October 2, 1993

Dear Friend:

Environmental assessments and the public hearings that should scrutinize them were intended to empower the public to bring forward its concerns over projects that threatened their communities. Regrettably, environmental assessments—which are generally produced by promoters to justify their projects—often became cosy arrangements in which industry and government negotiated deals behind the public’s back, and circumvented public hearings. The result of those closed door arrangements were fiascos such as the Darlington nuclear power plant, which was never needed and which now threatens Ontario Hydro with bankruptcy, and the subsidized clear-cutting of old growth forests, which simultaneously ravaged our heritage and our economy.

When governments do decide to allow public hearings, independent bodies called environmental assessment boards (similar to courts) take over. These boards’ judgements have often been sound, seeing through the promoters’ often-strained rationales and turning down projects that are unneeded or dangerously designed, saving society money as well as sparing the environment.

But many environmental assessment hearings—particularly mega-hearings—have become fabulously expensive, bonanzas for lawyers and consultants who have often controlled the proceedings, making them seem inaccessible and creating an effective roadblock to public participation.

Instead of citizens or citizens’ groups raising issues of concern, too often lawyers and consultants take the lead. My Foundation, for example, has been solicited by lawyers and consultants urging us to take certain positions at hearings—in their areas of expertise—and to hire them to present those issues. When we haven’t, they successfully solicit other organizations by explaining that the organizations can participate in the hearings at little or no expense. The organizations get a public profile—sometimes on issues that had little to do with their activities—and the lawyers and consultants collect fees that can amount to millions of dollars per hearing. The fees come at the expense of taxpayers who pay for public hearings that might not be needed, or if needed, should be much smaller.

If you attended such a public hearing, you would find highly legalistic and jargon-ridden proceedings in a room packed with lawyers and consultants. Unlike those for whom the hearings are meant – the affected communities, who only want a fair decision in the fastest possible time to allow their members to get on with their lives—for the lawyers and the consultants the hearings are their lives, and the source of their livelihoods. These “hearings professionals” benefit from protracted hearings—at some hearings, the lawyers involved can expect to share $50,000 for each additional day the hearing drags on, providing them with a strong incentive to approach problems in time-consuming ways, and no incentive to find quick resolutions.

This trend has been growing across the country, but has reached the height of irresponsibility in Ontario, which boasts the world’s largest and most expensive hearings processes—ones whose tabs can run not just into the millions of dollars but into the tens and even hundreds of millions of dollars.

Earlier this year, an environmental assessment hearing process that began in the mid-1980s was ended after costing the public between $100 and $200 million, about half of it before the hearing even began. The hearing—whose purpose was to assess an Ontario Hydro master plan to build numerous power plants over the next 25 years—involved everyone from environmental, consumer, and human rights groups to native organizations, community and farming organizations, federal and provincial government bodies, all manner of business lobbies as well as individual businesses—over 100 parties in all, all with the right to cross-examine, all financed either wholly or largely by the ratepayer.

The result was a zoo that was all-but-impossible to administer, and a mountain of studies, transcripts, and other paper that would have been impossible for either the parties or the Environmental Assessment Board to fully absorb. Mercifully, the hearing was cancelled midstream when Hydro—who had been pushing its plans for power plants for a decade—discovered that it didn’t need any of those power plants after all.

Amazingly, this largest-of-all-hearings was actually preliminary to other hearings – had Hydro somehow seen the environmental assessment hearing through to a successful conclusion, it would then have needed to successfully steer through a dozen additional environmental assessments in far-flung communities to obtain permission to build the specific plants in its master plan.

Rivalling this environmental assessment process are others—in forestry, toxic wastes, arctic exploration, mining—many whose details are as shocking in their own way, generally because of the extent of government interference in what should be an independent process. Last year, a federal hearing for the Oldman irrigation dam in Alberta—held as the dam was being completed—found the dam so foolhardy that it recommended it be decommissioned, a recommendation the government ignored. In the case of Saskatchewan’s Rafferty-Alameda flood control dams, an environmental assessment panel quit in outrage when construction for the project continued with the hearing underway. The assessment for PEI’s fixed link to the mainland has little credibility with many Islanders due to political intrigues.

For communities threatened by such projects, who have their lives disrupted for years, and even for those who happen to have a worthwhile project that deserves to be built, the environmental rules can be an undeserved nightmare. A citizens’ group opposing Ontario Hydro facilities collected 10,000 signatures on a petition calling for an end to all of Hydro’s environmental assessments, seeing them as rubber stamps for bad projects. But assessments can also be a nightmare for virtually everyone else involved – for the local business interests who are adversely affected by the megaproject which upsets their community; for the public interest groups whose heartfelt convictions are given short shrift; and for the civil servants who must thanklessly administer proceedings destined to satisfy almost no one.

There must be a better way, and there is.

Most environmental assessments are needless—typically they consider government infrastructure projects that are uneconomic or unnecessary, which governments promote to create jobs but which no private individual or corporation would consider. Other environmental assessments occur for megaprojects such as Hibernia—government-industry partnerships subsidized with public monies, again because the private companies considered the ventures uneconomic. These projects, and the assessments for them, should be eliminated altogether by getting government and industry out of bed with each other, and keeping each to its proper role: industry should develop industrial projects that can stand on their own, without government hand-outs, and governments should regulate them stringently and without compromise—when government becomes a partner in a project, it develops a conflict of interest and loses its status as a neutral party.

Still other infrastructure projects are necessary, but on a much smaller scale – governments have taken viable small-scale projects and bloated them to create additional short-term jobs. By keeping these needed projects to their proper size, they may avoid the large environmental effects that trigger environmental assessments, and the public can be protected through other mechanisms. Factories and other small-scale projects, for example, are regulated by zoning rules.

Most environmental assessments could be eliminated with strong property rights, which would better protect communities. Logging in B.C.’s Slocan Valley could soon be occurring at the expense of small-holders, whose properties are being threatened by logging which would divert and clog the waters needed for their farming and household uses. By empowering communities like these with the right to say no to projects that harm their property, developments would proceed only when concerns were met to the communities’ satisfaction.

Environmental assessments for 25-year plans, or (as is being suggested) for broad policies such as the effects of NAFTA or proposed tax polices, should be recognized as futile exercises and avoided—doing so will eliminate most of the ill-defined mega-hearings that degenerate into exorbitant debating societies that accomplish nothing of value.

When assessments are genuinely needed, they should always be tested in public hearings, which should be smaller and better focussed to allow the legitimate concerns to be clearly heard. Environmental assessment boards must both encourage the participation of all affected parties and—if the public is to pick up the tab—be vigilant in challenging the credentials of others, whose involvement may stem more from the ease of participation than from long and deeply-held concerns.

In the past, Environment Probe has often introduced hard-nosed propositions – that megaprojects were unsustainable economically as well as environmentally, that the free trade deal had merits for the environment as well as risks, that property rights are powerful tools for environmental protection. Through our publications and other public education efforts, many of our positions have come to be widely accepted.

With your generous support, we will now try to explain to Canadian decision makers and the Canadian public the importance of injecting sense in our system of environmental regulation. If the regulatory system isn’t reformed to give local communities decision-making power, to minimize the number of environmental assessments, and to make public hearings work fairly and efficiently, we may find that decisions are once more made exclusively in the back rooms, once more with disastrous results.

Sincerely,

Lawrence Solomon
Executive Director