By Barry Robinson, Ecojustice.

The Alberta Energy Regulator (AER) is Alberta’s one-stop regulatory body for the oil and gas industry. When it was created in 2013 by the merging of the former Energy Resources Conservation Board and parts of Alberta Environment and Parks, the AER made bold claims about transparency, enforcement and becoming a “world-class” regulator.

Unfortunately, the AER has failed to live up to its promises. The AER has shown over and over again that it is either unable or unwilling to enforce its own laws, directives and orders. The AER has become a toothless regulator.

As a public interest lawyer I see first-hand how the AER’s failures affect Albertans.

Take for example two of Ecojustice’s clients. Tony and Lorraine Bruder operate a cattle ranch near Pincher Creek. A preliminary environmental site assessment conducted at an abandoned sour gas well site on their property showed that the site was potentially contaminated with drilling waste, salts, metals, and hydrocarbons, including polycyclic aromatic hydrocarbons — all nasty things that you do not want on your property.

In September 2015, as a first step towards cleaning up this mess, the AER ordered Nomad Exploration Ltd., the licensee of the well site, to complete a more detailed environmental study by the end of November 2015.

Nomad ignored that order. Over the next few months, we repeatedly asked the AER what it was going to do about Nomad’s failure, but the AER took no action.

Finally, in May 2016, the AER ordered Nomad to prepare a plan by the end of June 2016 to complete the more detailed environmental study — that is, to prepare a plan to do the very thing the AER had already ordered Nomad to do six months earlier.

Most competent regulators escalate enforcement when an operator does not follow its orders — when you do not follow the rules, the consequences get more severe. In this case, the AER de-escalated enforcement. The penalty for not completing the detailed environmental study was just an order to “try again.”

This time, the AER said that Nomad must include in the plan a schedule to complete the detailed environmental study by the end of August 2016. After an extension of time and a couple of failed attempts, Nomad never did provide the AER with a schedule to complete the study. The AER then ordered Nomad to complete the study regardless by January 3, 2017, but then at Nomad’s request extended that date to February 15, 2017.

And guess what — Nomad again failed to meet that deadline.

Three Ways to Improve Alberta’s Toothless Energy Regulator #abpoli #abandonedwells @ecojustice_ca https://t.co/Zi2xiTuCrq

— DeSmog Canada (@DeSmogCanada) April 7, 2017

When we recently asked the AER what they were going to do about this continued non-compliance by Nomad, the AER’s response was “the AER is continuing to gather and assess the relevant facts and information in order to determine the most appropriate response moving forward.”

In other words, 18 months after ordering Nomad to complete the detailed environmental study, the AER still does not have a plan on how to enforce that order.

The Bruders’ case is only one example of a much broader and systemic problem of lack of enforcement by the AER. 

In July 2014, the AER announced that approximately 37,000 wells out of 80,000 inactive wells were not in compliance with the requirements for inactive wells. How does a regulator, that bills itself as “world class,” allow almost half of all inactive wells in the province to be out of compliance?

More recently, we have seen situations where the AER issued numerous warnings and orders to companies with no effect, with the end result that the only option was to transfer hundreds of wells to the Orphan Well Association, leaving financial responsibility for these sites to be borne by other industry members, the Canadian taxpayer, and eventually the Alberta public. The AER has numerous enforcement tools at its disposal but it simply refuses to use these tools to ensure compliance.

Which leads me to my response to the question, “How do you solve a problem like the AER?”  In a recent letter to Shannon Phillips, the Alberta Minister of the Environment and Parks, and Margaret McCuaig-Boyd, the Minister of Energy, we made three recommendations.

First, before drilling a well, the operator should have to deposit sufficient funds with the AER to pay for the clean-up. Then, when an operator refuses to carry out the clean-up work, or goes bankrupt, the AER would hold the necessary funds to complete the work.

Second, in 2014, the Responsible Energy Development Act stripped the Minister of Environment and Parks of her power to enforce environmental orders against energy companies and gave those powers to the AER. Given that the AER appears unwilling to use those tools, we think that those powers should be given back to the Minister.

Third, we think that it is time to consider whether the AER should continue to exist. If the AER is unwilling to enforce Alberta’s laws and its own directives and orders, perhaps the AER’s role should be transferred to the Departments of Energy and Environment and Parks.

