progress report was issued. In its report the Pane l recognized / T i l confusion over the relat ionship between the H M P and the storage r ev iew process. Some participants were o f the v i e w that the H M P should be completed before storage options were considered because there may be means besides off-stream storage (at W o m a n ' s Cou lee or elsewhere) to deal w i t h water management issues. F o r example , it was suggested that demand-side management, the r ecyc l ing and re-treating o f water, and water conservat ion might a v o i d the need for addi t ional f a c i l i t i e s . 6 3 4 There was a certain amount o f dissatisfaction expressed over the interventionist role assumed by the o r ig ina l Pane l and that 626 Backgrounder: The Highwood Storage and Diversion Plan, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/010/0001/0001/0002/0001/bg000619_e.htm> (date accessed: 6 January 2007) [hereinafter "Highwood Storage Backgrounder"]. 6 2 7 Progress Report #4, supra note 455 at 1. 6 3 0 6 2 8 "Public Comment Invited on Draft Agreement for the Joint Public Review of the Proposed Highwood Storage and Diversion Plan", Canada NewsWire. Ottawa: November 19, 1999. 6 2 9 "Highwood Storage Backgrounder", supra note 626. Progress Report #4, supra note 455 at 1. Report of the NRCB/CEAA Joint Panel Review Application #9801 - Alberta Infrastructure, June 2000: Highwood Storage and Diversion Plan Request for Extension of Completion Date for Board Order 9601-1 at 1 [hereinafter Progress Report #1]. Ibid, at 1,3 and 11. ' Ibid, at 11. Ibid. 89 panel's requirement that the Applicant incorporate additional storage into its project proposal. The Second Panel reconsidered the process established by the original Panel and concludes that the Applicant should prepare a revised diversion plan and apply for its approval, but this plan need not depend on additional storage.635 Storage would be considered during the development of Phase 1 of the HMP. In other words, the need for additional storage capacity would be evaluated during the development of the water management plan for the Highwood River Basin - it would not be assumed. In order to facilitate public participation in the preparation of Phase 1 of the HMP, it was decided that an independent public advisory committee (the "PAC") would be established and an independent facilitator appointed. Because Alberta Environment was responsible for the HMP, it became responsible for organizing the PAC and selecting its members. The committee eventually came to include municipal representatives, industry representatives, local landowners and representatives of various interest groups. , It was also decided that Phase 1 of the HMP would include an investigation of the full range of options for addressing current and future water supply and demand issues, such as storage and non-storage means of meeting the IFNs for the Highwood River during low flows. 6 4 0 Phase 2 would address all other basin planning matters.641 The Applicant was responsible for providing Alberta Environment with technical reviews and information on storage options for the purposes of preparing the H M P . 6 4 2 635 636 637 638 639 640 641 642 Ibid. Progress Report #4, supra note 455 at 1. Progress Report #1, supra note 631 at 13. Report of the N R C B / C E A A Joint Panel Review Application #9801 - Alberta Infrastructure, December 2000: Highwood Storage and Diversion Plan Review of Progress Toward Meeting Board Order 9601-1 at 15 [hereinafter Progress Report #2]. See "Alberta's Newest River Dam", supra note 300. Progress Report #1, supra note 631 at 13. Progress Report #2, supra note 638 at 3. Progress Report #4, supra note 455 at 1. 90 The Second Pane l granted the A p p l i c a n t an extension unt i l M a r c h 2002 to meet the outstanding condit ions o f B o a r d Order 9601 - 1 , 6 4 3 4.12.2 Progress Report #2 (December 2000) The Second Pane l he ld a pub l i c meet ing o n N o v e m b e r 22, 2000 and i n December o f that year issued its second progress r epor t . 6 4 4 In this report, the panel addresses matters relating the establishment o f the P A C and the development o f the H M P , al though it recognizes that it has no direct ju r i sd ic t ion over these i s sues . 6 4 5 The Second Panel chooses to make recommendat ions concerning the P A C and the H M P because the progress o f Phase 1 w o u l d impact the t im ing o f the A p p l i c a n t ' s request for approval o f the revised d ivers ion p lan (wi th or wi thout storage) and its abi l i ty to meet the M a r c h 2002 d e a d l i n e . 6 4 6 D u r i n g the N o v e m b e r meeting, A l b e r t a Env i ronmen t conf i rmed that the in i t i a l task o f the P A C w o u l d be to identify and compare non-storage options for the purposes o f assisting the department i n developing Phase 1 o f the H M P . 6 4 7 A l b e r t a Envi ronment expla ined that these options cou ld include mechanisms such as the voluntary buy-back o f water l icences, but not the expropr ia t ion o f l icences, because expropr ia t ion o f water rights is inconsistent w i t h the South Saskatchewan Water Management Policy. The department planned to assist the P A C by p rov id ing the committee w i t h informat ion o n available non-storage options, cost estimates and an assessment o f each opt ion ' s ab i l i ty to reduce or manage water demands . 6 4 9 In addi t ion to evaluat ing non-storage options, the P A C was to be responsible for r ev iewing revised I F N calculat ions for the H i g h w o o d R i v e r . 6 5 0 646 650 See Progress Report #1, supra note 631 at 14 and News Release: Highwood Storage and Diversion Plan Joint Review Panel Issues Progress Report (June 19, 2000), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/010/0001/0001/0002/0001/nr000619_e.htm> (date accessed: 6 January 2007). See Progress Report #2, supra note 638 at 3. Ibid, at 14. Ibid. Ibid, at 4. Ibid. Ibid. Ibid. 91 The A p p l i c a n t had an expectation that once the P A C was presented w i t h a l l o f the available informat ion, it w o u l d conclude that storage is a necessary component o f the H M P . 6 5 1 B y the t ime 1 o f the second report, the A p p l i c a n t had mapped the three potential water storage sites ( W o m a n ' s Coulee , Tongue Creek and S t imson Creek) and had nearly completed an environmental site assessment study deta i l ing the potential impacts o f water storage at each locat ion. Once completed, the A p p l i c a n t w o u l d provide the study to the P A C . 6 5 3 The A p p l i c a n t expected that the P A C w o u l d assist it by evaluating and rating the s i t e s . 6 5 4 In its second report, the panel suggested that the A p p l i c a n t undertake a "fatal f l a w " analysis o f the three potential water storage sites to determine whether one or more o f the sites c o u l d be el iminated f rom its r e v i e w . 6 5 5 The panel suggested this measure as a means to save t ime, and to assist the parties i n ensuring that the M a r c h 2002 deadline c o u l d be m e t . 6 5 6 4.12.3 Progress Report #3 (June 2001) The Second Pane l he ld a pub l i c meet ing o n June 12, 2001 and released its th i rd progress report shortly thereafter. The meeting was intended to explore whether the requirements o f B o a r d Order 9601-1 cou ld be satisfied o n t ime and to discuss the A p p l i c a n t ' s "fatal f l a w " a n a l y s i s . " 0 It was revealed dur ing the meet ing that there was significant concern over the l imi t ed amount o f progress the P A C was m a k i n g . 6 5 9 It also became apparent that there was confusion over what role each o f the A p p l i c a n t , A l b e r t a Envi ronment , the Second Pane l and the P A C was to p lay i n the development o f the H M P and the revised d ivers ion 651 Ibid, at 5. 6 5 2 Ibid, at 6. 653 Ibid. 654 Ibid. 655 Ibid, at 18. 6 5 6 Progress Report #4, supra note 455 at 3. 6 5 7 Report of the NRCB/CEAA Joint Panel Review Application #9801 - Alberta Infrastructure, June 2001: Highwood Storage and Diversion Plan Review of Progress Toward Meeting Board Order 9601-1 at 3 [hereinafter "Progress Report #3"]. 6 5 8 Progress Report #4, supra note 455 at 3. 659 Ibid. 92 p l a n . 6 6 0 In addi t ion, al though the P A C had been p rov ided w i t h a draft, the updated and revised I F N analysis for the H i g h w o o d R i v e r had not yet been c o m p l e t e d . 6 6 1 The meet ing also revealed that the A p p l i c a n t had been unable to identify a "fatal flaw" i n any o f the three potential storage options. A l t h o u g h there was concern that the M a r c h 2002 deadline might not be met, the A p p l i c a n t reported that it expected to submit a revised d ivers ion p lan (wi th or wi thout addi t ional storage) by the d e a d l i n e . 6 6 4 A l b e r t a Env i ronmen t s imi l a r ly reported that it was w o r k i n g towards comple t ing Phase 1 o f the H M P by the d e a d l i n e . 6 6 5 In addi t ion to the progress reports be ing circulated by the Second Pane l , the A p p l i c a n t and A l b e r t a Env i ronment were themselves i ssuing jo in t month ly progress repor t s . 6 6 6 In their June-July 2001 report, the departments made an attempt to address some o f the uncertainty and confusion p laguing the P A C ' s w o r k by c la r i fy ing some o f the tasks assigned to the c o m m i t t e e . 6 6 7 The departments expla ined that deve lop ing the d ivers ion p l an w o u l d require that several water management alternatives, or "scenarios", be evaluated. A l b e r t a Env i ronment expected the P A C to evaluate these scena r ios . 6 6 9 The P A C w o u l d also be i n v o l v e d i n deve lop ing the scenarios, w h i c h required the comple t ion o f the f o l l o w i n g tasks: 1. Determine supply and demand • How much water w i l l there be in the rivers and streams? • How much water is needed to meet human and environmental needs now and in the future? 660 Ibid, and Progress Report #3, supra note 657 at 16. 6 6 1 Progress Report #3, ibid, at 15. 662 Ibid, at 4. 663 See Ibid, at 8 and 11. 6 6 4 See News Release: Highwood Storage and Diversion Plan Joint Review Panel Issues Progress Report #3 (July 20, 2001), online: Natural Resources Conservation Board <http://www.rircb.gov.ab.ca/nrp/News% 20Release%203.pdf> (date accessed: 16 January 2007). 665 Ibid. 6 6 6 See " N R C B A Decisions", supra note 452. ' 6 6 7 Alberta EnvironmentNV/TRANS Highwood Management Plan Progress Report: June and July 2001, online: Natural Resource Conservation Board <http://www.nrcb.gov.ab.ca/nrp/aenv%20progress%201.pdf> (date accessed: 15 January 2007). 668 Ibid, at 1. 669 Ibid. 93 2. Assess storage options • What are the advantages and disadvantages o f reservoirs, dugouts, and other methods of storing water? 3. Assess-non-storage options • What are the advantages and disadvantages of water conservation, pipelines, economic incentives, and other alternatives to storage? 4. Involve the general public • What are the views and experience o f people not represented on P A C ? 6 7 0 The A p p l i c a n t and A l b e r t a Env i ronment anticipated that a preferred sustainable water management scenario w o u l d be identif ied by February 15, 2002 and a revised d ivers ion p lan (based o n this scenario) completed by M a r c h 29, 2002. 4.12.4 Progress Report #4 (February 2002) and Status of Revised Plan The Pane l he ld its fourth pub l i c meet ing o n December 1, 2 0 0 1 . 6 7 2 The Panel planned at this meeting to rev iew the A p p l i c a n t ' s (now complete) comparat ive site assessment . 6 7 3 The Panel also intended to explore whether Phase 1 o f the H M P c o u l d be completed and the outstanding requirements o f B o a r d Order 9601-1 satisfied before M a r c h 2 0 0 2 . 6 7 4 The A p p l i c a n t ' s comparat ive site assessment revealed W o m a n ' s Cou lee to be the preferred site for the constructiorf o f water storage faci l i t ies , assuming addi t ional storage is required by the H M P . The W o m a n ' s Cou lee site was selected because, compared to the other possible locations at Tongue Creek and S t imson Creek, storage at W o m a n ' s Cou lee 6 7 0 Ibid. 671 Ibid, at 3. 6 7 2 Progress Report #4, supra note 455 at 3. 673 Ibid. 674 Ibid. 675 Ibid, at 6. 94 676 w o u l d have the least impact o n the environment and be the most cost effective. , The A p p l i c a n t concluded, however , that the other two sites might be used for storage, depending on h o w m u c h addi t ional storage was found to be necessary by the H M P . 6 7 7 The Second Panel accepts the A p p l i c a n t ' s choice o f W o m a n ' s Cou lee as the most appropriate site and concludes that the A p p l i c a n t has fu l f i l l ed the requirement set out i n B o a r d Order N o . 9601-1 678 to complete a comparat ive site assessment. A t the December 1 meeting, the P A C expressed concern over its abi l i ty to meet the M a r c h 2002 deadline. The committee surmised that it w o u l d not have sufficient t ime to understand and cr i t i ca l ly assesses the vo lumes o f technical in format ion it was be ing 67Q presented w i th . The P A C stated that there was a significant amount o f w o r k to complete before the required water management scenarios c o u l d be developed and, as a result, / O A finishing its w o r k o n time w o u l d "severely stress its volunteer members". In addi t ion, the I F N report was s t i l l i n draft fo rm and there were concerns over whether it was adequate. The P A C proposed that the deadline for dec id ing whether addi t ional storage was needed be extended to June 2 0 0 2 . 6 8 2 It also asked that the deadline for comple t ing the d ivers ion p lan be pushed back to October 31 , 2 0 0 2 . 6 8 3 The panel agreed to these ex tens ions . 6 8 4 The A p p l i c a n t stated dur ing the meet ing that the L i t t l e B o w Reservo i r w o u l d be completed i n 2003 and, as a result, it w o u l d be necessary to develop and implement an in ter im d ivers ion p l a n . 6 8 5 A n in te r im p lan w o u l d be needed, according to the App l i can t , even i f storage was found to be required because it w o u l d take t ime to b u i l d the new storage 681 684 685 Ibid. See also News Release: Highwood Storage and Diversion Plan Joint Review Panel Issues Progress Report #4 (March 7, 2002), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/010/0001/0001/0002/0001/nr020307_e.htm> (date accessed: 6 January 2007). Progress Report #4, ibid, at 6. Ibid, at 23 and 24. Ibid, at 4. Ibid, at 21. Ibid, at 27. Ibid, at 21. Ibid. Ibid. Ibid, at 7. 95 faci l i t ies . The in ter im p l an was to be developed before the end o f October 2002 i n consultat ion w i t h the P A C and it w o u l d remain i n force unt i l the H M P cou ld be f ina l ized and the revised d ivers ion p lan i m p l e m e n t e d . 6 8 7 The Second Pane l accepted the in ter im p lan as necessary. The panel conc luded its fourth progress report by stating.that it w o u l d set a date to commence a formal hearing once it had received the revised d ivers ion plan. In 2004 the N R C B received a status letter f rom the A p p l i c a n t ind ica t ing that it p lanned to complete a revised operational p lan based on the water management scenario endorsed by the P A C . 6 9 0 T h i s p lan w o u l d be incorporated into its revised d ivers ion p l a n . 6 9 1 A c c o r d i n g to the letter, the A p p l i c a n t intended to present the operational p lan to the pub l i c i n September o f 2 0 0 4 . 6 9 2 I f the p u b l i c ' s response proved posi t ive , the A p p l i c a n t w o u l d fi le the revised d ivers ion p lan and the other outstanding informat ional requirements o f B o a r d Order 9 6 0 1 - 1 . 6 9 3 4.13 Third Joint Panel to be Convened Const ruc t ion began o n the T C P i n 2002 and, i n 2004, these components were completed and the T C P became ope ra t iona l . 6 9 4 The Li t t l e B o w d a m was eventual ly renamed the " T w i n V a l l e y D a m " . 6 9 5 W h i l e the T C P was be ing constructed, A l b e r t a Env i ronment and the A p p l i c a n t developed management scenarios for the operation o f the components taking into account the natural range o f wet and dry cycles , human needs and I F N s . 6 9 6 M o d e l i n g 686 ibid. 687 Ibid. 688 Ibid, at 26. 689 Ibid, at 27. 6 9 0 " N R C B A Decisions", supra note 452. 691 Ibid. 6 9 2 Ibid. 693 Ibid. 6 9 4 "Alberta's Newest River Dam", supra note 300. 695 Ibid. 696 Ibid. • 96 indicated that addi t ional storage w o u l d not resolve a l l the water issues and, as a result, drought operational rules were created. It was not un t i l December 14, 2006 that the A p p l i c a n t submitted a revised d ivers ion p lan to the N R C B . The P A C ul t imately conc luded that the benefits o f addi t ional storage w o u l d not offset the economic and environmental costs associated w i t h creating addi t ional storage f a c i l i t i e s . 