Canada’s Tar Sands Regulations: Uncovered Documents Cast Doubt on Effectiveness, Enforcement

By Jennifer Skene, Ford Fellow, Natural Resources Defense Council

The strength of Canada’s tar sands environmental regulatory regime is facing more scrutiny as a result of documents Greenpeace Canada obtained from the Alberta government’s energy regulator. The documents cast light on the Alberta government’s response to the death of birds that landed on tar sands waste lakes, known as “tailings ponds,” in November 2014. In short, they reveal that the Alberta government, after surveying the ponds, chose not to investigate Canadian Natural Resources Limited (CNRL), the owner of the tailings ponds, despite evidence suggesting that there may be flaws in their bird deterrence systems meant to prevent the deaths. This failure casts continued doubt on the Canadian government’s constant assurances to the U.S. government that it has a “world class” environmental regulatory system. It has used this claim throughout its campaign for approval of the Keystone XL tar sands pipeline, assuring U.S. policymakers that tar sands are thoroughly regulated and thus not environmentally destructive. The revelations in the documents obtained by Greenpeace emphasize the importance of scrutinizing the substance behind Canada’s claims relating to the tar sands and projects like the proposed Keystone XL tar sands pipeline.

Alberta’s failure to investigate

On November 4 and 5, 2014, several hundred migratory birds in Alberta mistook a series of CNRL’s toxic tailings ponds for freshwater lakes. At least 110 of them died as a result. Bird deaths in tar sands waste ponds have been a longstanding problem, and tar sands operators are required to have deterrence systems that meet the Environment Protection and Enhancement Act (“EPEA”) requirement of “due diligence.” Unfortunately, there are no binding standards for what constitutes due diligence in the context of deterrence systems. This means that, while there are common industry practices, there are no clear and fixed grounds for violations.

The documents Greenpeace Canada obtained through Alberta’s Freedom of Information and Protection of Privacy Act (FOIP), develop a picture of the Alberta Energy Regulator’s insufficient response to the incident. The documents, which contain the field inspector’s report on the CNRL Horizon waste ponds following the incident, suggest that CNRL failed to have a fully functioning system, relative to the industry standard, for deterring migratory birds from the toxic waste sites. It had removed key deterrent equipment, such as loud cannons and bioacoustics machines, and had a malfunctioning radar device for detecting birds. CNRL also failed to mitigate the effects of a new facility’s lights, which attract birds.

Yet the Alberta government decided that an investigation was unnecessary because it found that CNRL’s “waterfowl deterrent systems were fully operational” and “none of the companies could have prevented the incident…” Instead, it attributed the bird landings to inclement weather conditions and did not consider the artificial lights to be an indictment of CNRL’s practices.

This failure to even investigate, much less take enforcement action, fits into the pattern described in a 2013 study highlighted by my colleague Danielle Droitsch after a tar sands well blowout. The study shows that Alberta enforces less than one percent of the tar sands industry’s violations of environmental regulations.

In response to this information, the Canadian environmental law organization Ecojustice has written a letter to the AER on behalf of Greenpeace Canada calling for an investigation into CNRL’s practices and also for the AER to “implement clear and binding standards that are informed by the best available scientific information regarding bird deterrence requirements.” Until this is done, the letter states, the government should not approve the construction of any more tailings ponds.

The full extent of the problem

Tailings ponds have killed alarming numbers of migratory birds in the past. In 2008, approximately 1,600 ducks died when they landed on a Syncrude tailings pond. The company was prosecuted and convicted, but only after a media firestorm. In 2010, 500 more ducks died in tar sands tailings ponds. Canada blamed the deaths on the weather and moved on without further investigation or enforcement action. A 2010 study concluded that, on average, 1,973 birds are dying each year as a result of tailings ponds. This is approximately 30 times the rate cited by the government. In instances like the 2014 deaths, simple adherence to industry standards may have been enough to prevent the bird landings.

The death of migratory birds does not simply impact Canada. Migratory birds travel throughout North America, stopping in the United States during their migrations. Environmental groups, including NRDC, have already brought the issue of tar sands’ effects on migratory birds before the Department of the Interior (DoI) through a 2011 petition for the U.S. to look further into Canada’s practices.

Canada’s misrepresentations to the U.S.

In its response to the 2011 DoI petition, the Government of Canada insisted that the tar sands “are being developed in an environmentally-responsible manner,” while the Government of Alberta described their environmental regulatory regime as “robust.” The Canadian government wrote, “The development of the oil sands is a heavily-regulated activity, with Alberta providing oversight on every major element of a new project throughout its life-cycle from planning, to project approval, operation, and reclamation of the land.” Yet if these regulations are not being implemented properly, then this is a false claim. Furthermore, in its response, Canada insisted that the government “will prosecute violations” and that its inspection and enforcement process is adequate. Alberta’s record shows that this is not the case.

The Canadian government claimed that its tar sands companies have “some of the most advanced bird deterrent systems in the world,” including radar-activated deterrent systems that use tactics such as emitting loud noises when birds fly within a certain range. However, the number of bird deaths continues to be high. Additionally, if these “advanced” deterrence measures are not being fully operationalized, as at CNRL’s ponds, then they are still inadequate.

Canada, throughout its lobbying to the U.S. in favor of the proposed Keystone XL tar sands pipeline, has used claims that its tar sands regulations are “among the most stringent in the world” as selling points for increasing imports of tar sands oil. The Alberta government made similar assertions in a 2014 letter to Secretary of State John Kerry. The Alberta government’s failure to investigate CNRL calls into question just how progressive Canada’s policies truly are. The CNRL bird deaths were by no means an anomaly, and without stricter standards migratory birds will continue to land on the tailings ponds, affecting treasured wildlife that calls the U.S. and Canada home.

Canada is not being forthright with the U.S. Government about the environmental precautions it’s taking with regard to tar sands tailings. Greenpeace’s letter highlights essential actions that must be taken in order for Canada to begin to live up to its claims. Until that happens, Canada should inform the U.S. of the full dangers of tar sands mining, and the U.S. should reject Keystone XL and think twice about allowing tar sands to cross our borders.

Originally posted here.