Citing pandemic, Alberta suspends environmental reporting rules

The Alberta government has suspended a number of environmental reporting requirements through a ministerial order signed by environment minister Jason Nixon, saying industry is likely to face hardship due to the COVID-19 outbreak if forced to comply with those rules.

The order, which was signed on Tuesday, suspends environmental reporting requirements for the Environmental Protection and Enhancement Act (EPEA), the Water Act and the Public Lands Act, except in cases of drinking and wastewater facilities.

The move follows a step taken by the U.S. Environmental Protection Agency (EPA) on Thursday, which also cited the coronavirus pandemic as the reason behind it waiving enforcement on a number of environmental protections.

Alberta's order is not due to lapse until August, unless terminated sooner. The province said operators are still required to fully comply with all other environmental regulations during this period and report any emergencies to the government.

"To be clear, monitoring, record keeping and other activities will continue. Due to the pandemic, we are simply temporarily waiving filing deadlines to report this information," said Jess Sinclair, press secretary to Nixon in an email to CBC News.

'What's the intention here?'

Martin Olszynski, an associate resource law professor at the University of Calgary, said the EPA's policy, though not identical, is stricter in some ways compared to what is being introduced in Alberta.

"There's a requirement [in the EPA move] that's tied back to, you're unable to do this because of public and health and safety concerns in relation to COVID-19. Whereas this one doesn't do that at all," Olszynski said.

"This one is almost like a blanket exemption."

In the order, the Alberta government says industry must still "record and retain complete information relating to any reporting or return requirements" — data gathering activities which Olszynski said could pose risks from a public health perspective.

"But it doesn't prohibit those. It just doesn't require the proponents to submit that information, which, you know, in this day and age, with few exceptions, usually just means filing and pressing a couple buttons on a computer to submit electronically, your report," he said.

"So it's left a lot of us scratching our heads a bit. What's the intention here, and what's the rationale?"

Olszynski cited Alberta's announcement on Tuesday that it had agreed to invest approximately $1.1 billion US as equity in the Keystone XL project as a reason why, in his opinion, the order hadn't been explained sufficiently.

"Construction on Keystone XL is going to begin immediately. So, if you can begin construction on a pipeline immediately, it's hard to understand how, from any kind of public health perspective, you can't have proponents submitting reports of their environmental data," he said.

Possible outcomes

The order will reduce costs, Olszynski said, given that analyzing, organizing and readying data to be submitted has a price tag.

"That's my most generous interpretation that I can give it," he said. "But I'll be frank, I've read a lot of approvals, and I've read a lot of the reports that are submitted as part of these approvals. These are not hugely sophisticated exercises."

On the flip side, Olszynski said a months-long interruption in data could undermine reliability and researchers' ability to infer anything from that data.

"The thing that probably some of us fear is that some proponents will see this as a licence or an invitation to not actually do the gathering," he said. "In this context, when you send a message to your regulatory community that, 'This is not as important to us right now, because we're dealing with this other thing.'

"There's a danger there that people will see it as an invitation or a licence to play fast and loose with the rules."

Project examples

An example of what regulations are involved in these types of scenarios is illustrated in the case of Fortress Mountain Resort, which in October of 2019 was allowed to change its water license.

Shaun Fluker, environmental law professor at the University of Calgary, said the reporting requirement of that approval required Fortress to regularly report flow rates — something the new order pauses.

"Yes, they still have to record the information. But nobody's going to know, until it's long after the fact, whether or not the flow rate was where it needed to be," Fluker said. "So, routine reporting requirements are arguably, in some cases, the bedrock of the regulatory apparatus."

Fluker said the moves run the risk of looking like an overreach given how quickly they were enacted.

"The risk of any of these powers, is that they're exercised without democratic dialogue," he said. "Time is of the essence, no doubt, but another day or two to debate whether or not we've got enough mechanisms in here to ensure we're not creating more problems than we're solving — I think we would have that time."