CAPP seeks to limit public involvement in Alberta energy projects: lobbying records

The Canadian Association of Petroleum Producers (CAPP), the self-described voice of the oil and gas industry, has laid out its vision for a “streamlined” public-involvement process in extensive lobbying records obtained by The Narwhal in a freedom of information request.

The lobbying records — obtained after readers of The Narwhal bellied up $643.95 to access them — span more than a year, and show CAPP’s input into key decisions made by the Alberta Energy Regulator.

The documents reveal that CAPP’s vision is one that would “expedite” aspects of public consultation — potentially reducing the opportunities for Albertans to voice objections to energy projects that affect them — and reduce the scope of projects that companies need to seek public input on.

Landowners and affected Albertans receive notice of new oil and gas developments that may directly and adversely affect them — whether it’s an oil or gas well, a pipeline, an oilsands development or another energy project. They can then file what’s known as a statement of concern if they are worried that the project will affect them or the local environment.

The lobbying records make it clear that industry is seeking to speed up or eliminate that process for some projects.

In one document, CAPP and other industry representatives denounced the statement of concern process as the “Achilles heel” of energy project approvals.

In another, CAPP laments that, when it comes to brownfield oilsands projects, “several [regulator] procedures that involve giving notice to the public regarding industry activities are leading to delays, as well as criticism of the industry.” (“Brownfield” refers to land where other industrial activities have previously taken place.)

And so CAPP is lobbying the regulator to “streamline” the process and reduce or eliminate the opportunity for the public to be involved in some cases — that could include shortening the 30-day period that stakeholders can file a statement of concern for some types of projects, or increasing the regulator’s use of discretion in posting public notice at all.

“A [statement of concern] is one of the only ways Albertans can try and have their concerns recognized,” Nikki Way, a senior analyst with the Pembina Institute who reviewed some of the documents, wrote in an email to The Narwhal.

“It is part of the ‘deal’ with oil and gas development in this province — that [Albertans] can have a say … Frankly, their ability for input and influence is already fairly limited to this process.”

Proposed changes ‘very concerning’

Advocates worry that public consultation and transparency are increasingly being pushed down the list of priorities for the province’s energy regulator, at the request of industry lobby groups.

“It’s what CAPP does,” Barry Robinson, a lawyer with Ecojustice’s Calgary office who reviewed some of the documents, told The Narwhal. “It lobbies the Alberta Energy Regulator and it lobbies the Government of Alberta to try to weaken regulations.”

Some of CAPP’s recommendations, he noted, have the potential to “essentially eliminate the ability for people to file statements of concern” for some types of projects.

“It’s very concerning.”

CAPP declined to answer specific questions from The Narwhal but did provide an emailed comment from Ben Brunnen, CAPP’s vice president of oilsands operations and fiscal policy.

“The Canadian Association of Petroleum Producers is advocating for a process that is clear, consistent and makes it easier for stakeholders that are directly impacted by projects to be involved in the [regulator’s] decision-making process,” Brunnen wrote.

“At the same time, making the [statement of concern] process more efficient and transparent will help increase regulatory certainty for industry,” Brunnen added.

“That will make it easier for companies to plan out projects and make investment decisions which, in turn, will help make Alberta a better place for industry to invest.”

But legal experts told The Narwhal they worry this increased efficiency may erode the regulator’s public-involvement efforts and further narrow an already-narrow process.

The Alberta Energy Regulator — a corporation funded by industry that is in charge of regulating the province’s energy industry — declined to answer specific questions and instead provided a statement by email, noting, in part, that “making Alberta’s regulatory system more efficient has been a priority since our inception in 2013.”

“As Alberta’s energy regulator, we have a responsibility to help create a more competitive province by ensuring that our system is modern and efficient, without compromising public safety and the environment,” wrote Jordan Fitzgerald, a spokesperson for the regulator.

“To this end, we are working on a number of initiatives, which includes clarifying our statement of concern process and application timelines to create greater transparency and certainty.”

No public notice if ‘in the regulator’s opinion’ there are minimal effects

CAPP has extensive access to Alberta Energy Regulator officials, with lobbying records showing frequent breakfast meetings, regulator-led workshops, meetings to share “informal updates,” emails, phone calls and coffee dates at Second Cup.

