Vienna Airport Case No Surprise to Canadians

The recent decision of the Austrian Federal Administration Court (W109 2000179-1/291E) reading in climate change considerations relating to proposed expansion of Vienna’s international airport under the Austrian Environmental Impact Assessment Act (the “Vienna Airport Case”) should not appear unusual or unique to the environmental and constitutional law of Austria.   In fact, Canadians will recognize the decision as part of a broader transition from project-specific EAs to assessments incorporating international environmental considerations such as climate change.

Long Canadian Tradition of Extra-Jurisdictional Considerations in Permitting

Major infrastructure projects across Canada have long been subject to challenges from constitutional and other laws from outside the express jurisdiction of environmental and other authorizing authorities.  Most notably, a well-developed body of environmental assessment-related jurisprudence has developed regarding the rights of Canada’s First Nations to protect treaty and other claimed lands, including their flora and fauna, as well as to participate in the proposed economic activities.

The source of these rights has traditionally fallen outside (in part or in whole) the express scope of statutory considerations for the approving regulator, but has not deterred the reviewing courts to read in such considerations as part of the fundamental obligations of Canada and/or the relevant province or territory.  Project developers who have failed to recognize the importance of addressing these legal rights, even though often difficult to fully delineate, have usually suffered long delays if not defeated permit applications.

A recent example of the extent to which a Canadian government may go in extending First Nations rights in an environmental assessment of an infrastructure project is the September 27th, 2016 approval by the federal government of the Pacific Northwest Liquid Natural Gas plant and terminal near Prince Rupert, British Columbia (the “LNG Permit”).   While the LNG Permit was ultimately granted under the Canadian Environmental Assessment Act, much mention is made of the “190 conditions”, many of which relate to rights granted to First Nations not expressly part of that process.  Including within these permit conditions were:

–           First Nations consultation and other participation rights in respect of every environmental medium covered in the Permit, from marine and fisheries integrity, species protections and terrestrial habitat preservation; and

–           an independent Environment Monitor to be appointed with the consent of Aboriginal and federal authorities with a mandate to confirm and report on environmental compliance regularly.

While the LNG Permit terms were likely the most participatory ever granted, at that time, for a pipeline and terminal project, stakeholders should not have been surprised given the clear signs from the federal government that environmental assessments were undergoing fundamental change.

“Interim Approach” to Greenhouse Gases Emissions and Pipelines

The LNG Permit is also notable for its consideration of extra-jurisdictional greenhouse gas emissions as part of its approval.   At that time, the federal government had made only a political commitment to introduce a “minimum carbon price” without any regulatory or even policy steps to implement this commitment.  In contrast, British Columbia was the first province to introduce a conventional carbon tax on large emitters (such as a liquid natural gas plant). Under British Columbia’s Greenhouse Gas Industrial Reporting and Control Act, there is an express mandate on large emitters to control and mitigate GHG emissions.

The federal government endorsed the GGIRCA standards in issuing the LNG Permit by setting a hard cap on plant emissions (at no more than a total of 4.3 million tonnes of equivalent carbon dioxide per calendar year at full capacity), which is admittedly 20% lower than the proponent’s application request, but still feasible.   Further, the emissions mitigation requirements are also consistent with the mandate of the GGIRCA and faithfully include number of technically innovative standards which seek to ensure the plant has adopted many of the newest, and lower GHG-producing, processes.   Given the size and novelty of this plant, Environment Canada cannot have done otherwise.

In reading greenhouse gas emissions into its environmental assessment process, the federal government adopted an “interim approach” on the basis that “an EA is one of the key forums available to assess climate change impacts.”  Further, the federal government also considered the future effects of climate change generally in combination with a project’s environmental effects as part of their cumulative effects assessments, causing proponents to become familiar with climate change science outside of their project’s impact.

Impact Assessments to Legislatively Incorporate Broad Climate Change Considerations

More recently, the federal and (most) provincial governments introduced the Pan-Canadian Framework on Clean Growth and Climate Change (the “Pan-Canadian Framework”) as part of their strategy to meet Canada’s Paris Agreement National Designated Contribution, which has committed Canada to reduce its GHG emissions by 30 per cent below 2005 levels before 2030.

Complimenting this initiative, the federal environmental assessment process is under review, with clear signs of coming legislative mandates to ensure infrastructure projects are consistent with the Pan-Canadian Framework, including a stated need for national consistency in how to assess climate change which consistent criteria, modelling and methodology which must:

  • assess a project’s contribution to climate change;
  • consider how climate change may impact the future environmental setting of a project; and
  • consider a project or region’s long-term sustainability and resiliency in a changing environmental setting.

“New Model” for EAs Coming

The federal government is developing a “new model” of environmental impact assessment, which ambitiously includes approval consideration of:

  • the methods to determine a project’s GHG emissions;
  • the means of ensuring that Indigenous knowledge is appropriately taken into account;
  • the ways to assess impacts to Aboriginal and treaty rights caused by a project’s interaction with climate change;
  • the means of evaluating impacts on carbon sinks;
  • the ways to take into account the five sustainability pillars;
  • the ways to manage uncertainties;
  • the ways to identify acceptable mitigation, including compensation measures such as offsets; and
  • the criteria for the determination of a project’s contribution to sustainability with respect to climate change impacts.

Much of the substance of these considerations remains to be fully articulated but still constitute clear notice that climate change factors and other long-recognized extra-jurisdictional considerations are finally coming in from the cold and will form part of a revamped and robust EA process in Canada and elsewhere.

The Vienna Airport Case, issued in the transition from a project-specific to a broader internationally-relevant environmental assessment process, is easily understood within this narrative.

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).