In a recent publication, Jim Ellis, the President and CEO of the AER, said that regulators like the AER “hold a moral and ethical obligation to initiate bold and courageous action to improve the human condition.”

Perhaps before the AER embarks on the lofty goal of changing the world, they should get the simple stuff right — like enforcing the law.

Image: Pumpjack in rural Alberta. Photo: Kris Krug/DeSmog Canada

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To celebrate Clean Air Day, June 8, the B.C. Government issued a press release celebrating the province’s air quality in the Peace region, home to extensive natural gas operations and Site C dam construction.

The press release, which praises the “successful partnership to ensure continued clean air in the Peace region,” came on the heels of a federal warning issued to BC Hydro for failing to turn on air quality monitors near Site C dam construction.

Federal investigators with the Canadian Environmental Assessment Agency (CEAA) discovered monitors near Site C operations, which measure total suspended particulates, carbon monoxide, nitrogen dioxide and sulphur dioxide were not collecting any data.

CEAA compliance and enforcement chief Michel Vitou issued a warning letter to BC Hydro on May 26, saying the crown corporation “has been unable to monitor air quality effects in order to inform the appropriate authorities of exceedance of federal and provincial air quality standards.”

Vitou said he inspected the location of Site C construction from April 26-29 and discovered “none of the air quality monitors [were] currently collecting data.”

Failing to monitor for potentially hazardous violates BC Hydro’s agreement to follow the project’s Air Quality Management Plan.

The non-compliance violation, if not corrected, could cost the company $400,000, Vitou warned.

Federal Investigation Finds #SiteC Air Quality Monitors Turned Off https://t.co/3Xe2cvktPk #bcpoli #cdnpoli pic.twitter.com/8azyKjFjSO

— DeSmog Canada (@DeSmogCanada) June 9, 2016

“I am bringing this alleged contravention to your attention in order for you to take corrective action,” he wrote.

According to a report prepared for BC Hydro, impacts to local air quality are expected to be much higher during the construction phase of the project.

The report, prepared by RWDI Air Inc., lists these potential sources of emissions:

“clearing activities; prescribed burning and incineration of clearing debris; extraction, processing, movement and placement of construction and waste materials; drilling; explosives detonation and blasting; material handling and transfers; concrete batch plant operations; material processing; stockpile wind erosion; grading and scraping; fugitive emissions of road dust on paved and unpavedroads; mobile vehicle exhaust; diesel-fuelled equipment and generators; boats; aircraft and asphalt production.”

Construction of the dam is expected to last eight years. The highest levels of carbon monoxide emissions are anticipated to occur during year one of construction, the report notes.

During the most emissions intensive portions of construction, the overall emissions from expected contaminants — carbon monoxide, suspended particulates, nitrogen oxide, and sulphur dioxide —are expected to increase by 5 to 83 per cent in the study region.

B.C. launched its Northeast Air Quality Monitoring Project in 2012 to address growing public concern over air quality issues in relation to oil and gas.

Increasing industrialization in the province’s northeast coupled with longer wildfire seasons (and preventative prescribed burning in the mix) present a severe threat to the region’s air quality. The construction of the Site C dam, which is proceeding at breakneck speed, compounds those concerns.

Yesterday’s press release celebrates the relocation of three oil and gas air quality monitoring stations in the Peace region.

Let’s just hope the province ensures they’re turned one. 

Image: Site C logging. Photo: Garth Lenz

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The Alberta government has shuttered its arm’s length environmental monitoring agency after a report concluded the program was a “failed experiment.”   Minister of Environment Shannon Phillips announced Tuesday the Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA) would be disbanded and environmental monitoring will return back to the government.

“It ensures government is directly accountable for environmental monitoring and that issues or gaps in monitoring are responded to immediately,” Phillips said at a press conference.

Phillip’s ministry commissioned a report that described the Alberta Environmental Monitoring, Evaluation and Reporting Agency as overly expensive, poorly co-ordinated and plagued by bureaucratic bickering.

“It is hard to escape the conclusion that AEMERA is a failed experiment in outsourcing a core responsibility of government to an arm’s-length body,” wrote report author Paul Boothe, director of the Lawrence National Centre for Policy and Management at Western University’s Ivey School of Business.