CAPP senior employees are also mainstays in a wide variety of stakeholder committees, like the regulator’s industry advisory committee and regulatory efficiency council — neither of which is listed on the regulator’s website.

Through its lobbying efforts, CAPP has been able to clearly outline its vision for the future of public involvement in energy project approvals.

In a November 2018 letter sent to the regulator, CAPP’s VP of oilsands, Ben Brunnen, laid out the association’s “key priorities with respect to streamlining”  the statement of concern process.

In the letter, Brunnen laid out numerous suggestions — pointing to regulations — including that the regulator should not need to let a public-notice period related to energy project proposals elapse before making a decision if, “in the regulator’s opinion has minimal or no adverse effect on the environment.”

CAPP, Robinson said, “is saying [to the regulator] ‘oh, you have this discretion so use it even more so’.”

Experts say this would appear to mean that if the regulator deems a project to be low-risk, a landowner or concerned member of the public would not necessarily be notified the application was taking place — and the regulator could make decisions before letting a public notice period elapse.

Brunnen also asked the regulator for a list of projects for which this exemption would apply.

“To further enable this process for [statement of concern] streamlining, industry would advocate that the [regulator] develop a list of project applications for which this exemption can be reasonably applied,” he wrote.

It is not clear from the lobbying records which types of projects CAPP expects this exemption to apply to, but The Narwhal has previously reported that the regulator deems 95 per cent of applications for oil and gas wells to be “low risk.”

The regulator plans to automate the vast majority of well approvals this year, resulting in processing times of as little as 15 minutes. Fitzgerald, the regulator spokesperson, told The Narwhal by email that, “changes to our application processing times do not affect the public involvement process.”

But others are concerned that industry and the regulator are increasingly willing to move ahead with projects that are not deemed to be high risk.

“CAPP is advocating for narrowly defining who can be involved and removing this process altogether for projects they assert are ‘routine,’” according to Way of the Pembina Institute.

“But ‘routine’ doesn’t mean that there is no risk. … Routine means there is a standard amount of risk compared to the thousands of applications the [regulator] is processing.”

‘CAPP is trying to push’ regulator to reject hearings

Robinson with Ecojustice points out that the public consultation process has already undergone substantial changes since the Alberta Energy Regulator started overseeing the industry in 2013.

“Prior to 2013, when the [Alberta Energy Regulator] was formed out of the [government’s Energy Resources Conservation Board], if the party was found to be directly and adversely affected, then there had to be a hearing,” Robinson said.

“They changed that,” he said. “Now holding a hearing is entirely up to the discretion of the Alberta Energy Regulator.”

Nigel Bankes, a law professor at the University of Calgary who specializes in natural resource law, told The Narwhal by email that many statements of concern are already rejected by the regulator.

Bankes last analyzed the results of statements of concern filed between 2015 and 2017. His recollection, he said, was “the success rate for qualifying statements of concern with the [Alberta Energy Regulator] was very low.”

“I would be surprised if that success rate has significantly improved.”

Fraser Thomson, also a lawyer and a colleague of Robinson’s at Ecojustice, says that gathering all the necessary information prior to making a decision on a proposed energy project — particularly if that approval is automated — is essential. That includes, he says, asking landowners and residents if they have any legitimate concerns about how a project could impact them — and listening to their concerns.

“You try to get all the info up front and make the best decision,” he told The Narwhal.

“Yes, it’s going to be a longer process,” he said,“but it’s going to be a better process.”

Way echoes that sentiment. “The people that are on the ground, with homes near these wells and facilities, are the people who might know a thing or two about impacts from these developments.”

Thomson is concerned the public may be increasingly cut out of the process.

“The [regulator] already has a lot of discretion in accepting statements of concern and holding hearings,” Thomson said.

“Obviously CAPP is trying to push them to use that certain discretion in a certain way to try to reject more statements of concern and hold even fewer hearings.”

Expediting public notice process

Fitzgerald, the regulator spokesperson, pointed out that there are many, many projects on the go in the province. “Every year, we receive about 40,000 applications — from accessing a parcel of land to drilling a well or building a pipeline,” he wrote.

“Regardless of the project, we share applications with Albertans on our public notice of application page and encourage public involvement in our decision making. Applications are typically available for review on this page for 30 days.”

