Setting boundaries of participation in environmental impact assessment

Environmental Impact Assessment Review 45 (2014) 69–75

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Environmental Impact Assessment Review journal homepage: www.elsevier.com/locate/eiar

Setting boundaries of participation in environmental impact assessment Geoffrey H. Salomons a,1, George Hoberg b,⁎ a b

University of Alberta, Department of Political Science, 10-16 Henry Marshall Tory Building, University of Alberta, Edmonton, AB T6G 2H4, Canada University of British Columbia, Faculty of Forestry, Forest Sciences Centre #2045, 2424 Main Mall, Vancouver, British Columbia V6T 1Z4, Canada

a r t i c l e

i n f o

Article history: Received 23 July 2013 Received in revised form 15 September 2013 Accepted 14 November 2013 Available online 2 December 2013 Keywords: Environmental impact assessment Public interest standing Public participation Directly affected Representation Canada

a b s t r a c t Public participation processes are touted as an effective way to increase the capacity and legitimacy of environmental assessment and the regulatory process that rely on them. Recent changes to the Canadian environmental assessment process narrowed the criteria for who can participate in environmental assessments from any who were interested to those who were most directly affected. This article examines the potential consequences of this change by exploring other areas of Canadian regulatory law where a similar directed affected test has been applied. This new standard risks institutionalizing the long-understood representational bias confronted by more diffuse interest like environmental protection. Restricting participation to the “directly affected” is far too narrow a test for processes like environmental assessment that are designed to determine the public interest. © 2013 Elsevier Inc. All rights reserved.

1. Introduction Public participation has been a cornerstone of environmental impact assessment since its inception in the late 1960s. However, relatively little attention has been paid to who gets to participate. This lack of attention may be understandable because the open ended nature of many environmental assessment participation mechanisms has given little reason to devote much attention to such issues. Many environmental assessments are what Dietz and Stern (2008, p. 116) refer to as “unbounded” with respect to who is allowed to participate: those who feel that they might have something to contribute, or wish to register an opinion on a project, can sign up to participate. Frequently, concerns lie in designing processes to increase participation to expand the breadth and diversity of perspectives being considered in the process. Recent changes to Canada's environmental assessment process to impose limits on public participation fly in the face of years of analysis and evaluations in the environmental assessment literature (Dietz and Stern, 2008; Glasson et al., 2005; Hanna, 2005; O'Faircheallaigh, 2010; Sadler, 1996). In 2012, Canada revised its environmental assessment law to restrict public participation to those who are either “directly affected” or have “relevant information” (Parliament of Canada, 2012a). Many of the critiques of environmental assessment participation mechanisms, including those within the pages of this journal, typically conclude that more could and should be done (Hourdequin et al., 2012; ⁎ Corresponding author. E-mail addresses: [email protected] (G.H. Salomons), [email protected] (G. Hoberg). 1 Tel.: +1 780 452 5992. 0195-9255/$ – see front matter © 2013 Elsevier Inc. All rights reserved. http://dx.doi.org/10.1016/j.eiar.2013.11.001

O'Faircheallaigh, 2010). The new restrictions to the Canadian process move in the opposite direction. The goal of environmental assessments, like other policy processes, is to make determinations of whether a particular project is in the “public interest” (Glasson et al., 2005; Vlavianos, 2010). Public participation has a crucial role to play in making such determinations. While the public interest is a difficult concept to define (Cramton, 1974), restricting those able to participate compromises the abilities of such processes to legitimately claim that determinations are made in the public interest. This paper explores the issue of who gets to participate in environmental assessments. It will focus on the consequences of the changes to the federal environmental assessment in Canada in 2012 to provide insight into the issues concerning the establishment of relevant ‘publics’ in such participatory contexts. This paper argues that for environmental assessment processes to be effective and legitimate, they must incorporate a combination of values and interests that is representative of the broader public. While this argument is undoubtedly familiar and uncontroversial to the readers of this journal, the changes in Canadian environmental assessment are, as far as we know, unprecedented. Furthermore, the issue of representation raises serious questions concerning who gets to participate. What category of interest is legitimately qualified to participate in environmental assessment processes? What might the consequences be in narrowing the scope of individuals legitimately allowed to participate? Finally, who is best suited to participate in order to make determinations concerning the public interest? To address these questions this paper will outline how public participation in environmental assessments contributes to the quality of policy decisions by supplementing the electoral process. We then discuss

