Alternatives Analysis

Overview of BC Law

The identification, analysis and consideration of potential alternatives to a proposed project are an important part of the environmental assessment.  BC law, however, contains no explicit requirement to carry out alternative analyses. Instead, the decision to include an alternatives analysis is subject to the discretion of the EAO Executive Director and Minister.¹²³ Although alternative analyses are not explicitly required under BC law, they are discussed in provincial policy.¹²⁴ According to this policy, proponents are to:¹²⁵

• briefly describe proposed project alternatives;
• identify the key issues in considering the alternative means of the proposed project;
• provide an analysis of the alternative means of carrying out the proposed project that are technically and economically feasible; and
• identify the rationale for selecting the preferred alternative.

Issue

A recent review of EAs completed in BC revealed an absence of needs assessments and analyses of alternatives to the project (unless an EA under the federal EA process had been carried out).¹²⁶ Due to the fixed location of mineral ore bodies, there may not be readily identifiable alternative locations for mineral extraction. An alternative analysis of proposed mining projects should nevertheless consider:¹²⁷

• alternative mining processes (i.e., underground versus open-pit versus heap leaching);
• alternative facilities and locations; and
• alternative land uses (i.e., other than mining).

Recommended Solutions

Legally require alternatives analyses in all EAs

[Tags: EA; Alternatives]

Although alternatives analyses are not mandatory for EAs in BC, they are legally required in several other jurisdictions. Under US federal law, for example, alternatives analyses are described as being at the heart of the EA process.¹²⁸ In Nova Scotia, the terms of reference for an EA must include a description of the alternatives to the undertaking.¹²⁹ In the Yukon, “every comprehensive study of a project and every mediation or assessment by a review panel shall include a consideration of alternative means of carrying out the project that are technically and economically feasible and the environmental effects of any such alternative means” [emphasis added].¹³⁰ In Ontario, EAs must consist of “the alternative methods of carrying out the undertaking and the alternatives to the undertaking”.¹³¹ In Alberta, EAs must include a consideration of the alternatives to the proposed activity. ¹³² Alternatives assessments are also required under CEAA 2012.¹³³

Specify types of alternatives to be evaluated in the EA process –  including the alternative of not proceeding with the proposed mine

[Tags: EA; Alternatives]

In many jurisdictions, the law clearly specifies the types of alternatives that must be considered in an EA. For example, in South Africa the law lists specific examples of alternatives that should be evaluated in the EA process, including alternatives to the proposed activity’s:¹³⁴

• location;
• design or layout;
• technology to be used; and
• operation.

South African law also provides that alternatives to the proposed activity, for example activities other than mining, should be considered.

In several other jurisdictions the alternatives analysis must consider the alternative of not proceeding with the proposed activity. This component of the assessment has been recognized as a critical determinant of an effective EA¹³⁵ and is required by law in Alberta,¹³⁶ Ontario,¹³⁷ Sweden,¹³⁸ the United States¹³⁹ and under the James Bay and Northern Quebec Agreement.¹⁴⁰ Under the Mackenzie Valley Resource Management Act the need for the development must also be considered.¹⁴¹

Require detailed information on each alternative to ensure each is adequately considered

[Tags: EA; Alternatives; Environmental Impact]

Ontario law contains a list of information that proponents must describe in the EA for each alternative – this includes descriptions of the likely, or reasonably likely:¹⁴²

• direct and indirect impacts on the environment;
• effects caused to the environment; and
• actions to prevent, change, mitigate or remedy effects on the environment.

Establish standard for carrying out alternatives analysis

[Tags: EA; Alternatives]

BC law does not outline on which basis alternatives will be evaluated. In contrast, Oregon law provides explicit guidance on carrying out the alternatives analysis in EAs for chemical process mine: the alternatives analysis must be carried out in a manner that “rigorously explores and objectively evaluates all reasonable alternatives”.¹⁴³

Consider impacts on First Nations in alternatives analysis

[Tags: EA; Alternatives; Indigenous People]

In BC, there is no legal requirement that the EAO consider how each alternative might impact First Nations. In contrast, under the James Bay and Northern Quebec Agreement, “alternatives to the proposed action, including alternatives to individual elements of large scale projects, will be evaluated with a view to minimizing […] impacts on Native people and wildlife resources and maintaining the quality of the environment”.¹⁴⁴ Similarly, under South African law, the advantages and disadvantages that different alternatives may have on the local community must be described in the EA.¹⁴⁵

Prohibit the justification of activities that harm the environment solely on economic basis

[Tags: EA; Alternatives; Economic]

A common critique of alternatives analyses in EAs is the heavy reliance on economic considerations when evaluating alternatives. This problem was recently demonstrated in the EA process for the proposed Prosperity Mine in BC. In that case, the proponent alleged that the alternative to depositing tailings in Fish Lake was not economically feasible due to the high costs associated with the alternative construction of a tailings pond. After being denied the federal EA approval, however, the proponent changed its plans in favour of the previously rejected alternative. This suggests that the proponent’s alternatives analysis was primarily based on economic considerations.¹⁴⁶ In Minnesota, the law addresses this concern by explicitly prohibiting the granting of a natural resource permit where the sole justification for a particular alternative is based on economic considerations.¹⁴⁷

Prohibit use of public resources to pursue a particular alternative before EA approval

[Tags: EA; Alternatives; Public Resources]

When a decision has already been made, alternatives analyses in EAs may be perceived as mere procedural posturing. This perception is validated where public resources are expended in favour of one particular alternative before EA approval is granted. In recognition of this concern, US federal law states that EAs “shall serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made”¹⁴⁸ and prohibits agencies from committing “resources prejudicing selection of alternatives before making a final decision”.¹⁴⁹

Provide clear reasons for eliminating alternatives in EAs

[Tags: EA; Reasons; Alternatives]

Oregon law requires that EAs for proposed chemical process mines include an analysis of alternatives that “briefly discusses alternatives that were eliminated and the reasons the alternatives were eliminated”.¹⁵⁰ Reasons explaining why a particular decision was made are also required under Ontario and Dutch law.¹⁵¹