Cumulative Effects

October 2, 2007 ushered in a new era in environmental regulation in Alberta with the introduction of the new Cumulative Effects Management Framework. Canadian jurisdictions have experience with regional environmental initiatives such as the Great Lakes Water Quality Agreement and the Acid Rain Strategy, but the implementation of more broadly-based initiatives remains in its infancy. Initiatives such as the Northwest Territories Environmental Stewardship Framework, and, more recently, Alberta’s proposed Cumulative Effects Management Framework, may signal a significant shift in the general goals of environmental regulation at a territorial/ provincial level.

As presented in the discussion paper supporting Alberta’s announcement, entitled “Towards Environmental Sustainability,” the Cumulative Effects Management Framework is intended to shift environmental regulation from the traditional command and control model that limits and mitigates impacts

associated with individual projects and specific resources (e. g. facility-specific air emission limits, water withdrawal or wastewater discharge limits), to a more results-based and area-specific approach. The discussion paper suggests that the legislation supporting the Alberta Cumulative Effects Management Framework will: “…establish an environmental management system that sets desired objectives for environmental quality for defined parts of the province and ensures human activity is managed to achieve these objectives.” At its core, the Cumulative Effects Management Framework involves developing specific environmental performance objectives and implementation strategies for an entire planning area (an area to be defined by the Minister such as a landscape, watershed or airshed) rather than facility- by-facility regulation.

The Cumulative Effects Management Framework is not the only piece in Alberta’s new regulatory puzzle; it is part of a larger integrated approach to land use planning. The initial draft of Alberta’s Land-use Framework was introduced on May 21, 2008, and a key strategy of the Land-use Framework is the management of the “cumulative effects” of all development in a planning area via the Cumulative Effects Management Framework. The Land Use Framework defines cumulative effects as the combined result of past, present and reasonably foreseeable future human activity on the environment.

So what exactly will the Land-use Framework and the Cumulative Effects Management Framework mean to Alberta’s existing and planned industrial operations? In the near term, the answer depends on where the facility will be located. The first area affected by the new model in 2009-2010, will be Alberta’s Industrial Heartland. The Industrial Heartland comprises an area of approximately 320 square kilometres northeast of Edmonton and includes the counties of Sturgeon, Strathcona, Lamont and the City of Fort Saskatchewan. The area has more than 30 heavy to medium industry facilities such as fertilizer plants, metals processing, specialty chemicals manufacturers, agricultural producers, fractionation and storage, and bitumen upgraders. Eight bitumen upgraders have been announced for the area and additional announcements are expected. Consequently, managing cumulative effects on the air, water and land bases in the area is a central issue for residents, regulators and industry alike.

In December 2007, in support of the cumulative effects approach, water quality limits on 100 parameters and limits to maintain in-stream flow needs for the North Saskatchewan River were introduced under the “The Water Management Framework for the Industrial Heartland and Capital Region.” In addition, regional air emissions limits have been set for NOx (nitrogen oxides) and SOx (sulphur oxides), with these limits to apply in 2009. Alberta Environment is expected to include emitters of 100 tonnes or greater of these substances in the overall airshed planning mechanisms used to achieve the limits.

The details of how compliance will be accomplished have not yet been disclosed. However, there is speculation that for projects being proposed for the Industrial Heartland or that are currently in the regulatory queue, the Air Framework will likely inform the facility-specific NOx and SOx limits. In addition, the water quality and withdrawal limits noted in the Water Framework will likely limit the extent to which new water withdrawal and discharge infrastructure are approved and will also likely affect the discharge limits prescribed in the approvals issued under the new regime. Since December, we have also seen considerable focus on establishing a regional approach to water supply and conservation infrastructure in response to the Water Framework.

For projects in the Industrial Heartland that are not yet in the regulatory queue and for facilities operating under current approvals, the practical effect of the Cumulative Effects Management Framework is even less clear. For example, we don’t yet know:

• whether proposed new facilities will be expected to participate in future regional environmental impact assessments involving several developments;

• how regional limits will be allocated and enforced at the facility level;

• how companies should approach compliance when met with different limits under the provincial framework and limits under the federal Clean Air Framework; and

• whether existing approval limits established at the older facilities in the area will be reduced or otherwise affected by the regional limits.

In the province’s “Draft Land-use Framework Public Questions and Answers” the approach to existing approvals and licenses was summarized as follows: “Existing contractual commitments such as approvals and licenses will be honoured. However, planning decisions on future development will need to be aligned with provincial policies and directions. Moving forward requires some hard decisions and some trade offs.”

Exactly what form those decisions and trade offs will take remains unclear.

What is becoming apparent is that with tight timelines of 2009-2010 for the initial implementation phase, new regulatory approvals for industrial facilities in some areas of Alberta will not be governed by the business as usual processes that have developed over the last 15 years. Project proponents and their engineering consultants can expect that regulators will have a new focus on cumulative effects, regional impacts and surrounding and incompatible land-uses. New regulatory tools such as tradeable “disturbance units” for activities on public lands, carbon offsets and greenhouse gas emission intensity targets, and in-stream flow needs holdbacks in water approvals, will alter the regulatory landscape as well.

With the potential to result in sweeping changes across Alberta, the progression of the Land-use Framework, the Cumulative Effects Management Framework and associated regulatory initiatives will be watched with more than a passing interest on the part of the public, project proponents and stakeholders such as engineering companies. Regulators in other jurisdictions that are grappling with the challenges of managing growth and environmental quality are also keeping tabs on the new frameworks as they unfold, hoping to benefit from the lessons learned

Teresa Meadows is a lawyer with the Edmonton office of Miller Thomson, LLP, tel. 780-429-9706, e-mail tmeadows@millerthomson.com.

For more information on Alberta’s new environmental regulations, see www.landuse.alberta.caand www.environment.alberta.ca