On 7 July 2011, John Doyle, the Auditor General of British Columbia, released an audit examining the post-certification stage of the environmental assessment process, which is conducted in B.C. by the B.C. Environmental Assessment Office (EAO). The audit was critical of the effectiveness of the EAO’s oversight and Mr. Doyle concluded very frankly that:
Adequate monitoring and enforcement of certified projects is not occurring and follow-up evaluations are not being conducted [by the EAO]. We also found that information currently being provided to the public is not sufficient to ensure [public] accountability.
As set out in section 2(1) of the Auditor General Act, the Auditor General is an officer in the B.C. Legislature. Such a position means that their reports carry moral weight.
The Environmental Assessment Process
As the audit explains, B.C.’s environmental assessment process “provides a mechanism for reviewing major projects to identify potential adverse effects, identify measures to avoid, reduce or mitigate these effects, and assess the net impacts.” If a project falls under both provincial and federal jurisdictions, the two levels of government may agree to undertake a cooperative environmental assessment. Proponents must describe the predicted environmental, economic, social, heritage and health effects of the project, and the proposed measures to mitigate those impacts in their application. For some time West Coast Environmental Law has been critical of the many shortfalls of B.C.’s environmental assessment process and the auditor’s findings raise additional issues about what happens after an environmental assessment certificate is issued.
Environmental Assessment Certificates
An environmental assessment certificate is a legal document binding a project proponent for the project’s duration.
From 1995 to the present, a total of 219 projects have undergone or are in the process of undergoing an environmental assessment. Of these:
- 115 were approved (52.5%),
- 40 are under review and temporarily inactive (18.3%),
- 32 are under review and active (14.6%),
- 16 have been terminated or withdrawn by the project proponent (7.3%),
- 15 had an environmental assessment deemed unnecessary (6.8%) and
- 1 was rejected (refused certification) (0.5%).
It is worth noting that this single rejection was the Kemess North Copper-Gold Mine Project, which was actually subject to a joint panel review – meaning that the resulting report was prepared by experts that were arm’s length from the EAO.
Nearly seventy per cent of certified projects are energy and mining developments. Industrial, water management, waste management, transportation, food processing and tourist destination resort projects account for the remainder of certified projects.
The Audit’s Recommendations
The audit consisted of six recommendations made to the EAO.
1. Ensure commitments are clearly written in a measureable and enforceable manner
Environmental assessment certificates incorporate various requirements separated into conditions and commitments sections.
The audit found that commitments often employed vague directives that prove challenging to implement, measure, and enforce; conditions, which don’t vary between assessments, were generally more enforceable.
2. Continue to work with the Ministry of Environment to finalize a policy framework that will provide provincial guidance on environmental mitigation
The Ministry of Environment (MOE) is currently undertaking various policy initiatives and the EAO will continue to provide input.
On 4 February 2011, West Coast Environmental Law, along with other environmental organizations, submitted a letter to the MOE commenting on these policy discussions. This letter commented on the absence of policy goals speaking to the maintenance of “ecosystem health, values or resiliency” and suggested that various policies including additional conservation outcomes, limits to what can be offset, landscape context, stakeholder participation, equity, long-term outcomes, and transparency should also be included.
3. Clarify the post-certification monitoring responsibilities and compliance mechanisms for each commitment
Provincial government agencies’ responsibilities for monitoring proponent compliance with certificate conditions and commitments are unclear, with the exception of commitments related to specific permits. Complications also arise because government agencies do not have integrated methods and systems to track certificate commitments and conditions in place.
4. Develop and implement a comprehensive compliance and enforcement program that includes an integrated information management system to monitor project progress and ensure compliance
The EAO engages in reactive rather than proactive activities which does not represent a “comprehensive compliance and enforcement program to ensure that all certificate conditions and commitments are met.” Compliance and enforcement information is acquired through two sources: oversight of proponent self-monitoring and complaints monitoring. Proponents self-monitor by submitting compliance reports to the EAO, which are reviewed by EAO staff. When the EAO receives complaints about a certified project, follow-up is conducted with the proponent to address concerns. The audit disclosed that the EAO “does not formally track certified project conditions and commitments for compliance” or complaints.
Enforcement of certificate conditions is governed by Part 5 of the Environmental Assessment Act. The EAO may penalize non-compliance by education, formal letters, penalties and ultimately certificate suspension or cancellation. Notably, the EAO has never ordered penalties or certificate suspension or cancellation. West Coast Environmental Law previously reported on B.C.’s plummeting environmental enforcement.
5. Conduct post-certificate evaluations to determine whether environmental assessments are avoiding or mitigating the potentially significant adverse effects of certified projects
With its current practices, the audit concluded that the EAO is unable to ensure that “the intended environmental outcomes as well as the benefits of the projects are being achieved.” To address some of these concerns, the EAO has recently created and filled the new position of Director of Strategy and Quality Assurance.
6. Provide appropriate accountability information for projects certified through the environmental assessment process
The online accountability information does not provide adequate information on certified projects.
A Valuable Audit
It is important to note that this audit did not address the segment of the environmental assessment process leading up to the approval and certification of a project. It focused exclusively on the post-certification part of the environmental assessment process. Although this scope is limited, the post-certification period is a vital aspect of environmental assessments. Proponents are legally bound to adhere to the certificate’s conditions and commitments.
The audit is frank and concise in its criticism of the EAO. The public cannot be accurately assured that mitigation efforts are occurring if the EAO does adequately monitor and conduct follow-up evaluations of approved projects. These types of deficiencies do not inspire confidence in the enforcement of various requirements including environmental conditions proscribed by environmental assessment certificates. It does not seem credible that proponents themselves will reliably track and self-report on their compliance with certificate requirements to the EAO. There is little public accountability because the EAO does not employ a formal tracking system to monitor proponent compliance or complaints about compliance. Perhaps most revealingly, however, is the fact that the EAO has never deemed penalties, certificate suspension or cancellation necessary as a penalty for proponents’ non-compliance with certificate conditions.
Overall, the audit represents a progressive step towards better enforcement of proponents’ compliance with environmental assessment certificates, and highlights some weaknesses with the existing policy framework.
What’s next?
There have been ongoing upheavals in the EAO since the departure of the Associate Deputy Minister (ADM) Robin Junger in 2010. He was replaced with current EAO ADM Cheryl Wenezenski-Yolland, but she has recently been temporarily re-assigned to another government agency, and it is unclear when she will return. Unfortunately, these changes may not translate into the EAO getting a firm grip on implementing these recommendations.
Although not binding, the provincial government has accepted the audit’s six recommendations. We applaud the government for responding positively to the report, and look forward to an improved post-certification process. In October 2012, the Auditor General will publish a follow-up report to monitor the implementation of its recommendations.
By Katrina Andres, Legal Intern
Katrina grew up in Victoria, where she completed her undergraduate degree in British Columbia History in 2010. She has just finished her first year of law school at UVic and is particularly interested in forest policy, having worked for both the Wilderness Committee and the Ancient Forest Alliance. Her commitment to environmental issues began during the 1993 Clayoquot Sound protests at the age of 5. She enjoys hot springs, camping, hiking, running, and playing cello.