Response to the Environment Minister’s January 18, 2021 letter commenting on the rescission of the Coal Policy
On January 18, 2021 the Energy Minister announced that the leasing of former Category 2 lands in Alberta’s Eastern Slopes under the now rescinded Coal Policy was being “paused” and 11 leases issued in December 2020 were being canceled. It has since been reported that these 11 leases total approximately 1852 hectares, less than 0.2% of former Category 2 lands in the Eastern Slopes that have been leased since the rescission of the Coal Policy on June 1, 2020.
Later that same day, the Environment Minister issued his own letter. In it, he states:
“Unfortunately there are a lot of rumours and misinformation out there, including the notion that Alberta Energy’s rescission of the Coal Policy 1976 has opened up the Eastern Slopes for strip mining. It is important that we are very clear that Alberta Energy’s policy decision in no way weakened or reversed environmental standards and protections.”
With respect, this carefully worded passage is highly misleading. The rescission of the Coal Policy has opened up large areas of the Eastern Slopes to the prospect of strip-mining. That was the intended effect of making Category 2 lands available for development.
The Minister appears to be trying to confuse readers by conflating two different things:
1. Whether certain parts of the Eastern Slopes are even open to development of open-pit coal mining; and
2. The regulatory and approval process that governs once a company has applied for approval of an open-pit coal mine.
His argument is addressed to the second point and ignores the first. It is that the Eastern Slopes have not been “opened up” to strip mining because Alberta’s environmental standards have to be met before an approval to strip mine will be issued. And he’s correct that the decision to rescind the Coal Policy “in no way weakened or reversed” the environmental standards or protections currently in place in Alberta.
But that’s not the point. The point is that you don’t even get to the application of environmental standards or protections in the regulatory process if the lands are off-limits to begin with. That was the effect of Coal Policy: to take a swath of land in the Eastern Slopes and effectively remove it from consideration for open-pit coal mining.
The Minister also argues that environmental rules and standards today are stricter than 1976. He specifically notes that coal mines of a certain size are now required, under the Environmental Protection and Enhancement Act (EPEA), to undergo a formal environmental impact assessment (EIA). But he also acknowledged that an environmental assessment (EA) was required under the Coal Policy; so what has changed? Fundamentally, nothing. An EA was required then, an EIA is required now. The ERCB was required to approve a coal mine then, the AER is required to approve one now. The test applied by the ERCB then and the test applied by the AER now are effectively the same: whether the proposed project is in the public interest having regard to its social, economic and environmental effects.
The bulk of the Minister’s letter elaborates on the argument that the regulatory system is stronger today than in 1976 so we need not be worried about the rescission of the Coal Policy. As part of this argument, he states that the Coal Policy did not set water quantity or management objectives and did not address the management of selenium. That is true, but beside the point. The management and protection of water quality under the Water Act and EPEA are separate from and independent of where open-pit coal mining is permitted (i.e., they apply wherever it is permitted).
The Minister’s claim that Alberta is also farther ahead now than in 1976 because “we take a comprehensive approach to management of the environment so we understand the cumulative effects from all activities on the landscape” is not tenable. Alberta passed the Alberta Land Stewardship Act more than 10 years ago to provide for regional planning across the entire province. To date, only two Regional Plans out of seven, the Lower Athabasca and the South Saskatchewan, have been completed. Of the other five, work on four of the plans has never even started. The regional planning process in Alberta is stalled and has been for several years.
Further, and ironically, the South Saskatchewan plan is predicated on the coal categories in the Coal Policy not being eliminated but rather replaced by more current zoning—the opposite of what the government has done. And cumulative effects? In the recent Grassy Mountain hearing, the Joint Review Panel refused to make the proponent take into account the environmental effects of the activities being carried out by other mining companies elsewhere on Eastern Slopes coal leases because they are only at the exploration stage and haven’t yet applied for development approvals.
The Minister also points to the fact that former Category l lands in the Eastern Slopes will continue to be protected. What he doesn’t say is that much of these lands are in the Rocky Mountain National Parks (Banff and Jasper) and adjacent provincial parks and designated wildlands. So they are protected anyway and the government would have to do more than just rescind the Coal Policy to open them up for development.
Last but not least, the Minister assures Albertans that all coal projects must still be reviewed and approved by the AER. What he does not say is that the AER’s jurisdiction over coal projects is found in the Coal Conservation Act (CCA). One of the core purposes of the CCA is to “ensure the orderly, efficient and economic development of Alberta’s coal resources in the public interest”. In other words, the premise of the CCA is that development of coal is in the public interest. So when the AER holds a hearing (as it did, jointly with the federal government, for the Grassy Mountain project) for the purpose of determining whether a project is in the public interest, the starting point is that coal development, per se (i.e., before consideration of environmental issues), is in the public interest.
Further, at around the same time that the Coal Policy was rescinded, the AER rescinded a document titled “Directive 061: How to Apply for Government Approval of Coal Projects in Alberta”. Directive 061 dated back to 1978, not long after the Coal Policy was instituted. Including appendices it was over 300 pages long and laid out extensive and detailed information requirements for applications to develop coal mines. Among other things, Directive 061 required that a comprehensive cost-benefit analysis be carried out.
Directive 061 has been replaced by AER “Manual 020 Coal Development”, which is 42 pages long and contains virtually no information requirements. Rather, it states that mine permit applications must meet application requirements outlined in the Coal Conservation Rules—a regulation that has been in place since 1981. In other words, the AER has eliminated the extensive application requirements of Directive 061 and replaced them with nothing.
Accordingly, and with all due respect to the Minister of Environment, his letter should not give comfort to anybody who is concerned over the rescission of the Coal Policy and the future of the Eastern Slopes.
Gavin Fitch