COVID-19 and the suspension of routine environmental reporting in Alberta

An earlier version of this article was previously published on ABlawg.ca. 

On March 17, 2020, Alberta declared a public health emergency in relation to the COVID-19 pandemic with Order in Council 80/2020 issued under section 52.1 of the Public Health Act, RSA 2000, c P-37. During a public health emergency, section 52.1 provides individual ministers with the power to suspend the application of legislation that they are responsible for under the Government Organization Act. The Minister of Environment and Parks exercised this power in late March with three ministerial orders. These defer and suspend certain reporting requirements under the Environmental Protection and Enhancement Act, the Water Act, the Public Lands Act, the Technology Innovation and Emissions Reduction Regulation, and the Renewable Fuels Standard Regulation, on the basis that they are not in the public interest during the COVID-19 public health emergency. In this comment, I briefly discuss these orders, what their impact will be on Alberta’s environmental regulatory system, and what we might glean from these decisions by the Minister in relation to Alberta’s evolving policy commitment to addressing climate change.

In Ministerial Orders 15/2020 and 16/2020, the Minister states that emergency measures being implemented to contain COVID-19 may create challenges for regulated entities to submit compliance reports and emission reduction plan reports under the Technology Innovation and Emissions Reduction Regulation and the Renewable Fuels Standard Regulation. Accordingly, these orders defer submission deadlines for 2019 reports under these regulations for three months from March 31 to June 30, 2020.

Ministerial Order 17/2020 is distinct in that the Minister suspends, rather than defers, reporting requirements. The Minister has declared there is hardship in complying with routine reporting requirements set out in approvals, registrations, licenses and dispositions issued under environmental legislation during the COVID-19 emergency. Specifically, Ministerial Order 17/2020 suspends the reporting requirements contained in terms and conditions for: approvals or registrations issued under the Environmental Protection and Enhancement Act; licenses or approvals issued under the Water Act; and dispositions under the Public Lands Act. This suspension is in force until at least August 14, 2020, unless the order is terminated earlier by the Minister or the Lieutenant Governor in Council. The order does not suspend reporting requirements applicable to drinking water treatment facilities.

Moreover, all other requirements (such as a requirement to monitor and collect data which would normally be reported) set out in these approvals et al. remain enforceable. It is also important to note here that other environmental reporting requirements, such as those set out in section 110 of the Environmental Protection and Enhancement Act with respect to the release of harmful substances, were not affected by this order. In other words, this order applies to reporting requirements in the normal course.

Nonetheless, the potential impact of Ministerial Order 17/2020 on the integrity of Alberta’s environmental regulatory system should not be underestimated. Industry self-reporting is an essential component of the information gathering, monitoring and compliance functions of a regulatory authority. It also helps to ensure non-compliance events are remedied with compliance measures before these events become regulatory offences with serious human health and environmental impacts. These reporting requirements are standard fare in approvals issued under Alberta’s resources and environmental legislation, often connected to threshold requirements. For example, a water licence holder may be required to monitor and report on the flow rate of a source stream so that Alberta Environment can monitor for compliance on thresholds which trigger prohibitions on diversion, or so that Alberta Environment can simply gather data on the longer-term impacts of an activity on the ecological integrity of the stream. While it may be that an approval holder will continue to meet reporting requirements, despite the suspension implemented by Order 17/2020, the very reason for a mandatory requirement is because voluntary compliance cannot be relied upon. Under the terms of Order 17/2020, it is not clear whether suspended reports will ever be submitted to regulatory authorities. The order states that information collected in relation to reporting requirements during the suspension period must be made available to regulatory authorities upon request.

It is surprising that Ministerial Order 017/2020 does not require approval holders to substantiate a causal connection between hardship in reporting and COVID-19. As an interesting contrast in regulatory approach, the Alberta Securities Commission has provided relief on reporting requirements in the financial market (see e.g., Temporary Exemption from Certain Corporate Finance Requirements, 2020 ABASC 33 and Relief from Reporting Requirements for Regulated Entities Carrying on Business in the Province of Alberta, 2020 ABASC 34). But it has attempted to mitigate the impact of this relief on the integrity of securities regulation by imposing conditions including, in some instances, a requirement to substantiate why compliance with the normal requirement wasn’t achievable.

From a climate change perspective, the deferral of reporting under the Technology Innovation and Emissions Reduction Regulation and the Renewable Fuels Standard Regulation is unlikely to be of any real significance. It is encouraging that these reports must still be submitted to regulatory authorities, albeit at a later date. It is more difficult to assess the impact of Ministerial Order 17/2020 on Alberta’s climate change policy. There is little doubt that reporting requirements contained in terms and conditions for some approvals issued under the Environmental Protection and Enhancement Act relate to information relevant for monitoring on factors which contribute to climate change as well as for monitoring the effects of climate change on Alberta’s air, land and waters. However, the order itself provides no assessment of these impacts at even the most basic or general level. The impact of suspended reporting will depend on the overall duration of the suspension, which is still uncertain, and a thorough assessment of impact would require a review of the terms contained in thousands of individual approvals.

COVID-19 has provided us with a rare opportunity to observe the exercise of emergency law-making powers in Canada, and in particular, the exercise of legislative powers by the executive. From the perspective of Alberta’s policy commitment to address climate change, perhaps the most troubling aspect of Ministerial Order 17/2020 is not even the suspension of routine reporting requirements but, rather, how the Minister of Environment and Parks exercised this unilateral emergency power. Section 52.1 of the Public Health Act gives individual ministers extensive power to legislate without scrutiny by the legislative assembly and apart from even the minimalist accountability that would be provided by the Regulations Act. Released from the constraints of these accountability measures, the Minister acted swiftly to grant a blanket suspension to environmental reporting requirements and, in doing so, showed no apparent regard for the ability of the environmental regulatory regime to serve its policy objectives. Looking ahead, this sort of executive decision-making by a Minister responsible for climate change policy is not an encouraging sign for climate measures that rely on an effective and enforceable regulatory system.