6 9 9 A c c o r d i n g l y , the revised d ivers ion p lan does not inc lude addi t ional s torage . 7 0 0 The federal government is i n the process o f determining the process for r ev i ewing the revised d ivers ion p lan and a new rev iew panel (the third) w i l l be established i n 2007 to consider the p l a n . 7 0 1 697 Ibid. 6 9 8 "NRCBA Decisions", supra note 452. 699 Ibid. 700 Ibid. 701 Ibid. 97 5. COMPARISON AND APPLICATION 5.1 Introduction In this Chapter, a compar i son o f the eco-pragmatic and C E A A approaches is undertaken. Aspects o f the H i g h w o o d D e c i s i o n are used to illustrate the, latter. F o l l o w i n g this compar ison, eco-pragmatism is appl ied to the facts o f the H i g h w o o d D e c i s i o n . The goal being to explore whether, i f eco-pragmatism were appl ied rather than C E A A , s imi la r conclus ions w o u l d have been reached. The compar i son o f the approaches and the appl ica t ion o f eco-pragmatism to the H i g h w o o d dec i s ion expose some o f the strengths and weaknesses o f each method. 5.2 Comparison of Eco-pragmatism and CEAA 5.2.1 Key Norm 5.2.1.1 Farber's Choice of Primary Norm Farber writes i n Eco-pragmatism that our "key n o r m " is that humans are entitled to a safe environment as w e l l as to environmental preservation - "tempered by an awareness o f compet ing g o a l s " . 7 0 2 Farber characterizes A m e r i c a n society as profoundly commit ted to the environment and sees current environmental laws as already reflect ing this key or p r imary no rm. A s discussed, he is opposed to us ing a neutral baseline w h e n approaching environmental decisions because it requires a value judgment that there is equali ty between those w h o pol lute and those who are a f fec ted . 7 0 3 The pub l i c does not, i n Farber 's v i e w , accept that one has a right to pol lute to the detriment o f others. Farber argues that al though we need a baseline that is i n favour o f pub l i c goods, it must be l imi t ed somewhat by private preferences - otherwise it is not pract ical and w i l l not be supported over the long-term by the pub l i c . It is at least questionable whether Farber has correct ly identif ied (or overstated) socie ty 's key norm. F lou rnoy , for example , disagrees w i t h Farber ' s c l a i m that 702 Eco-pragmatism, supra note 4 at 199. 103 Ibid, at 113. 98 current environmental laws reveal a profound commitment to the environment. She argues instead that "environmental statutes tend to reflect human concerns that predate any dawning o f environmental awareness - w i t h on ly a modest in t roduct ion o f new values or reasons for car ing that are unique ly attributable to concern for the human relat ionship to the env i ronmen t " . 7 0 4 Boudreaux s imi l a r ly argues that Farber overestimates the commitment o f Amer i cans to the env i ronmen t . 7 0 5 A c c o r d i n g to Boudreaux , "Farber states that A m e r i c a n s have made a commitment to c lean air and water, but the compromises i n our statutes show that the on ly consensus is that we want cleaner air and water than we had b e f o r e " . 7 0 6 Lazarus adds that al though the introduct ion i n the 1970s o f the first major environmental statutes garnered wide pub l ic support, today ( in the U . S . ) a "s tarkly partisan d iv ide exists i n environmental l a w " . 7 0 7 It should however be recognized that it is quite diff icul t to identify 708 whether and to what extent the pub l i c is commit ted to protecting the environment. Schroeder, acknowledg ing this fact, has wri t ten that al though it is debatable whether Amer i cans have a profound general c o m m i t to the environment, " [w]hen environmental harms pose a discernible r i sk to human l ife or threaten serious adverse health effects, it is possible to discern a pub l i c favor ing m a x i m u m feasible environmental c o n t r o l " . 7 0 9 It is also questionable whether Canadians can be said to share Farber ' s key norm. A national p o l l by E n v i r o n i c s International L t d . i n 1999 found that eight out o f ten Canadians are o f the v i e w that environmental protect ion should have pr ior i ty over economic g r o w t h . 7 1 0 Notwi ths tanding the amount o f concern expressed over environmental issues as evidenced i n this p o l l , there appears to be some reluctance o n the part o f Canadians to change 7 0 4 "In Search of an Environmental Ethic", supra note 10 at 70. 7 0 5 P. Boudreaux, "Environmental Costs, Benefits, and Values: A Review of Daniel A. Farber's Eco-Pragmatism" (1999) 13 Tul. Envtl. L.J: 125 at 149. 706 Ibid. . • ' , 7 0 7 R.J. Lazarus, "A Different Kind of 'Republican Moment' in Environmental Law" (2003) 97 Minn. L. Rev. 999 at 1004. 7 0 8 For a discussion on the difficulties associated with identifying what individuals and societies value, see C H . Schroeder, "Clear Consensus, Ambiguous Commitment" (2000) 98 Mich. L. Rev. 1876 at 1909. 709 Ibid. 7 1 0 L. Pynn, "Environment Tops Poll of Canadians' Concerns: The high ranking given to pollution and conservation issues is being attributed to an improving economy", Vancouver Sun, 20 September 1999 at A-4. The poll randomly surveyed 1,512 Canadians by telephone between March 31 and April 17. The results are accurate within 2.5 percentage points 19 times out of 20. 99 environmenta l ly harmful behaviours when these changes give rise to opportunity costs or associated expenses. T h i s is arguably il lustrated by a 2007 p o l l conducted by A n g u s R e i d Strategies . 7 1 1 The results o f the p o l l indicate that one-third o f Canadians bel ieve cl imate change to be the most important issue facing h u m a n i t y . 7 1 2 H o w e v e r , the p o l l also reveals that the wealthiest and most h igh ly educated Canadians are the most reluctant to alter their 713 l ifestyles i n order to consume less energy. A 2001 study by the Un ive r s i t y o f V i c t o r i a ' s Eco-Resea rch C h a i r i n Env i ronmenta l L a w and P o l i c y provides addi t ional evidence that Canadians m a y not a lways consider the environment o f utmost impor t ance . 7 1 4 The study appl ied twenty-f ive key environmental indicators and used informat ion gathered by the Organ iza t ion for E c o n o m i c Co-opera t ion and Deve lopment ( O E C D ) to rank the G 7 n a t i o n s 7 1 5 and nineteen other (European) nations. Canada ' s overa l l r ank ing was second last - w i t h the U n i t e d States be ing the worst o f a l l countries evaluated! It w o u l d seem that there is some disconnect between stated values on the part o f Canadians and actual environmental performance. G i v e n this disconnect, one w o u l d at least have to consider more c lose ly the commitment o f Canadians (and Amer i cans ) before conc lud ing that our societies are "p rofoundly" commit ted to the environment. A n ind ica t ion o f pub l i c priori t ies was revealed dur ing the E I A o f the L i t t l e B o w / H i g h w o o d Project. There was, for example , lit t le to no pub l i c support for alternatives such as demand-side management, cancel ing exis t ing water l icences (even w i t h compensation), al tering agricul tural practices, or capping popula t ion growth and deve lopmen t . 7 1 6 In fact, popula t ion g rowth and further development was assumed, 7 1 1 C. Puxley, "Despite concern, SUV stays: Wealthy Canadians think green but won't give up gas guzzlers, poll says", The (Montreal) Gazette, 22 March 2007 at A-4. This poll was conducted online; 3,500 Canadians were surveyed. 712 Ibid. 713 Ibid. 7 1 4 Eco-Research Chair of Environmental Law and Policy, University of Victoria: D.R. Boyd, Canada vs. the OECD: An Environmental Comparison (2001), online: <http://www.environmentalindicators.com/> (date accessed: 20 September 2007). 7 1 5 The-"G7" is comprised of the following: Canada, the United States, Japan, Germany, France, Great Britain and Italy. 7 1 6 Highwood Decision, supra note .8 at 8-12. 100 notwithstanding the l imi t ed and variable water supply i n the H i g h w o o d R i v e r and L i t t l e B o w 717 R i v e r basins. A l t h o u g h Farber takes the pos i t ion that society 's key n o r m exhibi ts a preference for environmental values, it is certainly questionable (based o n the above discussion) whether such a n o r m actual ly exists or whether Farber has perhaps overstated the norm. It is also questionable whether Farber ' s approach can actually satisfy those w h o identify an alternative (more economic) pr imary n o r m and achieve the reconc i l i a t ion between "tree huggers" and "bean counters" that Farber is w o r k i n g towards. Perhaps what Farber has undertaken w i t h his eco-pragmatic approach is a repackaging o f the tradit ional environmental arguments i n " e c o n o m i c " language that is more persuasive to those w h o do not share his v i e w o f the key norm. It also is arguable that Farber tells us what the correct outcome is (at, least where there is a h igh degree o f uncertainty) by setting the key n o r m and reso lv ing diff icul t issues i n favour o f this no rm. Farber may not, however , be able to convince those who are not already predisposed as he is to solve environmental d i l emmas i n this way . A potential p rob lem w i t h Farber ' s approach is that i f socie ty 's "key n o r m " changes, the environment w i l l not be protected. A s H e i n z e r l i n g argues, "Farber ' s environmental baseline, grounded as it is i n pub l i c op in - ion , cannot serve the task Farber assigns to it, w h i c h is to provide a bu lwark against 'general ized attacks o n environmental p ro t ec t i on . " 7 1 8 H e i n z e r l i n g explains that i f the environmental basel ine 's source is pub l i c op in ion , then environmental l a w w i l l change as op in ion changes. A n d , as a result, "[fjhe baseline cou ld be d isso lved tomorrow, and Eco-pragmatism w o u l d offer us almost nothing to argue against the c h a n g e " . 7 1 9 T h i s is an important observation, because (as H e i n z e r l i n g notes) Farber is r e ly ing o n there be ing a key environmental n o r m to jus t i fy his approach and to achieve the pro-environmental goals he identifies for eco-pragmatism. 7 1 7 See ibid, at 3-2 and 3-3. 7 1 8 Heinzerling, supra note 37 at 1430. 719 Ibid. 101 5.2.1.2 C E A A ' s Primary Norm It has been observed that the "strategic purpose" o f an E I A regime w i l l have a profound effect on h o w assessments are undertaken and, i n particular, o n their " l e v e l o f stringency, procedural certainty or clari ty, and predictabi l i ty o f o u t c o m e " . 7 2 0 The overarching goal o f C E A A is the p romot ion and attainment o f sustainable development i n 721 Canada. A s set out i n Chapter 3, sustainable development is defined i n the A c t to mean "development that meets the needs o f the present, wi thout c o m p r o m i s i n g the abi l i ty o f future generations to meet their o w n needs" . 7 2 2 The Pane l i n the H i g h w o o d D e c i s i o n explains sustainable development i n the f o l l o w i n g way : A n ideal development would be one that brings long-term social and economic benefits and has a beneficial or neutral effect on the environment. Developments should be planned and operated to minimize adverse impacts on the environment. However, where adverse effects on the environment are likely, the Panel believes that social or economic benefits should be weighed, balanced and evaluated in terms o f the environmental effects and r isks . 7 2 3 A l t h o u g h C E A A requires that both environmental and economic values be taken into account w h e n decisions regarding projects are made, the A c t does not state w h i c h o f these values is to have pr ior i ty . Th i s lack o f a c lear ly stated pr ior i ty objective has arguably resulted i n misunderstandings on the part o f the pub l i c about the role o f C E A A . B o y d , d iscussing lawsuits ar is ing out o f environmental assessments i n Canada, argues that one o f the reasons for these lawsuits is the "ongo ing conf l ic t about what E I A is intended to a c h i e v e " . 7 2 4 A s B o y d r ight ly observes: Environmental groups and Aboriginal people, who have filed most o f the suits to date, see [EIA] as a forum for determining whether a particular project should 0 RIAS Inc. and Gartner Lee Limited, Comparative Analysis of Impacts on Competitiveness of Environmental Assessment Requirements: Final Report Submitted To The Canadian Environmental Assessment Agency (September 2000) at s. 4.2.1, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/ 017/0004/repor_e.htm> (date accessed: 2 July 2005) [hereinafter Competitiveness Report]. 1 See C E A A supra note 1, preamble. 2 Ibid., s. 2(1). 3 Highwood Decision, supra note 8 at 2-13. 4 Boyd, supra note 139 at 160. 102 proceed", whereas "government and industry tend to view [EIA] as a process to refine how a project w i l l proceed ... [emphasis original] . 7 2 5 A l t h o u g h there is no clear statement i n the A c t that environmental or economic considerations are to be preferred i n particular circumstances, the mechanics o f C E A A and the results o f its appl ica t ion suggest a general preference for development. E l d e r observes that i n the years that E I A has been pract iced i n Canada , projects that have a "posi t ive f inancia l cost-benefit ra t io" have been a p p r o v e d . 7 2 6 A c c o r d i n g to E lde r , dec is ion-makers i n Canada emphasize economic g rowth and profit i n determining whether a project should be permit ted to p r o c e e d . 7 2 7 B o y d s imi l a r ly observes that government assumes that projects under r ev i ew " w i l l proceed because economic growth is paramount". Penney concludes that E I A i n Canada has a lways fa l len w i t h i n the "development pa rad igm" and that C E A A is closer to the "development m o d e l " o f E I A than the "sustainabil i ty m o d e l " . 7 2 9 C E A A ' s seeming bias i n favour o f development can arguably be witnessed i n its requirement to take mi t iga t ion into account w h e n determining the nature o f a project 's impacts. A s G i b s o n observes, C E A A focuses on the avoidance or mi t iga t ion o f significant adverse environmental effects, rather than o n improvements to the environment. A n d , as a result, al though the stated objective o f C E A A is sustainabili ty, the real goa l o f the A c t is to reduce environmental impacts. A bias i n favour o f development seems obv ious w h e n one considers that projects are permitted to proceed even where it cannot be shown w i t h any 725 Ibid. 7 2 6 Elder, supra note 138 at 126. 727 Ibid. 7 2 8 Boyd, supra note 139 at 160. 7 2 9 Penney, supra note 204 at 269. Penney describes the development and sustainability paradigms in the following way. The development model involves self-assessment, with the goals of gathering information on environmental impacts and using that information to mitigate such impacts. There is no real emphasis on cumulative effects or long-term monitoring, the focus being on individual projects - with little public participation. Within the development paradigm the commitment to economic growth is unquestioned. The focus of the sustainability model is on achieving no net negative environmental impacts. Alternatives to projects, and the impacts of such alternatives (including social impacts), are considered. Scientific uncertainty must be addressed, as must incomplete data, inadequate baseline information and ongoing monitoring. There is an emphasis in the sustainability model oh significant and meaningful public participation. 7 3 0 "Major Deficiencies Remain", supra note 139 at 100. 731 Ibid, at 98. 103 certainty that mi t iga t ion w i l l be successful. The Pane l ' s treatment o f mi t iga t ion i n the H i g h w o o d D e c i s i o n serves as useful i l lustrat ion. In reaching its dec i s ion about whether to approve the T C P , the Pane l concludes, "the residual environmental impacts o f the project c o u l d be substantially mit igated by a successful compensat ion p lan" . It recognizes, however , that this T O O assumption " w i l l on ly be warranted i f an adequate p lan is successfully implemented" . A s discussed i n the preceding chapter, the Pane l notes that there were diff icul t ies w i t h a s imi la r p lan implemented at P ine C o u l e e , 7 3 4 and (as a consequence) it expressed concern over whether the proposed p lan for the Project was "real is t ic" . Because o f the challenges encountered w i t h the P ine Cou lee habitat compensat ion plan , the Pane l suggests that the proponent consider addi t ional methods o f habitat compensat ion not set out i n its appl icat ion. Interestingly, un l ike the H i g h w o o d Project, the P ine Cou lee Project was not par t icular ly complex or c o n t r o v e r s i a l . 