Alberta Energy Regulator’s permitting process proves to be anything but rigorous
Becky Best-Bertwistle, Katie Morrison and Drew Yewchuck
When the Government of Alberta rescinded the Coal Policy in May they defended the move by saying, “ […] all proposed coal projects will be submitted to the Alberta Energy Regulator (AER) and rigorously reviewed based on their merit.” Recent experiences with this regulatory system have seriously put this claim into question.
Let’s take for example a Statement of Concern (SOC) that we recently submitted regarding an application from Elan Coal Ltd. The application was for permissions to undertake high impact activities — road building and test pit drilling — in a designated Critical Wildlife Zone during a restricted activity period. This time is set aside to protect sheep and goats during their sensitive lambing and kidding period that takes place in the spring and early summer.
A Statement of Concern is a written, concise statement about a current AER application that describes specific concerns about a company’s development plans. AER has the power to determine if a submission is "relevant" and therefore worthy of consideration.
Mountain goat kid - Sergei Akulich
The teams at CPAWS Southern Alberta and the Public Interest Law Clinic keep a close eye on coal exploration and mining applications in southwest Alberta. This involves regularly searching for new applications in the region through the AER’s website. On June 8th, we found a new application for a Temporary Field Authorization (TFA) from Elan Coal. The posting noted that Statements of Concern would be accepted until June 29th. Application postings on the AER’s website do not specify what activities applicants plan to undertake; however, this information is available for a fee. We paid to receive the full application and resulting correspondence the following week.
Companies apply for Temporary Field Authorizations for permission for:
- incidental clearings or activities on public lands
- temporary changes in existing land disposition authorizations
-temporary authorization for appropriate land uses on public lands
On June 25th we received the files from the AER and learned that Elan Coal was applying to build roads and drill during the restricted activity period for wildlife AND that the application had already been approved! In fact, the application had been made by Elan Coal on Friday, May 29th (dated June 1st) and approved on Monday, June 1st with an expected start date of the very same day.
The “rigorous review” conducted by AER consisted of a single question to the applicant. Elan Coal’s justification for needing an exemption was that if they were not allowed to disturb sheep and goats during their exploration in the spring, they would have to alter their schedule and apply for another exemption in the fall.
Coal exploration roads recently cut in southwest Alberta
We had serious concerns about the activity happening within the restricted activity window, the lack of any substantial justification for an exemption, and the fact that the application had been approved before any opportunity for any public input. So on June 29th working with the Public Interest Law Clinic, CPAWS Southern Alberta submitted a Statement of Concern to that effect despite the approval having already been granted.
On June 30th we received the following response from the AER: “We cannot register your Statement of Concern because it was received after the approval was issued.”
To keep up with AER’s “rigorous” review process it seems that we should have hired a mind reader to work overtime on the weekend of May 30th. That appears to be the only way we could have submitted our concerns before the authorization was granted on June 1st.
This experience has made it clear that the review process presided over by the AER is anything but rigorous. Wildlife restrictions and public input deadlines appear to be nothing more than window dressings that can be waived with the click of a mouse at the request of a resource company. Elan Coal did not even bother to submit their application for an exception until the Friday before the Monday they intended to start operations.
A company’s poor planning and time management is not justification for a regulatory body to waive restrictions meant to protect the environment. The justification that if Elan was not granted an exemption immediately, they would have to alter their plans and have to apply for similar exemptions in the fall is absurd. The communications between Elan Coal and the AER seem to imply the company is entitled to special exemptions regardless of the season or environmental consequences.
We don’t expect a coal company to have any concerns other than getting coal out of the ground as quickly and as cheaply as possible; however, the AER holds a broad environmental protection mandate which involves “ [...] ensur(ing) that companies develop the province’s massive energy resources in a safe and environmentally responsible fashion.” These events last month have made it clear that the AER prioritizes expediting resource development at the expense of environmental regulation and public participation; they also lay bare the fact that the regulator cannot be solely relied upon in the absence of responsible, thoughtful, and inclusive land use planning as the Government of Alberta suggests.