Lessons from the gulf: Environmental Assessment

As I posted previously, the biggest take-away message for Canada and BC from the BP oilspill in the Gulf of Mexico is that oil and gas development at sea is so inherently risky that even strong environmental laws regulating the activity cannot remove the risks of a catastrophic oil spill.  In an isolated, pristine ecosystem the best environmental law would be a ban on any drilling or transportation of oil. 

But drilling down into the situation in the Gulf (pardon the tasteless pun) reveals other environmental law lessons for Canada.  In this post we’ll discuss what the oil spill tells us about the problems of government discretion not to do environmental assessments. 

Discretion in Environmental Assessments

It has been revealed that the Deepwater Horizon rig had not been required to undergo a detailed environmental assessment (or Environmental Impact Assessment) because, in the view of staff with the Department of the Interior,

… "a large oil spill" from a platform would not exceed a total of 1,500 barrels and that a "deepwater spill," occurring "offshore of the inner Continental shelf," would not reach the coast.

Oops.  I guess the moral of the story is that it’s a mistake for government to decide that it already knows the environmental consequences of a project without conducting an environmental assessment. 

Seems like an obvious lesson, but the fact is that Canada’s federal and provincial governments are coming up with more and more ways to avoid doing detailed environmental assessments. 

• Parliament is currently considering amendments to the Canadian Environmental Assessment that have been tacked onto this year’s budget bill which would allow the Minister of Environment to break large, potentially destructive, projects into pieces to avoid conducting a detailed assessment.
• The same amendments will also remove any requirement for the federal government to do even a basic review of the environmental effects of projects funded by federal stimulus funding. 
• BC’s Environmental Assessment Act only requires environmental assessments for larger, potentially destructive projects.  But even for these projects the provincial government can waive the requirement if its staff “consider that a reviewable project will not have a significant adverse environmental, economic, social, heritage or health effect.” 

If the actions of the US Department of the Interior reveal anything it’s that allowing government to arbitrarily choose which projects get a detailed environmental assessment, and which do not, does not protect the environment, or the communities that depend upon it. 

Legal Planet is drawing further lessons about the quality of the environmental assessment process, and how to ensure that such assessments are not arbitrary and have a high level of transparency and accountability.  Here’s what they suggest:

• Where possible, confidence intervals should be provided for critical data [indicating the likelihood that the data is accurate].
• When the agency relies on formal modeling, validation issues should be directly addressed.
• Whether or not a formal model is used, the agency should discuss the limitations of current understanding of system dynamics and conflicting models found in the scientific literature.
• Rather than relying solely on model output as a basis for evaluating risk, the agency should give explicit attention to model uncertainty.
• The agency’s reasoning should be transparent and model assumptions should be clearly stated.
• Where the agency has proposed a major project or regulatory initiative, and a possible catastrophic risk could attend that action, the agency should at least obtain a peer review of its analysis and ideally should procure a risk assessment from an independent body.
• Courts should not second-guess an agency’s scientific judgments, but neither should they allow expertise to function as a smokescreen for any agency’s failure to probe the relevant science in depth, explore opposing viewpoints, and candidly disclose analytic uncertainties.

These suggestions could all be adapted to a Canadian context. 

The lessons of the Gulf provide yet another reason to oppose the Canadian Government’s plans to gut the Canadian Environmental Assessment Act.  West Coast Environmental Law has been on the forefront of opposing these amendments.  But they also point to ways in which Canadian environmental assessment legislation, at both the federal and provincial levels, could be strengthened. 
 

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