On April 16, 2014, the B.C. government was forced to rescind a controversial piece of legislation just two days after it came into force.

The slap-dash rule in question exempted proposed natural gas plants from undergoing environmental assessments.

It was a change fossil fuel companies and major donors to the then-ruling BC Liberals had been clamouring for as they ramped up drilling and fracking for natural gas in the northeast of the province.

Yet 48 hours after the exemption was put in place through an Order in Council, B.C.’s Environment Minister, Mary Polak, was forced to issue a mea culpa that hinted at an embarrassing lack of consultation with First Nations.

Nearly five years later, the events surrounding Polak’s jaw-dropping turnaround are worth revisiting in light of the current government’s overhaul of B.C.’s Environmental Assessment Act — the same piece of legislation that Polak so ill-advisedly set out to change.

Internal documents show industry request for exemption

Thanks to documents the Fort Nelson First Nation obtained through a Freedom of Information request, we know more about what happened back in Polak’s day.

Those documents clearly show that Canada’s preeminent fossil fuel industry lobby organization — the Canadian Association of Petroleum Producers — wanted the change that Polak signed into law.

A slide from a CAPP presentation to the B.C. government. The industry lobby group recommended certain gas plants be eliminated from provincial environmental assessments.

So did Encana Corporation — one of the province’s top natural gas producers and a substantial political donor, primarily to the BC Liberals but also to the NDP.

With the stroke of her pen, Polak formally ended the requirement that “upstream” natural gas processing plants must undergo provincial environmental assessments.

The change paved the way for speedy approval of such plants, of which Encana was known to want to build three. The plants, now built, owned and operated by Veresen Midstream LP, were designed to take raw gas from the growing network of drilled and fracked natural gas wells in northeast B.C., strip the gas of valuable liquids such as condensate, and then send the processed gas on its way to customers.

The same documents also show that Polak’s staff and others in government knew that what they were doing would be vigorously opposed by First Nations, whom they had pointedly failed to consult.

Fort Nelson First Nation not consulted on exemption

When the Fort Nelson First Nation found out, it was furious.

Making matters worse for Polak and her cabinet colleagues, the First Nation was scheduled to host an “LNG Summit” only two days after the regulatory change came into effect.

The matter quickly blew up in the government’s face, forcing Polak to rescind the regulatory change on April 16, 2014.

“Our government is committed to a strong, respectful and productive relationship with First Nations,” Polak said in a prepared statement. “That is why we will rescind the amendment that would have removed the requirement for an environmental assessment…”

That same day, Fort Nelson First Nation Chief Sharleen Gale stood on the stage at the LNG Summit and asked provincial government delegates in attendance to leave the hall.

Video of the meeting shows those delegates walking out of the hall to the steady beats of a line of First Nation drummers.

This screenshot of internal government e-mails shows Laurel Nash distributing a draft message to Fort Nelson First Nation chief Sharleen Gale in advance of the government’s decision to rescind gas plant exemptions.

An internal e-mail shows government official Cory Waters, a liaison between First Nations and LNG projects for the B.C. Environmental Assessment office, was concerned the natural gas plant exemption was coming into effect just two days before an LNG Summit, hosted by the Fort Nelson First Nation.

Meanwhile, behind the scenes, provincial officials tried to lessen the damage by writing to Gale.

A draft of the letter, contained in the FOI package released to the Fort Nelson First Nation, was written by Laurel Nash, then-chief negotiator for B.C.’s LNG and Strategic Initiatives in the Ministry of Aboriginal Relations.

“We take full responsibility for not engaging with you on this change or even advising you that it was going to occur prior to making the public announcement. This is not how we want to work together now and in the future,” stated the letter, which circulated in four different government ministries as well as the provincial Oil and Gas Commission.

An internal e-mail shows former B.C. deputy minister of the environment arranging a call to discuss managing the reaction of Treaty 8 First Nations, referred to as “T8” in this message, in advance of the government’s announcement to exempt proposed natural gas plants from environmental reviews. The Fort Nelson First Nation was not consulted on this exemption.

Exemptions quietly continued

But if anyone thought this signalled a change in direction, they were mistaken.

Polak may have been forced to backtrack, but she and her cabinet colleagues fully intended to continue exempting natural gas plants from environmental assessments, thereby saving the likes of Encana undisclosed amounts of time and money.

How do we know this?

Because Encana built not one, not two, but three massive gas processing plants in a row in northeast B.C. and each one of them was exempted from assessments.

The first of those plants — the Sunrise plant — was the largest of its kind built in western North America in 30 years. It was exempted from assessment shortly before the government’s short-lived regulatory change was made.

Then two other plants — the Saturn and the Tower plants, both of which are of a similar scale to the Sunrise plant —  were subsequently exempted by the B.C. Environmental Assessment Office after Polak was forced to back down and rescind the regulation.