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the complex challenges that environmental issues pose for representation theory, and potential ways to address them. To understand the potential consequences of Canada's changes to the environmental assessment public input criteria, we examine situations where similar doctrines have been applied: energy regulation in Alberta and the standing doctrine in the administrative law more generally. This analysis allows us to see how the “directly affected” provision has been applied in the past and its possible consequences for environmental assessment processes in Canada. The paper concludes that restricting participation to the “directly affected” is far too narrow a test for processes like environmental assessment that are designed to determine the public interest. 2. Context: Restricting participation in the Canadian environmental assessment process The changes to the environmental assessment process began with an open letter by Natural Resource Minister Joe Oliver. This letter was released the day before the public participation component of the environmental assessment for an increasingly controversial project, the Northern Gateway Pipeline, was set to begin. This letter called those opposed to the project “radicals” with an “ideological agenda” (Oliver, 2012). The ruling Conservative party introduced an entirely revamped Canadian Environmental Assessment Act buried within a four hundred page omnibus budget bill that also included substantial revisions to many other environmental legislative acts such as the Fisheries Act and Species at Risk Act (Parliament of Canada, 2012b). The goal of these changes, dubbed “Responsible Resource Development” (Government of Canada, 2012), was to streamline environmental decision-making. Of particular interest for this paper is the change to the definition of “interested party” within the Canadian Environmental Assessment Act. The 1992 Act stated that an interested party was “any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious” (Parliament of Canada, 2012a). This definition is what Dietz and Stern (2008) refer to as “unbounded” as there are no boundaries established concerning who can participate, the individual must simply have an ‘interest’ in the project. In contrast, the 2012 Act changed the definition of interested party. Referring to the environmental assessment panel, the Act states: “if, in its opinion, the person is directly affected by the carrying out of the designated project or if, in its opinion, the person has relevant information or expertise” (Parliament of Canada, 2012a). This more restrictive definition presents significant challenges for environmental assessments. First, the directly affected tests in law are typically defined via property rights, safety concerns or financial costs (Muldoon et al., 2009). Consequently, those who pass such tests represent those with the most direct material concerns with a given project. Limiting the scope of public participation to such people could introduce a significant amount of bias into a process designed to determine whether a project is in the public interest. It would exclude those concerned about environmental impacts that have more diffuse effects either in space or time. For example, impacts to air and water quality, as well as species habitat, are frequently indirect, diffuse, or delayed. Second, this restriction in definition is, to our knowledge, unprecedented. Many environmental assessment processes include provisions for public participation, but do not have restrictions on who can participate. No Canadian provincial environmental assessment makes any such restriction, nor does the US National Environmental Protection Act include any such restriction (Wood, 2003). The second part of the new standard, whether “the person has relevant information or expertise” could allow for broad participation. But the fact that the participation of such parties is at the discretion of the panel still reflects a major restrictions on rights of parties with more diffuse interests to participate. As we will show in the Alberta case study, leaving this decision to administrative bodies can lead to severe curtailments on the breadth of participation.

