The Joint Review Panel's (JRP) failure to appropriately consider the evidence regarding the Enbridge Northern Gateway project is deeply troubling, illustrated by the front-page news coverage of the scientists’ letter this week. But even more troubling, this failure is systemic.
My academic experience is only partly helpful here (I’m trained in ecology, policy, and sustainability science). More helpful is an on-going, 20-year conversation with my mother, who served as science advisor and executive director in the 1993 Royal Commission on Canada's tainted blood supply (the Krever Commission).
For years, Mum told of the tribulations of integrating science into a process run almost entirely by lawyers. Night after night, we debated the proper role of science and scientists, and of lawyers and legal frameworks. Three years ago, she finally convinced me: the inquiry process had worked well in the context of the Krever Commission, with scientists on staff interpreting the relevant evidence.
But, Mum, the same process does not work for environmental reviews like the JRP.
The failure of the panel is not because the panelists aren’t worthy, intelligent people. They are. Rather, it stems from the application of a regimented and adversarial legal framework in a context where it simply isn’t applicable: the evaluation of public interest.
A legal framework works well when judging wrongdoing, where legal precedents and formal standards of permissible evidence are essential. It works poorly in answering open-ended questions on large projects (e.g., if a project is in the public interest), given diverse and evolving forms of evidence. Such questions are characteristic of joint review panels, the National Energy Board, and environmental assessments.
Below are three dimensions of the legal framework’s poor fit. At an individual level, we can liken the NGP decision to deciding whether to take a pipeline construction job.
This imaginary new job will almost certainly impact to the amount of sleep you’ll get. Your lawyer says, “Never mind that. There’s no precedent for considering sleep alongside wages, so ignore such considerations.”
Such dismissal is effectively what the JRP did regarding ecosystem services (roughly, the benefits of nature), arguing that the submissions it received from First Nations and scientists “are based on a methodology that is not currently broadly accepted” (JRP Report, Vol. 2, p.12). Perhaps that’s true in a Canadian legal context, but only because no methodology for quantifying ecosystem services is broadly accepted. To my knowledge, no Canadian court has admitted such evidence, although American courts set such a precedent in the Exxon Valdez spill over 20 years ago.
A panel in pursuit of the public interest should recognize that—even without precedent, even with uncertainties—nature matters to people in diverse ways. An enlightened panel would accept evidence about ecosystem services, and include it with recognition that the projected impacts are somewhat uncertain.
Lack of rationale
Your prospective employer acknowledges a risk of long-term disability. Your lawyer pipes up, “You’ll make a bit more money, and it has a relatively low probability of actually killing you, so take the job.”
The JRP effectively ruled the same, writing that the projected economic benefits justified the costs and risks (because the risks of widespread, permanent damage were uncertain). They said nothing to explain why uncertain benefits outweigh such uncertain risks.
If I were on the JRP, I would have consulted the science that allows one to consider the implications of diffuse economic benefits, and of concentrated risks of catastrophic losses, for well-being. That literature shows that—for a wealthy country like Canada—increases in national average income yield insignificant increases in self-reported well-being. On the flip side, evidence from psychology shows that traumatic events can have long-lasting negative effects on well-being. Why, again, do the economic benefits of Northern Gateway outweigh the risks?
Exclusion of relevant documents
You find documents revealing how pipeline construction jobs have affected workers’ kidneys. Your lawyer shakes his head, “No one submitted those documents to you—neither your friends nor your prospective employer. Ignore the documents—they’re not admissible evidence.”
The JRP effectively did the same in considering only the documents submitted through official processes and by the stated deadline. Sea otters, sea lions, and large whales are listed species under Canada's Species at Risk Act. The legally mandated management and recovery plans identify tangible threats including vessel strikes, industrial noise, pollution, and oil spills. And yet the JRP ruled that there were no significant threats to these species, even though all of these threats are associated with the proposed pipeline and its associated marine shipping.
If you expected to find an explanation that refers to the documents and justifies the different conclusion, you would be disappointed.
I’m guessing you’d fire your lawyer. I’m guessing you’d consider the potential loss of sleep and risk of disability as best you could. And I imagine you’d do some Googling about other potential risks associated with the job, taking a proactive and inclusive approach to your decision.
But even with all that, you likely wouldn’t decide on the job without considering it in the context of your purpose in life. What are your hopes and dreams? Only these can inform whether the risks outweigh the benefits.
The same is true for judgment of public interest. You can’t judge it without paying careful attention to what Canadians want their nation to be. It is not clear that Canadians want a nation with a higher gross domestic product if it means more tankers, whales killed in ship strikes, potentially catastrophic oil spills, etc. The thousands of written and oral submissions opposing the project count for something crucial here.
Thousands of Canadians—in an overwhelming majority of official submissions—told the JRP that the project is inconsistent with their visions for their country and their communities. The panelists listened intently, as I remember vividly. But the JRP report shows no indication of that.
Mum, it’s not just the science that gets compromised here in the name of legal procedure. Just as you always were, I’m most worried about our government losing sight of the public interest.