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SUSTAINABILITY ASSESSMENT AND CLIMATE CHANGE MARCH 22, 2012

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Title: SUSTAINABILITY ASSESSMENT AND CLIMATE CHANGE MARCH 22, 2012


1
SUSTAINABILITY ASSESSMENT AND CLIMATE
CHANGE MARCH 22, 2012

2
OVERVIEW
  • Limitations of Environmental Assessment
  • Climate Change as example
  • Sustainability Assessment (The Gibsonian
    Approach)
  • CEAA and Sustainability Assessment
  • Sustainability Assessments by CEAA Panel Reviews

3
ENVIRONMENTAL ASSESSMENT LIMITATIONS
  • Narrow focus on significance of adverse
    environmental effects
  • Inattention to major environmental issues such
    as climate
  • Ineffective cumulative effects assessment
  • Failure to learn from experience
  • Weak political commitment
  • Trend to restrict application, scope and
    openness under the guise of streamlining

4
EA LIMITATIONS CLIMATE CHANGE AND GHG EMISSIONS
  • Kearl Oil Sands Mine 5 - 8 billion project by
    Imperial Oil
  • 3.7 million tonnes of CO2 per year (comparable to
    800,000 cars annually)
  • 0.5 of Canadas GHG emissions
  • Joint Panel Review GHG emissions would have no
    significant adverse effects on global climate
  • Federal Court required Panel justify how an
    emissions-based regulatory approach would address
    GHGs issue

5
EA LIMITATIONS CLIMATE CHANGE AND GHG EMISSIONS
  • Other panel reviews (Joslyn North, Mackenzie
    Gas) have adopted same approach and reached same
    conclusion
  • Project GHG emissions have no significant adverse
    effects on global climate
  • Does this approach miss the point?
  • Mackenzie Gas Project Panel took analysis
    further, applied sustainability approach to GHG
    emissions

6
SUSTAINABILITY CHALLENGE
  • Humans using 50 more of biospheres carrying
    capacity than can be sustained
  • Demands on biosphere still rising
  • 1 - 2 billion humans lack material basics for
    reliable nutrition, health, opportunity
  • Most benefits are going to the already
    comfortable
  • These problems deeply interconnected

7
SUSTAINABILITY CHALLENGE
  • WWF Living Planet Report 2010, p.7

8
SUSTAINABILITY CHALLENGE Number of
Undernourished People in World
9
SUSTAINABILITY CHALLENGE
  • Human and ecological well-being are effectively
    interdependent. Under all the layers of artifice
    and ingenuity, humans are ultimately and
    unavoidably dependent on biospheric conditions
    that are friendly to human life Robert Gibson
    p. 173

10
OBJECTIVES OF SUSTAINABILITY ASSESSMENT
  • Decisions must aim to avoid trend toward deeper
    unsustainability
  • Projects, plans, policies, programs must make net
    positive contribution to a desirable and durable
    future
  • Must exceed merely avoiding and mitigating
    adverse environmental effects

11
BASIC INSIGHTS OF SUSTAINABILITY ASSESSMENT
  • Comprehensive, including socio-economic and
    biophysical, short and long-term
  • Precaution because systems are complex,
    predictions uncertain, surprise likely
  • Minimizing negative effects not enough positive
    steps to community, ecological sustainability is
    essential
  • Corrective action woven together to serve
    multiple objectives

12
BASIC INSIGHTS OF SUSTAINABILITY ASSESSMENT
  • Recognition of ecological limits and
    opportunities for innovation
  • No to balancing, presuming compromises,
    trade-offs yes to multiple reinforcing gains
  • Universal but context-dependent - local
    ecosystems, institutions, preferences
  • Means and ends intertwined, open-ended process
    with no end state to be achieved

13
CORE CRITERIA FOR SUSTAINABILITY ASSESSMENTS
  • Socio-ecological system integrity
  • Livelihood sufficiency and opportunity
  • Intragenerational equity
  • Intergenerational equity
  • Resource maintenance and efficiency
  • Socio-ecological civility, democratic governance
  • Precaution and adaptation
  • Immediate and long-term integration

14
TRADE-OFF RULES
  • Seek maximum net gains
  • Place burden of argument on trade-off proponent
  • Avoid all significant adverse effects
  • Protect the future (do not displace negative
    effects to future generations)
  • Provide explicit justification
  • Use an open process