3. Public participation and representation 3.1. Public participation in electoral democracy Public participation is a well established goal for policymaking in democratic societies, but recent actions like those of the Canadian government suggest that it is increasingly contested. In this context it is useful to review the underlying rationales for public participation in democratic theory and the literature on its effects. Webler and Tuler (2006) define public participation “as forums that are organized for the purpose of facilitating communication among interested and affected citizens and groups, scientists, experts, political officials, and regulators for the purpose of making a specific decision of governance or solving a shared problem” (p. 599). Others focus more narrowly on stakeholder events which, by definition, are intentionally limited to those with a direct stake in the issue (Reed et al., 2009). Warren (2009) argues, however, that public participation is part of a broader push to democratize policy-making (what he calls governance-driven democratization), consequently arguing for participation, not only by stakeholders, but also by ordinary citizens. If public participation processes are designed to allow ordinary citizens to have informed input on policy-making, could it not be argued that this is precisely what representative democracy does? Why would we need citizens to participate in the policy making process more fully if elected officials are suppose to fulfill that role? There is a well established critique within democratic theory on the limitation of electoral democracy in representing citizen policy preferences. The first disconnect, and most important for our analysis, arises as “territorial electoral constituencies do not match issue constituencies, which are increasingly non-territorial” (Warren, 2009, p. 6). How to respond to transboundary policy issues is an increasingly pressing issue with no clear answer. A second problem is the challenge of divining a policy mandate from an election when constituents have a multitude of preferences which do not line up easily with the platforms of political parties or the views of particular individual representatives. Yet another challenge is when electoral and party systems distort the relationship between votes and seats in the legislature. This problem is a particular challenge in recent years in Canada, where majority governments have been elected with a minority of votes. For example in Canada's most recent election (2011) the Conservative party won a majority government with only 39.6% of the popular vote (Elections Canada, 2011). Finally, policy-making has become infinitely more complex. Both Warren (2009) and Dalton et al. (2003) suggest that the political milieu of highly organized and professional interest groups, combined with the complexities of increasing economic and social integration across nations (often referred to as globalization), make for highly complex contexts in which to create policy. This complexity has two consequences. First, citizens become more alienated from the policymaking process. As the process becomes increasingly complex, highly organized and well-funded interest groups are more able to effectively navigate those complexities. The result is a particular form of collective action problem where a small number of highly organized interests are able to override a more diffuse but prevalent general will (Olson, 1965). The second consequence is that this complexity undermines the trust that citizens have in policy makers. Citizens are becoming increasingly less deferential to authority and demand that their elected officials be more responsive on an issue by issue basis (Warren, 2009). As trust has declined, we have witnessed a marked drop in voter participation and an increase in skepticism regarding politicians, political parties and political institutions (Dalton et al., 2003). Electoral democracy is a blunt representative instrument. Public participation processes, in comparison, are able to address those representative linkages with much more precision. As will be explained later, public participation processes provide additional information for policy makers.

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3.2. Objectives of public participation Public participation has numerous potential benefits for environmental decision-making (Dietz and Stern, 2008; Hanna, 2005; Macias, 2010; Parkins and Mitchell, 2005; Reed, 2008). Many of these benefits specifically address the concerns regarding the representative linkages in electoral democracies noted earlier. Broadly speaking, the benefits of public participation can be synthesized into two categories: process and outcome (Parkins and Mitchell, 2005; Rowe and Frewer, 2004). The increased legitimacy of a decision due to a transparent public participation process would be an example of a process benefit. The eventual decision may not be substantially different than if the process had not taken place, but it increases the public's trust in the decision-making process, which is one of the major concerns noted above (Booth and Halseth, 2011; Hawkins and O'Doherty, 2010). Increased legitimacy can be understood in both a positive and a negative light. Viewed in a positive light, the increased legitimacy of a decision-making process can be seen as an honest reflection of the government's desire to come to decisions that are acceptable to as wide a population as possible, and to make those decisions as transparently as possible. The work by some scholars on the case of the Great Bear Rainforest is an example that reflects this optimistic perspective (Cullen et al., 2010; Day et al., 2003; McGee et al., 2009). Viewed negatively, participation processes can be seen to be an attempt by the government to placate opposition through cooptation, while keeping policies substantively unchanged. There is a risk that participatory processes can be forms of tokenism, where government creates the appearance of being open to public input while manipulating outcomes (Arnstein, 1969). This argument has been applied to the Alberta government's use of multi-stakeholder consultations around the oil sands in the 2000s (Hoberg and Phillips, 2011). In addition to potential process contributions, public participation mechanisms can also contribute substantively to policymaking outcomes in two significant ways. First, by raising issues that may only be known by local residents, public participation can allow general decision-making processes to be attentive to local circumstances (Bäckstrand, 2003; Fischer, 2000). Such a contribution would allow a technical decision-making process to be more robust and comprehensive. Ciaran O'Faircheallaigh (2010), for example, highlights a number of dimensions in which public participation contributes in such a manner. The public both provides information that may not otherwise be accessible (such as particular local knowledge) but also acts as a form of peer-review as the claims made by the proponent are open for contestation. Second, by revealing public values to decision-makers, public participation can contribute to the making of decisions that technical policy processes are fundamentally unable to make, for example determining the public acceptability of a particular risk. The Canadian Environmental Assessment Agency echoes these points. In the guide to participant funding, it states a number of benefits to public participation. Public participation can: • provide interested persons and organizations with a fair opportunity to contribute to the planning of projects that may affect them; • allow proponents and federal authorities to better understand and address public concerns and priorities; • reduce the potential for adverse environmental effects by identifying community knowledge and Aboriginal traditional knowledge that may be applied in the environmental assessment; and • build greater public trust in the environmental assessment process and in the decisions that come out of that process (Canadian Environmental Assessment Agency, 2008). There are a number of ways in which the public can participate in the Canadian environmental assessment process. Many guidelines for participation are set out through the participant funding program (Canadian Environmental Assessment Agency, 2008). Throughout the environmental assessment process the public is invited to comment at

