The times, are they a-changin’? Standing and the ERCB

17 Feb The times, are they a-changin’? Standing and the ERCB

The times, are they a-changin’? Standing and the ERCB

For many years, one of the most troublesome points in environmental law in Alberta has been the very narrow scope of standing, the right to participate in court, regulatory or other legal proceedings. This has been particularly evident in relation to energy development and proceedings before the Energy Resources Conservation Board (ERCB), where the ability for parties to initiate hearings has generally been limited to those with property interests in land within prescribed distances from proposed wells or facilities. However, a trilogy of decisions from the Alberta Court of Appeal seems to signal a shift to a more flexible approach that is more consistent with the ERCB’s mandate to make its decisions in the public interest. Since 2009, the Court of Appeal has issued three decisions involving the same key parties: the ERCB and landowners Susan Kelly, Lillian Duperron and Linda McGinn. As each decision has the same name within its citation, Kelly v. Alberta (Energy Resources Conservation Board), for simplicity we’ll refer to them here as Kelly #1, Kelly #2 and Kelly costs.

Kelly #1 was a 2009 appeal of the ERCB’s refusal to give the landowners standing in relation to an application to drill two sour gas wells in the vicinity of their properties. Kelly, Duperron and McGinn all lived on properties located within the protective action zone (PAZ), an area determined by atmospheric modeling of possible releases of sour gas from the proposed wells. The relevant ERCB directive defined the PAZ as “(a)n area downwind of a hazardous release where outdoor pollutant concentrations may result in life threatening or serious and possibly irreversible health effects on the public.” The ERCB refused Kelly et al standing on the basis that their residence within the PAZ and the possible exposure to life threatening or serious, possibly irreversible, health effects were not sufficient evidence of a direct and adverse effect on their rights, and that to get standing, they must show that they would be affected in a different or greater way than the general public. However, the Court of Appeal disagreed. It found that residence within the PAZ was adequate evidence to establish standing and that the ERCB’s standing test does not include a requirement for a person to show a potential effect on them to a different or greater degree than the general public. It held that Kelly, Duperron and McGinn had standing and directed the ERCB to hold a rehearing of the well application.

Kelly #2 was a 2011 appeal by Kelly and Duperron of the ERCB’s refusal to give them standing on an application to drill a different sour gas well in the region of their properties. In this instance, Kelly and Duperron resided outside of the PAZ, but in a region referred to as the “tertiary zone” where persons would be advised to either evacuate or take shelter if a release of hydrogen sulphide from the proposed well exceeded 10 parts per million. They had provided evidence to the ERCB of medical conditions they have that could be adversely affected by hydrogen sulphide releases, but the ERCB refused to grant standing, indicating that Kelly and Duperron had not provided evidence that their medical conditions would be aggravated by hydrogen sulphide and that the risk of evacuation from their homes was not an adverse effect. Again, the Court of Appeal disagreed with the ERCB. It referred to its decision in Kelly #1 in finding that Kelly and Duperron did not have to provide evidence of a specific effect by the proposed well on their medical conditions. It also held that the ERCB’s reasoning in relation to adverse effects was not reasonable and that the need for an evacuation plan and possible evacuation was indicative of a “lurking risk,” which was the adverse effect. Most notably, the Court stated: “The right to intervene … is designed to allow those with legitimate concerns to have input into the licensing of oil and gas wells that will have a recognizable impact on their rights, while screening out those who have only a generic interest in resource development (but no ‘right’ that is engaged), and true ‘busybodies’ …that balancing is the responsibility of the Board, provided that it is done on a proper legal foundation.”

Kelly costs is the Court of Appeal’s January 2012 decision of an appeal by Kelly, Duperron and McGinn of the ERCB’s refusal to grant them intervener costs following the rehearing of the well application dealt with in Kelly #1. While legal points before the Court focused specifically on the interpretation of the legislation that gives the ERCB power to award costs, the greater significance of this decision is the Court’s discussion of the public interest aspect of the ERCB’s mandate and how the hearing process should work to carry out this aspect. The Court indicated that the purpose of the standing and hearing sections of the legislation is “to allow people to be heard” and that an award of costs may be necessary to allow the ERCB to fulfill its mandate.

An important aspect of this string of cases is that the Court of Appeal, while recognizing the deference that it must give to the ERCB as an expert tribunal, clearly identified where the ERCB was unreasonable in dealing with standing and costs decisions and provided direction to address those matters, rather than deferring on a blanket basis to the ERCB.  In particular, this direction focused on the ERCB’s ongoing use of very high evidentiary standards against interveners.

More significantly, in these decisions the Court has also spoken directly to the ERCB’s public interest mandate and what that practically means in terms of hearing process. The Court has clearly indicated that sound hearing process ensuring participation of affected parties is a key element of public interest decision-making and that a purely adversarial approach is not necessarily consistent with protecting the public interest, stating in Kelly costs: “The requirement for public hearings is to allow those “directly and adversely affected” a forum within which they can put forward their interests and air their concerns. In today’s Alberta it is accepted that citizens have a right to provide input on public decisions that will affect their rights.” These cases are a welcome development in Alberta’s environmental law landscape, providing much needed guidance on participation rules and public interest decision-making.

This blog post is part of research being carried out by the ELC under its public interest standing project, with funding support from the Max Bell Foundation. For more information about this project, contact Adam Driedzic, ELC staff counsel, at adriedzic@elc.ab.ca.

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