20 Jul Accountable for what?
Accountable for what?
When we talk about accountability we are, by necessity, drawn into the world of law. The word “accountable”, meaning “responsible; answerable” (Black’s Law dictionary 9th ed.), evokes the idea that we must pay the piper for unmet promises. Accountability is a cornerstone of how our society works. That’s why the statutory and common law cover most conceivable promises, in work, in marriage, in death. It seems, however, that accountability for environmental impacts and decisions related to them are becoming increasingly elusive.
Consider the following situations that occurred within the last year in Alberta:
- Nexen Inc. has applied to Alberta Environment (no decision has been made yet) to divert 17,000 cubic metres of water a day from the Clearwater River. This, after indicating in its original application (and accompanying environmental assessment) for the SAGD Long Lake Project (Phase 2) indicated only groundwater would be used for the process. See “Nexen’s ‘bait and switch’ means trouble for the Clearwater river.”
- Capital Power has applied to amend its approval for the Genesee 3 coal plant to remove a condition that it voluntarily entered into to offset their green house gas emissions by 50 percent. Again no decision has been made as of yet. The obligation was written into section 10 of their approval (Go to and search for Application No. 1605976) See “Capital Power breaks a key promise to Albertans.”
- Leave to the Alberta Court of Appeal was denied in relation to Shell’s alleged breach of a voluntary agreement related to greenhouse gas emissions made with the Pembina Institute and the Toxics Watch Society of Alberta related to its Jackpine and Muskeg River Oil Sands mines. The Energy Resources Conservation Board upheld Shell’s approvals notwithstanding this breach of the agreement with a third party. See “Court ruling demonstrates oil sands review process broken.”
In each case there was a promise that was related to a regulatory approval process and in each case the companies have decided that promises in the past should be left in the past. It appears that being “responsible” or “answerable” in these instances is limited to shareholder return.
It should come as no surprise then that environmental non-government organizations view collaborative decision making processes and voluntary agreements with companies with increasing cynicism. The constant alteration of promises should also raise alarms for regulators; such promises being cited to justify projects as being in the “public interest” notwithstanding significant environmental impacts.
A central issue in all these cases is that there is no legal remedy to address the abandoned promises. Granted, decisions have yet to be made for both the diversion of the Clearwater River and the Capital Power amendment. Government discretion exists to refuse the applications: a result that may still come to fruition. However, there are no substantive legislative provisions addressing the issue of broken promises.
Further, considering the money invested once a project is underway, these companies are able to wield the “big investment club” against future discretionary decisions of regulators. So what is one to do when accountability for promises changes with the tide?
There are two primary legislative changes that would facilitate avoidance of these issues in the future. First, legislate citizen suits similar to those in the United States. This would allow private parties to force regulator action in relation to non-compliance with legislation and approvals. This would require corresponding amendments to include substantive provisions limiting government discretion in how it responds to changing promises.
Citizen suits can assist in combating agency capture by providing a level of public “policing of the police” on environmental matters. These suits could also be used to address enforcement shortfalls arising from resource deficits in government agencies. (For further reading see Matthew D. Zinn’s article “Policing Environmental Regulatory Enforcement: Cooperation, Capture, and Citizen Suits” (2002) 21:1 Stanford Environmental Law Journal 81.) (Zinn describes capture theory (i.e. agency capture) as viewing “regulators as subject to myriad pressures and incentives that push regulatory choices in the direction desired by regulated industry” at 108.)
The second legislative change should codify remedies for third party agreements related to regulatory approval processes. This, in effect, would recognize the legal rights of third parties in negotiating voluntary agreements and their relevance to regulatory processes.
These legislative changes, in turn, may either (a) limit the number of voluntary agreements and their use in justifying public interest decisions, or (b) ensure parties are accountable for promises made.
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