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several key steps along the way including determining whether an environmental assessment is necessary, during the review panels, and after the release of a draft environmental assessment report (Canadian Environmental Assessment Agency, 2012). With the more thorough review panels, the Act dictates that the panel must “hold hearings in a manner that offers any interested party an opportunity to participate in the environmental assessment” (Parliament of Canada, 2012a). It is the more involved participation in the hearings for the review panels where the restrictions concerning “interested parties” apply. Prior to the changes in the 2012 Act, the biggest concern was the lack of involvement and bias of participation due to self-selection. After the changes, this bias has been institutionalized. 3.3. Evaluating public participation in environmental assessment Having outlined the benefits and objectives of public participation in environmental assessment, we can evaluate how the new Canadian restrictions on the participation in environmental assessment might affect the ability of the process to achieve those objectives. A substantial literature has emerged to evaluate the impact and effectiveness of public participation in environmental assessments and other sorts of environmental policy decisions (Beierle and Cayford, 2002; Carpini et al., 2004; Chess and Purcell, 1999; Thompson, 2008). A comprehensive overview is provided by the U.S. National Academy of Sciences study Public Participation in Environmental Assessment and Decision Making (Dietz and Stern, 2008). They evaluate the effects of participation on three values: improving the quality of decisions, enhancing the legitimacy of decisions, and building the capacity of participants to effectively contribute. Dietz and Stern conclude that “substantial evidence shows that effective public participation can help agencies do a better job in achieving public purposes for the environment by ensuring better decisions and increasing the likelihood that they will be implemented effectively” (2008, p. 226). Dietz and Stern also find that public participation “can do more harm than good” if the process is not properly designed and adequately resourced, or if the government lacks a commitment to doing it effectively. They specifically identify “inclusiveness of participation” as one of four principles for good design, along with collaboration in process design and process formulation, transparency, and good-faith communication (Dietz and Stern, 2008, p. 230). The goal of the process should be to achieve “full participation by interested and affected parties” (p. 192). While they acknowledge that there may be practical limits to the number of participants in some processes, they argue that “it is preferable to err on the side of too much inclusiveness than too little” (p. 231). The Canadian government's changes to the definition of interested parties contradict the ethic of inclusiveness found to be a principle of good process design by the U.S. National Academy of Sciences study. Prior to the changes to the Canadian environmental assessment, any individual that chose to participate could do so. Restricting environmental assessment participation to “directly affected” and “relevant perspectives” establishes a particular representative bias into the process. The scholarly literature has argued for decades that there is a systematic structural difference between environmental values and the economic interests of those affected by environmental regulations. While business interests are typically localized, direct, and concentrated, environmental values such as clean air, clean water, and wilderness are more diffuse (Lubell, 2002; Olson, 1965; Wilson, 1980). Many environmental policies and public participation programs around the world have been specifically developed to counteract this bias in the structure of interests. By privileging directly affected interests in environmental review processes, the new Canadian rules risk institutionalizing a bias against the representation of environmental values in the policy process. 4. Directly affected in practice To understand how a “directly affected” limitation on public participation might function in the context of environmental policy decision-

