RE:   Environmental Assessment Process For Georgia Strait Crossing (GSX)

 

Call for Action

All individuals and groups on Vancouver Island and in the Southern Gulf Islands who are concerned about the GSX project need to send letters to the National Energy Board and to federal Minister of Environment, David Anderson, requesting an independent panel review to review the project and to also comment on the National Energy Board Scoping Package for the Georgia Strait Cross Project. You can email them at: mmantha@neb.gc.ca or david.anderson@ec.gc.ca   Note, it is essential that letters need to be sent prior to August 28th to be considered. 

 

What’s the Problem with the Environmental Assessment Review?

At present the federal and provincial governments are planning a Comprehensive Study to review the Georgia Strait Crossing.  However, the environmental effects of the GSX project are of sufficient significance and public concern to dictate the need for an Environmental Assessment Review Panel. A panel review would be a joint effort under the Canadian Environmental Assessment Act (the Act) and the National Energy Board Act   Most importantly, the joint panel review would allow for public involvement throughout the review process, particularly the right to present oral evidence and to question the evidence of others. 

 

Conversely, the project proponents, B.C. Hydro and Williams (the American pipeline company) together with the Government of B.C. and the federal Department of Fisheries and Oceans (DFO) favour the Comprehensive Studies Report (CSR).  The CSR offers them an easier alternative because the Act leaves the preparation of the report to federal authorities and it also would effectively limit full public participation in the environmental assessment review process until after the CSR is completed.

 

During the National Energy Board Scoping meetings, a wide cross section of Vancouver Island and Gulf Islands residents have raised serious concerns regarding this project proposal and wish their voices to be heard before rather than after a decision is taken.  They are concerned about how the consultation process has been managed to date and about the project’s environmental impacts. They want a full panel review to ensure their concerns are heard.

 

A panel review may be initiated in any one of three ways:

 

1.  At the outset of the environmental assessment process Section 21 of the Act provides that the Responsible Authorities - on this project they are the National Energy Board and DFO - can either prepare a CSR or  refer this project to the Minister of Environment requesting that the Minister order a panel review.  This means the project can be referred to a review panel immediately.

2.  At any time in the environmental assessment process Section 25 of the Act provides that the Responsible Authorities can request the Minister of Environment to refer this to a review panel; or;

  1. Section 28 and 29 of the Act provides that the Minister  “at any time in the process can request a review panel”. 

In all instances, the decision to refer the project to a review panel is based on either of the two following factors:

(a) significance of possible adverse environmental effects; or,

(b) public concerns

 

This project has both!

 

What is the Difference between a Comprehensive Study Report and Independent Panel Review

In both a CSR and Panel Review the proponents are responsible for conducting the environmental studies which form part of the environmental assessment. 

 

In a Comprehensive Study Report the Responsible Authorities (RA) have a great deal of discretionary power about the terms of reference for the environmental assessment, the factors to be considered in the scope of the project and how the project will be reviewed.  In particular, in a CSR the RA has the discretion to determine how the public will be involved in the preparation of the CSR (Section 21 of the Act and pp.32-38 Responsible Authorities Guide).  The Responsible Authority Guide is a document that interprets the legal framework established by the Act and provides guidance to RAs for conducting environmental assessments of projects in compliance with the Act.

 

 In a comprehensive study the results of the CSR are required to be posted on the federal public registry.  However, the report is reviewed only internally by government agencies (in this instance it would also include the B.C. Govt.).  After, and only after, receiving the Comprehensive Study Report the Canadian Environmental Assessment Agency is required by law to facilitate public access to the report in any manner it considers appropriate. (Section 22 of the Act).   In other words, it is only after the report is complete that the government is required by law to provide access to the public to make comment on the conclusions and recommendations in the report. 

