Introduction

This memo identifies key issues that PVEA and the public can use in their comment submission to the Site C EIS Guidelines released for public comment on April 12, 2012 (the “Draft EIS Guidelines”).

Issues

We identified the following issues with the draft EIS Guidelines that PVEA would benefit from having public support on:

  1. The spatial boundaries of what the EIS will study should not be arbitrarily limited.
  2. The EIS should be guided by the basic principles of environmental assessment, including sustainable development, the precautionary approach, the use of environmental assessment as a planning tool, meaningful public participation, the use of traditional and local knowledge, and the transparent and justified use of existing information.
  3. The “Need for” the project should be determined in light of the principle of sustainable development and the context of local communities and other affected groups; similarly, “Alternatives to” the project should include a “no-go” option.
  4. Cumulative effects / temporal boundaries – The EIS Guidelines should include components already in place (eg., transmission line and land reserve), other industrial development as well as past hydroelectric generation projects on the Peace River.

Analysis

1.      Boundaries Should Not Be Arbitrarily Prematurely Limited

The selection in the EIS Guidelines of the study areas and spatial boundaries of what will be assessed is premature and contrary to the purpose of the Canadian Environmental Assessment Act (the Act) to ensure timely and meaningful public participation throughout the environmental assessment process.[1]

Determining the areas where there may be an environmental impact of the Site C project must be based on the perspective of those individuals and communities that will be affected by the project. The decision must be culturally-based, in order to understand the effects of the proposed Site C on the rights and interests of those individuals and communities that will be directly affected by the project.

By delineating the local and regional assessment areas in the EIS Guidelines, BC Hydro has drawn those boundaries from its own perspective. It has also deprived interested parties, local governments, Aboriginal groups and the public of their right to meaningful and timely participation.

The 45-day window of opportunity to comment on the draft EIS Guidelines is not long enough to allow the pubic and interested parties to provide meaningful comments on the boundaries of the assessment areas. Consequently, determining spatial boundaries and assessment areas in the EIS Guidelines deprives the Proponent and government decision-makers of the benefit of determining the appropriate boundaries and scope of those areas in light of the information that will be made available through public consultations and during the environmental assessment process. As a result, there is a real chance that the EIS may not be based on the best available information and reflect current best practices in Canada.

Accordingly, determination of those boundaries should be done in the EIS itself, after the public has had a meaningful opportunity to comment on those boundaries, and BC Hydro has had the benefit of considering that public input.

2.      Guiding Principles

The Draft EIS Guidelines does not include a “Guiding Principles” section as included in the CEAA General Guidelines and other EIS Guidelines for Joint Review Panels in Canada. Moreover, key sections of the EIS Guidelines are missing important general principles to guide the EA process through each specific stage.

Guiding principles are an essential component of EIS Guidelines, as they help ensure that there will be the necessary flexibility and breadth to produce a comprehensive EIS. General guiding principles for such procedures as selection of the valued components that will be assessed (VCs), descriptions of the existing environment, selection of effects assessment methods, and the assessment of the effects of the Project on each VC, would greatly assist BC Hydro, the governments, the public and the Panel in determining the sufficiency of the nature, scope and extent of the information provided in the EIS.

Accordingly, the EIS Guidelines should include a “Guiding Principles” section which states that the EIS will demonstrate adherence to the basic principles of environmental assessment. Those principles should include:

  1. Sustainable Development[2]

Sustainable development seeks to meet the needs of present generations without compromising the ability of future generations to meet their own needs.

The objectives of sustainable development are:

  • The preservation of ecosystem integrity, including the capability of natural systems to maintain their structures and functions and to support biological diversity;
  • The respect for the right of future generations to the sustainable use of renewable and non-renewable resources; and
  • The attainment of durable and equitable social and economic benefits.

Promotion of sustainable development is a fundamental purpose of environmental assessment. Projects should not unduly affect the carrying capacity of the ecosystems and populations with which they interact. A project that is supportive of sustainable development must strive to integrate the objective of net ecological, economic and social benefits to society in the planning and decision-making process and must incorporate citizen participation. Economic decisions must be predicated on maintenance of ecological integrity, as healthy ecological systems provide for a healthy economy.