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making, this section examines how that concept has been applied in other areas of Canadian law, in particular the law of standing and how it has been applied in the Alberta energy regulation. One clear example of the “directly affected” provision is known as the legal doctrine of “standing” or locus standi that governs who has the right to participate in a legal proceeding. It operates in a number of different legal areas such as constitutional law, civil litigation, and administrative law (Greenbaum and Wellington, 2010). In litigation, the standing test is designed to determine who can rightly bring forth a concern of law before the courts, for example to challenge a law as unconstitutional or to request a judicial review of a decision made by an administrative body The traditional stranding doctrine was designed to limit those who had access to legal remedies to those who were directly or adversely affected. This limitation was designed to protect public bodies from harassment by professional litigants, to help the ration of judicial resources, and to ensure that people do not meddle paternalistically in the affairs of others (Cane, 1986). It is the narrowest of tests and is limited to those who might experience adverse effects in three distinct areas: property, health or safety, and financial costs (Muldoon et al., 2009). As environmental and other public interest issues became a more important focus of law and policy, courts have reformed standing law to provide for a much broader interpretation of “public interest standing” in some cases. 4.1. Traditional standing doctrine in Alberta regulation The traditional standing doctrine is the most straightforward, as it operates on the understanding that those who pass are directly or adversely affected. It is reflected in the participation standards at work in Alberta energy and environmental regulation, in particular who has the right to trigger a hearing or raise concerns in a proceeding of the Energy Resources Conservation Board and the Environmental Appeal Board (Sherman et al., 1996).2 A number of cases involving Susan Kelly and the Alberta Energy Resources Conservation Board illustrate the complexity of dealing with this seemingly straightforward test of standing. In 2008 Grizzly Resources proposed to drill two sour gas wells near the residences of Susan Kelly, Linda McGinn and Lillian Duperron. These three presented an application to the ERCB in opposition to the proposed development. The ERCB denied their application because they did not pass the Board's test of standing as outlined in section 26(2) of the Energy Resource Conservation Act. The section in question states: (2) Notwithstanding subsection (1), if it appears to the Board that its decision on an application may directly and adversely affect the rights of a person, the Board shall give the person (a) notice of the application, (b) a reasonable opportunity of learning the facts bearing on the application and presented to the Board by the applicant and other parties to the application, (c) a reasonable opportunity to furnish evidence relevant to the application or in contradiction or explanation of the facts or allegations in the application, (d) if the person will not have a fair opportunity to contradict or explain the facts or allegations in the application without cross-examination of the person presenting the application, an opportunity of crossexamination in the presence of the Board or its examiners, and (e) an adequate opportunity of making representations by way of argument to the Board or its examiners. Section 26(2) concerns the requirements for which an individual should be consulted, or may trigger a hearing into the decision. For 2

In mid-2013, the Government of Alberta reorganized the structure of energy regulation, and the ERCB was replaced by a much larger Alberta Energy Regulator. Because these events occurred before the reorganization, we continue to use the agency's older name.