The agency was created in 2012 as a reaction to criticism about Alberta’s lack of environmental monitoring in the oilsands — but ultimately, the program failed to attain the “world-class” monitoring standard the government touted.   “Critical dollars were being diverted away from monitoring and science to overhead and administrative duplication,” Phillips said.   Under AEMERA, provincial scientists were meant to collaborate with Environment Canada to monitor the oil industry’s impacts on air, land and water. It was funded by $50 million from industry and another $28 million from the province.   The new structure will have two panels: a science advisory panel and a traditional ecological knowledge panel. For the first time, environmental monitoring results will be made available to the public.   “This openness and transparency is essential to allow Albertans to rationalize the minister’s decisions and ensure they are making decisions in the best interest of Albertans,” says Andy Read, an analyst with the Pembina Institute, a sustainable energy think tank. 

Risk of Political Interference Remains

Experts warn legislative changes are needed to avoid political interference.   “It’s not enough just to fold this and roll it into environment and parks,” says Martin Olszynski, an environmental law expert at the University of Calgary. “If they’re committed, the next piece has to be legislative change with provisions around making monitoring mandatory.”

Olszynski says he would like to see enforceable deadlines for the delivery of data through legislation.   “This kind of monitoring is costly, and it will always be costly,” says Olszynski. “It would be very easy to fold that division without a public bru haha.”   Even AEMERA, which amalgamated individual monitoring programs across the province and was meant to operate as an independent organization, was never full free of political influence, Read said.    “They were still reporting to and needed approval from the minister to release environmental information,” Read said.     Boothe’s report confirmed that: “A lack of clarity around the government’s expectations regarding AEMERA’s ‘arm’s-length’ nature contributed to the poor relations between partners.”   Three years after its creation, AEMERA had not expanded to become a province-wide environmental monitoring program and had failed to find a stabile funding structure.   There remain unanswered questions about the new monitoring system when it comes to the role of stakeholders within the province and the relationship with the federal government.   “It’s still somewhat of a gap,” Read said, pointing out the decision has implications for groups such as the Wood Buffalo Environmental Agency.   “You need to build trust with regional representatives across Alberta,” Read said. “That’s crucial in even identifying what monitoring needs are.”

Role of Federal Government Unclear

One of the report’s major criticisms of AEMERA revolved around the role of the federal government and the agency’s inability to accept Environment Canada as a partner. As of now there is no clear path on how the federal government will be involved in the new structure.   “This is a classic issue and tension in environmental law in Canada,” Olszynski said. “It’d be nice if everyone could accept that it is shared jurisdiction.”   The announced changes maintain AEMERA’s funding model, which weren’t adequate for the province-wide mandate of the agency.   Read says the polluter-pay model has to be implemented province-wide to ensure adequate funding to deliver on monitoring the entire province.   “We definitely will be paying attention to how they establish themselves to collect funding,” Read said.    The Alberta budget will be announced on April 14 and the government expects the new monitoring system to be operational by this summer.

Photo: David Dodge via Flickr

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Oilsands monitoring programs aren’t quite living up to expectations.

That was the conclusion presented by a six-person expert panel in Edmonton on February 22.

The two organizations that were examined — the Joint Canada-Alberta Plan for Oil Sands Monitoring (JOSM) and Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA) — have improved in performance in recent years, according to the review.

But the organizations have largely failed at actually conducting analysis of the data collected about the four component areas: air, water, wildlife contaminants and toxicology, and biodiversity and land disturbance.

In addition, both JOSM and AEMERA have lacked clear mandates, a fact that has “severely hampered” success.

“The work of the Panel was made more challenging by the absence of an overarching document that clearly articulates the policy and scientific goals of the Governments of Canada and Alberta for oil sands monitoring,” according to the report, which was commissioned by AEMERA and Environment and Climate Change Canada.

AEMERA Struggling to Fulfill Mandate

Such revelations didn’t come as much a shocker for Martin Olszynski, assistant professor in law at University of Calgary who specializes in environmental and natural resources law.

“As someone who’s tried to use the data that’s been generated, I wasn’t surprised at all,” he says. “It’s very hard for anyone without training in all of the metrics. It’s very technical data that someone like myself — and I’m not a total novice when it comes to this — couldn’t make heads or tails of.”

AEMERA was established after Bill 31 — also known as the Protecting Alberta’s Environment Act — received royal assent in December 2013. Prior to then the JOSM handled the monitoring, evaluation and reporting activities.