7 3 7 The reliance o n mi t iga t ion by the Pane l i n the H i g h w o o d D e c i s i o n illustrates that even where a project 's approval is contingent; o n successful mi t iga t ion and there is uncertainty w i t h respect to the adequacy o f the proposed mi t iga t ion measures, C E A A a l lows development to be preferred. M o r e o v e r , development m a y be favoured even where analogous mi t iga t ion efforts have i n the past p roven troublesome. A preference for development can also be seen i n the provis ions o f C E A A that permit a project to proceed where significant adverse environmental effects are l ikely^ p rov ided these effects are " jus t i f ied" the circumstances. A l t h o u g h the A c t does not include any guidance, H o b b y suggests: In view of the transparency of the environmental assessment process and decision-making required by the Act, there would have to be demonstrable and likely Highwood Decision, supra note 8 at 8-30. Ibid. Ibid. Ibid, at 5-47. Ibid, at 8-30. "Alberta's Newest River Dam", supra note 300. 104 compelling public benefits for permitting a project to be carried out notwithstanding significant adverse environmental effects. 7 3 8 It should be emphasized however that because there is no requirement i n C E A A that a certain leve l o f environmental qual i ty be maintained, the jus t i f ica t ion test provides a basis for a l l o w i n g any type o f adverse effect to be permitted i f a part icular project is found to be economica l ly or soc ia l ly advantageous. The emphasis on development can also be observed i n h o w decis ion-makers have exercised their authority and discret ion under C E A A . In the H i g h w o o d D e c i s i o n the Pane l refused, for example , to recommend that the or ig ina l d ive rs ion plans be approved because, among other reasons, the plans were not based on a scientif ic I F N . Nonetheless , the Panel chose to r ecommend for approval the remainder o f the Project i n ant ic ipat ion o f revised operation plans being prepared by the App l i can t . T h i s arguably illustrates a bias i n favour o f project modi f ica t ion and ultimate approval , regardless o f concerns and unknowns w i t h respect to significant aspects o f a project. The Pane l ' s dec i s ion is i n keeping w i t h the h igh approval rate o f projects subject to a C E A A assessment. Ano the r example o f h o w the exercise o f d iscre t ion under C E A A can favour project approval is evidenced by what the Pane l chose not to consider. A l t h o u g h there was an emphasis by the Panel i n the H i g h w o o d D e c i s i o n o n remedying his tor ica l environmental problems and resource over a l locat ion, the Panel refused to entertain project alternatives that w o u l d l i m i t development and growth. The Pane l also refused to consider l i m i t i n g or r evok ing current water rights and l icences. The Panel exhibi ts i n its dec i s ion a preference for preserving property rights and faci l i ta t ing further development. The Pane l i t se l f recognizes that "the three-component project is be ing proposed as one more step i n the h is tor ica l process o f t ry ing to overcome the natural l imitat ions to water shortages i n the bas in" . 7 3 8 Hobby, supra note 187 at II-l 12. 7 3 9 Highwood Decision, supra note 8 at 6-13. 105 5.2.2 Decision Methodology 5.2.2.1 Eco-pragmatism's Environmental Baseline A s expla ined i n Chapter 2, Farber argues thai significant r isks to the environment should be e l iminated to the extent feasible, except w h e n the costs o f addressing such r isks exceed the potential benefits. There is a presumpt ion i n favour o f the environment, but this presumption is a rebuttable one. Farber describes this element o f his methodology as the ' envi ronmenta l basel ine ' . The most cha l lenging aspect o f eco-pragmat ism is app ly ing the baseline. The lack o f detail p rov ided makes it dif f icul t to apply i n a real-l ife si tuation wi thout some measure o f modi f ica t ion or further development. A s G r o d s k y explains: One question left unresolved is whether the baseline should be a measure of environmental quality, such as ecosystem biodiversity or a level of air or water quality, or whether it should be a behavioral mandate ... In other words, an unresolved issue is whether the environmental baseline is an affirmative standard to which we should aspire, a statutory mandate that we should obey, or some kind of default mechanism that will be triggered if certain context-specific obligations are not met. 7 4 0 A n g e l o s imi l a r ly recognizes that Farber does not exp la in fu l ly the baseline and proposes us ing the maintenance o f eco log ica l i n t eg r i ty . 7 4 1 She argues that us ing eco log ica l integrity as the baseline provides a reference point to measure human changes to the env i ronmen t . 7 4 2 A n y n e w regulat ion w o u l d be expected to main ta in eco log ica l integrity, al though it need not perfectly preserve the status q u o . 7 4 3 In A n g e l o ' s v i e w , g iven that ecosystems are not i n equ i l i b r ium, the goal o f environmental protect ion " shou ld not be to suppress a l l human-caused disturbances, but rather to prevent human-caused disturbances that are not i n l ine w i t h the natural disturbance regime o f the e c o s y s t e m " . 7 4 4 T h i s requires his tor ical data ( w h i c h is often unavailable) , an acknowledgement that human disturbances can be very different f rom natural ones and recogni t ion that there is a degree o f uncertainty i n 7 4 0 J.A.. Grodsky, "The Paradox of (Eco)pragmatism" (2002-2003) 87 M inn . L. Rev. 1037 at 1048-49. 7 4 1 Angelo, supra note 7 at 133. 742 Ibid, at 137. 143 Ibid. 744 Ibid, at 141. ' 106 h o w ecosystems w i l l react to human-caused d is turbances . 7 4 5 A c c o r d i n g to A n g e l o , disturbances caused by people must be l imi ted to those that the part icular ecosystem can successfully a b s o r b . 7 4 6 A l t h o u g h W i l d e r m u t h sees Farber ' s eco-pragmatic approach as wor thwhi l e , she also observes that his baseline concept is underdeve loped . 7 4 7 She argues that Farber 's presumption i n favour o f the environment should be guided by a more detai led v i s i o n o f the environment and suggests us ing L e o p o l d ' s concept o f " land-heal th" to conceptual ize environmental l imi t s and q u a l i t y . 7 4 8 S i m p l y put, land-health is fostered w h e n b i o l o g i c a l diversi ty is sustained, l and is used i n a sustainable manner, land is seen as beautiful as w e l l as useful, and human popula t ion density does not exceed the car ry ing capaci ty o f the l a n d . 7 4 9 The author observes that this concept is s imi la r to ecosystem management and suggests that land-health serve as eco-pragmatism's ba se l i ne . 7 5 0 W i l d e r m u t h is o f the v i e w that Farber needs more " e c o l o g y " i n his approach and should pay more attention to preserving eco log ica l f u n c t i o n . 7 5 1 G r o d s k y takes issue w i t h the starting point Farber uses for his baseline, arguing that cost and feasibi l i ty need not be considered at the outset. G r o d s k y explains: Environmental pragmatism should not necessarily be wedded to the notion o f starting from a "deliberate middle," but should recognize that it may be equally pragmatic to start from a clear rule and adjust, recognizing the feedback loops inherent in the political process, and the various incentive structures operating on regulated entities, outside interest groups, and regulators themselves. 7 5 2 G r o d s k y gives as an example the hard baseline imposed by the U . S . ' s nat ional ambient air qual i ty standards. There is no f l ex ib i l i t y i n the regulat ion other than i n h o w states implement 745 Ibid. 746 Ibid. 7 4 7 A.J. Wildermuth, "Eco-pragmatism and Ecology: What's Leopold Got to Do with It?" (2003) 97 Minn. L. Rev. 1145 at 1149, 1156 and 1167. 748 Ibid, at 1157-58. 749 Ibid, at 1160. 750 Ibid, at 1167. 751 Ibid, at 1164. 7 5 2 Grodsky, supra note 740 at 1063. 107 the standards. The standards w o u l d not appear eco-pragmatic in i t i a l ly (as they are set not taking into account feasibi l i ty, on ly health), but when l o o k i n g at implementat ion, they arguably exhibi t the characteristics o f a hybr id a p p r o a c h . 7 5 4 G r o d s k y argues that sequence matters. Setting a baseline that is diff icul t to meet (i.e., one that is not feasible or economic in i t ia l ly) m a y push industry to be invent ive and eventually achieve compl iance . G r o d s k y ' s approach ( l ike that o f both A n g e l o and Wi lde rmuth ) recognizes that there needs to be some f i rm environmental objective or rule. In addi t ion, G r o d s k y gives l aw the task o f shaping human behaviour. T h i s use o f l a w might not con fo rm to eco-pragmat ism's emphasis o n a revealed pro-environment n o r m and it may not satisfy those who are predisposed to economic values. A l t h o u g h it is necessary to further develop the baseline i n order to apply it, the changes suggested by A n g e l o and W i l d e r m u t h seem to alter Farber ' s approach, perhaps m a k i n g it less pragmatic. T h e y "harden" the environmental baseline, and what appears to be lost is a clear integration o f economic values. T h e y seem to defeat (at least somewhat) Farber ' s goal o f reconci l ia t ion and retreat to the "tree hugger" side o f the d iv ide over environmental disputes. A s w i l l be discussed elsewhere, it may be unavoidable to favour environmental values i n a more concrete w a y than Farber advocates i n order to achieve the goals he sets for eco-pragmatism. 5.2.2.2 C E A A ' s "Baseline" Under C E A A , a project w i l l not be recommended for approval i f it is l i k e l y to result i n significant adverse environmental effects, unless these effects are jus t i f ied i n the circumstances. S igni f icance is to be assessed taking into account mi t iga t ion . In other words , the process involves reducing the severity o f the affects to an acceptable l eve l and then i f necessary (i.e., the effects are s t i l l found to be significant) determining whether they are jus t i f ied . In eco-pragmatic terms, this can be described as C E A A ' s "basel ine". The m a i n elements o f the baseline, mi t iga t ion and just i f icat ion, are considered b e l o w i n detai l . 754 755 Ibid, at 1052. Ibid. Ibid, at 1053. 108 (a) Mitigation M i t i g a t i o n under C E A A involves the carry ing out o f measures that are technica l ly and economica l ly feasible that reduce the severity o f adverse environmental impacts. F o r example , i n the H i g h w o o d D e c i s i o n the Pane l observes that for almost a l l aspects o f the Project the proponent "has identif ied the best mi t iga t ion measures avai lable and, where equivalent measures were evaluated, lower-cost alternatives have been se lec ted" . 7 5 7 Effectiveness o f the potential mi t iga t ion measures is also important. The Panel highl ights the fact that the proponent has elected to expand the W o m a n ' s Cou lee Reservo i r to mitigate the impact o f the d ivers ion plans o n the H i g h w o o d fishery. In selecting this mi t iga t ion measure, writes the Pane l , the proponent has pr io r i t i zed effectiveness over cos t . 7 5 8 M i t i g a t i o n usual ly involves the project proponent m a k i n g commitments to lessen the impact o f the project by altering or supplementing the project i n some way . In the event damage is caused or where there is uncertainty about potential effects, an undertaking to implement mi t iga t ion measures is also acceptable for the purposes o f obta ining approval under C E A A . In the H i g h w o o d D e c i s i o n , for example , the Pane l accepts the proponent 's proposals for mi t iga t ing changes i n ground water levels , should these occur, and compensat ing any landowners w h o might be affected. Persons or bodies ( inc lud ing regulatory agencies) besides the proponent m a y commi t to carry out mi t iga t ion that is not direct ly related to the project i n an attempt to lessen the project 's cumulat ive impacts. In addi t ion, the C E A A decis ion-maker m a y look to statutes other than C E A A under w h i c h mandatory mi t iga t ion requirements are imposed. T o illustrate, the Pane l states that i f it, . . . concludes, on a preliminary basis, that a certain condition would be a necessary component o f any approval issued in accordance with the NRCBA, the Panel could consider the effects from both an N R C B perspective and a CEAA perspective, as though the project were to incorporate such a condit ion." 7 6 0 See CEAA supra note 1, s. 16(l)(d) and Highwood Decision, supra note 8 at 5-53. Highwood Decision, ibid, at 6-13. Ibid. ' Ibid, at 8-31. Ibid, at 1-2. 109 In short, a l l mi t iga t ion commitments and condi t ions are factored into the assessment o f the signif icance o f the potential environmental effects o f the project under rev iew, and m a y be re l ied upon i n determining whether a project w i l l be permitted to proceed. A s a result, a project m a y be recommended for approval under C E A A o n the assumption that mi t iga t ion measures w i l l be carr ied out (as discussed above). Re l iance o n mi t iga t ion measures over w h i c h the responsible authority (or other C E A A decis ion-maker) has no control was addressed i n 2001 by the Federal Cour t i n Environmental Resource Centre v. Canada (Minister of Environment).161 The court he ld that a responsible authority w i l l be exercis ing its discret ion under C E A A i n an unreasonable ^ 762 manner it i f relies o n mi t iga t ion measures it cannot enforce. C E A A was amended i n 2003 i n response to this d e c i s i o n . 7 6 3 The amendments make it clear that a responsible authority is entit led to take into account any mi t iga t ion measures whose implementa t ion the responsible authority can ensure, as w e l l as those measures that the responsible authority is "sat isf ied" w i l l be implemented by any other person or body. A responsible authority is entitled therefore to re ly o n mi t iga t ion measures that are enforceable o n l y by another regulatory authority ( inc lud ing a p rov inc i a l government), as w e l l as o n measures that any person or body vo lun ta r i ly undertakes. A s has been suggested by Benevides , these amendments to C E A A might encourage an abdicat ion o f the federal responsibi l i ty to ensure mi t iga t ion is p u r s u e d . 7 6 4 R e l y i n g o n voluntary mi t iga t ion measures to arrive at a conc lus ion that a project w i l l not have significant adverse environmental effects is obv ious ly problemat ic . R e l y i n g o n statutes other than C E A A also presents a challenge. E m p l o y i n g a number o f statutes to reach a desired result ( in this case reduced environmental impacts) is arguably efficient and avoids duplicate regulat ion. It can, however , create a si tuation i n w h i c h a failure under one A c t can have a cascade effect, impac t ing assumptions and determinations 1 (2001), 45 C.E.L.R. (N.S.) 114 (Fed. T.D.). 2 Ibid, at para. 156. 3 See CEAA, supra note 1, ss. 20(1.1) and 37(2.1), amended by S.C. 2003, c. 9, ss. 11 and 17, respectively. See also "Real Reform Deferred", supra note 141 at 224. 4 "Real Reform Deferred", ibid. 110 made under another. I f the condi t ions imposed under other statutes are not enforced, the objectives o f C E A A cannot be met. Other than refusing to grant approval , there are no penalties contained i n C E A A for fa i l ing to carry out those mi t iga t ion measures upon w h i c h pe rmiss ion to proceed w i t h a project was b a s e d . 7 6 5 Responsible authorities may add condi t ions relating to mi t iga t ion to the permits, l icences and other approvals that tr iggered the appl ica t ion o f C E A A but, as G i b s o n recognizes, enforcement varies because the var ious A c t s under w h i c h these approvals are g iven differ. G i b s o n describes this manner o f enforcement as requi r ing "each responsible authority to f ind a way o f us ing its o w n inappropriate tools to accompl i sh an unfamil iar and largely unwelcome t a sk" . 