the development of gas and oil wells the notion of ‘directly affected’ is limited to a narrow set criteria based on safety concerns or property right infringement. Two directives are relevant for the determination of standing with regard to these cases. Directive 56 determines who must be consulted with particular projects, following the “directly and adversely affected” provision. Directive 71 outlines the radius of an Emergency Planning Zone (EPZ) as well as a Protection Action Zone (PAZ). The EPZ is the area within which the company must develop an emergency response plan and is fairly narrow in its radius. Such a plan would have to account for the definite effects that would result in a gas release or explosion. The Protection Action Zone is a broader area wherein the company must attempt to predict what the effects of a gas release might have, given certain conditions such as wind speed and direction. The ERCB ruled that Kelly did not have standing because she lived in the Protected Area Zone, outside the Emergency Planning Zone. As legal scholar Shaun Fluker argues, “the ERCB's approach to standing means that Alberta families could be exposed to poisonous hydrogen sulfide in their homes and not even be entitled to speak against the drilling of the sour gas well” (Fluker, 2010). Kelly challenged the decision in court, and the Alberta Court of Appeal ruled that indeed the test of standing did extend to the more extensive Protection Action Zone (Kelly v. Alberta (Energy Resources Conservation Board), 2009). However, the ERCB responded on November 13, 2009 by redefining the Protected Area Zone so that it did not exceed the area of the Emergency Planning Zone (Fluker, 2009). There does not seem to be any justification for creating a separate Protected Area Zone designed to encompass a larger area with less immediate and direct effects if it is then defined to not exceed the zone with more direct effects. The apparent lack of regulatory logic behind the change in definition of the zones reveals how far administrative bodies may go to restrict participation if they are given the discretion to do so. Another case concerns two of the three above mentioned residents (Susan Kelly and Lillian Duperron) and a different energy company (Daylight Energy) proposing another well in the area (Kelly v. Alberta (Energy Resources Conservation Board), 2010). Here the ERCB again argued that these residents did not pass the test of standing as the Protected Area Zone was based on worst case scenarios with low probability and, in the unlikely event that something were to happen, they would simply be evacuated from the area (which the ERCB deemed not to be an adverse affect but suggested that “the possibility of an evacuation would be to their benefit”) (Fluker, 2010). As noted above, the ERCB had redefined the Protected Area Zone much more narrowly and this case was one that brought forth those new barriers. Of note is that in the reason for decision, the judge in this case erroneously quoted the ERC Act test for standing (s26(2)) as saying that an applicant will be adversely affected, when the Act in fact states that an applicant merely may be affected. The differentiation between potential versus actual effects in the case of a problem seems significant given the arguments the ERCB is attempting to make regarding the health and safety effects of the well and parallels the arguments of the previous case which tried to limit the standing test to immediate health effects as opposed to ones diffused over time. Following Kelly v. Alberta (Energy Resources Conservation Board) (2009), Kelly et al. applied to the ERCB to be reimbursed as interveners for the legal costs incurred (Energy Resources Conservation Board, 2010). The ERCB again denied the claim, on the argument that they did not pass the test of standing of someone who is adversely affected. However, in this case the ERCB focused on the language surrounding the funding of interveners from section 28(1) which states: 28(1) In this section, “local intervener” means a person or a group or association of persons who, in the opinion of the Board, (a) has an interest in, or (b) is in actual occupation of or is entitled to occupy land that is or may be directly and adversely affected by a decision of the Board in or as a result of a proceeding before it, but, unless otherwise authorized by

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the Board, does not include a person or group or association of persons whose business includes the trading in or transportation or recovery of any energy resource. In this case, the ERCB explicitly focused on the impacts on the land rather than the potential health risks that would be associated with the project. The Board stated that “no evidence was presented at the review hearing or in this cost proceeding to demonstrate a potential for the Grizzly wells to directly and adversely affect lands that the Kelly Interveners have an interest in, occupy, or are entitled to occupy” (Energy Resources Conservation Board, 2010). This, in effect, alters the standing test and disregards the health and safety concerns and limits it to property issues, at least as far as the local intervener funding of section 28 of the Energy Resources Conservation Act is concerned. Shortly thereafter they sought leave to appeal this decision and were successful (Kelly v. Alberta (Energy Resources Conservation Board), 2011). Similar restrictions on standing are evident in other parts of Alberta regulatory law. The Environmental Appeals Board in Alberta has a slightly different test for standing — it simply states that in order to bring an appeal a person must be “directly affected.” But the Environmental Appeals Board has shown a similar inclination to the ERCB to define the test narrowly to exclude representatives of broader environmental concerns (Bankes, 2006). A 2013 judicial ruling revealed that Alberta government, in denying the Pembina Institute the right to file a statement on a proposed oil sands project, acted improperly by considering that Pembina had become “less inclined to work cooperatively” (Pembina Institute v. Alberta (Environment and Sustainable Resources Development), 2013). Remarkably, when the Alberta government reorganized its regulatory structure in mid-2013, they placed further restrictions on standing in energy regulatory. The Responsible Energy Development Act created a new organization, the Alberta Energy Regulator, that subsumed the ERCB and all of its functions. The new legislation also changed the procedures for hearings, but not in a way to address the concerns that many have expressed about the representational bias manifest in the “directly affected” test and how it has been applied by the regulator. Instead, the legislation goes in the exact opposite direction: it removes the obligation on the regulator to conduct a hearing or even to receive input from those that are “directly and adversely affected.” In other words, the Act changes the rules “to strip away statutory hearing rights even for those few landowners that meet the restrictive interpretation of the hearing provisions in section 26(2) of the ERCA given by the ERCB” (Fluker, 2012). 4.2. Public interest standing Public interest standing is much broader in scope than the traditional standing test. It has been developed by courts to provide access to legal remedies for groups with more diffuse interests (Bailey, 2011; Tollefson, 2002). In Finlay v. Canada (Minister of Finance) (1986), public interest standing was extended from constitutional to administrative law arena (Mullan, 2007; Tollefson, 2002). The threefold test for public interest standing was summarized succinctly in the Canadian Council of Churches v. Canada (Minister of Employment and Immigration) (1992): First, is there a serious issue raised as to the invalidity of legislation in question? Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity? Third, is there another reasonable and effective way to bring the issue before the court? The third part of the test gives courts a great deal of discretion. In this particular case, the Court chose to interpret the rule relatively narrowly. The Canadian Council of Churches (CCC) was attempting to present an issue before the court that affected refugees. The Court ruled that the refugees in question would be a more reasonable and effective

