What does the Responsible Energy Development Act (REDA) mean for Albertans?
Well for starters, it proposes significant changes to the way energy projects will be approved and regulated. It creates a single regulator, called the Alberta Energy Regulator (AER), who will absorb many of the duties currently carried out by the Energy Resources Conservation Board (ERCB) and Alberta Environment and Sustainable Resource Development. The AER will be responsible for issuing environmental and water permits and also be tasked with enforcing environmental laws.
Former oil executive Gerry Protti has been appointed head of the AER, prompting more than 30 landowner, labour, environmental and First Nation groups to call for his removal. Greenpeace Canada’s Mike Hudema compared it to letting a fox guard a hen house.
Putting people with deep industry ties in charge of regulating energy projects is certainly problematic, but there’s another key issue close to Ecojustice’s heart that we’re deeply concerned about: public standing.
We’ve talked about the significance of standing on this blog before, and it’s something we’re going to keep talking about because it’s really that important.
The standing test proposed under REDA is very restrictive — even more so than the controversial standing test under the Canadian Environmental Assessment Act, 2012.
Only those who may be “directly and adversely affected” by a proposed energy project may seek standing to be heard. And, unlike the current ERCB regime, even if individuals that may be directly or adversely affected by a project come forward, there is no requirement that their concerns be considered or that a hearing be held. Instead, REDA gives wide discretion to the AER to decide whether or not to hold a hearing, with virtually no direction given as to what the AER should consider in its decision-making.
Standing is made truly meaningful when interested parties can be assured that they will be compensated for the costs associated with their participation. As such, the inclusion of clear and defensible cost rules is critical for making the legal system accessible to all Canadians.
Unlike the ERCB regime, which provides clear direction regarding entitlement for costs, REDA is silent on the matter. We now have to wait and see if, and how, that issue will be addressed by the AER. We believe that Canadians should be able to speak up and be heard when they have concerns about energy projects.
And the courts agree — as stated recently by the Court of Appeal of Alberta in Kelly v Alberta:
In today’s Alberta it is accepted that citizens have a right to provide input on public decisions that will affect their rights.
It appears that the government of Alberta failed to heed those words when drafting REDA. However, given that many important issues will be fleshed out in forthcoming regulations, there is still some opportunity for improvements to be made to the REDA regulatory scheme.
REDA is expected to come into effect next month.
To learn more our concerns about REDA, please read our backgrounder. Also, stay tuned for part two of our analysis, in which we’ll talk about how the REDA has removed two important avenues for appealing energy-related decisions.