These approvals happened despite the fact all three plants gobbled up land in B.C.’s allegedly protected Agricultural Land Reserve, and over the objections of local First Nations who were alarmed by the “cumulative” threats posed by multiple energy industry developments in their territories.

Political priorities reflected in regulator’s rulings

What the province failed to achieve by the blunt force of scrapping the regulation all together, it achieved through the back door.

Under Environmental Assessment Office rules, any company building a “major” or “reviewable” project can request that the office waive the requirement for a formal assessment. More paperwork is involved than if the regulation didn’t exist, that’s all.

Encana asked three times to be exempted, and each time its wish was granted.

Those decisions did not happen in a political vacuum. The FOI record clearly shows that the government of the day was committed to getting those gas plants built with no environmental assessments getting in the way.

Current B.C. government upholding back door exemption

This is the legacy that the current government inherited.

It knows that allowing the Environmental Assessment Office to retain broad discretionary powers to exempt major projects from formal environmental assessments is an affront to the very idea of free, informed prior consent — a cornerstone of the UN Declaration on the Rights of Indigenous Peoples, which the current government has sworn to uphold.

The problem with exempting major projects from environmental assessment

Unfortunately, the government’s recent revisions to the Act would see the Environmental Assessment Office retain the same sweeping discretionary powers as before, with the only caveat being that if the office recommends a project be exempted from review, then the minister would have to sign the actual exemption order itself.

This minor change marks a tiny step forward by placing the onus on the minister, but it is hardly one that should comfort First Nations or the general public.

All major industrial projects have environmental impacts.

We have a law in place that’s supposed to ensure a modicum of environmental protection by requiring that all such projects are assessed before being built. When governments allow — or indeed encourage — one industry to get around such rules, we have a problem.

The cleanest way to resolve that problem is to end the Environmental Assessment Office’s discretionary powers to exempt projects. No exceptions.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

When experts, such as engineers and geoscientists, submit reports on a project to B.C.’s Environmental Assessment Office, the generally accepted idea is that their information will reflect environmental standards and identify problems, allowing a project design to be changed or rejected if necessary.

But, that is not what happens in B.C. according to a study by University of British Columbia researchers that looked at 10 recent environmental impact assessments.

Researchers found that experts — usually hired by a company applying to build a mine, pipeline or other project — rarely take heed of generally accepted thresholds to determine if there is a significant environmental or health concern.

The study also found when impacts are likely to exceed established criteria — push past those accepted thresholds — experts find a variety of innovative ways to minimize potential problems.

Experts using ‘scorched earth reasoning’

Gerald Gurinder Singh, UBC senior research fellow in the Institute for the Oceans and Fisheries, said the paper shows biases and unscientific practices used in the environmental assessment process and underlines the need to balance evidence given by industry-paid experts.

“If an environmental impact, such as the release of pollutants which have human health consequences, is predicted to surpass a threshold of concern for human health, we would expect that that impact would be considered important or significant,” said Singh, co-author of the B.C. study and a second paper looking at scientific shortcomings in international environmental assessments.

The study found that, instead of flagging problems, the experts — who have an interest in ensuring the project goes through without expensive changes or mitigation measures — minimize the significance of impacts, even when they are likely to exceed set environmental thresholds, he said.

Common strategies include referring to less strict criteria used in other jurisdictions or claiming that modelling uncertainties could mean problems are unlikely, Singh told The Narwhal.

Another strategy, he said, is expanding the scale.

“For example, an impact on a local community, such as a local population of fish used by a community, might seem less important at a larger regional scale, such as the species as a whole in the province,” he said.

That larger focus would be used in the analysis even if it was not meaningful for stakeholders, Singh said.

One argument Singh identified goes along the lines of: the existing situation is so bad, with thresholds already being exceeded, that it does not matter that the project would make it worse.

“This kind of scorched earth reasoning doesn’t take into account that things can get worse still and we might want to make things better,” he said.

Opinions of the proponent-paid professionals are usually accepted by regulators, illustrating the underlying conflict of interest in using experts hired by industry, according to Singh.

The entire point of doing a scientific evaluation is to have an unbiased and transparent consideration of the potential impacts of projects on key areas of the environment and to have decisions helped by robust analysis, he said.

“If we can’t ensure that (assessments) are conducted according to good standards of evidence, guided by best practices in relevant scientific and other fields, then what’s the point of doing the assessment in the first place?” he asked.

Mitigation actions not taken

Making matters worse, an international study found a lack of enforcement of mitigation efforts, Singh said.

“We found that roughly one in 10 mitigation actions across the seven countries we sampled are worded in such a way that they do not need to do anything. Among our group we call these weasel words,” he said.

That means that the company promises to take action “if feasible” and then claims mitigation was not feasible.

B.C. is bringing in a new Environmental Assessment Act to replace rules written in 2002 by the former BC Liberal government, and critics and researchers are watching to see if government regulations — which will put meat on the bones of the framework legislation — will address basic problems they have identified.

