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.

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On January 9, the National Energy Board (NEB) finally announced the new panel members that will review TransCanada’s proposed Energy East pipeline, replacing the trio that recused themselves in September 2016 after revelations that panel members had secretly met with a TransCanada consultant.

But within hours of news breaking about the new panel members, a notice of motion was filed by the environmental law firm Ecojustice on behalf of Transition Initiative Kenora, calling for the complete cancellation of the entire Energy East review based on an unresolved “reasonable apprehension of bias.”

“The original panel presided over the review for years,” says Charles Hatt, one of the two Ecojustice lawyers representing Transition Initiative Kenora, in an interview with DeSmog Canada.

“All of those important decisions that they made along the way occurred after the conduct that gave rise to the reasonable apprehension of bias, after those meetings with the interested stakeholders.”

Hatt says it is clear the entire proceeding had been tainted by the reasonable apprehension of bias.

“There’d be no way for this new panel to look back and try to determine which of those many decisions were tainted and which were not.”

For Hatt and representatives from Transition Initiative Kenora, it simply isn’t enough for the former panel members to recuse themselves. The original panel’s work is tainted by a the apprehension of bias which Hatt describes as “the idea that there’s been some conduct that in the eyes of a ‘reasonable person’ gives rise to the perception of bias.”

These lingering concerns have led the petitioners to request the National Energy Board void the entire proceedings, leaving TransCanada with the option of starting from scratch.

‘Tainted’ Panel Made Dozens of Preliminary Rulings and Requests

The original Energy East review panel was announced in December 2014.

Only the following month, the two review panel members and NEB chair/CEO Peter Watson met privately with former Quebec premier Jean Charest, who was then working as a consultant for TransCanada.

While the NEB denied it at first, the meeting did in fact include specific discussions about Energy East including suggestions of “using the ‘Lac Megantic example’ to show that pipelines are safer than rail.”

Other private meetings took place that Watson and the panel members didn’t publicly disclose.

At least a year-and-a-half of preliminary work was completed by the panel prior to the beginning of the formal review in June 2016. This work was completed without any acknowledgment that members of the review panel had secretly communicated with the project proponent.

The new notice of motion by Transition Initiative Kenora, submitted to the NEB on Jan. 10, reports that the previous panel decided “dozens of procedural and substantive matters that have shaped the Board’s review of Energy East,” including 27 rulings, six procedural directions and nine information requests to TransCanada.

It notes the original panel also determined when TransCanada’s project application was complete and decided who could or could not participate as intervenors in the National Energy Board’s review of Energy East.

“It’s a continuation of work that we had started earlier,” says Teika Newton, executive director of Transition Initiative Kenora.

“We filed the notice of motion back in August that resulted in the original review panel recusing themselves in September. This is a natural progression on that.”

NEB Has to Respond to Notice of Motion or Refer It to Federal Court

Newton’s organization has specific concerns about the proposed construction of Energy East, especially the impacts of a potential oil spill on water sources, wetlands and marshes.

But she emphasizes the notice of motion is something that should concern any participating group given the need to ensure a fair regulatory process and review: “I don’t think we’re any different or have any unique concerns just because of who we are or where we are.”

“I think it’s an issue that applies universally to all participants,” she says.

Transition Initiative Kenora must now wait for the new panel to formally issue a response to the motion.

Hatt says the NEB will have to hear from all interested parties, which will include TransCanada and many intervenors. It could take weeks or longer to hear from all parties, after which the panel will have to make a decision.

The National Energy Board can refer the matter to the Federal Court of Appeal or could refuse to grant relief.

Hatt says “if and when that happens we will advise our client about challenging that decision in court.”

He adds that the motion provides the federal government with the opportunity to restart the process under a renewed National Energy Board Act and Canadian Environmental Assessment Act, both of which are currently under federal review.

Strengthened environmental laws could result in “a totally different type of review of these important pipeline projects,” Hatt says.