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proponent of this issue for the court, and consequently there was no need for the CCC to bring the issue before the court. A much more expansive and generous interpretation was adopted by the Supreme Court of Canada when it granted public interest standing to an advocacy association to challenge the constitutionality of prostitution laws on behalf of sex workers in Vancouver's downtown eastside (Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012). The public interest standing doctrine has also made its way into how courts have dealt with Alberta energy regulation. The Pembina Institute did pass the public interest standing test in a case against the Alberta Utilities Commission (AUC). In this particular case concerning the approval of a coal-fired power plant, the company, Maxim Power Corp, was attempting to fast-track project approval in order to exempt it from anticipated greenhouse gas regulations that would come into effect in 2015. The AUC complied with Maxim's request to expedite the approval process and issued an interim decision that the project was in the public interest to allow for the company to proceed to the next stages of the permitting process. Pembina sought to challenge this interim decision in order to keep the coal-fired power plant from evading the greenhouse gas regulations. The AUC had already made a determination that no one was directly or adversely affected, thus no party was granted standing before the Utility Commission under the criteria of the traditional standing test. Pembina successfully argued that: the test for standing before the Commission is different than the test for standing to appeal the Commission's decision to this court. It contends that if only those parties found to be directly and adversely affected by the Commission's decision have standing on appeal, then once a determination has been made that no such party exists, the Commission would be immune from any oversight in its decision-making; the Commission would essentially be able to act with impunity in such circumstances. [Pembina Institute for Appropriate Development v. Alberta (Utilities Commission) (2011)] In other words, because the AUC had already ruled that no party was granted traditional standing before the court, there was no other way to raise this issue other than to grant Pembina public interest standing. While the appeal was eventually denied in the end, Pembina successfully argued that it had public interest standing (Pembina Institute for Appropriate Development v. Alberta (Utilities Commission), 2011).3 Unlike the directly affected test in the traditional standing doctrine, the public interest doctrine is far more accommodating to diffuse environmental interests. In Canada, the standing doctrine is no longer a serious barrier to environmental group access to courts. According to Valiante, the “Court's approach in most cases … has been to allow established environmental groups raising serious challenges to legislation or administrative decision to do so” (Valiante, 2009, p. 31; see also Tollefson, 2002, p. 183–185). 4.3. Consequences for Canada's new restrictions The doctrine of public interest standing is an example of how the legal system can accommodate diffuse interests to correct the structure of representational balance in favor of concentrated economic interests. The “directly affected” standard in Alberta is much narrower, and the clear intention of the changes to the definition of “interest parties” in the Canadian Environmental Assessment Act is to narrow the range of interests that have the right to participate in federal environmental assessments. The new Canadian rules do, however, grant review panels considerable discretion in deciding who may appear. The Act defines “interest parties” as those who are “directly affected by the carrying 3 For other cases where public interest standing was achieved for environmental cases see Benidickson (2009).

