When is an enviro appeal not an appeal?

I’m still scratching my head over the B.C. Environmental Appeal Board’s decision in the Ruth Madsen-ACC case.

For months, Madsen says she doesn’t trust ACC president Kim Sigurdson’s promise not to build his cogeneration plant in Kamloops. For this reason, she says over and over, the appeal must be pursued.

Then comes last week. Suddenly, she believes Sigurdson when he says he won’t build here. Therefore, the appeal should not be pursued. But her lawyer, Glen Bell of Vancouver, says Madsen’s appeal should be kept on file at the appeal board just in case.

In my view, the board should have said, “Look, either you’re appealing or you are not. If ACC ever says it’s going to build in Kamloops, then you have a right to file a new appeal. But you can’t just keep an appeal around forever without acting on it. Make up your mind.”

But this appeal board, time after time, has given Madsen what she wants. Here are some excerpts from the decision:

“[16] This is an unusual application for the Board. It is unusual because there is no indication that the rights under the permit will ever be exercised and yet the Permit Holder wants the appeal to proceed, despite the time and expense involved in preparing for and attending an appeal hearing and the uncertain outcome. 

 “[17] In considering this application, the Board finds that the factors that weigh in favour of the adjournment are as follows: 

1. the permit authorizes emissions from a specific site/facility in Kamloops; 
2. the focus of the appeal, as evidenced by the grounds for appeal, is on the impact of the emissions on the residents and environment of Kamloops – it is this particular air shed and environment that will be the focus of the evidence and argument; 
3. if ACC has no intention of building the facility in Kamloops, the relevance of the evidence and argument, and the appeal generally, is lost; and 
4. the hearing of this appeal will require the expenditure of public money. 

“[18] At the present time, there is no evidence that the permitted plant will be built on the Kamloops site; in fact, the best evidence before the Board is that it will not be built there. As a result, if the Board accedes to ACC’s request for the hearing to proceed in December, the Board’s decision, whether it confirms, reverses or varies the permit, becomes purely academic. While the decision may be of some general interest, it comes at significant expense not only to the Appellant, but also to the BC public. 

“[19] The Board has considered the submissions of ACC that the existence of a suspended appeal is a significant encumbrance to ACC because it hinders future actions by the company in BC and other jurisdictions. However, ACC does not explain how the appeal encumbers ACC or what those “future actions” may be. Therefore, the Board is unable to evaluate or assess the likelihood or extent of the alleged impact. 

 “[20] Conversely, what is known is that the Ministry considered ACC’s application and ultimately decided to issue the permit. Although there is an appeal of the permit, the appeal does not operate as a stay and no stay has been ordered. In other words, ACC has a valid enforceable permit and may lawfully exercise those rights regardless of whether there is an appeal. ACC’s statement that the appeal poses a significant encumbrance is therefore questionable, particularly if ACC does not intend to exercise the rights under this permit in Kamloops. Further, there is no legal prohibition to ACC obtaining a similar permit from the Ministry or a regulatory agency in another jurisdiction in order to construct a similar facility in a different location. Each permit application is decided on its own merits. 

“[21] Based on the above considerations, the Board simply cannot justify holding a four-day oral hearing, considering technical evidence on the impact of the permit on the air quality and environment of Kamloops, when the uncontested evidence is that the Permit Holder does not intend to exercise its rights under the permit in that location. Accordingly, the application to adjourn the hearing sine die is granted. 

“[22] However, should the facts underlying this decision change, the active status of the appeal may be restored and a hearing scheduled provided the conditions described in the order below are met.”