The EIS should, in considering the project (including alternative means of carrying out the project), address the relations and interactions among the various components of the ecosystems and meeting the needs of present as well as future populations.

The proponent must include in the EIS consideration of the extent to which the Project contributes to sustainable development. In doing so, the proponent must consider, in particular:

  • the extent to which biological diversity may be affected by the project;
  • the capacity of renewable resources that are likely to be significantly affected by the Project to meet the needs of present and future generations; and
  • the views of interested parties, especially local and aboriginal communities.
  1. Precautionary Approach[3]

One of the purposes of EA is to ensure that projects are considered in a careful and precautionary manner before authorities take action in connection with them, to ensure that such projects do not cause significant adverse environmental effects. The precautionary approach recognizes that a lack of full scientific certainty should not be used as a reason to postpone decisions where there is a potential for high level of risk of environmental harm.

In the EIS, the Proponent must indicate how it applied the precautionary principle in the design of the Project in at least the following ways:

  • demonstrate that all aspects of the project have been examined and planned in a careful and precautionary manner in order to ensure that they do not cause serious or irreversible damage to the environment, especially with respect to environmental functions and integrity, considering system tolerance and resilience, and/or the health of current or future human generations;
  • outline and justify the assumptions made about the effects of all aspects of the project and the approaches to minimize these effects;
  • evaluate and compare alternative means of carrying out the Project in light of risk avoidance, adaptive management capacity and preparation for surprise;
  • demonstrate that in designing and operating the project, priority has been and will be given to strategies that avoid the creation of adverse effects;
  • provide that contingency plans explicitly address worst-case scenarios and include risk assessments and evaluations of the degree of uncertainty;
  • identify any proposed follow-up and monitoring activities, particularly in areas where scientific uncertainty exists in the prediction of effects; and
  • present public views on the acceptability of all of the above.

In doing so, the proponent shall consider the guiding principles set out in the “Framework for the Application of Precaution in Science-based Decision Making About Risk”.

  1. Environmental Assessment as a Planning Tool[4]

Environmental assessment (EA) is a planning tool used to ensure that projects are considered in a careful and precautionary manner in order to avoid or mitigate the possible adverse effects of development on the environment and to encourage decision-makers to take actions that promote sustainable development and thereby achieve or maintain a healthy environment and a healthy economy.

The EA of this project must, in a manner consistent with the purposes above, identify its possible environmental effects; propose measures to mitigate adverse effects; and predict whether there will be likely significant adverse environmental effects after mitigation measures are implemented.

  1. Public Participation[5]

Public participation is a central objective of the overall review process. As set out in s. 4(1)(d) of the Canadian Environmental Assessment Act (the Act), one of the purposes of the Act is to ensure opportunities for timely and meaningful public participation throughout the EA process.

Public participation provides the public and organizations with a fair opportunity to contribute to the planning of projects that may affect them; allows proponents and federal authorities to better understand and address public concerns and priorities; reduces the potential for adverse environmental effects by identifying traditional and community knowledge that may be applied in the environmental assessment; and builds greater public trust in the environmental assessment process.

Meaningful public participation requires the proponent to address concerns of the general public regarding the anticipated or potential environmental effects of the project. In preparing the EIS, the proponent is required to engage residents and organizations in all affected communities, other interested organizations, and relevant government agencies. The proponent must provide in the EIS the highlights of this engagement, including the methods used, the results, and the ways in which the proponent intends to address the concerns identified, including a summary of issues raised during such engagement.

Meaningful involvement in the environmental assessment takes place when all parties involved have a clear understanding of the proposed project as early as possible in the review process. Therefore, the proponent is required to:

  • Continue to provide up-to-date information describing the project to the public and especially to the communities likely to be most affected by the project;
  • Involve Aboriginal people in determining how best to deliver that information (e.g., the types of information required, translation needs, different formats, the possible need for community meetings); and

Explain the results of the EIS in a clear and direct manner to make the issues comprehensible to as wide an audience as possible.