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out of the designated project,” or, in the opinion of the review panel, have “relevant information or expertise.” The latter clause allows the panel to broaden participation if it so chooses. Thus far, the government has not issued any regulatory guidance on how to interpret the new definition of interested parties, so it is up for individual panels to decide. Early decisions by panels suggest that they have not been using the new rules to restrict participation. One case is the ongoing re-assessment of the Prosperity Gold–Copper mine project in British Columbia, Canada (Federal Review Panel, 2012). The panel received and accepted all thirty-one applications for the status of “interested party”. In another case where identical language has been added to the National Energy Board Act, the interpretation has also been very liberal. The National Energy Board sparked controversy in its review of Enbridge Line 9B, which would reverse the flow of an oil pipeline from Ontario to Montreal, when it required potential participants to fill out a detailed form explaining how they meet the criteria of interested party. Despite the more rigorous application process, it appears that the Board accepted virtually all of the applications. The list of parties includes the York University Chapter of the Council of Canadians and a variety of environmental and other types of public interest organizations. In total the panel approved, in addition to the applicant, four aboriginal groups, 24 associations, seven companies, 11 government organizations, and 14 individuals (National Energy Board, 2013). It is possible that the more elaborate procedural requirements dissuaded some groups from applying to appear, but the breadth of participation ultimately permitted is quite broad.4 These two cases illustrate the benefits and risks of leaving discretion in the hands of the panels. The Harper government clearly wanted to change the rules to narrow the range of the participants, but it was apparently unwilling to prevent panel members from exercising their own judgment on what sort of representation would benefit the review process. The fact that panel members chose to interpret the rules liberally in these cases suggests that there is still room within the new rule framework to foster broad participation when the panel members believe that is important. But the Alberta experience clearly demonstrates the risks to an open and inclusive regulatory process of giving such authority to regulators. If they choose to limit participation narrowly, they have that authority. Moreover, if the Canadian government prefers that future panels adopt more restrictive interpretations, they can do so through the types of panel members that they select, or by issuing regulatory guidance on how to interpret the new definition of interested parties.

5. Conclusions Canada's choice to limit participation to those directly affected creates significant risks to the quality and legitimacy of the environmental assessment process. The original practice of the environmental assessment was to allow any who desired to comment on a project the opportunity to do so. No perspective was too trivial; no issue denied a voice. It was a broad, unbounded process, despite perhaps being a little too dependent upon the inconsistent attention of the public to achieve that breadth. If anything, the process could have been more intentional about including additional perspectives that may not necessarily come forward voluntarily. Instead, in the interest of timeliness and efficiency, the decision has been made to exclude the number of people involved in the process, to restrict rather than expand participation (Parliament of Canada, 2012a). One of the key requirements for democratic decision-making to be legitimate is impartiality (Rosanvallon, 2011). Impartiality is necessary if, collectively, we want to legitimately suggest that we are pursuing

4 One applicant was denied the right the submit a statement of concern, and an environmental group is challenging that decision in a lawsuit (McCarthy, 2013).

the common good, our public interest. If we want decision-making to achieve this ideal, especially with regard to public participation processes used to augment electoral democracy, we need to pay attention to the question of who participates. This question is crucial as it touches on many of the ideals of democracy, such as equality and liberty, even when in practice they are not fully realized (Przeworski, 2010). Impartiality is not achieved if those who participate are solely those with the most direct material interests. By restricting participation in the environmental assessment to those who are directly affected, the impartiality of the process is compromised insofar as the information the adjudicators on the panel receive concerns only the most direct material interests in the project. As a result, a significant amount of bias is institutionalized in the environmental assessment process. This undermines the environmental assessment both procedurally as well as substantively: procedurally as the legitimacy of the process is compromised, substantively as its capacity to make determinations concerning the public interest is severely curtailed. The changes to the environmental assessment came about because some in the federal government believed that allowances for public participation were being “hijacked” (Oliver, 2012). The question should be asked, what would the alternative be? By restricting public participation even further, the inevitable result is that such processes will be deemed even less legitimate than they already are. Rather than “advancing an agenda” there are numerous “public benefits that flow from citizen engagement” (Tollefson, 2002). If government decision-making processes further exclude concerned citizens from the process, it seems guaranteed to increase public alienation and reduce the legitimacy of the process. The democratic belief that all who are affected by a decision should have the opportunity to contribute to making that decision remains, in the end, unheeded.

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Geoffrey H. Salomons is currently a Ph.D. student in the department of Political Science at the University of Alberta. His research areas include public policy (especially environmental policy), democratic theory, and long term policy problems. His research currently focuses on the nature of long-term policy problems and the ways democratic policy makers can better address such problems. George Hoberg is a political scientist and a Professor in the Department of Forest Resources Management at the University of British Columbia. His research interests include energy policy, forest policy, and more generally the design of policies and institutions to promote sustainability. His current research is focused on BC electricity policy and environmental governance of the oil sands.