7 6 7 M o s t responsible authorities are not "envi ronmenta l" departments or agencies. In addi t ion, this multi-statute approach o f enforcing mi t iga t ion measures can also mean inconsis tency and unpredictabi l i ty for project proponents. The C E A A approach to evaluat ing environmental effects (i.e., assessing the effects by first taking into account mit igat ion) arguably increases uncertainty. There are already many unknowns w i t h respect to the background condi t ion o f the environment and the potential effects o f almost any project.. R e l y i n g o n the effectiveness o f mi t iga t ion measures w h e n predic t ing environmental effects compounds this uncertainty. T h i s is especial ly true where there is no guarantee that mi t iga t ion w i l l be carr ied out. (b) Justification The second aspect o f C E A A ' s baseline consists o f a " jus t i f ica t ion" test. U n d e r the A c t , a project w i l l not be recommended for approval i f it is l i k e l y to result i n significant adverse environmental effects, unless these effects are jus t i f ied i n the circumstances. A l t h o u g h , there is no guidance i n C E A A that w o u l d assist dec i s ion makers i n For further discussion, see R.B Gibson, "The New Canadian Environmental Assessment Act: Possible Responses to its Main Deficiencies" (1992) 2 J.E.L.P. 223 at 246-50 [hereinafter "The New CEAA"]. Ibid, at 246-47. Ibid, at 247. See Ibid. Ill determining whether significant adverse effects are jus t i f ied , the Signif icance G u i d e provides the f o l l o w i n g : Cost-benefit analysis cannot be used to determine significance in federal [EIAs], because it compares the estimated environmental costs and benefits of a project, whereas the A c t clearly states that only adverse environmental effects are to be considered in determining significance and likelihood. Although cost-benefit analysis could be used to justify proceeding with a project that is likely to cause significance adverse environmental effects, this justification can take place only after the likelihood of the significant adverse environmental effects has been determined. 7 6 9 Notwi ths tanding this statement, jus t i f ica t ion, i nc lud ing the appl ica t ion o f cost-benefit analysis, seems to occur early i n the C E A A process and appears to have an impact on whether the anticipated effects o f a project are characterized as significant and l i ke ly . T h i s is not to suggest that C E A A decision-makers are purposely v io l a t ing the A c t or refusing to apply the Signi f icance G u i d e . Rather, it w o u l d seem that some manner o f non-conscience cost-benefit analysis is occurr ing throughout the impact assessment process. Th i s might exp la in w h y the vast majori ty o f projects r ev iewed under C E A A are approved, al though there appear to be few reviews that include Cabinet undertaking a jus t i f ica t ion a n a l y s i s . 7 7 0 S ince the A c t was amended i n 2003, not one project has been referred to C a b i n e t . 7 7 1 T h i s means that since 2003 , none o f the projects rev iewed under the A c t (as a comprehensive study or panel review) have been found to have the potential to result i n significant adverse environmental effects that might be just i f iable . A l t h o u g h a proponent might be inc l ined to wi thdraw its appl ica t ion under C E A A w h e n it becomes clear that its project is u n l i k e l y to be approved, this does not fu l ly exp la in the rarity o f jus t i f ica t ion analyses undertaken. . There are many types o f projects that have the potential for both significant adverse environmental impacts and h i g h economic return. Some proponents .of these types o f projects w o u l d certainly be w i l l i n g to r isk a jus t i f ica t ion analysis and the possible denial o f Significance Guide, supra note 239 at 192. See e.g. the Competitiveness Report, supra note 720, s. 4.2.5 wherein the authors note that, "[although, there are opportunities for a determination to be made as to whether or not any adverse environmental effects are justifiable under the circumstances, such discretion is not commonly applied". See also Boyd, supra note 139 at 153. This statement is based on personal communications Jennifer Wilson, Environmental Assessment Officer, Canadian Environmental Assessment Agency (6 July 2007). Ms. Wilson was unable to provide statistics concerning the pre-2003 process. 112 their project i n the hopes that their project w o u l d be a l l owed to proceed. The l o w number jus t i f ica t ion o f analyses undertaken by Cabinet suggests that jus t i f ica t ion is occur r ing i n an informal w a y when mi t iga t ion measures are accepted as reducing adverse impacts to insignif icant levels . In other words , reduced or mit igated impacts are v i e w e d as acceptable because the project is seen as wor thwhi le - not because these impacts are acceptable f rom a purely environmental (science-based) perspective. In addi t ion, the need to refer a project to Cabinet for a f inal dec i s ion on whether its adverse impacts are jus t i f ied might serve to discourage a f inding o f significant adverse environmental effects. Put another way , the threshold for f inding that significant effects cannot be mit igated d o w n to acceptable levels is go ing to be quite h igh g iven that such a f ind ing results i n a need to engage Cabinet . Presumably , responsible authorities are reluctant to i nvo lve Cabinet . There l i k e l y exist administrat ive or po l i t i ca l pressures that serve to dissuade authorities f rom elevat ing C E A A reviews to the Cabinet l eve l . The w a y C E A A ' s "basel ine" is framed and appl ied is t roubl ing. The A c t a l lows us to conclude that environmental impacts are be ing suff icient ly mit igated and significant adverse effects are not be ing permitted i n most circumstances. Un les s the jus t i f ica t ion test is engaged, we do not have to ask whether the benefits o f a part icular project are more valuable than the environmental harm caused b y the project. The A c t gives us false comfort by focusing on mi t iga t ion and it a l lows us to ( in most cases) avo id the diff icul t quest ion o f whether a project is real ly wor th its associated impacts. There are a number o f ways that the jus t i f ica t ion test under C E A A might be i m p r o v e d . , E lde r writes that the no t ion o f "unreasonable r i sk" c o u l d help determine whether 7 7 9 informat ion obtained dur ing an E I A justif ies a project 's approval . F o r example , a r isk w o u l d be unacceptable i f there are project alternatives that are less r i sky and entail the same or greater benefits; the benefits and r isks are not spread i n a manner reflective o f equali ty; those at r i sk have not been p rov ided w i t h sufficient informat ion; or there has been insufficient involvement o f those at r i s k . 7 7 3 E l d e r argues that the burden o f p rov ing that a Elder, supra note 138 at 132. Ibid., citing, "Introduction", in Grima, Fowle and Munn (eds.), Risk Perspectives in Environmental Impact Assessment (1989), p. 7, citing Burton. 113 774 r isk is reasonable w o u l d rest w i t h the project proponent. A l t h o u g h this approach is appealing because it places the burden o f jus t i f ica t ion on those w h o w i l l benefit most direct ly f rom the project, it w o u l d be problematic . In particular, a private proponent w o u l d be forced to consider alternatives to the project it has p lanned and received corporate approval for, and this w o u l d presumably include a considerat ion o f alternatives that: it c o u l d not participate i n . It is doubtful that a proponent w o u l d be motivated to incur the addi t ional costs associated w i t h preparing and presenting complete and objective evidence o n alternatives. M o s t o f its effort w o u l d l i k e l y be put into jus t i fy ing its o w n project as proposed, perhaps result ing i n poor evidence being p laced before the decis ion-maker . G i b s o n argues that the jus t i f ica t ion test c o u l d be refined so that a project 77S w o u l d be jus t i f ied on ly i f it cou ld be said to promote sustainabil i ty. T h i s is i n keeping w i t h the already exis t ing references to sustainable development i n C E A A . H o w e v e r , other than as set out i n section 16(2)(d), C E A A does not instruct h o w sustainabil i ty is to be i m p l e m e n t e d . 7 7 7 Sect ion 16(2)(d) mere ly requires that dur ing comprehensive studies, panel reviews and mediat ions, considerat ion be g iven to the "capaci ty o f renewable resources that are l i k e l y to be s ignif icant ly affected by the project to meet the needs o f the present and those o f the future". Notwi ths tanding the A c t ' s references to sustainabil i ty, C E A A assessments have tended to focus on the mi t iga t ion o f adverse environmental effects and, as G i b s o n * ' 778 recognizes, sustainable development entails more than mi t iga t ion . G i b s o n suggests that project proponents be required to make "posi t ive contributions to i m p r o v i n g eco log ica l and communi ty condit ions for the long t e r m " . 7 7 9 Th i s w o u l d include incorporat ing 780 * environmental enhancement and resource recovery into project plans. In G i b s o n ' s v i e w , a project that causes significant environmental effects should on ly be jus t i f ied i f it "makes a Elder, ibid, at 132. See "The New CEAA", supra note 765; R.B. Gibson, "Favouring the Higher Test: Contributions to Sustainability as the Central Criterion for Reviews and Decisions under the Canadian Environmental Assessment Acf (2000-2001) 10 J.E.L.P. 39 [hereinafter "Favouring the Higher Test"]; and "Major Deficiencies Remain", supra note 139. See CEAA, supra note 1, preamble and s. 4(1 )(b). "Favouring the Higher Test", supra note 775 at 42. Ibid. at 40 and 43. .Ibid, at 43. "The New CEAA", supra note 765 at 246. 114 net posi t ive overa l l contr ibut ion to environmental sustainabil i ty". E v e n i f C E A A were amended to incorporate G i b s o n ' s suggested approach, there w o u l d s t i l l be a need to ensure that there is no a bias towards f inding effects insignif icant i n an attempt to a v o i d the jus t i f ica t ion analysis altogether. A l t h o u g h there has been a tendency to concentrate o n mit igat ion, G i b s o n has identif ied two instances where panels have focused on sustainabil i ty, these be ing i n the assessments o f the V o i s e y ' s B a y M i n e and M i l l Under tak ing (Labrador) and the R e d H i l l Creek Expressway Nor th -Sou th Sect ion Project ( O n t a r i o ) . 7 8 2 The environmental impact statement guidelines for each o f these projects, issued i n 1997 and 1999 respectively, required the proponents to demonstrate h o w the f o l l o w i n g goals o f sustainable development w i l l be advanced by their projects: 1) the preservation o f ecosystem integrity, including the capability o f natural systems, local and regional, to maintain their structure and functions and to support biological diversity; 2) respect for the right of future generations to the sustainable use o f renewable and non-renewable resources; and 783 3) the attainment of durable social and economic benefits. The Panel i n the H i g h w o o d dec i s ion also employed sustainabil i ty as its frame o f reference. A s set out i n Chapter 4, the Pane l identif ied the f o l l o w i n g three k e y pr inc ip les (or criteria) that served as a threshold for further considerat ion o f the Project ' s effects: First, water management projects must respect existing riparian rights and water licenses, and should not result in loss or injury to existing water rights. Second, water management projects must be able to meet basic environmental criteria to avoid significant adverse effects. Third, water management projects must be able to meet current and future needs for domestic, riparian, and municipal needs, and other consumptive uses. 7 8 4 781 Ibid. 7 8 2 "Favouring the Higher Test", supra note 775 at 43. 783 Ibid. 7 8 4 Highwood Decision, supra note 8 at 8-5. 115 U n l i k e the treatment o f sustainabili ty i n the guidel ines for the V o i s e y ' s B a y M i n e and the R e d H i l l Creek Expressway reviews, the H i g h w o o d Pane l ' s ar t iculat ion is concerned less w i t h environmental integrity and more w i t h meet ing human needs and. protecting exis t ing resource rights. These three examples suggest that even where sustainabil i ty (rather than mit igat ion) is the focus, the def in i t ion g iven sustainabil i ty w i l l differ among assessments. The lack o f guidance i n C E A A o n h o w to apply sustainabil i ty a l lows for this inconsistency. In 2002 a number o f changes to C E A A were proposed that w o u l d have m o v e d the A c t away f rom its mi t iga t ion focus towards sustainabil i ty. Instead o f be ing subject to the jus t i f ica t ion test, projects w o u l d have been prohibi ted altogether f rom causing significant adverse environmental effects and each w o u l d have been required to make posi t ive overa l l contributions to the environment over t i m e . 7 8 5 These amendments were ul t imately defea ted . 7 8 6 E v e n i f projects were required to make an " o v e r a l l " contr ibut ion to sustainabili ty, as set out i n the proposed 2002 amendments and recommended by G i b s o n , considerat ion w o u l d need to be g iven to the impl ica t ions o f focusing the ana lys i s ,on "net" environmental gains or losses. A r g u a b l y , something is lost i n this type o f analysis. The decis ion-maker cou ld , i n effect, be shift ing impacts around the landscape w i t h unintended and perhaps unrecognized consequences. F o r example , f rom an eco log ica l perspective, it may make more o f a difference where f ish habitat is located, rather than h o w m u c h actually exists. 5.2.2.3 Differences Between the Approaches B o t h C E A A and eco-pragmatism contemplate mi t iga t ing or reducing adverse environmental impacts to the extent feasible. Eco-pragmat i sm employs cost-benefit analysis as a backstop to avo id unreasonable environmental regulations (i.e., the costs o f the regulat ion exceed the benefits). C E A A uses the concept o f " jus t i f ica t ion" i n a s imi la r way . C E A A a l lows cost-benefit analysis to be used to just i fy proceeding w i t h a project that is "Real Reform Deferred", supra note 141 at 223, citing Evidence, Commons Committee November 21, 2002 atll25hrs. "Real Reform Deferred", ibid, at 223, fh 103. 116 l i k e l y to result i n significant adverse environmental impacts. A l t h o u g h C E A A is silent on this issue, the jus t i f icat ion test is a k i n d o f pub l ic interest o f test, such as that found i n the N R C B A . The eco-pragmatic baseline is also ak in to a pub l ic interest test, al though Farber has gone some w a y to ensure more environmental protect ion by g i v i n g the test more substance and shift ing the burden o f p r o o f to the pol luter w h e n uncertainty exists (as discussed be low) . 5.2.3 The Precautionary Principle and Uncertainty 5.2.3.1 Eco-pragmatism and the Implementation of the Precautionary Principle A s set out i n Chapter 2, Farber incorporates the precautionary pr inc ip le into his eco-pragmatic approach. H e argues that regulatory agencies should have the burden o f establishing that the environmental r isks they are regulating i n respect o f are significant arid their regulations and remedies are feasible. The burden o f p r o o f should however be shifted to the pol luter when the agency has evaluated a l l avai lable informat ion and cannot satisfactorily estimate the r isks and the feasibi l i ty o f remedies. In short, Farber advocates p l ac ing the burden o n those w h o w i s h to take environmental r isks i n circumstances where there is uncertainty and the possible consequences serious. A c c o r d i n g l y , i f a proposed project has the potential to result i n environmental ha rm and there is uncertainty as to whether that ha rm w i l l material ize, the proponent should bear the burden o f establishing harm w i l l not result. Farber argues that shift ing the burden i n this w a y can funct ion as a useful "tiebreaker". The a l locat ion o f the burden o f p r o o f i n cases o f uncertainty is significant because it determines the outcome. A s F lou rnoy observes, assigning the burden is not a technical issue, but a value q u e s t i o n . 7 8 7 The quest ion is whether development or the environment w i l l have the advantage where there is uncertainty - and it is inevitable that uncertainties w i l l arise i n respect o f proposed projects and activi t ies. F o r example i n the H i g h w o o d D e c i s i o n the Panel notes "attempts to accurately predict the water qual i ty effect o f ' f ine- tuning ' smal l changes i n the. vo lume o f divers ions were fraught w i t h diff icul t ies , "In search of an Environmental Ethic", supra note 10 at 76. 117 reflecting the complex interactions between water quantity, qual i ty , and aquatic habitat". Farber is i n favour o f g i v i n g environmental values the advantage i n situations characterized by uncertainty, at least where the potential environmental impacts are significant. The di f f icul ty w i t h the eco-pragmatic approach is that s ignif icance must be defined. In addi t ion, by e m p l o y i n g signif icance as the threshold there are go ing to be cases o f uncertainty that are not addressed i n favour o f environmental values. Some o f these cases are go ing to result i n negative impacts, the cumulat ive effects o f w h i c h may have a serious impact o n the environment. 