Ecojustice Blog – Special Update Posted on May 21, 2013 (updated: February 17, 2015)

What happens when environmental assessments are dropped? We won’t know until it’s too late

Karen CampbellLawyer

The Holmes Hydro project will not have to undergo an environmental assessment, the B.C. Supreme Court ruled in a decision handed down late last week.

Ecojustice, representing the David Suzuki Foundation and Watershed Watch Salmon Society, brought the case before the Court in April, challenging the province’s decision that the multi-site Holmes Hydro project could be split up to avoid an environmental assessment.

Fraser River Chinook salmon, moose, mountain goats and bears near McBride, British Columbia, may face a bleaker future, but the public won’t learn of possible impacts from the multi-site Holmes Hydro project. Despite planned production of 76 megawatts (MW), with 10 separate streams diverted, the project was not subjected to an environmental assessment. Last week’s B.C. Supreme Court decision highlights the weaknesses of the B.C. Environmental Assessment Act. This poorly written law means that fish and wildlife in B.C. often don’t get the protection they need and British Columbians are being left in the dark about the impacts of some projects.

Under provincial law, hydroelectric power plants that will generate more than 50 MW of electricity must undergo an environmental assessment. Although the B.C. Supreme Court acknowledged that these 10 sites must be built together to make the development economical, and thus could be interpreted to exceed the threshold for assessment, the Court made reference to many of the discretionary or optional provisions in the Environmental Assessment Act in ruling that the proponent, Holmes Hydro, would not have to undergo an environmental assessment. As we see it, our case was strong, but the law is weak. As a result, British Columbians have been denied a chance to understand the potential impacts of this project on fish and wildlife in the region.

Environmental assessments matter because they help deliver projects that serve the public interest, not just make those projects less bad for the environment. Through provincial assessments we have a legal means to evaluate environmental, social and economic interests, and ensure we have the necessary information to make the best decision for local communities and the province. Public participation in the process allows proponents to learn about and incorporate local priorities into a project’s design.

In its reasons for judgment, the B.C. Supreme Court noted that “(i)t may be that the intended purpose of the legislation would be better served if the Act or Regulation made multiple small projects that have a clear operational or economic connection automatically reviewable,” thus acknowledging that poor legal drafting contributed to the outcome of this case.

The problem of B.C.’s poorly worded environmental assessment law is compounded by last year’s weakening of federal environmental laws, like the Fisheries Act and Canadian Environmental Assessment Act — changes that are further eroding public involvement and environmental assessment. Thus the work of safeguarding the public interest in environmental protection is increasingly falling to individual citizens and watchdog charities like the ones that launched this court case.

This important point was recognized by the Court in protecting David Suzuki Foundation and Watershed Watch Salmon Society from an adverse costs award despite the outcome of the case. The Judge acknowledged that the work of these organizations is of vital public interest in British Columbia, and that the question brought to the Court was an important one.

While the outcome of the case was disappointing, we have seen some positive change. In March, B.C. Hydro took steps to exclude applications of clustered projects (that would exceed the 15 MW electricity limit) from its Standing Offer Program, which encourages the development of small renewable energy projects in B.C. If it applied today, the Holmes Hydro project wouldn’t be eligible for the program.

However, if we truly want to protect the public interest and our environment, the B.C. government would be well served to strengthen its environmental assessment law.

About the authors
Karen Campbell is a staff lawyer with Ecojustice. Aaron Hill is an ecologist with Watershed Watch Salmon Society. Jeffery Young is a senior science and policy analyst with the David Suzuki Foundation.

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