November 19 2012 Notes Cumulative Effects

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CUMULATIVE EFFECTS AND

WORST-CASE SCENARIOS:

CHALLENGES FOR EA LAW

NOVEMBER 19, 2012

Overview

• Two Different Challenges for EA Law

– Cumulative Effects

– Worst-case Scenario Accidents and

Malfunctions

• Cumulative Effects Assessment:

Cheviot Coal Mine Case

• Assessment of Worst-case Scenario

Accidents and Malfunctions: Tar Sands

Tailing Dams

The Cumulative Effects

Assessment Challenge

• Cumulative Effects - death by a thousand cuts

• High-probability environmental effects that are not significant for one project, but that become significant as projects aggregate over time

• Examples: grizzly bears, woodland caribou, global greenhouse gas emissions

Extirpation of Grizzlies in the U.S.

The Worst-case Scenario

Challenge

• Low-probability, highly unpredictable accidents or malfunctions that cause significant environmental effects in short period of time

• Examples: BP Deepwater Horizon,

Fukushima, tailing dam spills

Kolontar Hungary

Tailing Dam Failure

• Tailing dam burst at alumina plant near

Kolontar Hungary in 2010

• More than 700,000 cubic metres of red toxic sludge was released into tributary of Danube River

• Eight people died, 120 injured, 800 forced to evacuate

Kolontar Hungary

Tailing Dam Failure

Cumulative Effects Assessment

Legal Requirements

CEAA 2012 S. 19.(1) The environmental assessment of a designated project must take into account the following factors:

(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out

Cumulative Effects Assessment

Legal Requirements

• Provincial EA laws generally don’t require cumulative effects assessment

• Aboriginal claims-based laws include provisions similar to CEAA 2012 s. 19.(1)

Why Assess Cumulative

Effects?

• Needed as part of mechanism to predict and evaluate future consequences of proposed actions and alternatives?

• Project occurs within a context of existing, planned and future development

• CEA to understand interactions between effects of project and other development

• CEA focus on significance of adverse effects or project sustainability?

Cheviot Coal Mine Project

Cheviot Coal Mine Project

• Development, operation, and reclamation of open-pit metallurgical coal mine

• Construction, operation, decommissioning of a coal processing plant

• Restoration of rail line

• Upgrading of existing access road to mine

• Installation of new electrical transmission line and substation

Cheviot Coal Mine Project

• Located in the Rocky Mountains of westcentral Alberta 320 km west of Edmonton and 70 km south of the Town of Hinton

• Cheviot mine permit area is approximately

23 km long and 3.5 km wide

• Open pit mining carried out in phases over

20 years, with reclamation as new pits constructed

Cheviot Coal Mine Project

Cheviot Coal Mine Project

Cheviot Coal Mine

Environmental Effects

• Waste rock (millions of tonnes) dumped into creek beds (destroying fish habitat, habitat for threatened harlequin ducks)

• Destruction of grizzly bear and other wildlife habitat

• Proximity to Jasper National Park

• Cumulative effects in relation to other mines, and forestry activities

Assessment of the

Cheviot Project

• Cheviot Project triggered CEAA by

Fisheries Act

authorization (May 1996)

• Comprehensive study, then federal/Alberta

Energy Utilities Board joint panel review

• Joint Panel Agreement (including terms of reference) signed October 1996

• Hearings held, report issued in June 1997

Fisheries Act

authorization August 1998

Alberta Wilderness Association

(Cheviot) Case

• Application for judicial review filed in

September 1998

• Key Issue: Did the Panel err in failing to comply with para. 4.(a), s. 16, s.34 and joint panel agreement?

Alberta Wilderness Association

(Cheviot) Case Issues

• Legal duties fall on Panel not Proponent

• Consideration duty - Failure to consider s.

16 factors is error of law (what about breach of panel agreement?)

• Information-gathering duty s. 34 require that the Panel demand production of information it knows exists and is relevant to s. 16 duty?