B.C. environmental assessment overhaul marred by deficiencies, scientists say

New rules leave room for bias

Regulations will be introduced over the next few months, with the Act coming into effect next fall.

There is cautious approval of some measures, such as speeding up the process by ensuring potential hurdles are identified early, consideration of climate change and involvement of Indigenous communities throughout the process.

But there is already concern that the new legislation does not go far enough to ensure scientific independence and rigour.

The UBC study, which was published before the legislation was passed, adds fuel to that fire.

A letter to Premier John Horgan, signed by more than 180 university academics and science professionals, says the new legislation fails to fix fundamental flaws.

“We are concerned that the proposed process lacks scientific rigour, with significant consequences for the health and environment of all British Columbians,” says the letter.

“The continued lack of scientific independence, peer review and transparency in the evaluation of a given project’s risk to the environment will serve only to further undermine public confidence.”

A major concern of the scientists is that the new legislation still allows project proponents to collect and present the evidence for environmental assessments — the same problem identified by the UBC study.

“The information required to assess environmental risk would continue to be gathered and analyzed by those with a vested interest in project approval,” says the letter.

“This lack of independence can create a culture susceptible to biased data collection or interpretation and will continue to erode the public’s trust in a process that they expect to be fair and evidence-based.”

Jim Pojar, one of the letter’s signatories and former B.C. government ecologist, said the Pacific Northwest LNG project in the Skeena estuary demonstrates why project assessments should be based on information gathered and analyzed by independent experts — who don’t have a horse in the race.

Juvenile salmon in the Skeena River estuary near Flora Bank. Photo: Tavish Campbell

The controversial LNG project included a proposal for a terminal on Lelu Island, next to Flora Bank, one of the largest eelgrass beds in B.C. A 1973 report identified Flora Bank  has having “high biological significance as a fish (especially juvenile salmon) rearing habitat.”

Yet an engineering firm hired by the project’s proponent, reported to the Canadian Environmental Assessment Agency that there would be little to no environmental impact from building the LNG terminal next to Flora Bank.

That report concluded “salmon do not use Flora Bank eelgrass habitat for nursery habitat or other life dependent processes.”

That report “turned out to be flawed,” Pojar told The Narwhal in a previous interview.

“In one case they didn’t find a particular fish population because it was the wrong time of year,” he said.

The new B.C. legislation allows for peer review, but, like other parts of the bill, does not require it. Critics hope new regulations, which are still to come, add teeth to the Act.

We Spoke to Consultants Forced to Alter Their Work to Benefit Industry on How to Fix Canada’s Broken Environmental Laws

‘There needs to be more oversight’

An Environment Ministry spokesman, in an e-mailed reply to questions, said all information from an assessment will go to a technical advisory committee, probably made up of government and non-government experts, who will provide a third-party scientific review of data and information.

Experts, mediators and consultants can be retained by communities or opponents to provide independent advice to the Environmental Assessment Office, all data and analysis will be published online, including technical material provided by experts, and ministers will be required to provide reasons for their decisions, he said.

Qualifications, including impartiality, may be established by peer reviewers or by the technical advisory committee, said the spokesman.

But, there is also the need to close the funding disparity between the proponents, who are often multi-national resource companies, and opponents, who usually have considerably less funding to hire experts.

One solution would be for industry to pay into a pool, administered by government, which would allow communities or opponents of the project to hire their own consultants, Singh suggested.

“There needs to be more oversight on the quality of the research that is being done. It’s really problematic,” he said.

Environmental consultant Jackie Lerner, a co-author on both papers, said although changing to a central fund would help even the playing field, it would likely raise the ire of industry and such a change would need strong government commitment, she said.

“At the federal level it was one of the major recommendations from the Independent Panel Review and it is one of two recommendations they did not implement,” Lerner said.

“Politicians are responsible for things in the short term and the environment is very long-term payoff,” she said, adding governments often want to avoid appearing too hard on industry.

One major objection from industry is that putting the process into the hands of bureaucrats would extend the time frame, Lerner said.

“Another common argument is that the proponent knows his own project the best and the project has been refined and improved before it gets to government,” she said.

“But, I don’t actually see that happen very often. Industry does not usually like to change major parts of engineering because of environmental considerations” during the environmental assessment process, Lerner added.

A simple fix would be to have government running the show by paying experts to do the analysis, she suggested.

Government does require some proponents to fund First Nations to enable them to hire experts, but the funding remains uneven, with companies often spending about $3-million, compared to about $150,000 for communities, Lerner said.

Like others, Calvin Sandborn, legal director of the University of Victoria’s Environmental Law Centre, acknowledges the new legislation is an improvement, but one of the major flaws is that proponents will still provide the bulk of the evidence and government scientists on the technical advisory committee are unlikely to have the in-depth knowledge of company experts, Sandborn said.

“He who pays the piper calls the tune…I think the lynchpin of this thing is the lack of assurance that the body of evidence is going to be objective,” he said.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.