Pembina Institute for Appropriate Development v. Canada is the first Canadian legal decision to turn on how greenhouse gas emissions are disclosed. In this case, four nongovernmental organizations challenged the environmental assessment of a huge oil sands mine. The Kearl mine required a federal Environmental Impact Assessment (EIA) because the project needs a Fisheries Act permit from the federal Department of Fisheries and Oceans (DFO). A joint federal/provincial Panel was appointed to review the EIA, because of the project’s potential to cause significant adverse environmental effects.
One year ago, the Panel recommended that the Department of Fisheries and Oceans approve the project, on the grounds that its adverse environmental effects would be, after mitigation, insignificant. Environmental groups considered this decision wrong, and sought judicial review.
The Federal Court upheld the majority of the Panel’s report. The exception: its evaluations of the greenhouse gas emissions of the mine. On other issues, the Court held that the Panel had adequately evaluated the mine’s impact on land, water and endangered species. Even though considerable uncertainty remained about how these effects would be mitigated, and to what extent, the Court accepted that these could be managed through “adaptive management”:
“CEAA represents a sophisticated legislative system for addressing the uncertainty surrounding environmental effects. To this end, it mandates early assessment of adverse environmental consequences as well as mitigation measures, coupled with the flexibility of follow-up processes capable of adapting to new information and changed circumstances. The dynamic and fluid nature of the process means that perfect certainty regarding environmental effects is not required.”
it was acceptable to approve the use of innovative technologies, even though the Panel could not be certain that they would work. Provincial environmental regulators could step in , if needed. “while there does exist some uncertainty with respect to end pit lakes technology, the existing level of uncertainty is not such that it should paralyze the entire project.” Even where an endangered species, the Yellow Rail, would be adversely affected by the project, and even though there is no known technique to adequately restore its habitat after disruption, it was sufficient for the Panel to highlight concerns and make recommendations, including for further study.
However, the Panel had ruled that the adverse environmental effects of the greenhouse gas emissions of the project would be “insignificant”, even though the mine’s average emissions, 3.7 million tons of carbon dioxide equivalent per year, would equal the annual greenhouse gas emissions of 800,000 cars. The Panel had dismissed these emissions as insignificant “without any rationale as to why intensity-based mitigation would be effective to reduce the greenhouse gas emissions, equivalent to 800,000 passenger vehicles, to a level of insignificance.” The proposed mitigation measures were, in total: “the joint Panel supports Alberta developing appropriate EPA approval requirements to address greenhouse gas emission intensity targets.” The matter was therefore referred back to the same Panel “to provide a rationale for its conclusion.”
By the time the case was heard, DFO had already issued Imperial its permit to destroy fish habitat. Now, that permit has now been revoked, pending the Panels’ explanation of its conclusion. A further court challenge may follow that explanation.
In addition to its direct impact on the Kearl oil sands mine, this decision requires greenhouse gas emissions to be part of future federal environmental assessments on a wide range of projects. Both mitigation (reducing greenhouse gas emissions or sequestering previous gasses already in the atmosphere) and adaptation (preparing for the effects of climate change) will be necessary. In addition, many other regulators require evaluation and disclosure of environmental impacts, including the recent directive from the Ontario Security Commission for publicly traded issuers. Significant climate change risks and costs must now be addressed in such frameworks.