“They’ve put bandaids on the existing legislation but it’s still the legislation that was reformed by the previous government.”

It was also announced on Jan. 9 that Ginoogaming and Aroland First Nations had filed a lawsuit and injunction against TransCanada to ensure proper consultation for pipeline maintenance and prevent “integrity digs” that some fear are actually preliminary work connected to Energy East.

Environmental Defence has also called for the NEB to “pull the plug on the Energy East review and restart it only when an overhauled review process with a credible climate test is in place.”

Newton says her group is “content to just see what happens next in this ongoing saga.”

Image: Environmental Defence poster outlining risks of TransCanada's Energy East pipeline. Photo: Environmental Defence via Flickr (CC BY-NC 2.0)

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A group of 421 academics are requesting the Canada Revenue Agency (CRA) end its audit of the Canadian Centre for Policy Alternatives (CCPA), a group that describes itself as “an independent, non-partisan research institute concerned with issues of social, economic and environmental justice.”

As the Canadian Press recently reported, an internal CRA document stated the audit was the result of the CCPA being “biased” and “one-sided.”

In a letter to revenue minister Kerry-Lynne Findlay the group states it is “perplexed at CRA’s decision to perform the audit…on the groups that [the CCPA] allegedly engages in politically partisan, biased and one-sided research activity.”

“The CCPA is an internationally-recognized and respected research centre, built on a solid tradition of critical analysis,” the letter states. “Indeed, the CCPA plays a vital role by supplying much needed reflection on a number of policies, which it has always done in a fair and unbiased way, and which respects the fundamental tools of sound research.”

The group also criticizes the CRA, suggesting that by undertaking the audit, the CRA “fails to understand the nature of what academic research is all about.”

Read the full text of the letter below.

The request comes at a time when public criticism of what is being called the “politically-motivated” audit of Canada’s environmental charities and groups critical of the Harper government is reaching a new level.

At least 52 charities are undergoing or will undergo audit from the CRA. The federal government committed $13.4 million to the investigation and audit of charities engaged in political activities or who receive funding from foreign sources.

Mario Seccareccia from the University of Ottawa told the National Post the academic community is frustrated with the current government’s hostility towards academic research.

“It’s an environment that has been rather stifling when it comes to intellectual work,” he said. “There’s a real malaise…They’ve been irritating a lot of people.”

The group of academics is requesting the government halt all political activity audits of think-tanks until a neutral and transparent process for selection is put in place.

Minister Findlay maintains the audits are conducted in a manner independent from political interference or ministerial oversight.

Louis-Philippe Rochon, economist at Laurentian University in Sudbury and organizer of the open letter told the National Post there was ample support for the letter.

“This was a powder keg waiting to happen,” he said, adding signees were eager to add their name to the letter.

“Mostly from the social sciences and humanities, but some from the sciences. We have Canada Research Chairs, heads of departments, younger faculty, more established faculty, and from almost every university in Canada,” he said.

“It hit a raw nerve amongst academics,” he said. “The idea that if we reach a conclusion other than the official doctrine of the government, our research is somehow biased and political.”

Recently researcher Gareth Kirkby, a former journalist and graduate student in the public communications program at Royal Roads University, found the CRA’s audits appear to target charities that lean in a different direction than the current federal government, especially those that work on issues related to the petroleum industry.

Kirkby told DeSmog Canada the CRA document listing the CCPA as “biased” and “one-sided” fits in line with his graduate research. “The government has created a 'funnel' that pushes CRA to audit certain kinds of charities,” he said.

“And those charities are overwhelmingly on the ‘progressive’ side of the political divide, with policy preferences that differ from those of the cabinet: environmental organizations working on energy issues, international development and human rights groups, and charities receiving significant funding from labour unions.” 

Kirkby noted it was “strange” that some charities have passed multiple audits in the past, but are now being told they are “breaking the political activity rules or that their official ‘purposes’ are suddenly unacceptable.”