But the hand-off of responsibilities to AEMERA hasn’t been straight-forward. The new organization, which receives most funding from industry, works with a limited budget of $50 million and has gone through three chiefs executives since its inception.

The province’s auditor general also shamed the organization in his October 2014 report for a lack of clarity and failure to include key details in reporting.

Programs Receive ‘B’ Grade from Panel

To be sure, the panel’s review praised data collection by the two organizations. Clarkson University’s Philip Hopke, who served as chair of the panel, gave the programs a ‘B’ grade at the press conference. There have been increases in sampling sites, frequency of sampling and geographical coverage.

Olszynski says it’s “mostly a good news story.”

But the data collected between 2012 and 2015 still hasn’t been processed or published in a way that can be understood by the public. It’s a problem that was predicted back in a June 2011 report by the Alberta Environmental Monitoring Panel, which emphasized that “monitoring by itself is not sufficient.”

“The value that the environmental monitoring system brings to stakeholders will only be fully realized with appropriate information dissemination activities,” noted the authors of the report.

Results Could be Suppressed

It’s an issue that Olszynski has observed for a long while. He says the translation of information to something that laypeople can understand is imperative to the success of the program.

An associated problem is that AEMERA isn’t yet a “household name,” meaning reporting that carried politically negative news (say, as a hypothetical, increased air pollution in a certain site) could be more easily muffled.

“Unfortunately, because they haven’t done that work to transmit that information that average Albertans and other stakeholders can use, my fear is that if tomorrow Alberta said ‘yeah, we understand this but we’re just not prepared to go ahead with this,’ I don’t think there would be much of a fuss that they would kick up,” he says.

Funding Woes in Tough Economic Times

Fred Wrona, vice-president and chief scientist at AEMERA, noted earlier this month that the organization is preparing to present findings this fall. In addition, AEMERA will be increasing staff numbers from 85 to 130 in the coming years.

The panel noted the utility of the information portal could be boosted with additional funding. However, Olszynski’s skeptical of the likelihood of “significant investments and resources” being directed towards the organization given current economic circumstances.

“I’m not sure it’s going to happen in the next couple of years,” he says. “That’s maybe forgivable.”

“But at least stay the course, don’t abandon the thing entirely,” he advises. “Keep it working as it is. It would be nice to have that comprehensive analysis now, but it’s not the end of the world if we don’t, and other people can maybe step up. But don’t stop collecting that data or doing the actual work of monitoring.”

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In a stunning and historic move, Alberta elected a majority New Democrat government on Tuesday.

The Progressive Conservatives, which finished in third place, consistently mismanaged the environmental and climate change file.

Ralph Klein, controversial premier from 1992 to 2006, despised the Kyoto Protocol and infamously flipped the bird at an activist who was protesting against a new Al-Pac pulp mill. Subsequent premiers often talked about improving environmental regulations, but seldom acted on it.

It’s yet to be known how different things will be under the NDP, but their win certainly marks a significant shift in sentiment.

“Together, we need to start down the road to a diversified and resilient economy,” newly crowned Alberta Premier Rachel Notley said in her victory speech. “To end the boom-and-bust roller coaster ride we’ve been on for far too long. It won’t happen overnight. But we must start, and we will.”

Notley also noted that she looks forward to working with Prime Minister Stephen Harper and other premiers on a “national approach to the environment and to Canada's energy sector that builds bridges and opens markets.”

Notley has said she won’t continue to promote the TransCanada Keystone XL and Enbridge Northern Gateway pipelines, but is in favour of Kinder Morgan’s Trans Mountain and TransCanada’s Energy East.

“It’s unclear, so far, what the NDP will do with the oil and gas sector, particularly the oilsands which is the fastest growing source of GHGs in Canada,” said Ed Whittingham, executive director of the Alberta-based Pembina Institute. “We’re eagerly awaiting their plan for dealing with it.”

The NDP’s platform was vague when it came to greenhouse gas emissions, saying the party “will take leadership on the issue” and “first steps will include an energy efficiency strategy and a renewable energy strategy.”

Those are both crucial policy points, especially when one considers the PCs have delayed the release of their renewable energy strategy since 2008. The climate change framework — originally intended for release last October — was allegedly being released in June. It’s unclear what the change in government will mean for that, or what the NDP’s plan is for augmenting the current, esoteric carbon levy.

“What we want now is for the new government is to really show the immediacy of the problem and tell the bureaucrats that those plans have to get done,” Whittingham said regarding the framework.

