Size counts when it comes to environmental assessments
UPDATE - FEBRUARY 1ST, 2011 - The Friends of Davie Bay's legal challenge goes to court in the BC Supreme Court in Vancouver this morning.
Yesterday afternoon lawyers the Friends of Davie Bay (FODB), with a grant from our Environmental Dispute Resolution Fund, filed a petition challenging the BC government’s failure to conduct an environmental assessment of a major gravel pit on Texada Island [link to press release]. The FODB describe the gravel project, proposed by Lehigh Northwest Cement, as follows:
Lehigh plans to construct a conveyor or ramp, 433 metres in length, 7 metres in height, spanning the causeway and tidal island at its crest, and build a barge-loading facility on the Lasqueti side of the tidal island in Davie Bay. Clearance for the conveyor would be approximately 6 metres, and it would entail the building of several pylons to support the structure. The ramp would extent over the tidal island and out about 15 meters into the ocean to enable 10,000-tonnes barges, 100 metres in length, to load.
A quarry in the Davie Bay area would devastate a unique area of forest, open grassy bluffs, limestone caves and streams and waterfalls, and the fragile marine habitat. This should not happen without a detailed examination of the social, economic and environmental consequences, with full public input.
But more fundamentally this court case could answer some crucial questions about how environmental assessments need to be done, thereby strengthening BC’s environmental assessment process.
Under BC’s Environmental Assessment Act only large projects, particularly likely to cause environmental problems, get assessed. The Reviewable Projects Regulation clarifies that new quarries will not be assessed under the Act unless they “have a production capacity of > 250 000 tonnes/year of quarried product.”
LeHigh Northwest has indicated that it intends the Davie Bay quarry to produce 240,000 tonnes/year, or just below the threshold that would require an environmental assessment. But, it’s building infrastructure that will support a much larger mine. As David Perry, the lawyer for the FODB, wrote to Minister Barry Penner last September:
Lehigh has represented … that the proposed conveyor system used to move rock will be capable of a loading rate of 2500 tonnes per hour. Further Lehigh states in the Mine Plan that they intend to use 100 tonne trucks in their quarry operations. Based on the capability of the conveyor system Lehigh could meet their stated production in only 96 hours of operation.
BC Environmental Assessment Office, in response, has stated that it understands the “production capacity” to refer not to the capacity of the on-the-ground infrastructure, but the amount of gravel extraction that LeHigh Northwest has requested permission for in its applications to the Ministry of Energy and Mines.
The Environmental Assessment Office’s interpretation would allow companies to easily avoid doing environmental assessments in a wide range of cases, simply by understating their production and then later increasing it. To take this case as an example, if this project is allowed to proceed without an environmental assessment, there will be nothing stopping LeHigh Northwest from later applying to expand the quarry without any further environmental assessment (unless the increase in land area of the quarry were large enough to itself trigger an environmental assessment).
When I described the situation to my wife, she immediately said: “Well, as a mother I can certainly see where that’s going.” Parents know all about children that try to argue for “just one more minute” in the hopes that they can really get five.
British Columbians expect the BC government to show at least the same common sense in regulating gravel companies as a parent applies in enforcing family rules. It seems that, in this case at least, we’re not seeing that.
Fortunately, there is a clear legal basis for a challenge: Does annual “production capacity” really only what LeHigh Northwest has asked the government for permission to mine, or does refer to the capacity that the project, and its associated infrastructure, could handle? The answer to that question will help determine whether companies can opt-out of environmental assessments simply by breaking their projects into phases.
Image from Friends of Davie Bay, generated by Google Earth.
Other documents:
Friends of Davie Bay press release and backgrounder
Judicial Review Petition filed by the Friends of Davie Bay
Affidavit of Kenneth Dove filed in support of the Petition
Comments
Davie Bay
I used to live on the small island (which the locals at the time named "Flower Island because every April and May, its bluffs would be carpeted in pick Sea Blush and a variety of other wildflowers. Otters would regularly pull out on the many rocky clefts of the island, and once I spotted a very large mammal hauled out on a rock. It was at least ten feet long and weighing easily 1000 pounds, white in color...some kind of sea lion I suppose. It jumped in the water with a gargantuam splash. Orcas occasionally were spotted passing inside the island and across the sand spit at high tide. Eagles would roost in the trees. And to echo Daniel's comments above, the flora was quite unique with cactus, many edible herbs and a variety of trees. Thanks for all the work being done to protect this place and the precedent it will hopefully set for other planetary jewels like it.
Interest in Davie Bay case
Its great to see so many comments on the Davie Bay case. As others have pointed out, there are many examples of projects avoiding an EA by underestimating the size of the project or breaking projects into many pieces. So fingers crossed that we can establish a good precedent on this one.
Thanks, Daniel, for your first hand account of Davie Bay and the area that would be impacted by the gravel pit and load out area.
Davie Bay
I'm very pleased to see the critical issue of avoiding environmental assessment come before the courts. I had the pleasure of visiting Davie Bay last week and had a good look at the island that is proposed to be developed for a ship loading facility. The island is a small but very pristine example of an endangered plant community; The biogeoclimatic classification is Coastal Douglas Fir moist maritime 02 (CDFmm-02). This is a Douglas Fir, Arbutus and Lodgepole Pine forest and is the driest forested ecosystem in Coastal British Columbia. In the absence of an EA process, the fact of this endangered plant community at Davie Bay will never receive consideration and the same is true of many other values present in the area. Thanks to WCEL for supporting this case and all the best luck to the Friends of Davie Bay. Cheers, Daniel Bouman, Sunshine Coast Conservation Association
Davie Bay case
Re the Texada Island petition, that seems like a really good case. Really simple. First, standard of review. If it’s correctness then the decision is likely incorrect. But the standard is likely reasonableness. Will the court find it unreasonable? To me it sure seems open to the court to find it’s unreasonable. Especially if the proponent doesn’t have any evidence to support a genuine below-threshold gravel removal concept. It’d be great to get a successful JR of the EAO where the EAO is just not standing up for environmental protection.
This could be a very
This could be a very important case for EA in BC. A lot of proponents seem to be avoiding assessment by blatantly underestimating production capacity, and the province is turning a blind eye to it. Looks like a straight up statutory interpretation issue, in a sense similar to the MiningWatch case. It will be interesting to see what kind of arguments both sides come up with.
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