CUMULATIVE EFFECTS AND WORST-CASE SCENARIOS: CHALLENGES FOR EA LAW MARCH 5, 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 S. 16 Every environmental assessment “shall include a consideration of the following factors: (a) the environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project and any cumulative environmental effects that are likely to result form the project in combination with other projects or 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 S. 16 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 2007 • 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 Cumulative Effects Assessment Issues • Need to make use of scenario-based CEAs (e.g., assess every 5 years)? • CEAA s.16 implemented infrequently (but see 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? Assessing Malfunctions and Accidents • Assessment of effects required of “any malfunctions or accidents that may occur in connection to the project” CEAA s.16 • Should such an assessment include worstcase scenario analysis? Is it legally required now under CEAA? • Worst-case scenario analysis required under NEPA (post BP Deepwater Horizon and 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: 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 km2 • Over 840 million m3 of tailings require long-term containment; expected to grow 30% to over 1.1 billion m3 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 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?