The NDP also committed to phasing out coal-fired power stations (the incredibly polluting fossil fuel is currently used for 43 per cent of electricity generation in the province) and expressed an intention to implement a green retrofitting loan program to help Albertans reduce energy usage via installation of solar and new furnaces, windows and doors.

The NDP also committed to diverting remaining money allocated to carbon capture and storage — a controversial technology former premier Jim Prentice once dubbed a “science experiment” — to public transit.

A more contentious component of the NDP’s platform involves a review of non-renewable resource royalties — called the “Resource Owners’ Rights Commission” — which would examine the amount of money the province makes from its oil and gas resources. While such a review wouldn’t automatically translate to increases in royalties (which sunk former premier Ed Stelmach), it does have energy sector CEOs concerned.

Any money made from “incremental royalty revenue” would be channelled into the Heritage Savings Trust Fund, the province’s sovereign wealth fund, which would then be used to invest in renewables or diversify the economy. That particular idea was critiqued by Andrew Leach, professor of energy policy at the University of Alberta, in a detailed Maclean’s feature on the NDP’s energy policies.

“If the premise is to use resource revenues to provide low-cost capital to otherwise non-viable economic activity in the province today, I’d call that spending and dispense with the need to flow the dollars through a fund,” he wrote.

The NDP’s infatuation with refining raw bitumen is something else that Leach (as well as fellow Maclean’s columnist Colby Cosh) has critiqued. In addition to being potentially uneconomical due to sheer investment costs and lack of comparative advantage (contrasted with, say, Texas or Louisiana), refineries would only increase Alberta’s reliance on petroleum products and services, writes Leach.

A surprising omission in the NDP’s platform was details about oilsands monitoring and regulation, something the PCs were often criticized for. The Alberta Environmental Monitoring, Evaluation and Reporting Agency was created in 2014 as a joint agency between the federal and provincial government, with funding from the energy sector.

But in the October 2014 auditor general’s report, it was noted that the agency’s annual report for 2012-2013 was delayed 15 months, “lacked clarity and key information and contained inaccuracies.” As a result, the auditor general suggested the governments could “fail to carry out their plan for monitoring the environmental impacts of oil sands development.”

At this stage, there are more questions than answers about what the NDP will mean for Alberta on the energy and environment file — but one thing’s for sure: those concerned about climate change have more reason to hope today than they did yesterday. 

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One year after plans were announced for a new system to monitor the environmental effects of the Alberta tar sands, there is still no sign of any formal data.

In February of 2012, the federal government, in partnership with the government of Alberta, announced plans for a new three-year environmental monitoring system to collect information on the Alberta tar sands. Touted as world-class by environment ministers at both the federal and provincial levels, the three-year plan is meant to track data on water, air, land and wildlife, and provide annual reports for the first three years, followed by a comprehensive peer review in 2015.

“We will make the system highly transparent. We will ensure that the scientific data that is collected from our monitoring and analysis is publicly available with common quality assurances and common practices in place,” Environment Minister Peter Kent said a year ago, at a joint news conference with Alberta Environment Minister Diana McQueen. 

The plans indicated that scientists would release information on an ongoing basis in some cases, and on three and six-month schedules in others. Officials anticipated the first round of information would be released before the end of last year.

The public may not have seen any results from this new endeavour, but multiple independent reports released this year have shown that the tar sands environmental footprint stretches significantly further than previously thought. A joint study between Environment Canada and scientists at Queen’s University discovered elevated levels of polycyclic aromatic hydrocarbons—or PAHs, the chemical produced when petroleum is burned—in bodies of water as far as 90 kilometres away from Fort McMurray.

Documents recently obtained by Postmedia indicate that the tailing ponds containing millions of litres of oil sands waste are leaking, contaminating groundwater in the surrounding areas.

The newly-implemented environmental monitoring system is intended to boost both government and industry credibility and combat reports of reckless environmental damage resulting from bitumen extraction and processing.

The Harper government has recently been the target of international scrutiny over highly restrictive communications policies for federal scientists. The new policies, said to prevent scientists from communicating with the media, have angered the scientific community across the country, prompting prominent organisations to condemn Prime Minister Harper's undemocratic control of information. 

In light of the recent scientific information regarding the environmental impacts of development in the tar sands, environmentalists such as Jennifer Grant, director of programing for the Pembina Institute, believe any new development should be halted until scientists better understand the impacts of existing operations.