15
SUSTAINABILITY ASSESSMENT LINKS TO FEDERAL LAWS
  • Investment Canada Act s.16.(1) Net benefit to
    Canada test for foreign investment seeking
    control of Canadian-owned business
  • National Energy Board Act s. 52 Board may issue
    certificate for pipeline where it is and will be
    required by the present and future public
    convenience and necessity having to regard to
    considerations such as availability of oil/gas,
    existence of markets, economic feasibility,
    finances and (e) any public interest that in the
    Boards opinion may be affected by the granting
    or the refusing of the application
  • Canadian Environmental Assessment Act

16
CEAA AND SUSTAINABILITY ASSESSMENT
  • Are CEAA legal obligations limited to identifying
    and mitigating significant adverse environmental
    effects of projects?
  • Or does CEAA call for or require consideration of
    broader sustainability issues in
    decision-making? Doelle pp. 136 141

17
CEAA AND SUSTAINABILITY ASSESSMENT
  • CEAA ss. 20 and 37 clearly require determination
    with respect to likelihood and significance of
    adverse environmental effects
  • RA may take course of action to permit project to
    be carried out if no significant adverse
    environmental effects under s. 20 (and not
    justified in circumstances after panel review s.
    37)
  • Ss. 20, 37 dont require RA to refrain from
    taking course of action if no significant adverse
    effects yet project otherwise unsustainable

18
CEAA AND SUSTAINABILITY ASSESSMENT
  • However, CEAA Preamble includes achieving
    sustainable development, integrating
    environmental factors into decision-making
  • CEAA Purposes similarly broader than just
    significant adverse environmental effects
    s.4.(1)
  • RAs to take decisions in line with sustainable
    development
  • Projects to be precautionary
  • Government duty to exercise powers in manner to
    protect environment and human health and apply
    precautionary principle s.4.(2)

19
CEAA AND SUSTAINABILITY ASSESSMENT
  • S.16 factors reinforce sustainability
    perspective
  • Accidents and malfunctions
  • Need, purpose and alternatives to project
  • Capacity of renewable resources to meet present
    and future needs
  • Comments from the public

20
DEVELOPMENT OF CEAA SUSTAINABILITY ASSESSMENT
  • Can purposes of CEAA be met only if
    decision-makers consider more than whether
    project is likely to cause significant adverse
    effects?
  • Do review panels have two functions?
  • Determine whether project is likely to cause
    significant adverse environmental effects
  • Advise government (based on sustainability
    assessment) whether to exercise discretion to
    make a decision that allows project to proceed
  • Are these functions legal duties?

21
DID JOSLYN MINE JOINT REVIEW MAKE A LEGAL ERROR?
  • The Panel finds that with an effective emergency
    response plan in place, it is unlikely that
    significant adverse environmental effects would
    occur as result of accidents or malfunctions
    associated with the project. P.78 Panel Report
  • Dont accidents and malfunctions relate to the
    sustainability assessment duty, not the duty to
    identify significant adverse effects?
  • Is this an error in law reviewable by courts?

22
SUSTAINABILITY ASSESSMENTS BY CEAA PANEL REVIEWS
  • Voiseys Bay Nickel Mine and Mill Joint Panel
    Review (1999)
  • Whites Point Quarry and Marine Terminal Joint
    Panel Review (2007)
  • Mackenzie Gas Project Joint Panel Review (2010)
  • Lower Churchill Dam Joint Panel Review (2011)

23
VOISEYS BAY
  • Nickel mine and mill project on north Labrador
    coast proposed by Inco Ltd.
  • Innu and Inuit traditional lands
  • Multi-jurisdictional governance regime (Canada,
    Newfoundland and Labrador, Innu Nation, Labrador
    Inuit Association)
  • Environmental assessment review by joint panel
    with formal EIS and public hearings

24
VOISEYS BAY

25
VOISEYS BAY
  • It is the Panels interpretation that progress
    towards sustainable development will require the
    following preservation of ecosystem
    integrity, respect for right of future
    generations to sustainable use of renewable
    resources and attainment of durable and
    equitable social and economic benefits.

