Deciding Factor: The mandate to protect public interest tests the resolve of regulators

3/16/2010

 
Published in Alberta Oil Magazine, February – March 2010
By Cindy Chiasson, Executive Director, Environmental Law Centre
 
Give yourself a few minutes’ break to indulge in a little imagination. Picture yourself as a member of one of the most influential regulators in Alberta: the Energy Resources Conservation Board (ERCB). Envision yourself seated at the front of a hearing room, listening to evidence from industry and landowners on proposed oil and gas projects. You have power. There is potential for you to affect the direction of Alberta’s future.
 
Now bring this picture into a bit tighter focus. Add to it the need for you to hear and weigh this evidence in order to meet the duty the provincial government has given the ERCB – to decide whether proposed projects are in the public interest. How hard can that be?
 
You may be surprised to discover that making decisions in the public interest is harder than it appears. Research has shown that the public interest can be defined in many ways. Academic theories have defined it as any interest common to all members of society, the interests of the majority, a balancing of competing interests, a determination based on the “best” ethics or science, shared values held by most of society, or any decision arrived at by following an appropriate process. There are also those who suggest that the public interest is meaningless as a concept because it cannot be defined.
 
In most jurisdictions where the public interest must be considered, government has put guiding principles in legislation to assist decision-makers. Many commentators agree that there is no one expert, person or organization that can bring forward the full range of views and values that are relevant to assessing the public interest. As a result, an important part of making public interest determinations is to hear from a wide range of interests.
 
As an administrative tribunal, the ERCB receives all of its powers and authority, as well as the limits of its decision-making, from legislation created by the provincial government. The Energy Resources Conservation Act created the ERCB as Alberta’s energy regulator. That bill gave the ERCB the duty, when holding hearings on proposed projects, to decide whether those are in the public interest, taking into consideration social, environmental and economic effects. Based on that limited direction, which is long on goals and short on details of how to achieve them, it is up to the ERCB to determine the public interest.
 
Now step back into your imagination. Given the limited direction and broad discretion the ERCB has, as a board member are you hearing all the voices, viewpoints and values you need to help you decide whether the proposed projects are in the public interest? The primary goal of corporations is to make money for their shareholders. Can industry operators fully and fairly provide all the evidence required to help you decide on the public interest? Does economic benefit automatically ensure social well-being and environmental protection? Landowners near proposed energy developments have a wide range of concerns including possible effects on their property values, health and businesses, particularly where agricultural operations are involved. Are their concerns and the evidence they may provide extensive enough to help you determine whether a project is in the public interest, or are their concerns mainly personal in nature and not necessarily representative of Albertans as a whole?
 
According to the Energy Resources Conservation Act, people who may be “directly and adversely affected” by an ERCB decision on an energy application have the right to participate in a hearing. Where there are no objections to an application by any potentially directly and adversely affected persons, the ERCB will process the application without a hearing. However, the act does not define what it means by “directly and adversely affected.” This status is determined by the ERCB on a case-by-case basis. To date, the ERCB has relied a great deal on the public consultation requirements it imposes on industry, which relate to land ownership and occupation and vary based on proximity to proposed energy projects. It has also taken into account safety, economic and property rights issues, and the significance of the likely effects on a person as compared to the general public.
 
Many critics feel the ERCB has taken too narrow an approach to interpreting who is “directly and adversely affected,” seeking to minimize the number of hearings it holds. One area that has proven problematic has been where energy development takes place on land owned by the provincial government. In those instances, the government issues the mineral rights but, as the landowner, is often also the only party that might be able to trigger a hearing through objections to the application. Unless the development involves sour oil or gas and may affect private landowners or occupiers nearby, there is little chance that interests other than the developer and the provincial government will have any input to the ERCB.
 
Canadian case law offers some direction that could be taken by the ERCB to assist it in more fully considering the public interest in its decisions. The general trend in cases dealing with public interest issues across Canada has seen courts assessing whether parties have sufficient genuine interest in the issues to participate in related court proceedings. As part of such an assessment, the court considers the party’s history of involvement in the issue. The ERCB could modify its approach to allow a hearing to be initiated by any person or group that has a legitimate interest that ought to be considered in determining whether an energy application is in the public interest, or that has an established record of legitimate concern for the interest they wish to represent.
 
Had enough imagining for one day? Before you finish, imagine how energy development decision-making might look if more input on the public interest came from economic, social and environmental perspectives. Imagine if those perspectives came from many sources with diverse interests. How would your Alberta look then? What could our Alberta look like if the ERCB listened more widely in the future?
 
 

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