5.2.3.2 CEAA and the Implementation of Precautionary Principle C E A A provides that assessment is required "early as is practicable i n the 7RQ planning stages o f the project and before i r revocable decisions are made". A c c o r d i n g to the A c t , government is commit ted to "ant ic ipat ing and prevent ing the degradation o f environmental q u a l i t y " 7 9 0 and, i n this ve in , the purposes o f C E A A include ensuring "that projects are considered i n a careful and precautionary manner before federal authorities take act ion i n connect ion w i t h t h e m " . 7 9 1 T h i s reference to the precautionary pr inc ip le was added 709 to C E A A i n 2003. The rationale for the amendment was recogni t ion on the part o f the legislature that C E A A is i t se l f " a precautionary t oo l " . In 2003 the f o l l o w i n g p rov i s ion requi r ing that the precautionary pr inc ip le be appl ied was also added: In the administration of this Act, the Government of Canada, the Minister, the Agency and all bodies subject to the provisions of this Act, including federal authorities and responsible authorities, shall exercise their powers in a manner that protects the environment and human health and applies the precautionary principle [emphasis added]. 7 9 4 Highwood Decision, supra note 8 at 4-16. 9 See CEAA, supra note 1, ss. 5, 8, 9, 10, 11 and 54. 0 Ibid., preamble. 1 Ibid., s. 4(l)(a). 2 See S.C. 2003, c. 9, s. 2. 3 "Explanation of CEAA Amendments", supra note 130 at 31. 4 CEAA, supra note 1, s. 4(2), as amended by S.C. 2003, c. 9, s. 2. 118 It has been suggested that this new p rov i s ion w i l l g ive better guidance to decis ion-makers and m a y change the outcome o f project assessments. T o date there has been no j u d i c i a l considerat ion o f the p rov i s ion . It should be noted that even before 2003 the precautionary pr inc ip le was recognized i n some C E A A assessments. F o r example , the environmental impact statement guidelines for the R e d H i l l Creek Expressway ^project required the appl ica t ion o f the p r i n c i p l e . 7 9 7 In addi t ion, al though the Pane l i n the H i g h w o o d D e c i s i o n does not ment ion the pr inc ip le speci f ica l ly , it errs at t imes on the side o f caution. It refuses for example to assume that because aquatic species found i n the H i g h w o o d R i v e r are adapted to a certain leve l o f 70S disturbance they can tolerate more disturbances. The Pane l also refuses to assume that l icensed water users w i l l continue to cooperate w i t h A l b e r t a Env i ronment i n the future by sharing avai lable water dur ing l o w f l o w events, regardless o f legal en t i t lements . 7 9 9 Notwi ths tand ing these examples, there has apparently been re la t ively li t t le attention pa id the pr inc ip le i n the f ie ld o f impact assessment . 8 0 0 A c c o r d i n g to the federal government, the precautionary pr inc ip le is a rule that confronts uncertainty i n the assessment and management o f r i sk by recommending "uncertainty be handled i n favour o f certain values - health and environmental safety - over o thers" . 8 0 1 C E A A instructs responsible authorities to apply the pr inc ip le , but does not provide guidance on exact ly w h e n or h o w the pr inc ip le is to be implemented. There is generally debate over h o w "extreme" precautionary measures should be, and no consensus at international l a w o n h o w the pr inc ip le should be appl ied. Ext reme measures w o u l d 7 9 5 See "Real Reform Deferred, supra note 141 at 204. 7 9 6 This statement is current to June 27, 2007. 7 9 7 See the "Environmental Impact Statement Guidelines for the Review of the Proposed Red Hill Creek Expressway North-South Section Project" (October 15, 1999), Annex 4, as cited in "Favouring the Higher Test", supra note 775 at 44. 7 9 8 Highwood Decision, supra note 8 at 4-39. 799 Ibid, at 4-40. 8 0 0 "Favouring the Higher Test", supra note 775 at 46-47: 8 0 1 "Explanation of CEAA Amendments", supra note 130 at 35. 8 0 2 See D.L. Vanderzwaag, S.D. Fuller and R.A. Myers, "Canada and the Precautionary Principle/Approach in Ocean and Coastal Management: Wading and Wandering in Tricky Currents" (2002/2003) 34 Ottawa L. Rev. 117-at 120 and 123 [hereinafter "Canada and the Precautionary Principle"]. 119 inc lude requir ing proponents to demonstrate an absence o f significant environmental harm associated w i t h their proposed a c t i v i t i e s . 8 0 3 The federal government appears to advocate a more m i l d ar t iculat ion o f the pr inc ip le . In 2003 the P r i v y C o u n c i l released a guidance document entit led A Framework for the Application of Precaution in Science-based Decision Making about Risk, w h i c h sets out gu id ing pr inc ip les for app ly ing precaut ion w h e n m a k i n g decis ions i n the context o f environmental , health and safety regulatory a c t i v i t y . 8 0 4 The f ramework is not intended to create legal obl igat ions, but to be f lex ib le and encourage better overa l l dec is ion-m a k i n g . 8 0 5 A c c o r d i n g to the document, " [gove rnmen t s can rarely act on the basis o f fu l l scientif ic certainty and cannot guarantee zero r i sk" . M o r e o v e r , a l though there m a y be scientific uncertainty, "society expects r isks to be managed and l i v i n g standards enhanced" . 8 0 7 S i m p l y put, the precautionary pr inc ip le is to be appl ied where a dec i s ion must 808 be made, there is a r isk o f serious or irreversible harm, and scientif ic uncertainty exists. The framework includes five pr inciples to guide i n the appl ica t ion o f precaution. Firs t , the government recognizes that it is obl igated to apply precaut ion under federal l a w and international agreements . 8 0 9 Second, al though decis ions are to be guided by society 's wi l l ingness to accept r isk and its desired l eve l o f protect ion against r isk, there must be a scientific basis for app ly ing p r ecau t i on . 8 1 0 In other words , a scientif ic basis is a prerequisite to appl ica t ion o f the precautionary approach. A c c o r d i n g l y , i f the pub l i c expresses a l o w tolerance for a part icular r i sk and demands a h i g h l eve l protection, but there is no scientific basis, the precautionary approach is unwarranted. The th i rd pr inc ip le provides that sound scientif ic informat ion is necessary and the party w h o is taking the ac t ion 803 Ibid, at 120. 804 A Framework for the Application of Precaution in Science-based Decision Making about Risk (2003), online: Government of Canada Privy Council Office <http://www.pco-bcp.gc.ca/default.asp?Language= E&Page=publications&Sub=precaution&Doc=precaution_e.htm> (date accessed 26 May 2005). 805 Ibid, at 2, 3 and 6. 806 Ibid, at 3. 807 Ibid. S0*Jbid. at 2. 809 Ibid, at 6. Note however that the federal government does not view the precautionary principle or approach a rule of customary international law: ibid. 810 Ibid, at 7. 120 that gives rise to the r isk (e.g., extracting a natural resource) should usual ly be the one to provide the informat ion upon w h i c h the r i sk can be assessed. 8 1 1 T h i s may change however 812 ' depending upon w h o is best situated to obtain the necessary informat ion. (Interestingly, the f ramework does not acknowledge that a proponent w o u l d have little mot iva t ion to gather informat ion that might result i n its project or act ivi ty be ing denied.) The fourth pr inc ip le for 813 the appl ica t ion o f precaut ion emphasizes that there m a y be a need to re-evaluate decisions. T h i s w o u l d occur where new scientif ic informat ion has become avai lable or societal values 814 have evo lved (e.g., the popula t ion ' s tolerance for r i sk has increased or decreased). F i n a l l y , the fifth pr inc ip le recognizes that there must be meaningful pub l i c involvement i n the process o f app ly ing precautionary measures . 8 1 5 The federal government ' s approach does not contemplate a par t icular ly strong def ini t ion o f the precautionary pr inc ip le - it is "business as usua l " unless r i sk appears, rather than we do not act unless it can be established that there are no unacceptable r isks . Moreove r , there is a h i g h threshold to be met before the pr inc ip le is to be appl ied. There must be a serious r i sk or possible irreversible ha rm together w i t h scientif ic uncertainty. A s others have observed, "Canada has largely wandered towards weak versions o f precaution by emphas iz ing the need for ' sound science ' and cost-effectiveness, and g i v i n g p r imacy to short-term economic g a i n " . 8 1 6 E v e n w i t h the addi t ion i n 2003 o f a specific reference to the precautionary pr inc ip le , the impact o f the pr inc ip le m a y be l imi t ed . Courts tend to defer to the judgment o f those g iven discret ion by parl iament to administer environmental l e g i s l a t i o n . 8 1 7 It w o u l d seem u n l i k e l y therefore that courts w o u l d force through their decisions the implementa t ion o f a stronger interpretation o f the pr inc ip le i n Canada. 815 Ibid, at 5, 7 and 8. Ibid, at 5. Ibid, at 9. Ibid. Ibid. "Canada and the Precautionary Principle", supra note 802 at 156. See ibid, at 129 wherein the authors discuss Brighton v. Nova Scotia (Minister of Agriculture and Fisheries) (2002), 206 N.S.R. (2d) 95 (N.S.S.C.). In this case the precautionary principle was relied on to challenge a decision of the Minister of Agriculture and Fisheries to license a proposed aquaculture farm. 121 C E A A employs a less extreme appl ica t ion o f the precautionary pr inc ip le than Farber advocates. There is no suggestion i n the A c t that i n cases o f uncertainty a proponent prove that its project w i l l not ha rm the environment or, alternatively, that its project fosters sustainabili ty. In fact, C E A A does not g ive one a clear s e n s e , o f w h e n and h o w the precautionary pr inc ip le should be appl ied. The framework document released by Cabinet merely recommends that the pr inc ip le be implemented where there is a r isk o f serious or irreversible harm and scientif ic uncertainty exists. The requirement for serious or irreversible ha rm l i k e l y means that on ly those decis ions w h i c h invo lve a jus t i f ica t ion analysis w i l l result i n a r igorous appl ica t ion o f the pr inc ip le . The jus t i f ica t ion test can result i n the approval o f any project, regardless o f h o w adverse its environmental effects. The poss ib i l i ty o f project " jus t i f ica t ion" arguably runs contrary to the precautionary pr inc ip le , m a k i n g C E A A appear internal ly inconsistent. 5.2.4 Project Alternatives C E A A requires that alternatives to each proposed project be considered where SIR the project is undergoing a comprehensive study, media t ion or panel rev iew. O n l y those 819 alternatives that are technical ly and economica l ly feasible need to be considered. I f a project is be ing screened, alternatives are addressed at the discret ion o f the responsible au thor i ty . 8 2 0 The r ev iew o f project alternatives is generally quite l imi ted . A s Penney observes, at no t ime dur ing the C E A A process is there a requirement to consider alternatives • • • • 891 to the project i t se l f - rather, alternative means to car ry ing out the project are considered. (Note that eco-pragmatism does not speci f ica l ly require that project alternatives be considered.) Notwi ths tanding the provis ions o f C E A A , it is contrary to a proponent 's interest to invest a significant amount o f effort i n an explora t ion o f project alternatives. The proponent w i l l have devoted t ime and resources to the project as proposed. A s G i b s o n 1 8 C E A A , supra note 1, s. 16(2). 19 Ibid.,s. 16(2)(b). 2 0 Ibid. s. 16(l)(d). 2 1 Penney, supra note 204 at 263. 122 822 r ight ly argues, considerat ion o f alternatives is undertaken too late i n the assessment. B y the t ime alternatives are addressed, the proponent has already settled on the project, particulars and, as a result, the process becomes one i n w h i c h the proponent attempts to 823 just i fy the decisions it has already made rather than a useful explora t ion o f alternatives. Moreove r , there is no guidance i n the A c t about what a r ev iew o f alternatives should include. N i k i f o r u k notes that this " l ack o f c lar i ty . . . results i n b i g expenses as companies scramble to cover a l l conceivable bases". The rev iew o f project alternatives by the Panel i n the H i g h w o o d D e c i s i o n inc luded more than a considerat ion o f alternative means to car ry ing out the Project. T h i s may have been because the proponent was government and the Project o f a pub l i c , rather than private, nature. In addi t ion to examin ing alternative storage and d ivers ion faci l i t ies , the A p p l i c a n t explored whether non-structural alternatives, such as demand-side management, might provide a solut ion to water supply shortages . 8 2 5 The A p p l i c a n t conc luded that i r r igat ion and water management practices i n the region were both efficient and modern and cou ld not be m u c h improved to conserve water or decrease demand for it. Interestingly, al though demand-side management was recommended by a number o f experts because o f its potential to reduce the economic and environmental costs o f increased water storage, it never received significant commun i ty suppor t . 8 2 7 A s ment ioned above, evidence presented at the pub l i c hearings indicated that there was little interest i n reducing demands for water or Pi98 l i m i t i n g growth due to insufficient water supplies. Al ternat ives should be considered, but on ly i n a l im i t ed w a y at the i nd iv idua l project assessment l eve l . It is certainly product ive to require proponents to explore alternative means to car ry ing out their proposed projects and to have them jus t i fy their project plans. In particular, proponents should be prepared to address alternative ways o f 822 823 Ibid. "Major Deficiencies Remain," supra note 139 at 100. I i . , 8 2 4 Nikiforuk, supra note 204 at 21. 8 2 5 Highwood Decision, supra note 8 at 3-5. 826 Ibid. 827 828 luia. See "Alberta's Newest River Dam", supra note 300. See discussion in Highwood Decision, supra note 8 at 3-5. 123 constructing and operating their projects that might have fewer adverse environmental i m p a c t s . 8 2 9 Howeve r , it is not pract ical to require a proponent to identify actual alternatives to a project that it intends to proceed w i t h and l i k e l y has corporate approval and p re l iminary f inancing i n place for. Such a proponent w i l l not l i k e l y be motivated, and m a y i n fact be unable, to present fu l ly the alternatives to its project - especial ly those alternatives i n w h i c h it w o u l d be unable to participate. F o r example , i f a corporat ion plans to construct a natural gas-fired generating fac i l i ty , it w o u l d be unreasonable to require it to address the poss ib i l i ty o f meeting energy demand through w i n d generation. Deve lopment alternatives should be evaluated and l imi t s sets o n the types o f projects that m a y proceed i n a g iven area at a g iven t ime before proponents (especial ly private entities) get to the point o f app ly ing for project approval . In other words , governments should undertake comprehensive development p lanning and create integrated land-use frameworks. C E A A (and p rov inc i a l assessment legislation) should be appl ied to these plans and frameworks at the t ime they are created. G i b s o n is correct that the best t ime to consider alternatives is at the leve l o f pol ic ies , plans and programs, not necessari ly at the project l e v e l . 8 3 0 H o w e v e r , as expla ined i n Chapter 3, C E A A does not currently require strategic environmental assessments. 5.2.5 Public Participation Farber identifies pub l i c op in ion as central to the m a k i n g o f environmental decisions, but he does not address whether or h o w pub l i c v i ews should be incorporated into his dec is ion m a k i n g process. It m a y be that he sees pub l i c op in ion ( in a general sense) as already expressed through the "p r imary n o r m " , and inc luded through eco-pragmatism's recogni t ion o f economic values. P u b l i c par t ic ipat ion is generally v i e w e d as a key aspect o f the E I A process. T i l l e m a n for example has argued that the degree o f pub l i c par t ic ipat ion direct ly affects the quali ty o f an E I A and, as a consequence, the qual i ty o f the dec i s ion made about the project See "The New CEAA", supra note 765 at 230. "Major Deficiencies Remain", supra note 139 at 100-01. 124 under r e v i e w . 8 3 1 C E A A requires pub l i c par t ic ipat ion be permitted dur ing comprehensive studies and panel reviews. W h e n a comprehensive study is undertaken the responsible authority is required, for example , to consult w i t h the pub l ic concerning the scope o f the project and the factors to be considered dur ing the assessment . 