RAFFERTY – ALAMEDA AND ENTRENCHMENT OF ENVIRONMENTAL ASSESSMENT LAW CML 4103 SEPTEMBER 17, 2012

RAFFERTY – ALAMEDA AND ENTRENCHMENT OF

ENVIRONMENTAL ASSESSMENT LAW

CML 4103

SEPTEMBER 17, 2012

Stephen Hazell

Overview

• Comparison of U.S. and Canadian Federal Legislative Development in EA– National Environmental Policy Act of 1969– Environmental Assessment and Review Process

Guidelines Order

• Rafferty-Alameda and Entrenching Federal Environmental Assessment Law

Key Influences on Canadian EA Law Development 1970s, 1980s

• LaGrande Project and James Bay and

Northern Quebec Agreement

• Berger Inquiry Mackenzie Gas Project

• National Environmental Policy Act of 1969 (United States)

• Successes of Environmental groups in Rafferty-Alameda and Oldman cases

National Environmental Policy Act of 1969 (U.S.)

• Legislative response to community opposition to interstate highway construction and Santa Barbara oil spill

• Purpose - ensure that environmental factors are weighted equally with other factors in federal decision-making, including a multidisciplinary approach to considering environmental effects

NEPA Preamble

"To declare national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation..."

NEPA Key Sections

• Declares national environmental policies and goals

• Establishes action-forcing provisions for federal agencies to enforce those policies and goals

• Establishes Council on Environmental Quality (CEQ) in President’s office

NEPA Process

• Agency determines that proposed action (federal funding or permit for project) is covered by NEPA

• Three levels of analysis:– preparation of Categorical Exclusion (CE)– preparation of Environmental Assessment

(EA), Finding of No Significant Impact (FONSI)

– Preparation/drafting of Environmental Impact Statement (EIS)

NEPA Categorical Exclusion

• Agency determines that action does not individually or cumulatively have a significant effect on quality of the human environment

• CE’s listed by Agency based on experience with environmental impacts

• Application of CE must be in the absence of extraordinary circumstances (such as wetlands)

NEPA Environmental Assessment

• Provides sufficient evidence and analysis for determining whether to prepare an EIS, and facilitates preparation

• Aids agency's compliance with NEPA when no EIS necessary

• Determination of Finding of No Significant Impact (FONSI) follows EA

• No public participation

NEPA Environmental Impact Statement

• More detailed evaluation of environmental impacts compared to EA

• Components include consideration of alternatives, and public and other federal agency input into preparation of EIS (such as comment on draft EIS)

NEPA Enforcement

• Includes no criminal or civil sanctions

• Enforcement through judicial remedies sought by communities, proponents etc

Keystone XL and NEPA

• Keystone XL project ($7 billion) to carry 700,000 barrels tar sands oil from Hardisty Alberta to Cushing Oklahoma

• Presidential permit issued by Secretary of State required to construct petroleum facilities connecting U.S. to foreign country based on “national interest”

• NEPA triggered by permit application

Keystone XL andNEPA


• State Department determined that Permit is major federal action that could have significant impact on environment

• State Department prepared EIS under NEPA, coordinating with federal and state agencies

• Draft EIS released April 2010• Public comment period ended July 2010


• Environmental Protection Agency determined that Draft EIS was inadequate– Purpose and need too narrowly crafted– Air and water impacts not fully analyzed– Pipeline safety procedures inadequate

• Supplemental Draft EIS April 2011

• Final EIS August 2011


• State Department decided that further information required for pipeline routing, delays national interest determination until 2013 (November 2011)

• Congress legislated that President make decision within 60 days (December 2011)

• President denied permit to Keystone XL (January 2012)

Environmental Assessment and Review Process Guidelines Order

• Environmental Assessment and Review Process (EARP) established by federal Cabinet in 1973, strengthened by Cabinet Directive in 1977

• NEPA-style legislation opposed, based on concerns about litigation, delayed decision-making, reduced flexibility for government, power grab by Environment Department

Environmental Assessment and Review Process Guidelines Order

• Charles Caccia appointed Environment Minister in 1983, pressed for federal EA statute

• Order in Council in June 1984 (final Trudeau government decision) reflected internal government conflict on issue of legally binding EA rules

EARPGO – Similarities to NEPA

• Applies to “proposals” not “actions”

• Proposals are initiatives, undertakings or activities for which Canada has a decision-making responsibility

• Projects not having adverse environmental effects excluded

• Initial assessments akin to EAs under NEPA, no public input

EARPGO – Similarities to NEPA

• If initial assessment determines that proposal has adverse environmental effects that are insignificant or mitigable, proposal may proceed

• If initial assessment finds significant adverse effects, proposal referred to Environment Minister for detailed review

• FEARO’s role similar to CEQ

EARPGO – Differences with NEPA

• EARPGO provides for public review by a panel, with public hearings as well as public input and comment on EIS prepared by proponent

• Conventional wisdom - EARPGO not mandatory. Why else would term “Guidelines” be used?

