A (Pre)Cautionary Tale About the Kearl Oil Sands Decision - the Significance of Pembina Institute for Appropriate Development, et al. v. Canada (Attorney-General) for the Future of Environmental Assessment

In Pembina, the Federal Court reviewed a Joint Panel Report evaluating the environmental impacts of the Kearl Oil Sands project. The case received considerable attention for its laudable finding that the Panel should have provided reasons to support its conclusion that the project’s proposed GHG emissions would be insignificant. However, this paper critiques the decision for accepting the Panel’s reliance upon future, uncertain mitigation measures and recommendations as a basis for finding that the various environmental impacts – including GHG emissions, but also impacts upon water, land, wildlife and human health – would be insignificant. The author respectfully argues that the Court gave too broad an interpretation to the concept of “technically feasible” mitigation measures, given the high degree of uncertainty involved. The author also posits that the Court failed in its duty to apply the precautionary principle in environmental assessment, as now mandated in the CEAA. The Court justified the Panel’s reliance upon measures and recommendations with uncertain outcomes as appropriate mitigation of environmental impacts by relying upon the concept of adaptive management as a counter to the precautionary principle. The author argues that the Court erred in doing so. Application of the precautionary principle is a legislated duty that reduces the threshold of uncertainty that panels may tolerate in assessing environmental impacts. While adaptive management is a concept that can be applied in the implementation of follow-up programs, it is not an appropriate substitute for the duty to apply the precautionary principle.