OPINION | No Virginia, our oil and gas regulatory systems are not robust

This column is an opinion from Martin Olszynski, a lawyer and associate professor at the University of Calgary in the faculty of law.

This month, the Globe and Mail's editorial board published a well-intentioned editorial calling on the Alberta government to stop lashing out at critics and instead actually do something about the oil and gas sector's stagnated environmental performance.

"Show, don't tell," the editorial said. "Alberta spends a lot of time telling. More show, please.… The oilsands are getting cleaner — emissions per barrel are falling — but, to secure the future, they have to get cleaner, faster."

Anyone paying attention to the fiasco that is Alberta's energy "war room," or the province's Kafkaesque inquiry into groups opposed to the scope and pace of oilsands development, is bound to appreciate the message. However, its delivery was marred by the lazy perpetuation of that persistent myth — that "Alberta and Canada have robust regulatory systems" where the oil and gas sector is concerned. 

The plain and painful truth is they do not now, nor have they ever. 

As early as 2006, a report commissioned by the provincial government in response to the "tremendous pace" of oilsands development concluded that "departments lack capacity to complete environmental impact assessments, to complete technical studies … and to develop policy in a timely fashion. In addition, capacity to monitor and enforce environmental requirements is inadequate."  

So much for world class

Just a few years later, a Royal Society of Canada report similarly concluded that the "environmental regulatory capacity of the Alberta and Canadian governments does not appear to have kept pace with the rapid growth of the oilsands industry over the past decade. The [environmental impact assessment] process relied upon by decision-makers to determine whether proposed oilsands projects are in the public interest has serious deficiencies in relation to international best practice." 

So much for world class — and yet the worst was yet to come.

By 2011, not one but two expert panels (one federal, one provincial) concluded that the environmental monitoring regime put in place for the oilsands was essentially useless.

As explained by the provincial panel, "monitoring programs were not properly designed" and monitoring organizations "suffered from inadequate funding and weak scientific direction," all of which meant that even a baseline "state of the environment" was not well understood. 

While these two reports did spur some improvement with respect to monitoring initially, most of these gains have again been lost.

In the meantime, the federal regulatory system was nearly dismantled in 2012 (including an over 95 per cent reduction in the number of federal impact assessments and the near total abdication of federal responsibility for fish and fish habitat). It's too soon to tell whether the Trudeau government's attempt to "restore lost protections" in its first term (including Bill C-69) even achieved that relatively unambitious goal. 

So what do these so-called "robust regulatory systems" actually have to show for themselves?

• An unprecedented 1.3 trillion litres of toxic tailings and counting.
• $260 billion in estimated environmental liabilities, the partial origins of which have been described as a hustle (see also here) and toward which the federal government has already loaned $1.7 billion.
• The probable extirpation from Alberta of woodland caribou.
• Persistent allegations of non-enforcement with respect to the leaching of tailings ponds into surrounding groundwater and the Athabasca River. 

These are not the features of robust regulatory systems, let alone world class ones. They are the manifestations of regulatory failure.

Worse still, they are all the entirely foreseeable consequences of policy choices by previous governments with the support — if not the urging — of the industry's leadership. 

One example from my own research of such policy choices is the chronic misuse of an environmental management tool known as "adaptive management" when assessing oilsands projects.

Adaptive management is supposed to be a structured and rigorous process for reducing the uncertainty associated with some environmental problems. As applied in Alberta's energy resource sector, however, it has been used to punt the identification of numerous necessary mitigation measures, including with respect to caribou, tailings and end-pit lakes, with predictable results.  

These are not academic concerns

To be clear, these are not the detached concerns of an ivory tower academic. I witnessed many of these problems first-hand in my former life as a lawyer for the federal Department of Fisheries and Oceans (2007–2013), where the majority of my files involved major projects and their review, including in Alberta.

From my discussions at conferences and workshops, I also know that these problems are broadly understood by Alberta's consultant community. 

The challenges facing Alberta's oil and gas sector are both obvious and significant. No amount of storytelling, scapegoating of activists, hand-waving, obsequiousness or further cronyism will change this reality.

No amount of whataboutism regarding other jurisdictions changes the fact that it is Alberta's waters, wildlife and people that remain at risk from toxic tailings. And it's Albertan and Canadian taxpayers who are already picking up the sector's tab for remediation and reclamation — and who face further risks of doing so.

In fact, on the only relevant international performance metric — greenhouse gas emissions — Alberta is still worse than average. 

Setting all of this out is not un-Albertan. On the contrary, Alberta's considerable potential is bound to remain unfulfilled until those in leadership positions acknowledge our current reality and take meaningful action to change course.

Time is running out.

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