April 16, 2019

Appeals Board Takes Sober Second Look At Brownfield Development In Alberta

Walsh LLP working with a team of lawyers from Alberta and British Columbia successfully appealed multiple Environmental Orders that were issued by the Director of Alberta Environment and Parks.  The appeal of these Orders was heard by Alberta’s Environmental Appeal Board over the course of a twelve day hearing, which is now the longest ever in the history of the Board.

The Orders issued by the Director required, among other things, the immediate removal and disposal of contaminated soil that has been at depth for well over three decades.  The clean-up cost of removing all of the material as suggested by the Director in these Orders was estimated to be approximately $52,000,000.00.  While the Director cited that the removal of this material was an “emergency,” the Appeals Board disagreed with that characterization and actually found in their decision that the removal of these soils as contemplated by the Orders would pose a greater risk to the health of nearby residents.  The Appeals Board further found that the Orders were issued without proper technical or scientific foundation, and recommended that the Minister of Alberta Environment and Parks reverse the Orders. The Minister subsequently accepted that recommendation.

While the details in dispute in this hearing were incredibly complex, there are clear implications from this decision in respect to the future of brownfield development in Alberta. With thousands of contaminated sites throughout the Province, it is important that our legislative framework allows for development of these sites in a manner that reduces risk to human health, and encourages productive use of contaminated land.

One of the largest roadblocks in facilitating brownfield development is the risk of liability, which was certainly a risk that was front and centre to these proceedings.  Had the Director been successful in enforcing these Orders, which were repeatedly referred to as “incorrect and unreasonable” in the Appeal Board’s decision, it would have arguably set a precedent that would destroy the commercial viability of brownfield development in Alberta.  There is and always has been a liability risk associated with brownfield development, however, the risk must be informed by a proper scientific and technical understanding of the site.

It is likely that challenges associated with brownfield development will continue into the future, as environmental legislation will continue to evolve along with our scientific understanding of these sites.  However, ideally this decision gives some comfort to those looking to invest in brownfield development that the risk of liability will not include liability associated with “incorrect and unreasonable” clean-up demands that are lacking in proper technical and scientific foundation.

For the full decision of the Environmental Appeals Board, click here.

Have Environmental or Commercial Litigation questions? Walsh LLP’s Commercial Litigation group is here to help.