A (Pre)cautionary Tale about the Kearl Oil Sands Decision: The Significance of Pembina Institute for Appropriate Development et Al V. Canada [Attorney-General] for the Future of Environmental Assessment

1. INTRODUCTION 2. BACKGROUND AND CONTEXT 2.1 The Oil Sands 2.2 The Environmental Impact of the Oil Sands 2.3 Human Health Concerns 2.4 Environmental Assessment of Kearl Oil Sands 2.5 Judicial Review Application 2.6 Response the Judicial Review Decision 3. THE ROLE OF PRECAUTION IN DEALING WITH UNCERTAINTY IN THE SIGNIFICANCE ASSESSMENT 3.1 Decision Making Process Under the CEAA 3.2 The Effects, Significance and Trilogy 3.2.1 Environmental Effects 3.2.2 Significance 3.2.3 Mitigation by Technically and Economically Feasible Measures 3.3 The Inclusion of the Precautionary Principle the CEAA 3.4 Using Adaptive Management Digress from the CEAA's Precautionary Mandate 3.5 Three Illustrations 3.5.1 Reclamation 3.5.2 Endangered Species 3.5.3 Cumulative Impacts 4. SECTION 34(C)--DUTY TO ARTICULATE CONCLUSION AND RATIONALE 4.1 Sequence of Analysis 4.2 Articulation of Conclusion and Rationale 5. CONCLUSION Environmental assessments are widely understood be key planning tools which inform decision makers about the potential impacts of projects prior their approval. (3) As summarized by the Supreme Court of Canada the Oldman River decision, environmental assessment is planning tool that is now generally regarded as an integral component of sound decision-making. (4) The Canadian Environmental Assessment Act (CEAA) states that environmental assessment is meant to ensure that projects are considered a careful and precautionary manner before federal authorities take action connection with them, order ensure that such projects do not cause significant adverse environmental effects. (5) Carefully considering projects ensure that they do not cause significant adverse environmental effects is, however, easier said than done. Evaluating the potential environmental impacts of projects is usually a complex, scientific exercise which often entails some degree of uncertainty. (6) The fact that most environmental harms will occur at some point the future and are often difficult measure quantifiable, tangible terms, can render them largely invisible, especially contrast with economic benefits, such as profits, taxes and jobs, which are usually easy quantify and bear economic fruit the short term. (7) The high visibility and tangibility of economic benefits as compared the less visible environmental harms creates a tilted playing field the overall evaluation of projects. (8) The precautionary principle has evolved over the last couple of decades as a tool help decision-makers balance the risks of serious, irreversible environmental damage with more immediate economic goals. (9) The principle, which essentially asks decision-makers err on the side of caution the face of uncertain but potentially serious environmental harm, was incorporated into the CEAA 2003. (10) Specifically, the CEAA requires that environmental assessment be administered in a manner that protects the environment and human health and applies the precautionary (11) Although the precautionary principle has been part of international law for over fifteen years and is increasingly found key pieces of environmental legislation, (12) including the CEAA, there is relatively little judicial interpretation of the principle. The Federal Court of Canada's decision Pembina Institute for Appropriate Development v. Canada (Attorney General) (13) is important because it is the first case offer judicial interpretation of the principle's application environmental assessment since its inclusion the CEAA. (14) The Pembina case was an application for judicial review of a Joint Panel report assessing the environmental impacts of the Kearl oil sands (KOS) project under the CEAA. (15) The Joint Panel created under the CEAA evaluate the project was mandated assess the environmental effects of the project (including cumulative effects) and determine their significance, taking into account the possibility of measures that can mitigate the significance of the impacts. …

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