Kai Chan: How could the Joint Review Panel get it so wrong on the Enbridge pipeline?

Northern Gateway project review suggests systemic failures

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      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.

      Nature’s benefits

      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.




      Jun 6, 2014 at 10:45am

      A wholly-owned subsidiary of the resource industry.

      Reinier Kanis

      Jun 6, 2014 at 4:49pm

      I live on the infamous path of this pipeline from hell, after living in Smithers for close to 55 years, and only because I love our outdoors, I love our fishing, I love our Skeena watershed, and somehow a handful of investors is more important than every resident in the pipelines path.

      I will joining all the other senior citizens who are say "Over my dead body"!

      I am sick to death of citizens having no say in matters that concern us, I am referring to the JRP. They should all be charged with dereliction of duty, and be made to serve time in our prisons. What they did was make a mockery out of the hearings, they wined and dined at our expense, they spend hundreds of thousands of dollars at our expense, then complete disregarded what the public asked for.

      Today marks the anniversary of D-Day, and Hitler would be green with envy if he could see what the conservatives are pulling off today.

      Ex-Haney guy

      Jun 6, 2014 at 6:00pm

      Harper is the Quisling of Canada: A traitor to the nation, selling out to other countries; and enabling with whatever weird religion/dogma large corporations to take our land and resources from us. I tell people that Hitler was initially democratically elected and when things started to get really bad, people were saying -"don't over-react, how bad is it going to get?"
      And now we've Harper, and Omnibus bills and the tarsands as golden fleece.

      Just because you disagree

      Jun 7, 2014 at 12:10pm

      Doesn't mean the ruling was incorrect. Unfortunately the bulk of people are so thoroughly conditioned that they believe themselves and their group to be "correct" on every issue. This is similar to how both government and BCTF have declared they support or disagree with recent decisions around education in BC based solely upon their predetermined position. If you are 100% opposed to the transportation of fossil fuels you are in for serious disappointment because fossil fuels will be moved and your opinion is irrelevant. The funny thing, as NDP hack Dan Miller pointed out, is how many people opposed to all things involving resources rely upon the taxes from that exploitation to pay for their favourite programs. If you are demanding handouts whining about how that money is sourced is absurd. The pipeline is going to be built and it won't even have to be over a single dead body.


      Jun 7, 2014 at 2:49pm

      I like to hunt and fish and it's clear that the Harper government is no longer acting in the interests of their base any longer. The short sighted oil crazed agenda of watering down environmental safety regulation and mandating the NEB to render decisions using a very narrow set of criteria that excludes all relevant environmental information that could possibly reflect negatively on their energy development agenda has rendered that once arms length regulatory body nothing more than a rubber stamping committee for the oil and gas industry.

      I want the fisheries act restored, I want publicly funded scientists to be allowed to discuss their publications with the public, after we paid for it!


      Jun 7, 2014 at 3:44pm

      @Ex-Haney guy:

      Sorry but is Harpo supposed to Quisling or Hitler in your scenario? You refer to both but their roles are mutually exclusive. I am sure you tell people Hitler was democratically elected but his position as Chancellor was by appointment of President Hindenburg. The NSDAP won 43% of the vote in March 1933 after Hitler had been appointed Chancellor but he only had a majority with the support of the DNVP. Hitler's dictatorial powers came about because he was able to get the Reichstag to pass the "Enabling Act" and from there declare legislation that banned opposition parties and promulgate the Nüremberg laws. Pretending that Harpo is on that road is ludicrous, believing Harpo is on that road shows one has traded rational thought for stimulus response.

      Last year I was at a party with a couple of Chilean friends who fled the Pinochet regime. One of the other guests was ranting about how Harpo was "just like" a fascist dictator and how oppressed she was by the Con government. My friends laughed at her histrionics but she honestly believed that somehow her experience under Harpo was equivalent to theirs under Pinochet. That is as pathetic as the herd that believes Mulcair or Trudeau is a "communist" but you can't expect a herd to think and the most basic stimulus response to opposition is to call "the other" a "fascist" or "communist."

      Brenton Siddons

      Jun 8, 2014 at 1:28am

      @Kanis...just as many seniors are sick to death of a handful of econuts constantly crying that the sky is falling over the installation of a technology that is tried and proven. If the Canadian economy should tank, you would be screaming like a wounded eagle to preserve your bennies. Also comparing our duly elected Conservative Government to Hitler is despicable... you are a selfish creep.

      Sky falling! Sky falling!

      Jun 8, 2014 at 1:12pm

      Can you imagine how pathetic our society would be if "activists" had actual power? There would be no hydro power, no cars, no competition, no jobs, and no money. Thank dog for people with a work ethic and the ability to think for themselves and achieve what "experts" thought impossible. Pipelines are coming, and those protesters better hope the come otherwise there won't be any more handouts for being an air thief.