• Reporting duty s. 34

Alberta Wilderness Association

(Cheviot) Case Issues

• Reporting duty s. 34, panel required to substantiate its recommendations for purposes of CEAA

• Use of valued environmental components valid as within the expertise of Panel

• Duty to consider cumulative effects breached by failure to gather known information on other mines and forestry

Alberta Wilderness Association

(Cheviot) Case Issues

• CEAA requirements (projects that have been or will be carried out) amplified by

Joint Panel Agreement (have been or are likely to be carried out)

• CEAA Policy Statement notes that cumulative effects assessments should include reasonably foreseeable projects

• Recent review panel TORs state that foreseeable projects should be included in

CEA

Cheviot Cumulative Effects

Assessment

• Alberta and Canada reconvened panel to assess cumulative effects in June 1999

• Joint Review Panel held further hearings, reported in September 2000

• Panel determined that primary sources of cumulative effects are forestry, mining, oil and gas, recreational developments

• Valued Environmental Components (water quality, grizzlies, elk, fish) are appropriate

Cheviot Cumulative Effects

Assessment

• Panel gathered additional information with respect to mining, forestry, oil and gas

• Cumulative effects on various bird species through losses in habitat, but not significant or readily mitigable

• Significant adverse effects on grizzly bears can be effectively and adequately mitigated through regional planning and implementation of Grizzly Bear Strategy

Sunpine and True North

Decisions

• Federal Court decisions on project scoping

• Consideration of cumulative effects under

CEAA mandatory, scope discretionary

• RA not limited to considering effects solely within project scope, nor restricted to considering environmental effects in federal jurisdiction

• CEA expressly broadens considerations beyond scoped project

Sunpine and

True North Projects

• Consideration of cumulative effects enables RA to consider environmental effects emanating from sources outside federal jurisdiction.

• This is a scope of assessment issue, not scope of a project issue

Policy Statement on Cumulative

Effects Assessment (2007)

• Cumulative effects assessments extends to effects of environmental changes on health/socio-economic conditions, physical

/cultural heritage, other matters described in “environmental effects” definition

• CEAs required to be carried out for projects that are “certain”, “reasonably foreseeable”, not “hypothetical” projects

• Level of efforts depends on size of project

Cumulative Effects Assessment

Issues

• Need to make use of scenario-based

CEAs (e.g., assess every 5 years)?

• CEAA CEAs implemented infrequently

(but Mackenzie Gas Project Panel Report)

• Is Project EA the right forum for CEA?

• Fairness to proponent (first project vs. later projects)?

• Regional EA? Strategic EA?

Cumulative Effects Assessment under CEAA 2012

• CEAA 2012 uses same CEA language as

CEAA 1992

• Does narrow definition of “environmental effects” under CEAA 2012 limit cumulative effects assessment to assessment of federal effects?

• Potential for Regional Studies (CEAA

2012 ss.37-38) to address cumulative effects?

Assessing Malfunctions and

Accidents

• Assessment of effects required of “any malfunctions or accidents that may occur in connection to the project” CEAA 2012 s.19.(1)

• Should such an assessment include worstcase scenario analysis? Is it legally required now under CEAA 2012?

• Worst-case scenario analysis required by

NEPA (post Deepwater Horizon),Inuvialuit

Final Agreement

Worst-case Scenario Analysis

• Purpose – avoid risks that worst case would occur and mitigate adverse effects

(emergency measures, contingency planning)

• Elements:

– Identify probability of event occurring (risk analysis)

– Determine severity of potential effects

– Identify prevention and mitigation measures

Mackenzie Gas Project

WCS Analysis

• WCS analysis undertaken for project components in Inuvialuit Region

• Inuvialuit Final Agreement required that

– Panel estimate “potential liability of the

Proponents, determined on a worst-case scenario, taking into consideration the balance between economic factors, including the ability of the Proponents to pay, and environmental factors. . .” (specifically wildlife harvesting

Mackenzie Gas Project

WCS Analysis

• Five worst-case scenarios identified, such as: well blowouts at anchor fields; pipeline ruptures; releases of natural gas, liquids