  1. Traditional and Local Knowledge[6]

Section 16.1 of the Act states that “community knowledge and aboriginal traditional knowledge may be considered in conducting an EA”, and the definition of an environmental effect in the Act addresses the current use of lands and resources for traditional purposes by Aboriginal persons.

Traditional and local knowledge has an important contribution to make to an EA. Traditional and local knowledge refers to the broad base of knowledge held by individuals and by communities that may be based on teachings, personal observation and experience or passed on from one generation to another through oral and/or written traditions. This tradition is dynamic, substantive, and distinct living knowledge.

Traditional and local knowledge, in combination with other information sources, is valuable in achieving a better understanding or potential effects of projects. Traditional and local knowledge may, for example, contribute to the description of the existing physical, biological and human environments, cultural heritage, natural cycles, resource distribution and abundance, long and short-term trends, and the use of lands and water resources. It may also contribute to project siting and design, identification of issues, the evaluation of potential effects and their significance, the effectiveness of proposed mitigation and/or compensation, cumulative effects and the consideration of follow-up and monitoring programs and accommodation (if required).

Certain issues relevant to the review process are firmly grounded in traditional and local knowledge, such as harvesting, land use, physical and cultural heritage resources. Although the basis for traditional and local knowledge and science-based knowledge can differ, they may on their own or together, contribute to the understanding of these issues.

The EA will promote and facilitate the contribution of traditional and local knowledge to the review process. It is recognized that approaches to traditional and local knowledge, customs and protocols may differ among communities and persons with respect to the use, management and protection of this knowledge.

The proponent must incorporate into the EIS the traditional and local knowledge to which it has access or that it may reasonably be expected to acquire through appropriate due diligence, in keeping with appropriate ethical standards and without breaching obligations of confidentiality.

The joint review panel will consider the views of communities, Aboriginal groups and traditional and local knowledge holders during the review process. The proponent may facilitate the presentation of traditional and local knowledge by persons and parties having access to this information to the joint review panel during the course of the review.

  1. Use of Existing Information[7]

In preparing the EIS, the proponent is encouraged to make use of existing information relevant to the project. When relying on existing information to meet the requirements of various sections of the EIS guidelines, the proponent must either include the information directly in the EIS or clearly direct (e.g., through cross-referencing) the joint review panel to where it may obtain the information. When relying on existing information, the proponent must also comment on how representative the data are, clearly separate factual lines of evidence from inference, and state any limitations on the inferences or conclusions that can be drawn from them according to the criteria for information quality set out in the EIS Guidelines. For instance:

  • assumptions must be clearly identified and justified;
  • all data, models and studies must be documented such that the analyses are transparent and reproducible;
  • the uncertainty, reliability and sensitivity of models used to reach conclusions must be indicated;
  • conclusions must be substantiated; and

the studies must be prepared using best available information and methods, to recognized standards of good practice in the relevant subject area.

3.      The “Need For” and “Alternatives To” the Project

The “Need for” the project should be determined in light of the principle of sustainable development and the needs of local communities and other affected groups. The “need for” the project must include the need to secure a secure a sustainable future for the Peace Region and the Province which depends on social and environmental robustness.[8]

Accordingly, the location and source of current and forecasted electricity demand are relevant to the consideration of alternatives to the Project. The location of the electricity demand is relevant to the transmission infrastructure required to meet that demand and therefore to the assessment of cumulative effects. An especially important consideration is whether BC Hydro’s determined its proposed “need for” the project based on export markets or the hydroelectric support of export-based industries.

An evaluation of the current and forecasted electricity demand should include the source, location and expected evolution of that demand. It should also include current and forecasted non-BC Hydro electricity conservation, electricity efficiency, and demand-side management measures, including embedded generation. All evaluations should include the assumptions and methodologies relied on.

Similarly, consideration and evaluation of alternatives to the project must include the “no project” option, in which the EIS considers different ways to meet the identified needs without having the project go ahead.[9] To ignore the possibility of meeting forecasted electricity demands without Site C is to allow treat the project, or some form of the project, as a foregone conclusion contrary to the principles of sustainable development, the precautionary approach and public participation.

4.      Cumulative effects / temporal boundaries

The EIS Guidelines should require the EIS to consider the cumulative effects of Site C with the effects of all past, present and foreseeable activities that have the potential to overlap with effects from Site C.