8 3 4 Pane l reviews invo lve pub l i c hearings, w h i c h typ i ca l ly provide the communi ty where' the project w i l l be situated an opportunity to participate i n the assessment . 8 3 5 Rutherford and C a m p b e l l wri te that pub l i c part icipat ion i n panel rev iews is c r i t ica l as it m a y affect the project proponent direct ly by encouraging modif ica t ions to the project and indi rec t ly by inf luenc ing decis ion-makers through the recommendat ions made by panels. A l t h o u g h the preamble to C E A A states that government is commit ted to faci l i tat ing pub l i c invo lvement i n the assessment o f projects, pub l i c par t ic ipat ion i n screenings is permit ted on ly at the discret ion o f the responsible authority. A responsible authority m a y give the pub l i c an opportunity to participate i n a screening where it is o f the op in ion that such par t ic ipat ion is "appropriate i n the circumstances - or where required by r e g u l a t i o n " . 8 3 9 Current ly , on ly one regulat ion contemplates pub l i c i n p u t . 8 4 0 The discretionary nature o f pub l i c par t ic ipat ion i n the screening process has been described as 8 3 1 W.A. Tilleman, "Public Participation in the Environmental Impact Assessment Process: A Comparative Study of Impact Assessment in Canada, the United States and the European Community" (1995) 33 Colum. J. Transnat'l L. 337 at 337. See also "Time Well Spent?", supra note 158 at 82. 8 3 2 CEAA, supra note 1, ss. 21(1), 21.2 and 22. 833 Ibid., s. 34. 834 Ibid.,%. 21(1). 835 Ibid., s. 34(b). 8 3 6 "Time Well Spent?", supra note 158 at 82. 8 3 7 CEAA, supra note 1, preamble. 838 Ibid., ss. 18(3) and (4). As discussed in Chapter 3 there have been no assessments under taken by way of mediation. Depending on the nature of the project, mediations have the potential to include at least some degree of public participation, see ibid., s. 29 and s. 2(1). 839 Ibid., s. 18(3). CEAA does not state when public participation in a screening is warranted. There is however an applicable ministerial guideline that provides some assistance; see Ministerial Guideline on Assessing the Need for and Level of Public Participation in Screenings under the Canadian Environmental Assessment Act, online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/013/006/ministerial _guideline_e.pdf> (date accessed: 28 January 2007). 8 4 0 See s. 11(1) of the Canada Port Authority Environmental Assessment Regulations, SOR 99-318, which provides that: "[i]f the [port authority] is aware of any special circumstances of a project that would make the project of interest to the public or if public participation is required by any Act of Parliament or regulation made under it, the [port authority] shall give the public notice of the screening and shall give the public an opportunity to participate in the screening". 125 "one o f the most g lar ing weaknesses o f C E A A " . 8 4 1 A l t h o u g h nearly a l l E I A s are conducted as screenings, the pub l i c is inv i ted to participate i n on ly 10 to 15 per cent o f these assessments . 8 4 2 G i b s o n suggests that this l eve l o f par t ic ipat ion m a y be insufficient to make part icipat ion meaningful . E v e n where pub l i c par t ic ipat ion is required or a l lowed , it m a y prove dif f icul t for the pub l i c to secure sufficient resources to gather and present adequate evidence to decision-makers. Pr ivate proponents w i l l have often made a significant investment i n getting a project to the point where approval is requested and these proponents may have access to legal advice and other resources i n a w a y that may be beyond what the pub l i c , or even government, has access to. A l t h o u g h there is some participant funding a v a i l a b l e , 8 4 4 and Canada is unique i n the funding o f E I A par t ic ipan ts , 8 4 5 the leve l o f funding has apparently "p lummeted" over t i m e . 8 4 6 The lack o f funding is arguably an impediment to effective • • • 847 part icipation. The federal government preserves for i t se l f the power to (on a project-by-project basis) balance socia l , economic and environmental values. T h i s arguably gives government the control and f l ex ib i l i t y it needs to respond to the ever -evo lv ing pub l i c interest. It is diff icul t however to env i s ion h o w government can act i n the pub l i c interest i f it is not rece iv ing input f rom the pub l i c for the majori ty o f E I A s for w h i c h it is responsible. 1 Penney, supra note 204 at 264. 2 Boyd, supra note 139 at 152-153. 3 "Major Deficiencies Remain", supra note 139 at 91. 4 For information see Guide to Participate Funding, online; Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/012/013/index_e.htm> (date accessed 28 January 2007). See also Dyck, supra note 161 at 246-49. 5 Executive Summary of RIAS Inc. and Gartner Lee Limited's Comparative Analysis of Impacts on Competitiveness of Environmental Assessment Requirements: Final Report Submitted To The Canadian Environmental Assessment Agency (September 2000), online: Canadian Environmental Assessment Agency <http://www.ceaa-acee.gc.ca/017/0004/summary_e.htm> (date accessed: 2 July 2005) [hereinafter Competitiveness Report: Executive Summary]. 6"Real Reform Deferred", supra note 141 at 212. By way of illustration, $469,000 was allocated in 1995-1996, while less than $100,000 was anticipated for 2002-2003: ibid. 7 "Time Well Spent?", supra note 158 at 83. See also Dyck, supra note 169 at 246-49. 126 Moreove r , environmental assessments are typ ica l ly the sole process for pub l i c input QAQ regarding proposed developments and undertakings. 5.2.6 Adaptive Management 5.2.6.1 The "Eco" in Eco-pragmatism A l t h o u g h Farber does not address this himself , R u h l explains that the "eco" i n eco-pragmatism represents the " rap id ly developing science o f ecosystem dynamics " and the "emerging p o l i c y d i sc ip l ine o f ecosystem management" . 8 4 9 Rather than be ing i n balance, the environment is i n f lux and Farber, r ecogniz ing this, argues for environmental l aw that can O C A , respond q u i c k l y to change. Farber is advocat ing a dynamic form o f regulat ion typ ica l ly referred to as "adaptive management". T h i s method can be described as: . . . a 'learning-by-doing' approach that views policies and management interventions as explicitly experimental and provisional, and looks to revise both our understanding of ecosystems and subsequent policies as we learn from an iterative series o f policy experiments. 8 5 1 Adap t ive management has not been implemented lega l ly i n any significant way . A s Ta r lock observes: The structure o f environmental law and the culture o f the agencies that implement it are based on either the preservation o f an undisturbed nature devoid o f humans (but rich in fish, birds, and charismatic fauna) or pollution control rather than ecosystem management. We look for quick, technological fixes to mitigate the worst adverse "Favouring the Higher Test", supra note 775 at 47. 9 "Working Both Ends", supra note 11 at 526. 0 See £co-pragmatism, supra note 4 at 205-06. 1 B. Karkkainen, "Adaptive Ecosystem Management and Regulatory Penalty Defaults: Toward a Bounded Pragmatism" (2003) 97 Minn. L. Rev. 943 at 948 [hereinafter "Adaptive Management"]. Karkkainen observes that the experimental approach inherent to adaptive management is similar to the approach taken by philosophical pragmatists. The author explains that Dewey, for example, advocated an approach to social policy and law that was experimental and flexible, with constant revision (i.e., it was adaptive). Dewey's view being that "the best we could do is proceed incrementally and experimentally, judging the value of our ideas not against some abstract standard of perfect truth but by their practical consequences - i.e., would they be confirmed by subsequent experience in a way that these ideas could be put to use in solving human problems?" Karkkainen argues that it is not necessary to accept Dewey's views in their entirety; the approach is useful for addressing uncertainty (especially in respect of ecosystems) regardless of whether one is ultimately of the view that there is transcendental truth: ibid, at 957-59. 2 "Working Both Ends", supra note 11 at 545. 127 environmental impacts of activities rather than the sustained maintenance o f functioning ecosystems. 8 5 3 In addi t ion, the current approach to environmental l a w is fragmented, w i t h var ious regulators addressing different ecosystem componen t s . 8 5 4 K a r k k a i n e n argues that as a result o f its p iecemeal approach, environmental l a w tends "to ignore the synergist ic effects and complex interdependencies among the var ious components and stressors that make up the o r e ecosystem". In those circumstances where adaptive management has been implemented O f / ' by government agencies, it has usual ly been g iven a narrow defini t ion. A l t h o u g h adaptive management has found significant support, especial ly among environmental scientists, it is not without its detractors. Its emphasis o n responsiveness means that adaptive management focuses less o n substantive rules and procedures than tradit ional methods o f environmental regulation. T h i s , it has been argued, may result i n less accountabi l i ty o n the part o f regulators (e.g., fewer opportunities for j u d i c i a l r e v i e w ) . 8 5 7 It addi t ion, it has been suggested that adaptive management 's f lexible and col laborat ive approach is "premised on the naive assumption that regulated parties w i l l w i l l i n g l y cooperate i n constructing new and potential ly cost ly regulatory requirements - i n O f o effect, to help prepare the noose for their o w n hanging" . In other words , businesses values certainty and w i l l not be motivated to incur the costs associated w i t h regular ly altering their practices to benefit the environment. Power fu l economic incentives or dis incentives w o u l d l i k e l y be needed to overcome the general resistance businesses have to changes that do not obv ious ly improve prof i tabi l i ty . 8 5 3 A.D. Tarlock, "Slouching Toward Eden: The Eco-pragmatic Challenges of Ecosystem Revival" (2003) 97 Minn. L. Rev. 1173 at 1180. 8 5 4 "Adaptive Management", supra note 851 at 947. 8 5 5 Ibid. B56 Ibid, at 953. 8 5 7 See ibid, at 963. 858 Ibid. 128 5.2.6.2 The CEAA Approach to Adaptive Management The concept o f adaptive management was added to C E A A i n 2003. The A c t does not exp la in h o w adaptive management is to be employed , but according to the government it i nvo lves "the implementa t ion o f new or modi f i ed mi t iga t ion measures over the l ife o f a project to address unanticipated environmental effects" and a l lows for the "adopt ion o f improved mi t iga t ion measures (e.g., due to technologica l advances) over the life o f a 860 project". A s is typ ica l ly the case w h e n regulatory bodies implement adaptive management, C E A A employs a nar row def ini t ion. A l t h o u g h it speci f ica l ly contemplates us ing adaptive management to adjust mi t iga t ion measures and to improve E I A gene ra l ly , 8 6 1 C E A A does not a i m i n any systematic w a y to refine environmental po l ic ies and laws or improve ecosystem science. Non- leg i s l a t ive materials publ i shed by government provide that fo l low-up programs are to be used to determine the need for adaptive management. A fo l low-up program is defined i n C E A A as a program for ve r i fy ing the accuracy o f the assessment o f a project and determining the effectiveness o f any mi t iga t ion measures e m p l o y e d . 8 6 3 T h i s type o f post-decis ion moni to r ing to ver i fy predict ions and a l l o w for the adjustment o f mit igat ions measures is considered essential to any E I A p ro ces s . 8 6 4 A l t h o u g h under the A c t fo l low-up programs are required for assessments that are conducted by w a y o f comprehensive study, panel r ev iew or media t ion , there is no requirement to implement a fo l low-up program after a 865 project has been screened. The responsible authority m a y however choose to require a fo l low-up program i n the context o f a screening assessment. Respons ib le authorities have discret ion as to the content and scope o f a l l f o l l ow-up programs. y S.C. 2003, c. 9, s. 18. 0 "Explanation of CEAA Amendments", supra note 130 at 115. For example in the Highwood Decision the Panel, recognizing the public's concern over the success of the various mitigative measures to be implemented, requires the proponent to file annual mitigation progress reports in order to gauge success and determine whether improvements are required. See Highwood Decision, supra note 8 at 8-54 and 8-55. 1 See CEAA, supra note 1, s. 38(5). 2 "Explanation of CEAA Amendments", supra note 130 at 115. 3 CEAA, supra note 1, s. 2(1). 4 See "Towards a Smarter N EPA", supra note 281. 5 CEAA, supra note 1, ss. 38(1) and (2). 129 A s is the case elsewhere, effective post-approval moni to r ing has p roven a challenge i n C a n a d a , 8 6 6 and fo l low-up has generally been described as inadequate or d i smal . M o r e o v e r , there has been a failure to systematical ly investigate the u t i l i ty and qual i ty o f assessments undertaken. C E A A w o u l d be improved i f fo l low-up programs were mandatory (at least for a l l project types i f not for each i nd iv idua l project) and these programs were required to col lect the informat ion necessary to determine whether E I A procedures are accurately predic t ing environmental impacts. The informat ion col lected c o u l d be used to improve ind iv idua l assessments and to test the overa l l E I A system. Wi thou t standardized fo l low-up programs, it is imposs ib le to determine the effectiveness o f A c t . M o r e speci f ica l ly , wi thout consistent and proper fo l low-up "bad science is not exposed, ineffective mi t iga t ion methods are not abandoned, [and] pol i t ic ians or technicians are not he ld accoun tab le" . 8 6 9 It has been suggested that communi ty-based or c i t i zen moni to r ing w o u l d be RIO one mode l for ensuring moni to r ing is undertaken. The Canad ian government does not appear to have an appetite for a robust implementa t ion o f adaptive management. Th i s is m a y be because it is diff icul t to implement and w o u l d require a restructuring o f the current regulatory framework, w h i c h w o u l d have a serious impact o n the w a y business is typ ica l ly conducted. Government w o u l d certainly be met w i t h resistance i n attempting to implement adaptive management i n a manner different f rom h o w it is currently implemented under C E A A . See C. Hunsberger, R. Gibson, and S. Wismer, "Citizen involvement in sustainability-centred environmental assessment follow-up" (2005) Environmental Impact Assessment Review (Paper for IAIA Vancouver 04-PA186) at 1 [hereinafter "Citizen Involvement"]. See Commissioner of the Environment and Sustainable Development, "1998 Report - Environmental Assessment - A Critical Tool for Sustainable Development" (1998), online: <http://www.oag-bvg.gc.ca/ domino/reports.nsf/html/c806ce.html> (date accessed: 22 March 2004) at 6.58. See also "Major Deficiencies Remain", supra note 139 at 94. See Nikiforuk, supra note 204 at ii. Ibid, at 23. i See "Citizen Involvement", supra note 866. In this article the authors attempt to address deficiencies in post-project monitoring by drawing on citizen monitoring, sustainable livelihoods, and local knowledge. A number of innovative case studies are discussed. 130 5.2.7 Predictability and Consistency of Decisions 5.2.7.1 Certainty under CEAA E I A i n Canada has a number o f characteristics that may lead to unpredictabi l i ty i n i nd iv idua l project assessments and inconsis tency among assessments. One o f these characteristics, a lack o f legis lat ion, was h ighl ighted i n a comparat ive study o f the E I A regimes o f Canada, the U n i t e d States, the U n i t e d K i n g d o m , Germany , France, Aus t ra l i a , Japan and C h i l e undertaken i n 2000 for the A g e n c y (the "Competitiveness Report").871 The purpose o f the study was to rank Canada i n relat ion to its p r imary competitors. The study revealed that the steps for comple t ing an E I A are on ly par t ia l ly prescribed i n legis la t ion i n Canada, whereas they are prescribed to a greater extent i n most o f the countries c o m p a r e d . 8 7 2 M u c h o f the E I A process i n Canada is set out i n non-b ind ing guidance materials (as discussed i n Chapter 3). T h i s is o f concern because clear cr i ter ia are arguably required to foster certainty and are necessary i n order to provide jus t i f ica t ion to the pub l i c regarding decis ions that are made under C E A A . 