Challenges facing Initial Panel Reviews

• Panel reviews in late 1970s and 1980s problematic

• Chaired by Executive Chairman of FEARO (s. 23 EARPGO), often included initiating department members

• But Panel members required to be “unbiased”, free of “conflict of interest” and “political influence” (s. 22)

Challenges facing Initial Panel Reviews

• Wreck Cove Hydro-Project (Cape Breton) Panel Review didn’t start until construction well-advanced

• Panel procedures for Point Lepreau (New Brunswick Nuclear Power Facility watered down to accommodate financing and construction schedule

Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda Project

• February 1986 – Rafferty-Alameda project proposed

• Two dams in Souris River basin to control floods

• Souris river is international waterway, flowing south into North Dakota, looping back north into Manitoba

Rafferty – Alameda Project Environmental Effects

• Loss of critical riparian habitat for endangered, threatened, rare species

• Mercury contamination, eutrophication of reservoirs

• Concern that reservoirs might not fill due to higher evapotranspiration from shallow, long (22km) reservoirs

Rafferty – Alameda Project Federal Decision Making

• Boundary Waters Treaty

• International Rivers Improvement Act

• Fisheries Act

• Navigable Waters Protection Act

• Souris Basin Development Authority and Saskatchewan attempted to shut feds out of review process (30 days to

respond to draft EIS)

Rafferty – Alameda Project SBDA Environmental Impact

Statement • Failed to consider environmental effects

in Manitoba and North Dakota

• Inadequate data on filling times for reservoirs

• Inadequate for licence under International Rivers Improvement Act

Rafferty – Alameda Project Federal Engagement

• January 1988 - SBDA applies for International Rivers Improvement Act licence

• Canadian Wildlife Federation, federal NDP call for federal EARP environmental assessment

• June 1988 - Environment Minister refuses to apply EARGO, issues licence

• Elizabeth May resigns

Canadian Wildlife Federation Cases (Rafferty No. 1)

• November 1988 - CWF files application for judicial review in Federal Court seeking certiorari and mandamus against federal Environment Minister

• Tetszlaff brothers (land owners) also file statement of claim

• Advantages of judicial reviews/actions by way of statement of claims?


• Legal Arguments favouring “Mandatory” interpretation– Use of word “shall” throughout indicates

intention that EARGO binds all to whom they are addressed, including Minister

– Applies to wide range of activities over which feds decide; must be mandatory

– “Applies to any proposal” s. 6 – Exceptions provided s.7,8,11(a)


• Legal Arguments opposing “Mandatory” interpretation– Ordinary meaning of Guidelines connotes

discretion on part of decision-maker – Minister of the Environment Act permits the

Minister to issue guidelines for use by regulatory bodies in the exercise of their powers not binding orders or regulations


• Federal Court Trial Division quashed Iicence under International Rivers Improvement Act, issued certiorari and mandamus order that EARPGO be applied

• Federal Court of Appeal upheld Trial Division ruling


• Environment Canada prepares Initial Environmental Evaluation, adverse environmental effects are “moderate”

• IRIA licence reissued

• CWF initiates second judicial review application arguing that independent review panel should have been appointed because “significant” effects


• Environment Canada prepares initial assessment, which determines adverse environmental effects are “moderate”

• IRIA licence reissued

• CWF initiates second judicial review application arguing that independent review panel must be appointed because assessment determined effects are “significant”


• Federal Court orders panel review be established within month, does not quash IRIA licence

• “Moderate” environmental effects not insignificant, therefore must be significant

• Minister appoints panel, but SBDA starts construction

Outcomes from Rafferty-Alameda

• Dozens of judicial review applications (including Oldman) follow based on decision that EARPGO is mandatory

• Federal government commits to federal statute, and introduces Bill C-78 in June 1990

• Resources and authority of FEARO increase dramatically

Take Home

• Broad similarities between NEPA and Federal EA laws

• Canadian federal laws provide more scope for public hearing processes

• Entrenchment of EA in federal law due in part to advocacy by aboriginal peoples in claims and environmentalists

RAFFERTY – ALAMEDA AND ENTRENCHMENT OF ENVIRONMENTAL ASSESSMENT LAW CML 4103 SEPTEMBER 17, 2012

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Transcript of RAFFERTY – ALAMEDA AND ENTRENCHMENT OF ENVIRONMENTAL ASSESSMENT LAW CML 4103 SEPTEMBER 17, 2012