A proper cumulative effects analysis will use as its baseline the environment before any industrial activities, and will consider the effects of past hydroelectric projects on the Peace River, other activities that have affected the environment that Site C is also likely to affect, and components of the project that are already in existence (eg., the transmission line and land reserve).

To ensure that the description of the existing environment in the EIS be accurate, complete, and in accordance with CEAA Guidelines, the following guiding principles should be added to this section:[10]

  • The EIS will provide a baseline description of the existing environment, including their components and processes, their interrelations and interactions as well as the variability in these components, processes and interactions over time scales appropriate to the EIS. The description will be in sufficient detail to permit the identification, assessment and determination of the significance of potentially adverse environmental effects that may be caused by the project, to adequately identify and characterize the beneficial effects of the project, and provide the data necessary to enable effective testing of predictions during the follow-up program.
  • The baseline description should include results from studies analysing the environment prior to any physical disruption of the environment due to initial site preparation activities and characterization of environmental conditions resulting from historical and present activities in the local and regional study area. This description of the environment must reflect Aboriginal traditional and community knowledge, as well as social, cultural and economic activities and values related to the described components.[11]

Similarly, proper environmental assessment will also consider future scenarios that could reasonably occur, including and stemming from socio-economic and population projections, even if the details of specific developments and associated footprints are not known (and have to be simulated).

 


[1] Canadian Environmental Assessment Act, SC 1992, c 37, s 2(1)(b.3),(c).

[2] Per CEAA, General Guidelines at 4. See also: Lower Churchill EIS Guidelines at 9; Darlington EIS Guidelines at 6.

[3] Per CEAA, “General Guidelines” at 4-5; Canada, “A Framework for the Application of Precaution in Science-based Decision Making About Risk” (2003), available at http://www.pco-bcp.gc.ca/docs/information/Publications/precaution/Precaution-eng.pdf. See also: Lower Churchill EIS Guidelines at 9-10; Darlington EIS Guidelines at 6-7.

[4] Per Canadian Environmental Assessment Agency (CEAA), “Guidelines for the Preparation of an Environmental Impact Statement for the Comprehensive Study Process Pursuant to the Canadian Environmental Assessment Act” (March 2011) [CEAA, General Guidelines] at 1-2. See also: Newfoundland and Labrador Hydro, “Environmental Impact Statement Guidelines – Lower Churchill Hydroelectric Generation Project” (July 2008) accessed February 20, 2012 at http://www.env.gov.nl.ca/env/env_assessment/projects/Y2010/1305/lower_churchill_final_guidelines_en.pdf  [Lower Churchill EIS Guidelines] at 8; Ontario Power Generation, “Guidelines for the Preparation of the Environmental Impact Statement for Ontario Power Generation’s Darlington New Nuclear Power Generation Project” (January 2009) accessed February 20, 2012 at http://www.cnsc-ccsn.gc.ca/eng/pdfs/darlington_eis_guidelines_e.pdf [Darlington EIS Guidelines] at 4.

[5] Per CEAA, General Guidelines at 2; Canadian Environmental Assessment Agency, “Public Participation Guide” (May 2008) accessed February 20, 2012 at http://www.ceaa.gc.ca/46425CAF-50B2-408D-A2A4-EDFAD2A72807/Public_Participation_Guide.pdf [CEAA, Public Participation Guide] at 1-8. See also: Lower Churchill EIS Guidelines at 8; Darlington EIS Guidelines at 4-5.

[6] Per CEAA, General Guidelines at 3. See also: Lower Churchill EIS Guidelines at 8-9.

[7] Per CEAA, General Guidelines at 5. See also Darlington EIS Guidelines at 8-9.

[8] See, e.g., Panel Report Lower Churchill at 23.

[9] See, e.g., Lower Churchill EIS Guidelines at 15.

[10] The following paragraphs are taken from CEAA General Guidelines, ibid at 15-16 and the Lower Churchill EIS Guidelines, supra note 6 at 25-26.

[11] Lower Churchill EIS Guidelines, ibid at 25.

Advertisements