8 7 3 A s observed by G i b s o n , " [w]hen dec i s ion-making is guided on ly by vague cri teria, even wel l - in tent ioned decis ion-makers are l i k e l y to make arbitrary and incon-sistent j u d g m e n t s . " 8 7 4 The lack o f legislated guidance means that C E A A has been drafted i n a manner that requires responsible authorities to exercise a significant amount o f discret ion w h e n undertaking an assessment. F o r example (as discussed i n detail i n Chapter 3), responsible authorities (or the. Min i s t e r ) define projects for assessment purposes, identify w h i c h factors w i l l be considered relevant and determine the scope o f these factors. Respons ib le authorities also determine for the vast majority o f E I A s who w i l l be permit ted to participate and to what extent. M o s t importantly, decis ion-makers exercise discret ion when dec id ing whether a part icular project w i l l be l i k e l y to cause significant adverse Competitiveness Report, supra note 720. Competitiveness Report: Executive Summary, supra note 845. For example, the report found that the means of "scoping" for assessment purposes is not as formalized in Canada as in the other regimes. See also Green, supra note 213 at 807 wherein the author discusses the absence of guiding principles for analyzing cumulative environmental effects. See "The New CEAA", supra note 765 at 251. Ibid, at 229. See also "Real Reform Deferred", supra note 141 at 196. 131 environmental effects. T h i s is not to suggest that discret ion is avoidable or unnecessary i n the E I A process. Assessments under C E A A do require f l ex ib i l i t y because the process is an anticipatory one that must respond to the unique nature o f most projects, as w e l l as to complex (and ever-changing) environmental , economic and socia l situations and concerns. In addi t ion, scientif ic knowledge is constantly e v o l v i n g and. authorities regular ly encounter unanticipated factors and effects when conduct ing assessments. The need for f l ex ib i l i t y i n E I A s does not however mean that major components o f the process should be left entirely to the discret ion o f authorities. F o r example, C E A A cou ld require responsible authorities assessing projects that emit pollutants into the air to consider the effects o f the expected release on the relevant airshed. Impos ing requirements o f this nature w o u l d help to ensure that s imi la r projects are assessed i n a s imi la r way . Ano the r characteristic o f E I A i n Canada is that many different federal departments and agencies act as responsible authorities. In addi t ion, a responsible authority can be both the project proponent and the E I A dec i s ion -make r . 8 7 5 T h i s can obv ious ly result i n a conf l ic t o f interest. Jeffrey writes that w h e n C E A A was int roduced i n the House o f C o m m o n s there was intense debate indicat ing that departments were not amenable to hav ing the M i n i s t e r or an independent body impose l imi t s on project or p o l i c y ini t ia t ives considered to be w i t h i n their o w n ju r i sd ic t ion . The provinces were s imi l a r ly opposed to hav ing the federal government encroach upon areas o f p rov inc i a l j u r i sd i c t i on (e.g., natural resources) through E I A l e g i s l a t i o n . 8 7 7 It has been argued that by g i v i n g numerous departments and agencies dec i s ion-making powers, i nc lud ing the power to r ev i ew their o w n projects, the legislature has p o l i t i c i z e d the E I A process. The variety o f responsible authorities and the lack o f an independent dec is ion-maker (or least a single decis ion-maker) are o f part icular concern because many responsible See "The New CEAA", supra note 765 at 23 3. Jeffrey, supra note 170 at 1085. Ibid. See ibid, at 1080-81 and Dyck, supra note 169 at 340. Gibson suggests that an alternative to the current approach under CEAA would be to have panels make the decision regarding whether a project should proceed (because they are more independent), but allow Cabinet to overrule these decisions, see "The New CEAA", supra note 765 at 244. 132 authorities are i n charge o f matters that do not relate d i rect ly to the environment. A s a result, there is often a lack o f technical and process knowledge on the part o f those undertaking E I A s . In 2003 the government, r ecogniz ing the deficiencies i n responsible authority knowledge and experience, created the pos i t ion o f federal "envi ronmenta l assessment coordinator" to help ensure that assessments include input f rom expert (non-responsible) authorities and spec ia l i s t s . 8 8 0 A n addi t ional characteristic that arguably leads to unpredictabi l i ty and inconsistency i n assessments is the apparent lack o f w i l l at t imes o n the part o f government to undertake E I A s . 8 8 1 G i b s o n notes that throughout the history o f E I A responsible authorities have been reluctant to implement the p roces s . 8 8 2 N i k i f o r u k goes further, arguing that the appl ica t ion o f the process has been pursued "select ively and s h a d i l y " . 8 8 3 N i k i f o r u k cites as an example D F O ' s practice o f i ssuing "letters o f adv ice" to those whose development activit ies might trigger an E I A under C E A A . 8 8 4 K w a s n i a k explains that proponents o f projects that w o u l d ha rm fish habitat at times consult w i t h D F O and, w i t h the department's assistance, alter their projects such that no authorizat ion under the Fisheries Act is required. " D F O w i l l issue a letter o f advice to this effect. Because no authorizat ion is actual ly sought by the proponent under the Fisheries Act, C E A A is treated by D F O as hav ing not been t r i gge red . 8 8 6 K w a s n i a k concludes that D F O ' s avoidance o f assessments under 8 8 7 C E A A i n this w ay is incorrect i n l aw. 887 See Competitiveness Report: Executive Summary, supra note 845. S.C. 2003, c. 9, s. 7. See the Regulations Respecting the Coordination by Federal Authorities of Environmental Assessment Procedures and Requirements, SOR 97/181. Nikiforuk, supra note 204 at 2. "The New CEAA", supra note 765 at 249. Nikiforuk, supra note 204 at 1. Ibid, at 16-17. A. Kwasniak, "Slow on the Trigger: The Department of Fisheries and Oceans, the Fisheries Act and the Canadian Environmental Assessment Act" (2004) 27 Dalhousie L.J. 347 at 351. Ibid. • • ' Ibid. 133 5.2.7.1 Certainty under Eco-pragmatism A s w i t h C E A A , eco-pragmatism requires an appl ica t ion o f concepts such as "s igni f icance" , " feas ib i l i ty" and "uncertainty" when m a k i n g decis ions about development. Farber recognizes that these types o f concepts fa i l to give "hard, def in i t ive" answers . 8 8 8 A p p l y i n g eco-pragmatism necessarily invo lves the exercise o f discret ion and can undoubtedly lead to inconsistent results and perhaps unintended consequences. T o illustrate, Farber advocates a presumpt ion i n favour o f the environment, w h i c h acts as a tiebreaker i n cases o f uncertainty. B u t it is not clear h o w m u c h uncertainty is necessary before we are to resort to the presumption. I f a h igh degree o f uncertainty were a necessary prerequisite, there is a r i sk that decisions (both i nd iv idua l l y and cumula t ive ly) w o u l d result i n negative environmental impacts. Such a result w o u l d undermine eco-pragmat ism's overarching goal o f environmental protection. Eco-pragmat i sm also fails to provide any guidance on h o w a project or undertaking should be ( in C E A A terms) "scoped". F o r example , eco-pragmatism does not answer the quest ion o f whether the assessment o f a proposed o i l w e l l should include an assessment o f potential downstream impacts or r isks, such as combus t ion o f the product. A s discussed, def ining a project for the purposes o f an E I A w i l l often determine the results o f the assessment. Farber writes, that there is a need for consistency and coherence i n environmental po l ic ies and decisions over t ime. M i n t z correct ly observes however that "as a. result o f its intr insic f l ex ib i l i ty , its exper imental ism, and its p lu ra l i sm, pragmatic analysis sometimes fails to y i e l d specif ic , predictable, and unavoidable solut ions to p o l i c y d i spu tes" . 8 9 0 T o be fair, Farber is not t ry ing to create an environmental p o l i c y or statute and, therefore, it is not surprising that eco-pragmatism lacks the detail that w o u l d be necessary to ensure consistency i n results. Farber ' s a i m is to create a dec i s ion-making f ramework w i t h i n w h i c h diff icul t soc ia l and environmental questions can be addressed and reasonable solutions found that recognize both environmental and economic values. A s R u h l writes, Farber presents eco-pragmatism as " a n e w dec is ion m a k i n g ph i losophy for environmental l aw, not a See Eco-pragmatism, supra note 4 at 91. 8 8 9 Ibid, at 10. 8 9 0 Mintz, supra note 13 at 23. 134 new normative theory o f correct outcomes". Regardless, Farber is attempting to protect the environment (i.e., facilitate decisions that accord w i t h our "p r imary norm") through his eco-pragmatic approach. It is questionable however h o w eco-pragmatism can meet this goal i f there is litt le predictabi l i ty and consistency i n its appl icat ion. 5.3 Limitations of Reserve Mining as a Case Study A s indicated i n Chapter 2, Farber uses Reserve Mining for the purposes o f deve lop ing and jus t i fy ing aspects o f his eco-pragmatic approach. G i v e n its facts, the case is clear ly useful for exp lo r ing h o w r isk and uncertainty might be addressed. The l imita t ions o f the case, as an example and guide, should however be acknowledged . The pr imary issue i n Reserve Mining i n v o l v e d h o w to best confront a potential r i sk to human health. Th i s type o f environmental r i sk is arguably a different type o f r i sk than those environmental r isks that do not impact human health. It w o u l d seem reasonable to conclude that our tolerance for r isk w o u l d be lowest when human l ife is somehow endangered. In other words , we are l i k e l y to be more w i l l i n g to address r i sk and endure any negative economic (or other) consequences where the r isk is to ourselves, rather than to aspects o f the environment that do not obv ious ly or immedia te ly benefit us. The "dramatic facts" that characterize Reserve Mining arguably do not characterize the majori ty o f situations g i v i n g rise to environmental r isks . Less dramatic r isks may have significant cumulat ive effects o n environmental qual i ty, especial ly over the long-term. It is not clear whether Farber ' s human-centered approach w o u l d sufficiently address r isks that have little direct effect on people. It is at least wor th quest ioning what type o f an environment w o u l d result f rom a process that is focused p r imar i ly o n serving human interests. It m a y be that Farber is o f the v i e w our overarching 'environmenta l n o r m ' w i l l mean that serving human interests w i l l result i n the protect ion o f non-use environmental values. 8 9 1 "Working Both Ends", supra note 11 at 524. 892 Eco-pragmatism, supra note 4 at 16 135 5.4 Application of Eco-pragmatism to the Little Bow/Highwood Project 5.4.1 Approach Eco-pragmat i sm provides that except w h e n the costs o f addressing significant r isks to the environment exceed the potential benefits, such r isks should be e l iminated. The most obvious wa y to define the "signif icant r i sk" addressed i n the H i g h w o o d D e c i s i o n is to equate the r isk w i t h the Project itself. T h i s approach is suitable for the purposes o f compar ing C E A A and eco-pragmatism because the same question (whether the Project should proceed) can be asked o f each. Before app ly ing the environmental baseline to the facts set out i n the H i g h w o o d D e c i s i o n , Farber ' s approach to t ime hor izons and adaptive management w i l l be appl ied to these facts,. It should be emphasized that app ly ing eco-pragmat ism requires one to exercise judgement. T h i s speaks to the di f f icul ty o f the issues Farber is attempting to address through eco-pragmatism and the f l ex ib i l i ty inherent i n the approach. Others app ly ing eco-pragmat ism to the H i g h w o o d D e c i s i o n may make different decisions and arrive at conclus ions different f rom those described be low. It should also be noted that the data that eco-pragmatism requires for a cost-benefit analysis is not p rov ided i n the H i g h w o o d D e c i s i o n , as the Pane l presents a more qualitative analysis than perhaps Farber w o u l d advocate. 5.4.2 Lengthy Time Horizons In reaching its conclus ions the Pane l appl ied a f ramework o f "sustainabil i ty o f ecosystems over t i m e " . 8 9 3 The Pane l finds that al though the Project w i l l not resolve a l l o f the adverse cumulat ive effects on the environment caused by previous development activit ies and water management strategies, it w i l l "set the stage" for addressing at least some o f these problems and w i l l generally improve c o n d i t i o n s . 8 9 4 The Pane l wri tes: . . . increasing demands for water in the Highwood and Little B o w River basins is inevitable, especially in terms of municipal growth . . . However, the Panel has Highwood Decision, supra note 8 at 8-4. Ibid, at 8-33. 136 concluded that the establishment o f an I F N for the Highwood River and an approved operating plan for the project is the best way o f ensuring that environmental water requirements are better met in the future. 8 9 5 The Panel is attempting to confront overuse and create a situation that gives future populations a chance to inherit a region that is. characterized by sustainable resource management. The Panel is not willing however to deny current residents the opportunity for continued growth and development. Eco-pragmatism would treat the time horizons contemplated by the Panel in a similar fashion. Farber provides that long-time horizons should be addressed through the concepts of "discounting" (for more proximate generations) and environmental stewardship (for populations in the distant future). Accordingly, both eco-pragmatism and the Panel focus on the present and near future, with some consideration given to the more distant future. Farber advocates trying to "avoid substantial risks of future disaster to remote descendents".896 This is not unlike the Panel's approach. Neither eco-pragmatism nor the Panel expect current communities to sacrifice too much for the benefit of future populations. 5.4.3 Adaptive Management Eco-pragmatism advocates implementing a form of dynamic (or adaptive) regulation. A certain amount of regulatory flexibility is necessary, according to Farber, in order for law to respond to social, environmental and scientific changes. In the Highwood Decision follow-up programs consisting of post-Project monitoring are employed. These programs are aimed at verifying the effectiveness of those mitigation measures undertaken. The purpose being to address unanticipated environmental effects and implement new or modified mitigation measures as these become necessary due to new information or technological advances. An application of eco-pragmatism would result in a similar, but arguably more comprehensive approach. Eco-pragmatism employs a definition of adaptive management that is broad enough to ensure that changes can be made to regulatory frameworks, rather than just in 895 Ibid, at 8-34. 896 Eco-pragmatism, supra note 4 at 155. 137 respect of individual assessments. Even taking into consideration the 2003 amendments to C E A A (which occurred after the publication of the Highwood Decision), the type of adaptive management implement by the Act is not as robust as Farber's suggested approach. This is not to suggest that eco-pragmatism would expect C E A A itself to include an adaptive management mechanism that would allow for (and require) the Act to be modified extensively when appropriate, but the means of accomplishing such modifications would need to be included in some type of legislation or policy applicable to the Act and its EIA process. 