 

It is important to realize that by the time the CSR is completed, the federal review process may have taken a year or more and will have involved a significant investment by the proponent who by this time will have begun to set up the construction phase of the project. As a result, public comments after the CSR review are unlikely to have a major influence in the outcome.  In particular, issues with regard to alternative means of undertaking the project and the questions of alternatives to the project or even not proceeding with the project are effectively eliminated as possibilities by the time the public has the opportunity to comment under a CSR.

 

Once public comments are received, the Minister of Environment then can either approve the project or refer it back to the RA for further review or refer the project to a review panel.  It is noteworthy that in the past 6 years that the Act has been in effect, a Comprehensive Study Report has never been referred to a panel.  In fact, eliminating this possibility has been one of the major requests of proponents during the five year review of the Act.  It is also noteworthy that in a CSR the environmental review would be separate from the technical and economic considerations required by the National Energy Board.  Given Canada’s focus on sustainable development and its Kyoto’s commitments separating these factors is illogical at the very least.

 

By contrast, when a project is referred to an Independent Panel Review (Sections 33, 34,35 of the Act) the Minister of Environment must appoint panel members who have knowledge and experience relevant to the environmental effects of the project.  The minister and the panel members establish the terms of reference and establish the factors to be considered in the scope of the project.  This panel would include members of the National Energy Board as outlined in the CEAA-NEB Memorandum of Understanding and would combine the CEAA and NEB reviews.  More importantly, this panel is required by law to make sure that all information is available to the public, to hold hearings in a manner that offers the public an opportunity to participate, as well as take into account input from government agencies.  It is the independent panel that prepares the report which is submitted to the Minister for decision.  The review panel has the power to summon any person to appear as a witness before the panel, produce additional documents for evidence and most importantly allows for cross examination of witnesses by all interested parties.

 

A joint panel is more likely to review some of the alternatives to a project as well as alternative means of carrying out a project.  This is an important issue, particularly with respect to assessing B.C. Hydro’s efforts to increase the energy efficiency of its residential and industrial consumers and in their use of economic instruments for encouraging demand side management as an alternative to carrying out a project.  This information, especially as it relates to demand for energy on Vancouver Island, is highly relevant to considering the merits and specifications of the GSX project.

 

In summary the review panel process provides for a much more thorough, public and expert assessment as opposed to the CSR process.

 

 

Environmental Significance Issues (some examples only)

Environmental significance is one of the two reasons why a project should be reviewed by an independent panel.

 

1.  All projects on the Comprehensive Study List are by definition more likely to cause significant adverse environmental effects.  This project is on that list.  Moreover the effects are cumulative to other significant adverse effects, as is defined in the Supreme Court decision regarding the Cheviot Coal Mine in Alberta. They relate to impacts on terrestrial, aquatic and air resources over a large geographic distance.

 

2.  The proponent’s newsletter acknowledges that there will be adverse environmental impacts.

Their June/July 2000 newsletter states “every effort is being made to minimize adverse impacts.”

 

3.  How to assess environmental effects on land, in water and air is defined on pages 85-98 in the Responsible Authority’s Guide.  This means what factors to be considered as environmental effects are broadly defined for the RA.  The public has an opportunity to add to these factors in the scoping phase of the review and it is really important that people respond to the NEB Scoping Package.  In other words, the public can encourage more specificity in key areas, for example, such as disruption of the sea bottom and its associated communities and species.  However,  unlike in a panel review, it is only the RA who decides what level of effort is appropriate in the CSR and what factors are to be considered. 

