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LEGAL REPORT/ENERGY & ENVIRONMENTAL LAW "Shareholders are looking for accountability and disclosure and want to know about the company plan. What risk is being faced and how do they plan to address such risk." AMY CARRUTHERS, LAWSON LUNDELL LLP and the emergency plan. The Alberta Court of Appeal sided with Kelly who, along with her neighbours, went back to the ERCB for their hearing. However, by this time, the wells had been drilled and the ERCB ruled that Grizzly could continue to operate and there was no need to change emergency response planning. The ERCB also indicated it had made an error in the designated emer- gency area and so changed its definition. As a result, despite the court ruling, Kelly and her neighbours fell outside of the new definition and were not considered relevant. Kelly has now gone back to the courts seeking a clearer definition of who has standing. "I don't know if we can say we have a victory yet," says Kelly's lawyer Jennifer Klimek. "But I think our work has helped make the board accountable." Klimek says such boards set up models and guidelines and the action of citizens such as Kelly works to ensure they are fair. A growing concern among citizens, as the oil industry moves closer to popu- lated areas, are public interest issues and whether these boards take too narrow a view, says Klimek. "How can one prop- erty owner's right versus another prop- erty owner's right weigh against a broader public interest?" she asks, especially if a dedicated public interest group (wildlife or environment) is not given standing to discuss the impact of a decision. Kelly, in a third appeal, has gone back to the courts (and gained leave to appeal on a fourth case) when the ERCB denied her claim for compensation for more than $36,000 in legal fees. In his blog, Shaun Fluker, an assistant law profes- sor at the University of Calgary, says the leave to appeal the ERCB decision on cost will have the potential to "produce one of the most significant decisions from the court in some time concern- ing energy and environmental law." He credits the potential outcome to Kelly, her neighbours, and Klimek, who has taken Kelly's arguments to court numer- ous times. Fluker noted the courts will now have to rule "whether the ERCB's legal authority to make cost awards is limited to persons that meet the criteria of 'a local intervenor' under s. 28(1) of the Energy Resources Conservation Act." "The standing issues for landowners, environment groups, and community groups is very difficult and Alberta has some of the most restrictive standing laws in the country on environmental matters. Legal mechanics are lacking to engage in those hearings," agrees Laura Bowman, one of three staff lawyers with the Alberta Environmental Law Centre. "When we want to comment on something that has had Water Act approval and if there is some issue, we get a [government] letter back saying, 'Thank you but we are not directly affected and have no rights of appeal.'" Bowman says the system as it stands essentially erodes the public's right to comment on issues. This restrictive legislation came in dur- ing the 1990s and attempts to limit the number of interveners and public interest groups that could bog down the tribunals, says Bowman, but the effect has been to exclude a broader public focus from the discussion. "Most other jurisdictions see public interest and interveners as being a good thing to include in the process." Over the past two decades, B.C., on the other hand, has made much headway in resolving clashes over resource allocation and environmental issues. The Great Bear Rainforest and Clayoquot Sound reserves are two successful examples of preserva- tion. However, Simon Fraser University On the costs issue, read at 52 A PRIL 2011 www. CANADIAN Lawyermag.com adjunct professor and lawyer David Boyd says legal "backsliding" has occurred. "B.C., which is biologically rich, has some of the weakest biological laws protecting the wealth of species here. Both B.C. and Alberta don't have provincial endangered species legislation," says Boyd. Today there is a different perspective emerging in environmental concerns — one that looks at citizens' rights to a healthy environment, says Boyd. Quebec, Ontario, and the three northern territo- ries have an environmental bill of rights, which enshrines citizens' right to live in a healthy environment. Climate change enters into that larger picture. The federal government has been "grossly negligent" in its steps to provide a clean environ- ment, with the Kyoto agreement as an example, says Boyd. South of the border, U.S. climate change cases have tripled (132 files in 2010 from 38 in 2009) and in other parts of the world doubled, according to a Deutsche Bank report. In order to avoid such cases, clients are starting to become more proactive. "What I am seeing is a lot of interest," says Bill Buholzer, a planner turned envi- ronmental lawyer with Young Anderson who deals mainly with government cli- ents. "Clients are beginning to pay atten- tion to climate change-related issues such as flood-plain regulations and setbacks of buildings by the sea and the rivers." He says the reality of a major earthquake in B.C. in the near future plus the possibility of rising oceans has municipalities looking at how their regulations and utilities are affected. "Many of the sewage treatment plants are at sea level," he says. Buholzer says there have been sig- nificant climate-change cases in the U.S. recently. He points to one involving east coast states and utility companies. In the fall of 2009, the Second Circuit Court of Appeals reversed a lower court dismissal and held that eight states, the City of (Energ y 2011 R yurl.c tin esour c es om/466gml9. C K ellyation onserv v. Boar Alberta d),