The new monitoring plan is priced at $50 million per year – a cost that will eventually be assumed by the oil and gas industry. Government is currently covering costs until an agreement can be reached as to who exactly will be required to pay.

The issue of cost is one of several points of negotiation between the Alberta government and the Harper administration slowing down the process. Other issues involve the reconciling new information with old and deciding on a standardized method to present findings.

Albertans have long been wary of allowing the federal government to control any of their natural resources, and in a move that may have more to do with politicking than environmental protection, the Alberta government is creating a new, arms-length environmental monitoring agency to work alongside the joint federal-provincial initiative.

Scientist Howard Tennant, known for criticizing the Alberta government for allowing the federal government too much involvement in the province's resource management, will head the new agency.

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Companies responsible for two separate oil spills in Alberta failed to provide adequate oversight for their operations, according to federal government documents released by Environment Canada through Access to Information legislation.

The documents detail how Devon Canada and Gibson Energy violated environmental laws, including the federal Fisheries Act, when their operations cause two oil spills into fish-bearing waterways in 2010.

Gibson Energy, a midstream pipeline operator, spilled a few hundred litres of oil into an Edmonton creek after failing to properly abandon an unused pipeline. According to a warning letter issued to the company from Environment Canada, "Gibson Energy ULC made a business decision to keep the Kinder Morgan lateral full of crude oil and to not purge it with nitrogen."

The pipeline released a "brown foamy substance" into the waterway, indicating the pipeline suffered internal corrosion. "Based on information obtained, I have reason to believe Gibson Energy ULC was responsible for the release of a deleterious substance into (a creek) leading to the North Saskatchewan River and they were not duly diligent in preventing this release," wrote an Edmonton-based inspector and Environment Canada fisheries inspector, Deanna Cymbaluk.

Violations of this kind can encur a fine of up to $1 million or three years in prison in Canada. Similar infractions in the United States are often met with heavy fines and penalties levied against operators.

When Postmedia's Mike De Souza contacted Gibson Energy, communications manager Nicole Collard, refused to comment on the two-year old file, saying "we're not interested in participating in this." The Alberta regulator Energy Resources Conservation Board issued Gibson a "high-risk non-compliance" order for "improperly discontinuing/abandoning a pipeline."

An additional spill, of 350,000 litres, or the equivalent of 3,000 barrels of oil, occurred when a blowout could not be contained for 36 hours by Devon Canada, a major operator in the tar sands.

At the time Devon was conducting steam-assisted gravity drainage oil production, a process that uses steam to heat underground bitumen, allowing the viscous substance to more freely flow up a well-bore. The relatively new technique poses new operational challenges industry may not always be prepared for.

In this instance, Devon lost control of the procedure at its Jackfish facility after a combination of human error and damage cause by sand erosion caused a well failure. According to Environment Canada's Cymbaluk, Devon had "poorly documented protocols" and a "lack of planning for a well failure" at the time of the accident.

Tim Waters, manager of operations engineering at Devon told Postmedia "there were certain risk areas around the well-head and how the wells were operated that we didn't fully understand, quite honestly."

Devon is one of many tar sands operators hoping to improve their image through public relations campaigns. Recently Devon released a series of television commercials intended to highlight the company's environmental stewardship at its Jackfish facility.

Greenpeace's Keith Stewart suggests the commercials can't undo the industry's operational shortcomings: "When the oil industry's poster child for clean water can't stop a blow-out for 36 hours, it makes me wish we had stronger truth-in-advertising laws in this country."

Waters, however, maintains the commercials are accurate and demonstrate Devon's concern for the environment.

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“If people don’t speak out there will never be any change,” says the University of Victoria’s award-winning climate scientist Andrew Weaver. 

And the need for change in Canada, says Weaver, has never been more pressing.

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The federal government has repeatedly decided to forego prosecution for oil, gas and pipeline industry violations, according to Environment Canada documents released to Postmedia News through Access to Information legislation.

According to the documents the federal government issued 'warning letters' to companies like Devon Canada, a tar sands oil producer, and Gibson Energy, a midstream pipeline operator, after two separate oil spills proved the companies' respective facilities were in violation of the federal Fisheries Act. Violations of this sort can attract fines of up to $1 million, or three years imprisonment, the letters warned.

