Posted on January 13, 2010 (updated: January 13, 2010)

Court ruling demonstrates oil sands review process broken

Calgary, Alberta – An Alberta court decision that permits the Energy Resource Conservation Board (ERCB) to ignore Royal
Dutch Shell’s breach of written agreements made to obtain regulatory approval signals a likely end to collaborative approaches in the oil sands. Yesterday afternoon, Ecojustice, on behalf of the Pembina Institute and the Toxics Watch Society of Alberta, was denied Leave to Appeal the ERCB’s decision to uphold the approvals for two of Shell oil sands projects, even though the ERCB acknowledged Shell had broken written agreements to reduce
greenhouse gas pollution.

“The court’s decision not to hear this case means that stakeholders and regulators should be reluctant to accept voluntary environmental commitments made by oil sands companies and instead call for clear legal standards and enforceable environmental laws. The ERCB needs to ensure companies are making commitments that will clean up their environmental record, not just their image,” said Karin Buss, counsel to Ecojustice.

Shell, through its environmental promises involving the Jackpine and Muskeg River oil sands mining projects, had positioned itself as an environmental leader. Prior to the approval of both projects, Shell had committed to setting greenhouse gas pollution reduction
targets to bring its pollution in line with alternatives available in North America. The reductions would have trimmed 900,000 tonnes of carbon dioxide per year – the equivalent of taking 200,000 cars off the road in Canada. As a result of the written agreements, which were submitted to government regulators, the Pembina Institute and the Toxics Watch Society of Alberta withdrew their opposition to the projects.

“We participated in the ERCB review process in good faith and had assumed the same from Shell,” said Dan Woynillowicz, a
spokesperson for the Pembina Institute. “The decision by the court to not hear this appeal is another blow to the credibility of Canada and Alberta’s management of oil sands development. As it stands Shell broke its word to stakeholders, and the ERCB let it happen instead of standing up to protect the interests of Albertans.”

“This is a critical case to any stakeholder who has participated in any alternative mediation process,” said Myles Kitagawa, Associate Director of the Toxics Watch Society of Alberta. “By stating that Shell is not accountable for its agreements, the ERCB is sending a
chilling signal that companies can simply say anything to satisfy their
stakeholders, then ignore them once they have their approvals in hand.”

In approving Shell’s projects, the Joint Review Panel struck by the ERCB and the Government of Canada explicitly noted that they would review Shell’s approval in the event that the company failed to
fulfill commitments that had been presented as evidence. However, the ERCB recently denied a request for a follow-up hearing.


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