Virus Leads Canadian Provinces to Relax Array of Pollutant Rules

Canadian provinces have suspended monitoring and reporting pollutants, relaxed environmental audits and waived obligations to notify the public of ecological harms in the wake of the coronavirus pandemic.

Alberta, Ontario, Quebec and Saskatchewan have all amended environmental laws during the Covid-19 crisis with measures that vary in scope and the industries affected. The four provinces are home to the bulk of Canada’s petroleum, agricultural and manufacturing sectors.

Environmental groups have decried the emergency moves as dangerous to wildlife and humans, in particular those in Alberta and Ontario.

“If we don’t know about massive releases that might occur, we’re obviously going to have acute toxicity concerns,” Tim Gray, executive director of Environmental Defence, said in an interview.

U.S. Comparison

The Canadian provinces’ measures have both similarities to and differences with the U.S. Environmental Protection Agency’s discretion policy, announced in late March and now the target of lawsuits from states.

While the EPA allows waivers from federal laws, U.S. businesses must link waiver requests to Covid-19, which would appear to make the EPA’s policy less drastic than Alberta’s, Joe Castrilli, counsel for the Canadian Environmental Law Association, said in an interview.

However, Alberta’s measures are specific about which rules can be waived, while EPA’s policy is more of a blanket approach, said James Coleman, associate professor of law at the Southern Methodist University’s Dedman School of Law.

The wide variety of other rules companies must obey, and the litigation risks they face even if they use the waivers, are reasons to think the measures won’t cause material damage, an environmental attorney said.

“Some of the relief here might seem a bigger deal than it might be because there’s just so many checks and balances,” Talia Gordner, a partner at McMillan LLP in Toronto and a specialist in environmental compliance, said in an interview.

Even if the short-term impact of relaxed rules in both Canada and the U.S. might be minimal or nonexistent, the greater impact over the long term may be an unintended purging of redundant or unimportant regulation, Coleman said.

“If you get rid of a requirement now because it’s not crucial, does it come back?” he asked.

Sending a ‘Signal’

Alberta, which is home to 97% of Canada’s proven oil reserves and focused its measures on the oil and gas sector, has arguably relaxed its measures the most among the four provinces, green groups and lawyers working in the area said.

The Alberta Energy Regulator, which oversees the industry, suspended groundwater, surface water, emissions, wildlife, rare plants and wetlands monitoring for 15 oil sands mines and production sites in early May. It expanded the suspension to all petroleum sites at the end of the month.

Alberta said the changes are necessary given the limits on physical distancing that companies must obey. Ontario said the public notification rules would hinder fast approvals necessary in an emergency. Both said their changes don’t pose a threat to the environment.

Environment and Parks Minister Jason Nixon has also waived reporting to his ministry under the province’s main environmental and water protection legislation, except for drinking water facilities. Companies still have to retain proper records, which can be requested later, his March order says.

“That’s sending the signal that you can cut corners,” Keith Stewart, senior energy strategist with Greenpeace Canada, said in an interview.

In Ontario, the relaxed rules affect a different area of law. The province has suspended a requirement that firms and governments notify the public about a proposed bill, regulation or project that affects the environment and give citizens and civil society a chance to comment.

‘The Public Won’t Know’

Environmental groups are challenging the change through a process known as a ministerial review, arguing the move isn’t restricted to pandemic-related actions, eliminates all public participation and will last 30 days after the province’s state of emergency is over.

“The public won’t know about [a project] and when they do know, they won’t be able to do anything about it,” said Rob Wright, lawyer with Ecojustice, the law firm leading the challenge.

Quebec’s environmental auditing office is performing fewer field inspections during the pandemic, and ministerial permits for products related to the medical emergency surrounding Covid-19 have been exempted.

But the move doesn’t amount of a blank check for companies because officials are still focused on activities posing the greatest risk to the environment, Genevieve Paul, director general of the Centre Quebecois du Droit de l’Environnement, a watchdog, said in an email.

Companies in Saskatchewan, unlike those in Alberta, must keep records on why they can’t comply with environmental laws and tie the non-compliance to the pandemic so that the government might scrutinize it later, Julia Loney, a partner in the regulatory and environmental practice groups of McMillan LLP in Calgary, said in an interview.