B.C. Environmental Appeal Board rejects precautionary principle in favour of “cautious approach”

In a recent decision upholding an air permit amendment issued to Rio Tinto Alcan Inc. (Rio Tinto) for the expansion of its smelter in Kitimat, the British Columbia Environmental Appeal Board (Board) ruled on a number of key principles applicable to the assessment of waste permit applications by the B.C. Ministry of Environment (Ministry) under the Environmental Management Act (EMA). Of particular note, the Board rejected the application of the precautionary principle in favour of a less stringent “cautious approach”, and confirmed that the Ministry is not required to include cumulative effects in its consideration of permit applications. 

This decision makes it clear that rigorous and scientifically defensible technical analysis of the impact of proposed emissions on human health and the environment is critical to successful permit applications. However, the determination that some impacts will occur is not a bar to obtaining a permit or amendment, provided it can be shown that any such impacts are mitigated in a manner that will meet the Board’s standard of a “cautious approach” to be applied by the Ministry.

PRECAUTIONARY PRINCIPLE AND CUMULATIVE EFFECTS 

Referring to past decisions of the Board as well as decisions of the Supreme Court of Canada and the high courts of Australia and New Zealand, the Board held that neither the precautionary principle nor a “precautionary approach” apply to permitting decisions by the Ministry under the EMA. Rather, the Board held that a “cautious approach involving a comprehensive technical analysis of the potential harm that the proposed emissions may cause to human health and the environment” should be adopted by the Ministry when assessing permit applications under the EMA.

The Board also held that the EMA cannot be interpreted as excluding any risk to public natural resources or the environment, and rejected the idea that the Ministry can only approve permits in circumstance where there would be zero risk to the environment. The Board referred to previous decisions in which it has held that potential harm from emissions under waste discharge permits should be controlled, ameliorated and, where possible, eliminated, but went on to clarify that all risks of harm or damage will not be eliminated. This is because the permitting provisions of the EMA are specifically intended to allow the emission of waste into the environment, and “waste” by its very definition, is material that is capable of causing harm.

The Board also concluded that the EMA does not, expressly or impliedly, require the Ministry to consider the cumulative effects of emissions from other facilities. 

BOARD RECOMMENDS A REGIONAL HEALTH STUDY

While the Board upheld the Rio Tinto permit amendments in their entirety, it also made some recommendations for a regional health study in Kitimat and the development of a health advisory system for the Kitimat region to alert residents to issues of air quality that may impact their health. The Board’s recommendations are not binding on the Ministry, so it remains to be seen if they will be acted upon, and if so, what effect these could have on future industrial development in the region.

OTHER FINDINGS APPLICABLE TO PERMIT APPLICATIONS

This decision will be of assistance to entities applying for new or amended waste discharge permits, as the Board also made a number of other findings regarding the exercise of the Ministry’s discretion and the application process. These include the relationship between policy and the discretion of the Ministry in considering permits; the scope of reasons to be given in permitting decisions; and the process for public consultation for major permit amendments.