Appeals

1998 ABEAB 10                                                                                               Appeal No. 98-010

                                                                                                        Date of Decision  - March 31, 1998

IN THE MATTER OF Section 84 of the Environmental Protection and Enhancement Act, (S.A. 1992, ch. E-13.3 as amended);

-and-

IN THE MATTER OF an appeal filed by Mr. Bill Lucey, Confederation of Regions Political Party (Federal) with respect to Approval No. 21005-00-00 issued to ANG Gathering & Processing Ltd. by the Director of Land Reclamation, Alberta Environmental Protection

Cite as:            Lucey v. Director of Land Reclamation #3, re: ANG Gathering & Processing Ltd.

                                                        TABLE OF CONTENTS

BACKGROUND........................................................................................................................... 1

DECISION OF THE BOARD...................................................................................................... 4

BACKGROUND

[1]                    On February 25, 1998, Mr. Bill Lucey, Leader of the Confederation of Regions Political Party (Federal) [CORE], filed a Notice of Appeal with the Environmental Appeal Board [Board].  Mr. Lucey objected to Approval No. 21005-00-00 issued by the Director of Land Reclamation [Director], Alberta Environmental Protection [Department], to ANG Gathering and Processing Ltd. for the construction and reclamation of the Central Foothills Gas Gathering System Pipeline Project.   Mr. Lucey’s Notice of Appeal contained the following information:

“Please accept this letter as our “Core’s” Notice of appeal to the above app. by ANG. Gathering and Processing Ltd.

We “Core”, demand a two year halt on this project so that we might;

(a)        do our own research on this, by contacting other Alberta and National, Envionmental [sic] Groups, (eg. Green Peace ec [sic] to raise funds to obtain legal counsel, for a “class action” lawsuit againts [sic] the energy companys [sic] and government body’s [sic] involved in this application.

(b)        this project will do irreparable damage to our “Envionment” [sic].

[2]                    On March 3, 1998, the Board informed ANG Gathering and Processing Ltd. that an appeal had been filed by Mr. Lucey and provided them with a copy of Mr. Lucey’s appeal.

[3]                    The Board acknowledged Mr. Lucey’s appeal in a letter dated March 2, 1998, and asked Mr. Lucey to respond to the following questions:

“I.        Required Contents of the Notice of Objection

Section 5(1) of the Board's regulations require notices of objection to include specific information.  Your February 20, 1998 letter does not specifically reference this section of the regulations, but does provide some of the required information.  The section 5(1) information requirements are quoted below.  Please respond to the requests following each of these listed requirements. 

. . .

(d)       "a description of the relief requested by the person objecting"

Please indicate what relief (i.e. result) you wish to obtain from this appeal.  Please be as specific as possible.  If you object to specific provisions of the Director's Approval decision, rather than or in addition to the approval as a whole, state specifically which provisions you object to and describe what modifications you would request to be made to these provisions. 

. . .                  

II.        Your Eligibility To File A Notice of Objection Based On "Direct Affects"

As relevant here, section 84(1) of the Act provides that a notice of objection of a Director's decision, like the Director's Approval No. 21005-00-00 (hereinafter, the "Approval"), may be submitted by a person who is "directly affected" by the decision.  Section 87(5) of the Act authorizes the Board to dismiss a notice of objection prior to conducting a hearing on the merits if the person who submits the notice fails to meet this "directly affected" test. 

Please explain how you are "directly affected" by the Director's Approval. Given your history with the Environmental Appeal Board, where several of your previous appeals have been dismissed, the Board urges you to give more specific details of your personal interest in this appeal.

III.       Issues Raised By Your Appeal         

At this stage of the appeal, the Board would like you to indicate the reasons why you believe the Board should grant the relief you are requesting and list the issues that you would like to address in a potential hearing on the Approval.  Your letter does not specifically summarize your concerns with the Approval, or state them clearly to provide sufficient detail for the Board. 

. . .      

V.         Deadline For Responding To This Letter; Caution Re Failure To Respond

Please provide your responses regarding the matters requested in this letter by March 23, 1998.  You should be aware that the Board has the ability to dismiss an appeal if you do not provide us with all of the information which we need and which we seek at this time.  Accordingly, please answer all of the questions as thoroughly as possible and send them to this office within the deadline.  Failure to respond to this request may result in the Board’s dismissal of your appeal.”

[4]                    According to standard practice, on March 3, 1998, the Board also wrote to the Alberta Energy and Utilities Board (AEUB) and the Natural Resources Conservation Board (NRCB) requesting that both advise whether the matter was the subject of a public hearing or a review under either of their legislation.  In a letter dated March 6, 1998, the NRCB advised that the appeal did not deal with a matter that had been the subject of a review under their Board. The AEUB responded as follows:

“Mr. Bill Lucey filed an Objection to ANG Gathering & Processing Ltd.’s application no. 1007783.  A copy of his objection dated 1 July 1997 is enclosed.

