Why “specified gas emitters” don’t report “specified gas emissions”

Why “specified gas emitters” don’t report “specified gas emissions”

How much greenhouse gas does your favorite industrial facility produce?  We would all love to know.  On January 18, 2009, ELC staff lawyers attended a workshop on Alberta Environment’s Specified Gas Reporting Program.  There is a program?  Yes, in fact, Alberta has much greenhouse gas law.  The issues is with its complexity and non-transparency.  The Reporting Program is a test case for access to information, and it will be tested shortly.  By March 31, 2010, all industrial facilities emitting 50,000 tonnes of GHG a year must report to the province.  By June 1, 2010, the same facilities must report to the federal government.

How will the information be collected? The attached flowchart might help.   Alberta regulates GHG under the Climate Change and Emissions Management Act (CCEMA). CCEMA enables two parallel regulations:  the Specified Gas Emitters Regulation (SGER) and the Specified Gas Reporting Regulation (SGRR). The purpose of SGER is to reduce emissions intensity at large facilities.  Currently it applies to facilities that produce over 100,000 tonnes of GHG a year.  The purpose of SGRR is to create a GHG inventory.  It once applied to the same facilities, but will now catch all that produce over 50kt a year. 100kt or 50kt, the numerical reporting “threshold” is nowhere in SGRR.  It is in the Specified Gas Reporting Standard, a cabinet policy that can be changed any time.  SGRR references the Standard, incorporating it and making it law.  The Standard requires companies to disclose their monitoring and calculation methodology, and there are several choices.  Other mandatory items include: the tonnage of each gas, total direct emissions in Co2 equivalent, carbon capture and cogeneration.  Reporting emissions intensity is optional.  Optional?  Recall that SGRR now extends to facilities with no reduction targets under SGER.  These facilities “not subject to the Specified Gas Emitters Regulation” will use a form unfortunately labelled the Specified Gas Emissions Report:   The SGER form is not for SGER.   We’ll just call it the “Form”.   The 50kt facilities completing the Form receive no distinct technical guidelines, so must use those under SGER anyway.

Enter the federal government, which opposes enforceable climate change law but may still regulate emissions under the Canadian Environmental Protection Act (CEPA).  Regulations were expected in January 2010 but have yet to appear.  If they do, they will require reporting to the National Pollutant Release Inventory (NPRI) by June 1.  Industry is shell shocked by duplication, and the Canadian Council of Ministers of the Environment is considering a “one window” reporting system.

How can I see the reports? The SGRR instructs information seekers to begin with a “written request for data” directly to the “person responsible” for the facility.  Their contact information is on the Form,  which might require a call to Alberta Environment’s Climate Change Secretariat.  This glitch is not explained by the regulation.  If the facility denies the request or does not complete it in 30 days, repeat the request to the Climate Change Secretariat.  If the Director is satisfied that the request to the facility was made, then SGRR requires government to provide the information for free and within reasonable time.  A request will be denied if the company is being investigated under CCEMA, the Environmental Protection and Enhancement Act, the Water Act, or if the information is deemed confidential.  SGRR invites emitters to request that information be confidential for up to 5 years.  The request must be made by the March 31 deadline, and must include written reasons why specific parts of the information should be confidential.  It must be proprietary information, a trade secret, or disclosure must result in harm.  If so, it will be protected by both SGRR and the Freedom of Information and Privacy Act.  Confidentiality requests will be refused if the information is publicly available elsewhere.  A decision must be rendered within 90 days of the request.

Alberta Environment assures that confidentiality will require a “compelling case”, but the process raises many concerns.  Requests for confidentiality will be common as it is the very first checkbox on the Form.  Expect 120 days before  information is released, even if the release is not legally contentious.   Companies could argue that their figures should be confidential to protect proprietary methodology.  Figures are not likely to be “available elsewhere” when disclosure is forced by law.  The information that the public might want most could be from the same facilities protected by being under investigation.  It is not clear why a water license investigation is reason to keep greenhouse gas emissions confidential.  However, provincial shields cannot reach the anticipated federal reports.  Canada has already been shamed in court for not posting tailings reports in the NPRI, so there is hope that “one window” will be an open one.

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