“The Fraser Institute, the Macdonald-Laurier Institute, and the C.D. Howe Institute are the right-leaning equivalent of the CCPA, with policy preferences pretty much lined up with the current government,” Kirkby added, “and they are not being audited for their political activities.”

“Any fair observer can see that all four of these think-tanks have world-views that influence their research choices without meaning that the result is partisan and biased,” he said.

Text of the open letter:

Dear Minister Findlay,

Recently, we were informed through reports in a number of newspapers that the Canada Revenue Agency (CRA) has undertaken an audit of the Canadian Centre for Policy Alternatives (CCPA) on the grounds that it allegedly engages in politically partisan, biased and one-sided research activity.

While we understand the need to prevent abuses of the charitable status, we are rather perplexed at CRA’s decision to perform the audit on this basis. The CCPA is an internationally-recognized and respected research centre, built on a solid tradition of critical analysis. Indeed, the CCPA plays a vital role by supplying much needed reflection on a number of policies, which it has always done in a fair and unbiased way, and which respects the fundamental tools of sound research. They have produced much-needed research on many disparate topics, such as on income and wealth distribution, the hidden government support of the Canadian banking sector during the financial crisis, and an analysis of alternative federal fiscal policy implementation annually. Since these various research studies are academically all of very high quality, you can therefore imagine how this news took us by surprise.

By undertaking this audit, we feel that CRA fails to understand the nature of what academic research is all about. Research begins from a series of questions and observations, and, from there, it proceeds, following a set of guidelines, to infer possible answers. In this sense, it contests. All research in fact is critical, by its very definition: it tests hypotheses, seeks answers, and must be allowed to find these answers wherever it can.

But critical policy analysis does not equate with political activism, nor is it “biased” or “one-sided”, as CRA has claimed. Researchers explore specific questions of interest, and then present the results of their research. Reaching a conclusion is not the same as bias. To illustrate, a CCPA researcher explored the issue of what would be the appropriate exchange rate regime for Canada and then concluded that a floating exchange rate was desirable to alternative types of exchange rate mechanisms because the former allowed the public authorities to conduct independent macroeconomic policies. The fact that this conclusion turned out to be similar to the policy view of the Bank of Canada does not make the CCPA researcher any more political than if the researcher would have produced that same research independently within his/her respective university.

The CCPA is not a political organization, nor does it engage in political or partisan activities. The fact that it has criticized government policy on a number of issues does not make it a partisan organization promoting a narrow agenda. Rather, it is engaging in serious, unbiased academic research. It may reach a different set of conclusions from those of the government, but then, this is allowed in a free-thinking, democratic country. On the contrary, we would argue, that such dissent should be encouraged and not stifled by such actions of the CRA.

Indeed, if there is bias, the bias seems to be mostly in the CRA’s decision to audit the CCPA and apparently no other think tanks, whose policy conclusions are friendlier toward current government policies. We are not aware of any audits being launched regarding “bias” at conservative think tanks like the Fraser Institute; some have publicly confirmed that they are not being audited (including the Macdonald-Laurier Institute and the C.D. Howe Institute). We are therefore left with the conclusion that the decision to audit the CCPA is politically motivated to intimidate and silence its criticism of your government’s policies.

We therefore strongly urge the CRA to put a moratorium on its audits of think tanks, until such time as a truly neutral criteria and auditing process are implemented to ensure neutrality and fairness, and to ensure that the audit process does not silence dissenting voices. Periodic audit should be conducted in a fair, transparent, and even-handed fashion across all the various think-tanks that claim charitable status in Canada, with a focus on financial management and integrity (not on the content of the research being conducted). Why single out only one such research centre that happens to be more critical of government policy? Instead of trying to muzzle and impede sound and legitimate research, it is now time for you to try to promote more effectively the public good in the form of sound critical research for which Canadian researchers are respected internationally.

Image Credit: UK in Italy via Flickr

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