• Proponent commitments to mitigate negative impacts on wildlife harvesting in

Region identified

• Value of wildlife harvest loss and

Proponent liability estimated

• Financial responsibility guarantees recommended

Deep Geologic Repository

WCS Analysis

Deep Geologic Repository

WCS Analysis

• Proposed repository for low and mediumlevel nuclear waste at Bruce facility

• Ontario Power`s EIS includes WCS analysis pursuant to s.16.(1) CEAA

• “DGR must be able to safely isolate and contain low and intermediate level waste for tens of thousands of years and beyond without any significant adverse effects to the environment and members of public”

Deep Geologic Repository

WCS Analysis

• Examined potential environmental effects associated with likely events, also potential effects due to abnormal events

(malfunctions, accidents and malevolent acts)

• Safety assessments for “likelihood” and

“worst-case” accident scenarios set out in

EIS for 50-year pre-closure period and post-closure period

Deep Geologic Repository

WCS Analysis

• Scenarios included fire and breach of a waste package in the pre-closure period and glaciation in the post-closure period

• Human intrusion and severe shaft seal failure were identified as only scenarios with potential for significant radiation doses to persons living above repository

• Scenarios considered to be “very unlikely”

Tailing Dam Failures

• Annual failure probability of 1 in 700 based on 1970 to 2000 data

• This 0.1% chance of failure is ten times greater than that of a conventional dam

• Consequences of tailing dam failures are also more catastrophic

• Globally one significant tailings impoundment failure per year

Oil Sands Tailing Dams

• Three major oil sands tailing dam failures in Canada (all in 1970s)

• Oil sands tailings lakes cover 170 km

2

• Over 840 million m

3 of tailings require long-term containment; expected to grow

30% to over 1.1 billion m

3 by 2020

• Highly toxic: napthenic acid, heavy metals

• Reclamation of toxic tailings not yet demonstrated on a commercial scale

Suncor Tar Island

Tailing Dam

Joslyn North Mine Project

• Oil sands surface mine and bitumen extraction facilities proposed by Total

• 70 kilometres north of Fort McMurray

• Designed to produce 100,000 barrels per day of bitumen

• Annual GHG emissions of 1.5 million representing new 270,000 cars on the road every year

Joslyn North Mine Project

Joslyn North Mine Project

WCS Analysis

• CEAA, TORs required assessment of effects of any malfunctions or accidents

• TORs stated that the EA should consider

– the sensitive elements of the environment

(e.g. communities, homes, natural sites of interest, areas of major use) that may be affected in the event of an accident or major malfunction

– the likelihood of occurrence of such accidents or malfunctions

Joslyn North Mine Project

WCS Analysis

• Panel requested information on probability of accidents and malfunctions of dams and a major tailings spill to such water courses as Ells and Athabasca Rivers under low flow, ice, spring flood conditions

• Proponent responded “dam failure could occur as a result of inadequate strength of the foundations or dyke construction materials, seepage and erosion and overtopping“

Joslyn North Mine Project

WCS Analysis

• Proponent declared that “likelihood of tailings structure failure was minimal.”

• Data and analysis not on the public record

• Proponent declined to undertake detailed model spill scenarios describing tailings containment failure consequences

• Panel accepted conclusion of “minimal likelihood” of tailings containment failure at face value without analysis

Does CEAA Require Worstcase Scenario Analysis for Oil

Sands Tailing Ponds?

• Can legal argument be made that CEAA

2012 requires worst-case analysis of potential tailing dam failure?

• Are Panel`s legal obligations satisfied by merely determining that likelihood of tailing dam failure is remote or minimal?

• But isn`t the very concept of accidents and malfunctions that they are infrequent?

Jackpine Expansion Project

Jackpine Expansion Project

• Did Shell conduct a legally sufficient analysis of potential tailing dam failure?

• Is Panel legally obliged to upgrade analysis?

• Shouldn’t governments minimize risks of tailings dams failure in Athabasca region?

• Should proprietary rights outweigh public right to access information about tailings containment?

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