Mr. Lucey received by ordinary mail, a copy of the original Notice of Hearing dated 2 September 1997, a copy of which is enclosed as well as the re-opening of the hearing dated 7 November 1998.  He had the opportunity of participating in the original hearing and the re-opening but he did not attend either.”

[5]                    On March 5, 1998, counsel for the Department responded to the Board’s letter of March 2, 1998 to Mr. Lucey, requesting that the appeal be dismissed and concluded that Mr. Lucey:

“a)       has not complied with the Board’s Order regarding the submission of appeals made in Decision 97-047,

b)       is not directly affected by the Decision of the Director (the project being in Edson, Mr. Lucey being in Calgary),

c)       has not expressed any specific environmental concerns regarding this approval, and

d)       has not sought relief which the Board has jurisdiction to grant.”

[6]         In a letter dated March 10, 1998 to the Board, ANG Gathering and Processing Ltd. stated:

“We are obviously opposed to Mr. Lucey’s appeal and support the submissions of Alberta Justice . . . ”

[7]         Finally, on March 16, 1998, Mr. Lucey responded to a number of questions raised by the Board in its March 2, 1998, letter to him.  He replied as follows:

...

EAB QI(d):  “a description of the relief requested by the person objecting”

Reply:      “ANSWER: TO STOP “ANG” FROM TRANSPORTING THIS DEADLY POISON GAS FOR MILES (KILOMETERS) (BOPAHL INDIAN”

...

EAB QII:    “Please explain how you are “directly affected” by the Director’s Approval... .

Reply:      “ANSWER: We “Core” have lost faith in any “Alberta Justice”, decisions along with thousands of Albertan [sic], exhibit “A” attached.  “ANG”, is not going to pipe this deadly (H₂S) gas for miles, this reminds us of “Bopol in Indian” or “Chernobal in Russia...”

DECISION OF THE BOARD

[8]         Mr. Lucey’s Notice of Appeal does not meet any of the criteria related to standing necessary for the Board to continue its jurisdiction.  Mr. Lucey has not, to the Board’s satisfaction, raised specific environmental matters related to ANG Gathering and Processing Ltd.’s Approval.  He has not shown that either he or the Confederation of Regions Political Party (Federal) or any of its members are plausibly directly affected by the Director’s decision in the construction and reclamation of the Central Foothills Gas Gathering System Pipeline Project.

[9]         The Board has now dismissed 15 of Mr. Lucey’s appeals in roughly the same fashion.  Mr. Lucey's underlying concerns which prompt him to file these repeated appeals may or may not be valid.  The important point here is that he has never satisfied the requirements of the Alberta Environmental Protection and Enhancement Act and the regulations governing the Board's proceedings for initiating, and carrying through with an appeal before this Board.  Those requirements are not mere "technicalities"; they reflect numerous important policy decisions and are generally designed to ensure that the Board conducts a fair and impartial proceeding. 

[10]        The Board does not expect that every Appellant should have an engineering degree or a doctorate in environmental science in order to air an important environmental concern before this Board through an Appeal.  However, the Board expects Appellants to be able to respond directly, to the best of their knowledge, to the Board's requests for information about their interests and the nature of their appeals.  The Board also expects Appellants to have researched the subject of their appeals sufficiently to be able to raise at least a threshold level of environmental concern and to show how this concern may directly affect them.  Mr. Lucey has repeatedly failed to meet these threshold tests and, moreover, has repeatedly proved unwilling to correct these procedural flaws found with previous appeals. 

[11]        Given the repeated generalizations such as:

·     do our own research on this project^[1];

·     do our own research on CO₂ emissions from “bogs” muskeg areas this application will pass through^[2];

·        campaign to have electric (wind powered) motors installed on all compressors that compress this natural gas, to eliminate CO₂, emissions at compressor sites^[3];

·        contact the Department of the Environment in Washington DC, USA, in regards to green house emissions this export application will cause^[4];

·        contact Environment Canada in Ottawa on their allowed green house gas limits^[5]; and

·        have expert, Dr. Suzuki of Vancouver, B.C. give a lecture series on our environment and pollution^[6]

in Mr. Lucey's appeals, the Board believes that those appeals have not served the public interest--they have generated substantial public and private costs, and required the expenditure of considerable energy and resources.  That result will only frustrate, rather than promote, the environmental interests which Mr. Lucey purports to represent. 

[12]        This appeal is, therefore, dismissed.

Dated on March 31, 1998 at Edmonton, Alberta.

____________________________________

Dr. William A. Tilleman