According to Postmedia's Mike De Souza, letters of this kind were sent to several companies in Alberta, Saskatchewan and Quebec for various offenses including the pollution of air and water as well as inadequate emergency preparedness and shoddy record keeping.

Environment Canada indicated warning letters are effective in gaining industry's attention. Prosecutions, on the other hand, are both expensive and time consuming. Yet, the released documents suggest that when it comes to monitoring and enforcement of industry's actions, the government may not be acting in the public's interest.

"Our goal isn't to prosecute for the sake of prosecuting (or) make the numbers look good in that sense," Heather McCready, a manager from the ministry's enforcement branch, told Postmedia. "Our goal is to bring people into compliance as quickly as possible."

"It's about protecting the environment. It's not about racking up points. So a warning letter can be a very effective tool to do that."

The Canadian Association of Petroleum Producers (CAPP), Canada's largest oil and gas lobby group, suggested the provincial and federal governments use a "compliance oriented approach" of enforcement to minimize risk.

However, Parliament's environment watchdog, Scott Vaughan the federal Commissioner on Environment and Sustainable Development, released an audit of Environment Canada in 2011, claiming the department's enforcement program is "not well managed to adequately enforce compliance with the Canadian Environmental Protection Act."

The conclusion of Vaughan's report stated Environment Canada did "not have adequate information on whom it is regulating and who is not complying" with the Act and that in many cases there was "no evidence that the Directorate had applied key management controls intended to ensure that enforcement officers carry out their enforcement activities…or that enforcement officers followed up on their enforcement actions to verify whether violators returned to compliance."

Environment Canada, the report held, was not in any position to know if its methods had improved compliance or minimized risk to Canadians and the environment, because the department simply wasn't monitoring its own activities, adequately training its employees or engaging in enforcement planning and targeting.

Vaughan told Postmedia: "Warning letters can work. There's absolutely no doubt (about that)." Adding, that one would "need to go back and figure out if the problem has been fixed."

Environment Canada's capacity to do so has been increasingly diminished after a series of funding cuts – millions of dollars worth – have rid the ministry of enforcement officers trained to test pollution and gauge the nature of an offense according to existing public health and safety standards.

Existing environmental legislation also took a significant hit last year with the passage of Omnibus Budget Bill C-38 which significantly reduced federal oversight of industrial projects while speeding up the process of their approval.

According to De Souza, Environment Canada officials "initially declined to answer questions about the nature of its warning letters in July 2012, prompting Postmedia News to make multiple requests for the records related to the oil and gas industry using federal access to information legislation…Environment Canada took about five months to process the access to information requests and release its warning letters."

Environment Canada also rejected the findings of Vaughan's audit, claiming the Department "disagrees with the audit's contention that the issues indentified prevent the Department from planning its enforcement activities to effectively target the highest risks to human health and the environment." Based on this contention Environment Canada wrote, "the Department does not accept the enforcement audit findings or conclusions."

Yet Vaughan maintains Environment Canada lacks the resources to monitor and enforce environmental regulations. According to Postmedia, "Vaughan concluded that inspectors needed special training to enforce 30 existing regulations on toxic substances but did not have this training for 16 of the listed substances and were lacking some critical laboratory facilities required to do their jobs."

As Vaughan stated, "there are some big gaps…Putting more money into something in itself doesn't necessarily make it fixed. So we said you have some pretty big gaps and you need to fix those gaps."

"There are some nasty stuff that these regulations (are intended to control) – asbestos, dioxins and furans – things that have been listed as toxic," Vaughan said. "They harm human health, they potentially cause cancer and so the regulations are there. Having a regulation on paper only goes so far and you need inspectors and you need a system to go in to make sure they have the full force of the law."

As the recently released documents demonstrate, however, Environment Canada's regulation remains largely on paper, where issued warnings take the place of strengthened monitoring, enforcement and, crucially, prosecution of polluters.

Vaughan recently announced his decision to resign from his position as Commissioner on Environment and Sustainable Development, two years before the end of his term. Vaughan has been treated with "disrespect" by the Harper government, while former governments met with him regularly for briefings and to discuss his reports.

Last spring, Environment Canada Minister Peter Kent suggested Vaughan's 2012 report, which discussed federal policies on climate change and contamination, was not credible.

Vaughan will take on a new position as president and CEO of the International Institute for Sustainable Development.

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