Bay du Nord: Federal Court called upon to consider downstream emissions

Judge Russel Zinn said there is so much evidence presented in this case that it will take him a while to take a decision. (File photo)

Although Canadian law does not explicitly state that downstream greenhouse gas (GHG) emissions must be considered in the project approval process, environmental groups asking the Federal Court to overturn Ottawa's approval of the Bay du Nord oil project say the law requires it.

These groups want also that the Court take into consideration court decisions elsewhere in the world that have concluded that environmental studies must take into account downstream GHG emissions for this type of project.

Under the Impact Assessment Act (IAA), proponents of a project that undergoes a federal impact assessment must provide an estimate of the GHG emissions from this project.

In the case of an oil project such as Bay du Nord, the proponent provides, for example, an estimate of emissions during extraction.

The Impact Assessment Act, however, states that it is not necessary to estimate downstream emissions.

According to Equinor, the field could produce at least 300 million barrels of crude over 30 years.

However, the vast majority of emissions from a barrel of oil are produced during its combustion, for example when these emissions escape from the exhaust pipe of a vehicle, therefore in downstream.

According to Ecojustice, which represents the Sierra Club Canada Foundation, Équiterre and Mi'gmawe'l Tplu'taqnn, the process of extracting offshore Bay du Nord oil project in Newfoundland and Labrador will only account for 10% of emissions: the remaining 90% will come from oil combustion.

Ultimately, the law needs to be changed to explicitly include downstream emissions, according to Ecojustice lawyer Alan Andrews.

The fight the three organizations are waging against the federal government is similar to those waged by other organizations that have successfully overturned decisions on industrial projects because of their contribution to climate change.

< p class="e-p">In a memorandum of facts submitted to the judge on Wednesday, an Ecojustice lawyer, Anna McIntosh, made particular reference to the Gloucester Resources surface coal mining project which had been rejected by an Australian court.

In the last paragraph of his 2019 decision, Australian judge Brian Preston indicated that this mine was going to be in the wrong place at the wrong time.

This is the wrong time because GHG emissions from the coal mine and its products will increase total GHG concentrations at a time when it is needed now, and urgently in order to achieve the generally agreed climate objectives, to quickly and profoundly reduce GHG emissions. These disastrous consequences must be avoided, reads the judge's decision.

Ecojustice also refers to another ruling by a New South Wales court which found, in a lawsuit brought by environmentalist Pete Gray, that the government failed to properly assess carbon emissions. greenhouse gases that would be caused by the operation of the Ani Hill mine and the subsequent use of the coal, hence downstream emissions.

However, unlike Canadian law, regulations in New South Wales, where these mining projects were being considered, explicitly require that a project's impact assessment take into account downstream GHGs.

However, according to Alan Andrews of Ecojustice, a proper interpretation of the Impact Assessment Act, consistent with its objective of protecting human health and the environment as well as x27; to the precautionary principle, requires consideration of downstream emissions.

Canadian Environment Minister Steven Guilbeault at COP15 in Montreal. (File photo)

Federal Environment Minister Steven Guilbeault approved the project last April following a review of the x27;Impact Assessment and Environmental Assessment Agency.

In its brief, Ecojustice argues that neither the agency nor the environment minister could interpret the law in a way that would allow them to exclude downstream emissions, given the the accepted reality of severe climate change damage.

The Ecojustice document stresses that the agency's decisions must take into account the objectives of the law, which aims to promote sustainable development, which does not compromise the needs of future generations and which ensures that decisions in environmental assessment matters are taken in a manner that protects the environment and human health and that applies the precautionary principle.

The Lawyer Anna McIntosh notably argued on Wednesday that the Supreme Court had recognized that greenhouse gases have no boundaries and that the effects caused by emissions from a project do not depend on the project. place where they are issued, whether in Canada or elsewhere.

The Johan Sverdrup oilfield, operated by Equinor in the North Sea , off Norway, on January 7, 2020.

However, according to the lawyer for Equinor, the developer of Bay du Nord, the company cannot be held responsible for things over which it has no control. It would be impossible to estimate the emissions produced when using the oil since Equinor does not know who the buyers will be.

« We don't know what the downstream uses will be.

— Sean Sutherland, Equinor Attorney

But the fact is, it's not just one project: there are more on the horizon and so we need the federal government to clearly require all projects to consider downstream emissions and their compatibility with Canada's commitments under the Paris Agreement, Ecojustice lawyer Alan Andrews said in an exchange with The Canadian Press.

The hearing took place on Wednesday and Thursday. Judge Russel Zinn said there is so much evidence presented in this case that it will take him some time to come to a decision.