 

4. To better understand the complexity of how environmental effects are evaluated, it is worth  noting one specific environmental concern as an example. There has been a 10 year effort led by Parks Canada, Fisheries and Oceans and B.C. Parks  to establish a Marine Conservation Area (MCA) in Strait of Georgia , along the border and up to Gabriola Passage.  This would protect ecological sustainability of the rich marine environment of the region and is broadly supported by national and regional conservation groups, the sailing and the fishing communities.  The proposed GSX project goes through the proposed MCA.  To further add to the complexity, the waters off East Point on Saturna are being considered as a priority for a Marine Protected Area (a more strictly defined no-development zone) because of orca whale and salmon habitat. This  is even more of a concern for Parks Canada, community and conservation groups especially if there is to be a foreshore component to the Gulf Islands National Park and because its location within in the proposed the pipeline corridor.  However, while Parks Canada has already publicly stated that it intends to intervene in this project because of its concerns regarding the MCA and the possible impacts on the proposed new Gulf Islands National Park it is unclear how this issue will be factored into the CSR because neither the park or the MCA have been proclaimed.  In a panel review there is more latitude in how this concern would be factored into the studies.

 

Clearly the geographic scope is significant and the complexity of the environmental effects associated with this project require a panel review.

 

Public Concerns

Public concerns about a project can trigger a public review.  The project is only the scoping phase and already there is demonstrably significant public concern. At present, and by no means all inclusive, the level and extent of public concern include the following:

 

Residents on Vancouver Island and in the three Gulf Islands where scoping meetings have been held have raised significant concerns regarding the project. These include

- need for the project

- alternative means for carrying out the project

- failure of the proponents to utilize the existing pipeline corridor from the mainland to  Vancouver Island

- alternatives to the project

-cumulative effects of the project

-specific terrestrial and marine effects

-safety; and

-lack of access to the review process

 

 

 There is a signed Memorandum of Understanding between the Islands Trust and the County of San Juan to preserve and protect the marine environment along the border.   The County of San Juan already has indicated to Williams Pipelines that it does not want a pipeline through the waters in their county.  Islands Trust is concerned that island residents have more opportunities for public input into the project planning and review process and the Chair has indicated that they will likely send a letter to the NEB and Minister Anderson regarding the need for a panel review.

 

Local, provincial and federal politicians all have been approached with respect to the project ‘s impacts and the lack of public access to the environmental assessment review process.  Each has requested a briefing and hopefully will send a letter to the NEB and  Minister Anderson requesting the need for a panel review.

 

Most of the major environmental groups in the lower mainland and islands have expressed concern with the process and have issues regarding the scope of the project and scope of the assessment.   The following are representative of those:

 

David Suzuki Foundation has expressed concerns about the project, particularly with respect to air quality and the need for demand side management.  They intend to respond to the NEB to request a panel review and have already sent a letter to the province detailing their concerns about the proposed project.

 

Canadian Parks and Wilderness Society, B. C. Chapter is concentrating on encouraging all levels of  government and working with local communities to establish a system of  Marine Protected Areas in the region. This project is of direct concern to them and they intend to respond to the scoping and the environmental assessment process detailing their concerns. 

 

Sierra Club of British Columbia  is also concerned, has been following the project, and will respond to the Scoping Package and will request a full panel review of the project.

 

Sierra Legal Defense Fund is assisting affected citizens and environmental groups with legal advice to submit their concerns regarding both the scoping and the process

 

In summary members of the public have already stated they are concerned about the project, and they do not have confidence in the proponents to listen to public concerns, adequately assess cumulative effects, alternatives to the project, or alternative means of carrying out the project.  More importantly, nobody wants a decision about the project made behind closed door. The CSR is not an effective environmental assessment review process for this project.

 

Previous Examples of Projects Sent to Panel Review

The National Energy Board as the Responsible Authority sent the application for the  Express Pipeline to a joint independent panel review following the scoping.  It is worth noting that this project only had terrestrial environmental effects rather than both terrestrial and marine effects as does the GSX project.

 

Fisheries and Oceans as the Responsible Authority requested that the Cheviot Coal Mine project be a joint panel review with the Alberta Government. This was because the proposed project is sited adjacent to Jasper National Park and cumulative effects were considered a significant factor.

The Federal Court decision which reviewed the panel’s report highlighted the seriousness of responsibility to review cumulative effects and alternatives to the project.