5.4.4 Environmental Baseline 5.3.4.1 The Diversion Plans Although the Panel ultimately approved the TCP, it refused to approve the diversion (i.e., operating) plans. The Panel took issue with the unscientific nature of the Preliminary IFN upon which the plans were based because this created in the plans a risk to the environment. In addition, under the diversion plans certain irrigators would face water deficits i f the Preliminary IFN were to be maintained. Also of concern to the Panel was the possibility that current and future consumptive use would be at risk because conveyance flows would not necessarily be maintained. Moreover, the plans failed to provide for contingencies. Although the plans were found to be unacceptable, the Panel concluded they could be satisfactorily reworked and deferred its decision on whether to approve them. Like the Panel, Farber emphasizes good science when making environmental decisions. As set out in the Highwood Decision, the Preliminary IFN is not a scientific benchmark to consider consumptive trade-offs against, but is a compromise between consumptive demands and actual instream needs.. Although Farber's aim is to formulate a framework'within which competing and contrary values can be balanced and acceptable trade-offs arrived at, an application of eco-pragmatism would lead to a rejection of engaging in trade-offs between environmental and other values without first establishing a good scientific basis from which to anchor these decisions. 138 Because o f the unscientif ic nature o f the I F N , there is lit t le certainty that the Project w o u l d produce its intended benefits, i.e., the successful maintenance and development o f agriculture, industry and communi t ies . In other words , under the eco-pragmatic approach little weight would-be g iven to opportunity costs, because the Project is l i k e l y to fa l l short o f it goals due to insufficient conveyance f lows and an inab i l i ty to address contingencies. In addi t ion, there w o u l d be costs w i t h proceeding, i n particular, the negative impact on certain irrigators. S u c h factors w o u l d offset at least some o f the potential benefits o f the Project. A p p l y i n g eco-pragmatism, one w o u l d conclude that the A p p l i c a n t should bear the burden o f jus t i f ica t ion because o f the uncertainty inherent i n the outcome due to the lack o f science-based informat ion. G i v e n the lack o f informat ion, the burden cannot be satisfied and the d ivers ion plans should not, therefore, be supported. A dec i s ion to revise the plans (rather than reject them outright) is i n keeping w i t h the environmental baseline pr inc ip le that r isks should be e l iminated to the extent feasible. Eco-pragmat i sm w o u l d support cont inuing w i t h the project because o f its potential to remedy, at least to some degree, historic over a l locat ion o f water i n the H i g h w o o d R i v e r and L i t t l e B o w R i v e r basins. 5.3.4.2 The Three-component Project (TCP) Eco-pragmat i sm advocates beginning w i t h a presumpt ion i n favour o f the environment. A s appl ied to the Project, this w o u l d translate into a presumpt ion i n favour o f support ing the environmental qual i ty o f the H i g h w o o d R i v e r and L i t t l e B o w R i v e r basins. These basins have a history that is characterized by unsustainable resource use. Because o f the unsustainable approach to resource management i n the past, the basins have suffered a number o f negative impacts, i nc lud ing a loss o f habitat for prair ie an imal species and poor water qual i ty due to po l lu t ion . The qual i ty o f the environment continues to deteriorate i n the basins. In other words , there exist pre-Project environmental r isks . Proceeding w i t h the Project w i l l i t se l f g ive rise to environmental r isks, i nc lud ing r isks to aquatic habitat and fisheries. Some o f the r isks associated w i t h the Project are characterized by more uncertainty than others. F o r example; the Pane l recognizes that it is " i n the pos i t ion o f r ev iewing a m u c h desired water supply project w i t h a m u c h less 139 favourable and less certain outcome w i t h regard to water qual i ty for mult i -purpose uses". The Pane l deals w i t h uncertainty by focusing o n the potential impacts to those ecosystem components that more is k n o w n about, ana logiz ing where possible and m a k i n g conservative assumptions. The Panel does not (and C E A A does not require it to) address h o w the burden o f p r o o f should be allocated. Eco-pragmat i sm provides that when r isks to the environment are unclear, but potential ly serious, the precautionary pr inc ip le should be observed and the burden o f jus t i f ica t ion shifted to those w h o w i s h to take such r isks . Because there is r i sk and uncertainty associated both w i t h proceeding w i t h the T C P and not proceeding w i t h the T C P , it w o u l d not be useful to allocate the burden to either the A p p l i c a n t or those opposed in.these circumstances. A c c o r d i n g to eco-pragmatism, a threat or r i sk to the environment should be e l iminated to the extent feasible. C E A A s imi l a r ly requires that technica l ly and economica l ly feasible measures be implement to a v o i d or mitigate any significant adverse environmental effects o f a proposed undertaking. The Panel exercises what j u r i sd i c t ion it has to ensure that mi t iga t ion w i l l be undertaken i n order to lessen the negative impacts o f the T C P . Where the Pane l does not have the requisite ju r i sd ic t ion , it makes recommendat ions regarding mi t iga t ion . A n appl ica t ion o f eco-pragmatism w o u l d result i n a s imi la r approach. Eco-pragmat i sm requires considerat ion be g iven to whether it is feasible to avo id r isks altogether. It employs cost-benefit analysis to determine whether the costs o f addressing r isks (i.e., through project avoidance) w o u l d exceed the potential benefits. Unde r C E A A , cost-benefit analysis is more proper ly an aspect o f the " jus t i f ica t ion" test. Because the Pane l finds that a l l o f the significant adverse environmental affects o f the T C P can be sufficiently mit igated, the assessment does not g ive rise t o . a jus t i f ica t ion analysis. Cos t -benefit analysis is however undertaken by the Pane l as an aspect o f its appl ica t ion o f the pub l i c interest test under the N R C B A . There are costs associated w i t h the Project, even after t ak ing into account mi t iga t ion measures and assuming that these measures w i l l be both implemented and successful. F o r example , the f lood ing o f the new reservoir w i l l result i n a loss o f contiguous 8 9 7 Highwood Decision, supra note 8 at 5-18. 140 patches of (already rare) mixed grass prairie.^ In addition, the TCP will adversely impact habitat and negatively affect a number of endangered or vulnerable species. The Panel recognizes that mitigation will not reduce these effects entirely and, as a consequence, residual impacts are anticipated. The primary benefit associated with the Project is that it will address (or at least attempt to address) the unsustainable situation with respect water and water use in the basins. For example, the Project is intended to prevent further deterioration in water quality and counter the extreme variability in the water supply. As a result, the Project is expected to be of some benefit to the environment. Although the Project will have negative impacts on Treaty 7 Aboriginal peoples, the Panel finds that the Project will (overall) provide social benefits to many residents in the Mosquito Creek and Little Bow River basins. According to the Panel there will be the potential for increased social stability, employment will be maintained and there may be economic benefits.899 In particular, the TCP is expected to increase the well being of the residents through the provision of a more secure water supply. 9 0 0 The Panel finds that this "positive social effect is compelling" and that it "must be given appropriate weight in reaching any overall conclusions regarding the three-component project".901 The Panel concludes that "[o]n balance, weighing the predicted adverse effects and the positive benefits ... the three-component project is in the public interest and the adverse effects are an acceptable cost to gain the benefits".902 The cost-benefit analysis carried out by the Panel appears to be primarily a qualitative assessment. It seems to involve more of a balancing of factors than Farber would advocate. Eco-pragmatism supports a more structured cost-benefit analysis, wherever possible. The P A C appears to have undertaken a more precise cost-benefit analysis. It will be recalled that the committee concluded that the benefits of additional storage (as advocated by the Panel) would not offset the economic and S9S Ibid, at 8-52. 899 Ibid, at 8-35. 900 Ibid, at 8-52. 901 Ibid. 9 0 2 Ibid, at 8-53. 141 environmental costs associated w i t h creating addi t ional storage faci l i t ies . G i v e n the already unsustainable situation, the appl ica t ion o f eco-pragmatism w o u l d lead to a s imi la r (combined) result - i.e., approval o f the T C P , w i t h a refusal to support addi t ional storage. 142 6. CONCLUSION A l t h o u g h the purposes o f C E A A include fostering both a healthy environment and economy, the A c t does not te l l us h o w we are to balance or choose between these goals i n situations where both cannot be served. A s a result, E I A s under the A c t (especial ly those i n respect o f complex projects) can result i n a conf l ic t between these two types o f values that is resolved p r imar i ly through the exercise o f discret ion on the part o f government actors. W h a t C E A A does accompl i sh (and it is important) is to ensure that the potential environmental impacts o f proposed activit ies are considered and that any negative impacts are addressed i n an attempt to mitigate these d o w n to an acceptable l eve l . Where sufficient mi t iga t ion is not possible, considerat ion is g iven to whether the impacts are " jus t i f ied" i n the circumstances. C E A A provides litt le guidance as to w h e n effects should be characterized as jus t i f ied . A s is typ ica l ly the case w i t h the A c t , government must exercise discret ion i n m a k i n g this determination. G i v e n its mi t iga t ion focus, C E A A necessari ly results i n trade-offs be ing made between environmental and economic values, even where a jus t i f ica t ion analysis is not undertaken. The central quest ion asked i n this thesis is whether eco-pragmat ism can assist i n determining when such trade-offs are appropriate. A s expla ined, Farber is attempting to create i n eco-pragmatism a method that can assist i n dec id ing w h e n environmental protect ion should be pursued, and at what point it should be abandoned because it has become too cost ly. A s discussed, there are differences between C E A A and eco-pragmatism and Farber ' s approach is instructive (and is arguably an improvement over C E A A ) i n that it encourages a more complete implementa t ion o f adaptive management. It is also instructive because, un l ike C E A A , eco-pragmatism identifies a pr ior i ty value ( w h i c h can assist i n m a k i n g decisions where there is uncertainty) and implements a more robust def ini t ion o f the precautionary pr inc ip le . Farber ' s w o r k is important because he has attempted to formulate a coherent means by w h i c h compet ing economic and environmental values can be balanced and reasonable trade-offs arr ived at. Th i s is an unavoidable task. The strength and thoughtfulness o f his approach is i n h o w he attempts to address the r i sk and uncertainty that is inherent i n environmental dec i s ion-making . In contrast, C E A A has the effect o f delegating decis ions that require trade-offs between environmental and other values to responsible 143 authorities or Cabinet , wi thout the benefit o f any guidelines or appl icable dec i s ion-making process. Howeve r , the m a i n shor tcoming o f C E A A is not addressed by eco-pragmatism, and eco-pragmatism i tse l f suffers f rom this part icular l imi ta t ion . In short, the approaches are fundamentally s imi lar i n respect o f what they are able, or unable, to accompl i sh w h e n it comes to environmental protection. C E A A requires decis ion-makers to focus o n the mi t iga t ion o f negative environmental effects, rather than on achiev ing long-term environmental gains or observing a m i n i m u m environmental standard. A s a consequence, projects w i t h adverse impacts are rout inely approved. Presumably this pattern results i n cumulat ive environmental impacts occurr ing over t ime. A t best it w o u l d seem that the A c t has the effect o f s l o w i n g the erosion o f environmental qual i ty through its requirement for mi t iga t ion . It fails however to observe some sort o f environmental "bot tom l i n e " that w o u l d impose an ult imate l i m i t o n negative impact . Th i s is not to suggest that C E A A must i t se l f articulate the bot tom l ine. The standard c o u l d be implemented through some fo rm o f leg is la t ion that C E A A is (and other statutes and pol ic ies are) subject to. F o r example , the standard c o u l d be imposed as an aspect o f integrated p lann ing frameworks that address land-use issues i n broad geographic and temporal terms. A l t h o u g h eco-pragmatism is useful, it is not adequate i f Farber ' s ult imate goal is to protect the environment over the long term. Farber has successfully w o r k e d economic factors and values into his eco-pragmatic approach, but he has fai led to include an environmental qual i ty bot tom l ine or "backstop". Perhaps, this is purposeful on Farber ' s part because he has inc luded an economic backstop. It may be that Farber is o f the v i e w that his environmental baseline w i l l naturally lead to l imi t s o n growth where these are necessary i n order to observe natural constraints and a v o i d environmental degradation. The approach taken by the T o w n o f Oko toks provides an example o f an attempt to set an environmental bot tom l ine. The t o w n (located 18 k m south o f Ca lgary , 144 Alber ta ) has established growth targets t ied to environmental constraints. In 1998 it adopted a M u n i c i p a l Deve lopment P l a n that purposeful ly rejected cont inued growth and opted to develop w i t h i n the car ry ing capacity o f the Sheep R i v e r watershed, identif ied to be approximately 30,000 p e o p l e . 9 0 4 The t o w n established a bui ld-out m u n i c i p a l boundary and devised a set o f related ini t iat ives i n support o f its target . 9 0 5 T h i s approach to future development is quite different than that taken by the Pane l i n the H i g h w o o d D e c i s i o n . A l t h o u g h the Panel recognized that confl icts over water were increasing i n the Project area due to popula t ion growth, increased agricul tural product ion, industr ial expansion and environmental concerns, it supported faci l i ta t ing an increase i n water use and consumpt ion through the construct ion o f addi t ional storage faci l i t ies . The Pane l favoured development that w o u l d a l l o w continued expansion, rather than development that attempts -to adjust to natural environmental l imitat ions. There is nothing i n G E A A (or i n eco-pragmatism) to prevent this type o f dec i s ion from being made. A n environmental backstop that w o u l d prohibi t any and a l l ha rm to the environment would , not (for obvious reasons) be pract ical . H o w e v e r , bo th eco-pragmatism and C E A A w o u l d arguably be improved i f they were to operate subject to a standard o f acceptable environmental qual i ty that is observed each t ime a dec i s ion is made. A l t h o u g h there is a need for f l ex ib i l i t y i n environmental dec i s ion-making i n order to accommodate changing soc io-economic and environmental circumstances, it does not f o l l o w that this f l ex ib i l i t y must be implemented through the exercise o f discret ion wi thout the benefit o f an environmental baseline. * Es tab l i sh ing an environmental qual i ty standard w o u l d not be s imple . ' Regardless, w e need a wa y to prevent "s l ippage" i n environmental qual i ty , at least to the best o f our abi l i ty . Sl ippage should not be bui l t into the dec i s ion-making mechan ism, as it is i n both C E A A and eco-pragmatism. W e should be attempting to decide what impacts are we The/International Awards for Liveable Communities (The LivCom Awards) Submission: Sustainable Okotoks - Leaving a Legacy - Town of Okotoks, Alberta, June 2005, online: Town of Okotoks <http:// www.okotoks.ca/pdf/Sustainable/LIVCOM%20AWARDS%202005submission.pdf> (date accessed 11 August 2007) at 2. Ibid. 145 w i l l i n g to tolerate i n exchange for benefits w i t h i n a f ramework that observes and protects an environmental m i n i m u m . The challenge w i l l be i n reaching agreement concerning the acceptable leve l o f environmental quali ty and adjusting our behaviour accordingly . 146 ) BIBLIOGRAPHY LEGISLATION 1. An Act to Amend the Canadian Environmental Assessment Act, S . C . 2003, c. 9 2. Canada Port Authority Environmental Assessment Regulations, S O R / 9 9 - 3 1 8 3. Canadian Environmental Assessment Act, S . C . 1992, c. 37 4. Comprehensive Study Regulations, S O R / 9 4 - 6 3 8 5. 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