I was disappointed to hear the decision of the Federal Court on 5 March 2008 regarding the permitting of the Imperial Oil (and parent/partner ExxonMobil) Kearl Lake Oilsands Project in northern Alberta.
To summarize the situation, the Pembina Institute, Sierra Club and other environmental groups made an application in Federal Court asking for review of the environmental assessment that was made by a joint panel of the Governments of Alberta and Canada to assess and decide/recommend whether the project should be granted the requested permits for construction and operation.
There were three issues for which the applicants sought judicial opinion on whether the joint panel made “reviewable errors” for failing to live up to the requirements of the Canadian Environmental Assessment Act of 1992 (CEAA):
- Cumulative Effects Management Association, regarding watershed management and landscape reclamation
- Endangered species, specifically the Yellow Rail, a small waterbird listed as endangered in the Species at Risk Act of 2002, but listed as of Least Concern in Wikipedia.
- Greenhouse gas emissions
On the first two items, the court ruled against the applicants on solid legal grounds. On the third however, it ruled for the applicants. Specifically:
 The applicants submit that the Panel erred by failing to provide a cogent rationale for its conclusion that the adverse environmental effects of the greenhouse gas emissions of the Project would be insignificant, and by failing to comment on the effectiveness of intensity-based “mitigation”. According to Imperial Oil’s EIA, the Project will be responsible for average emissions of 3.7 million tonnes of carbon dioxide equivalent per year, which equals the annual greenhouse gas emissions of 800,000 passenger vehicles in Canada, and will contribute 0.51% and 1.7% respectively, of Canada and Alberta’s annual greenhouse gas emissions (based on 2002 data).
 I recognize that placing an administrative burden on the Panel to provide an in-depth explanation of the scientific data for all of its conclusions and recommendations would be disproportionately high. However, given that the Report is to serve as an objective basis for a final decision, the Panel must, in my opinion, explain in a general way why the potential environmental effects, either with or without the implementation of mitigation measures, will be insignificant.
 …The Panel dismissed as insignificant the greenhouse gas emissions without any rationale as to why the intensity-based mitigation would be effective to reduce the greenhouse gas emissions, equivalent to 800,000 passenger vehicles, to a level of insignificance…
 While I agree that the Panel is not required to comment specifically on each and every detail of the Project, given the amount of greenhouse gases that will be emitted to the atmosphere and given the evidence presented that the intensity based targets will not address the problem of greenhouse gas emissions, it was incumbent upon the Panel to provide a justification for its recommendation on this particular issue. By its silence, the Panel short circuits the two step decision making process envisioned by the CEAA which calls for an informed decision by a responsible authority. For the decision to be informed it must be nourished by a robust understanding of Project effects. Accordingly, given the absence of an explanation or rationale, I am of the view that the Panel erred in law by failing to provide reasoned basis for its conclusion as mandated by s. 34(c)(i) of the CEAA.
The bold text is my emphasis. I would like to make a couple of key points where the judgement makes a poor connection. Paragraph 73 states that the Panel must explain why the environmental impact will be insignificant, but then Paragraph 78 asks about the effectiveness of reducing greenhouse gas emissions to an insignificant level.
The problem is the implicit linkage of greenhouse gas emissions to the environmental impact. The flaw here is that these are not directly connected. An insignificant environmental impact would be one that could not be detected, or if detected had minimal measurable impact on the environment. An insignificant emission of greenhouse gas emissions would be an emission that could not be detected or did not have an impact on the environment.
If the Kearl project emissions constitute .51% of Canada’s emissions, and Canada constitutes 2.3% of the global emissions, then the Kearl project constitutes 0.012% of the global emissions. Is this significant, considering global CO2 emissions are rising at 2.5% per year? Over it’s 60 year project life, Kearl would constitute just 222 MT of CO2 emissions. The global growth in CO2 emissions from 2006 to 2007 was approximately 680 MT. Therefore, I would conclude that Kearl (and the entire oil sands) are insignificant in terms of whether those emissions’ impact on atmospheric concentrations could even be detected against the vastly faster growing global emissions.
However, this is minor when compared to the other problem. Would the emissions from the Kearl project have a measureable impact on the environment? This would require there to be a clear causation path from CO2 emissions to temperature change of the entire atmosphere. This does not exist. Computer simulations may show such a linkage, but there has been no observational data of this prediction. The computer simulations cannot even predict the last ten or last 100 years, so trusting them to predict the future is very questionable. More on this subject later.
The Panel, and the respondents in this case, can make a very clear argument that the Kearl project will have an insignificant impact on the environment, and that linking emissions significance to impact significance is not a valid connection.