Ecojustice Case – Climate change Case Status: In Progress

Fighting to ensure B.C. follows environmental assessment laws for unauthorized dams

Olivia FrenchEcojustice Alumni
Randy ChristensenLawyer
Flat wet country near Fort Nelson by Murray Foubister
photo by Murray Foubister, via Flickr

Ecojustice, on behalf of Sierra Club BC, is challenging the Government of British Columbia’s decision to exempt two dams in northeastern B.C. from environmental assessments — after they’d already been built.

Progress Energy’s Town and Lily Dams tower at five-storeys and seven-storeys high, respectively.

Both are so tall that they qualify as major projects under the B.C. Environmental Assessment Act (EAA). As a result, Progress Energy should have undergone an assessment to screen for potential environmental and safety risks before building the dams.

Instead, the company built the dams without authorization and only applied to exempt the dams from environmental assessments after it was caught violating the law.

Incredibly, the province’s Environmental Assessment Office agreed to retroactively grant exemptions for both dams in July, 2018 — a move that the Canadian Centre for Policy Alternatives called “unprecedented” in the office’s 25-years of existence.

Now, Ecojustice is going to court to fight that decision.

Ecojustice lawyers filed an application for judicial review in the B.C. Supreme Court on behalf of Sierra Club BC in October 2018.

While the EAA does allow for the government to exempt certain projects from environmental assessment requirements, it does not say that this can be done after the project is already complete.

The groups argue that, by retroactively granting exemptions for the two Progress Energy dams, the province did not act properly under the law. They are now asking the court to make sure B.C. follows its own rules.

The Canadian Centre for Policy Alternatives first reported on the existence of Progress Energy’s Town and Lily dams early last year. Since then, it has reported on “dozens” of other unlicensed dams built by Progress and its competitors to store freshwater used in natural gas industry fracking operations.

Why is Ecojustice involved?

Ecojustice is committed to fighting for strong environmental laws that hold government and industry to account — and to making sure these laws are enforced.

Environmental assessments provide important safeguards for major development projects. According to the province itself, assessments are used to ensure projects “meet the goals of environmental, economic and social sustainability.”

Importantly, environmental assessments also give the public an opportunity to weigh in on large projects.

By bypassing environmental assessments for the Town Dam and Lily Dam, Progress Energy appears to have acted with flagrant disregard for B.C.’s environmental laws and for the health and safety of communities and ecosystems around the dams.

The EAA should have provided a backstop for this behaviour. Instead, B.C. essentially let Progress Energy get away with things by exempting the company from the assessment process after the dams were already built.

We are going to court to force the government to follow its own rules for assessing major development projects.

What would a win mean?

If successful, this case will set aside the environmental assessment exemptions for Progress Energy’s Lily and Town dams and either: A) Send the decision back to the B.C. Environmental Assessment Office to reconsider, or B) require Progress Energy to apply for an environmental assessment certificate and go through the proper assessment process set out under the EAA.

Photo of small lakes near Fort Nelson by Murray Foubister. Image obtained under Creative Commons

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