Guest Post by: Jana Makusova and Dr. Kanwaljit Kaur
The Alberta Energy Regulator (AER) was established with an aim of regulating oil sands, gas and coal activities throughout the life cycle of a project.
The aim was to put in place a ‘single point’ process for all authorizations of energy projects. The authorizations covered approvals while improving and protecting air, water, land and overseeing energy facilities.
Recently on March 29, 2014, the AER has transferred the responsibility for approval and regulation of proposed energy activities that fall under the purview of the Environmental Protection and Enhancement Act (EPEA) and Water Act. Some experts saw a gap in that initial vision of the ‘single window’ approach.
As of October 1, 2014, legislation pertaining to the new EIA process empowers AER to take charge of Environmental Impact Assessment (EIA) for energy resource activities. The AER administers the acts and regulations (the specified enactments and Energy Resource Enactments) related to energy resource activities.
With AER now also shouldering the responsibility of the EIA process for energy resources, this gap seems to have closed or at least narrowed.
The benefits
One of the benefits of the AER’s decision-making process is the ability of the AER to consider combined applications—that is, applications under multiple enactments. The change brings with it the option of pre-application option under ‘one roof’.
With this change enhanced regulatory efficiency and certainty are expected, as the regulatory body responsible for reviewing applications and related EIAs will as well manage the EIA process. The increased decision-making power translates into greater accountability and greater transparency.
The challenges
This new process presents some great positive changes, but the new role of AER however, does raise some concerns too.
Though it seems there would be increased accountability, this could also be seen as too much concentration of powers in one place. This may cause concerns or biases in the future EIA processes under the new regulatory body.
However, AER’s commitment to work with the Government of Alberta in the interest of continuous improvement toward better rules and regulations is expected.
The jurisdiction, clarity and responsibility
There are some uncertainties with regard to the jurisdiction. This jurisdiction over EIAs will apply to energy projects such as: oil sands mines vs. ‘energy activities’ (plants). It appears that the ‘Rules of practice’ needs more clarity and certainty as to rule out any misunderstanding or misinterpretation.
There is also some degree of ambiguity with respect to EIAs of stand-alone oil sands, heavy oil upgrading and processing plants. It is not entirely clear whether AER or ESRD (Environment and Sustainable Resource Development) will take care of these EIAs.
The post-EIA monitoring is another area in a need of clarification and implementation. The AER and ESRD do have a memorandum of understanding (MOU) to manage the monitoring and reporting of information as a part of EPEA authorizations. It seems as though monitoring is essential, in the case of EIA it is somewhat neglected.
There has also been noted some ambiguity around the identification of ‘energy resource activities’ and their site areas. A lack of awareness may lead to an information gap and further guidance to the stakeholders is needed from the AER under the REDA (Responsible Energy Development Act).
Compliance and enforcement
To support effective and viable legislation, enforcement and compliance of the related regulations and acts is vital. An open public consultation process (involving public, stakeholders, professionals, government agencies) may also be required.
But there’s also a need to build on the staying powers of the Crown and/or Government related to the Rules of Practice (Elements of the Specified Enactments) rather than being solely under the AER authority.
To process the applications, the AER and ESRD will work together and the ESRD will maintain a single register of all EAs (Environmental Assessments). While all EIAs remain in the jurisdiction of the Government of Alberta, EIAs related to an energy resource activity will be managed by AER.
Official Authority: Industry vs. Environment
The AER as an industry-funded regulator also represents official authority under EPEA and the Water Act. Under these new changes and implementations, the AER (and ESRD) is required to comply with the Statue and regulations.
There are some views that compliance and enforcement overseen by the independent entity (represented or appointed by Crown or Government) could also be considered.
This is to assure that the same regulatory body will be not responsible for the whole process – the regulations, approval and compliance – but rather will share or allocate the responsibilities with the respective bodies.
One of the goals of the AER as a new regulatory body is to ‘ensure the efficient, safe, orderly, and environmentally responsible development of hydrocarbon resources in Alberta for the benefit of all Albertans and beyond.
About the Authors
Jana Makusova, MSc (RNDr), BSc, CET, is Director at MM Eco Consulting Inc. and Professor at Algonquin College, Ottawa. Jana is also Adviser to Councillor, Public Liaison Committee, formerly PAC (Project Advisory Committee), City of Ottawa.
Dr. Kanwaljit Kaur, EP, CHRP, works as Director, Capacity Building with Sustainability Consulting Division, Ketek Group Inc., Edmonton. She is also a member of the Environmental Advisory Committee, City of Edmonton.