But in lobbying records, it appears that the regulator conceded to CAPP that not all projects necessitate such a posting  — particularly when it comes to brownfield oilsands developments.

“Having to provide public notice for everything is potentially unnecessary and slows down project expansions/changes,” the Alberta Energy Regulator wrote in a document in collaboration with CAPP that sought to outline opportunities for “streamlining regulatory processes.”

The document also listed a number of “CAPP suggestion[s],” including that the Alberta Energy Regulator “should consider decreasing the amount of time for public notices to stay on website … There may be opportunities to go from 30 day notice to shorter, expedited route.”

“Frankly, which landowners check the Alberta Energy Regulator website very often?” asked Daryl Bennett, a director with Action Surface Rights, a landowner group in southern Alberta.

Bennett noted that, while he does agree with some of CAPP’s suggestions to address what he said could be potentially “vexatious” concerns about brownfield developments, he is very concerned that CAPP is seeking to reduce the ability of landowners to file statements of concern.

“A statement of concern may be the only avenue for landowner concerns to be addressed,” he said.

“Industry has deep pockets, access to lawyers and experts and are a well-run machine in handling objections,” he added.

“They want to ramrod their projects through.”

‘David and Goliath’

Donald Wieben, who has farmed near Fairview, Alta, for more than four decades, has recently been through the statement-of-concern process over a new pipeline right-of-way proposed to cross his farmland. He and his wife, Marg, filed the paperwork in time, but he told The Narwhal the window of opportunity for busy farmers and landowners is narrow.

“It would be awfully easy for a landowner to miss the timing for it,” Wieben said of the 30 days landowners have to file a statement of concern.

“Yes, they send you a slip in the mail, but it looks like junk mail,” he added. “It would have been easy to have missed it.”

The whole process of filing a statement of concern and getting to a hearing, Wieben said, can be “a bit like David and Goliath.”

“We couldn’t hire better lawyers than the company could afford,” Wieben said, noting that he and his wife have spent countless hours essentially “volunteering” their time in an effort to do what they feel is right.

Landowner sign-off on cleanup plans in question

Other recommendations give further clues as to the direction CAPP is lobbying the regulator to head in when it comes to involving the public in decision making.

In the documents obtained by The Narwhal, CAPP also lobbied the regulator on what are known as remediation action plans — plans developed to coordinate the cleanup of a contaminated area.

CAPP notes that “policy … requires consultation with affected person in developing a [Remediation Action Plan] … However the regulations requires ‘reporting’ not consultation.”

In essence, CAPP is arguing that policies are more stringent than provincial regulations require.

The association goes on to lobby that the policy be changed, so that industry should no longer be required to get the signatures of affected people — like landowners or farmers — to confirm that “their concerns and interest are accurately characterized” or to get signed “letters of no objection.”

In the documents, CAPP recommends “amending to soften the ‘must’ requirement to ‘should’ or ‘best efforts’.”

In other words, companies would no longer be required to have landowners sign off on their cleanup efforts, but would rather be encouraged to gain landowners’ approval on a voluntary basis.

“That would place the onus on landowners to prove that it’s not good enough,” Bennett said.

Public involvement ‘very important in the future’

The Alberta Energy Regulator does not necessarily implement all policies proposed by CAPP, but the two share a goal of increasing “efficiency” in public consultation, as well as speeding up the process where possible.

“All [statements of concern] are following our new process with a goal to move applications as quickly as possible,” wrote Bolo Talabi, VP of authorizations at the Alberta Energy Regulator in response to a letter from CAPP.

And though the regulator may not adopt all of CAPP’s suggestions, it’s clear the association’s lobbying efforts won’t be slowing down any time soon.

At a December meeting of the regulatory efficiency council — at which numerous CAPP, regulator and industry employees were present —  the group reviewed its work in 2018 and set plans for the future. In 2019, the minutes noted, the group would “keep the momentum going.”

As the council put it, “public involvement and related issues are going to be very important in the future.”

Way notes that there has been much talk in Alberta about cutting red tape and speeding up the approval process as of late.

“There is this perception that these projects are being held up for years. In most cases, that is not at all the case,” she said.

And, she said, there are repercussions for everyone if regulator processes are gutted.

“If the [regulator] and government were to follow CAPP’s recommendations in the name of shorter approval times, it would be at the expense of everyday Albertans.”