https://www.nationalobserver.com/2018/11/06/news/british-columbia-faces-lawsuit-fracking-dams-exempted-environmental-review
[More lessons on whether or not a regulator can be uncaptured after the
elected government
the oil and gas industry has bought is removed from office because of
its corruption.]
British Columbia faces lawsuit: Fracking dams exempted from
environmental review
By Bob Weber in News, Politics
November 6th 2018
A conservation group is suing the British Columbia government for
exempting two oilpatch dams from environmental rules years after the
dams were built.
"It seems like the government was really playing catch-up," Olivia
French, the lawyer handling the lawsuit for the B.C. Sierra Club, said
Monday.
"Progress Energy acted with a bit of disregard for B.C.'s laws — one of
those typical, 'Ask for forgiveness, not for permission' sort of
positions," said French.
The lawsuit asks that the exemptions given the two dams be revoked.
French said the issue is becoming too common in the province's northern
natural gas fields.
A statement of defence has not yet been filed and none of the lawsuit's
claims has been proven in court.
Progress Energy is an Alberta company owned by Malaysian oil giant
Petronas. The dams were built in 2012 and 2014 to store water used by
the company's fracking operations northwest of Fort St. John, B.C.
Petronas is the company planning to build a large liquid natural gas
facility on the B.C. coast.
B.C. Environment Minister George Heyman said legal officials are looking
into the two dams.
“It’s very clear under the existing Environmental Assessment Act that
proceeding with a project without undergoing an assessment is against
the act," he said.
"Four months ago we referred the results of our investigation to Crown
counsel and it’s now in their hands.”
Both dams met legal criteria to undergo environmental assessments,
French said. Provincial law dictates that proposed dams higher than 15
metres must be considered for review.
"All the parties agreed that these are technically reviewable projects,"
French said.
However, neither ever was, despite being well over the 15-metre benchmark.
The lawsuit alleges the province's environmental assessment office
"received information" in 2016 that the Progress dams may be violating
the rules. It says an inspector had a look and determined the company
had broken the law by building them without getting an environmental permit.
"Neither the exemption requests nor the project descriptions for (the
dams) provided any explanation from Progress Energy for the
non-compliance with the (law)," the lawsuit says.
In 2017, Progress Energy asked for the exemptions. The lawsuit cites
internal communications which it says show the government was
considering granting the exemptions even before the company asked.
Exemptions for both dams were granted in July.
French said legislation doesn't allow the government to retroactively
exempt companies from environmental reviews.
"They were not properly applying their own laws," she said.
The lawsuit also alleges the government made its decision based on
limited information, none of which was provided to the public.
"It just seems that these dams, which were built without licences and
authorizations, should have been subject to a higher level of scrutiny,"
said French.
"The B.C. government's response to this sets what may be a dangerous
precedent, which may encourage other companies to follow in Progress
Energy's footprints."
French points to a 2017 study from the Canadian Centre for Policy
Alternatives, which found 13 other Progress Energy dams were being
retroactively reviewed by B.C.'s energy regulator. That report suggested
there were "dozens" of other large, unlicensed dams operating in the
province.
"Records obtained by the (centre) indicate that the Oil and Gas
Commission, Ministry of Forests, Lands and Natural Resource Operations
and the BC Environmental Assessment Office are all aware of numerous
unauthorized dams, and that they may contravene key provincial laws and
regulations," the report says.
French said the lawsuit is partly intended to discourage similar situations.
"(The centre) found there's a pattern of developers failing to follow
the law, especially in northeastern B.C.," she said. "This is a concern."