26
VOISEYS BAY
  • Therefore in reviewing the EIS and other
    submissions, the Panel will consider the
    extent to which the Undertaking may make a
    positive overall contribution towards the
    attainment of ecological and community
    sustainability, both at the local and regional
    levels

27
WHITES POINT QUARRY AND MARINE TERMINAL
  • Proposed basalt quarry and shipping terminal on
    Digby Neck, Bay of Fundy
  • 50-year project life, about 30 direct jobs,
    little public revenue
  • Canada/Nova Scotia joint panel, hearings
  • March 2005 guidelines adopted sustainability test
    with ecosystem approach and precautionary
    principle
  • Panel recommended against project approval,
    governments agreed

28
WHITES POINT QUARRY AND MARINE TERMINAL

29
WHITES POINT QUARRY AND MARINE TERMINAL
  • Implications for sustainable community futures
    for Digby Neck and coastal Nova Scotia
  • Implications for Bay of Fundy shipping,
    endangered species protection, fisheries
  • Implications for provincial mining policy (e.g.
    royalties)
  • NAFTA appeal

30
MACKENZIE GAS PROJECT
  • Natural gas, gas liquids pipelines, gathering
    system, three natural gas anchor fields
  • 1220 km - Mackenzie Delta to northern Alberta
  • Estimated cost 16.3 billion, 2-3 years
    construction, 20-50 years operation
  • Aboriginal participation in pipeline consortium
  • Review by joint panel - CEAA, MVRMA, IFA

31
MACKENZIE GAS PROJECT
  • In preparing for public hearings, the Proponent,
    Interveners and other participants should be
    aware that the Panel will evaluate the specific
    and overall sustainability effects of the
    proposed project and whether the proposed project
    will bring lasting net gains and whether the
    trade-offs made to ensure these gains are
    acceptable in the circumstances.
  • JRP Determination on Sufficiency 18 July 2005

32
MGP SUSTAINABILITY ASSESSMENT
  • Five key issue categories
  • Cumulative biophysical effects
  • Cumulative socio-economic effects
  • Equity effects
  • Legacy and bridging
  • Cumulative impacts management/ preparedness
  • Plus interactions, trade-offs

33
MGP SUSTAINABILITY ASSESSMENT
  • Project could contribute to sustainability if 176
    recommendations carried out
  • Must anticipate and pre-empt adverse cumulative
    effects
  • Must manage pace, scale of development
  • Must maximize lasting gains (use direct revenues
    from depletion of non-renewable resources for use
    as bridge to more durable future)

34
MGP CLIMATE CHANGE AND SUSTAINABILITY ASSESSMENT
  • Panel GHG emissions are important component of
    Projects contribution to sustainability
  • Findings
  • Direct Project GHG emissions
  • End Use of Gas, Life-cycle Impacts
  • Project Contribution to Sustainability

35
MGP - DIRECT PROJECT GHG EMISSIONS
  • NEB require as certificate condition GHG
    emissions reductions targets if federal
    regulations not in place Rec. 8-6
  • NEB require that GHG emissions be included in
    Project monitoring program with annual reporting
    against targets Rec. 8-7
  • Canada should develop laws reducing GHG emissions
    to meet or exceed targets in Climate Change Plan
    for Canada Rec. 8-8

36
MGP - END USE OF GAS, LIFE-CYCLE IMPACTS
  • End use of gas (e.g., fuel tar sands, displace
    coal-fired generating) relevant to Panels
    mandate, such as life-cycle impacts
  • Use of gas for carbon-intensive fuels is
    undesirable, squanders valuable attributes of
    natural gas as transition fuel
  • Unpersuaded MGP gas to fuel oil sands
  • Did not require offsetting of GHG emissions
    needs comprehensive approach

37
MGP CONTRIBUTION TO SUSTAINABILITY
  • Mandating carbon neutrality, intervening in
    market to specify end uses not resolvable
    project-by-project
  • Canada adopt implementation strategy that
    optimizes natural gas as transition fuel and
    ensures gas is preferentially used to replace
    carbon-intensive, polluting fuels Rec.8-9
  • Agency develop GHG emissions guidance document in
    which sustainability is over- arching objective
    Rec.8-10

38
FEDERAL RESPONSE TO MGP PANEL RECOMMENDATIONS
  • Federal government and NEB rejected virtually all
    of the Panels forward looking recommendations,
    including those on
  • anticipating cumulative effects
  • managing pace and scale of induced development
  • directing revenues from depletion of
    non-renewables as a bridge to more durable future

39
HAS SUSTAINABILITY ASSESSMENT PEAKED?
  • Recently established panel reviews (Joslyn North,
    Jackpine Expansion) ignore sustainability
  • Marathon PGM Mine EIS Guidelines do refer to net
    ecological, social and economic benefits of
    project
  • House Environment Committees CEAA Report
    ignores sustainability
  • Balancing economy/environment is back
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