Ruling allows wider reach for appeal standing

B. C. Supreme Court says Rio Tinto emissions permit appeal must reconsider eco- groups, individuals 50 km away

The Environmental Appeal Board must reconsider the standing of groups and individuals in an appeal of an air emissions permit for Rio Tinto’s $ 3.3- billion smelter in northwest B. C., the B. C. Supreme Court has ruled.

The court decided the appeal board had used a restrictive interpretation in rejecting who could be part of the appeal.

The ruling could open the door for wider standing in any future appeals of $ 17 billion of proposed liquefied natural gas ( LNG) projects in the Kitimat area and a more speculative proposal for an $ 8- billion oil refinery.

“We feel that this decision has national importance in that it’s the first time that a superior court judge in recent years has recognized how important it is to ensure that the legal tests that are applied to determine standing align with access to justice,” said Chris Tollefson, a lawyer with the University of Victoria’s Environmental Law Centre.

“We say here that the judge has reinforced that by making it absolutely clear that it is wrong to put groups at this stage, where they are asking for permission to get standing, to prove their case.”

The B. C. Appeal Board will now have to reconsider the inclusion of SkeenaWild Conservation Trust, the Lakelse Lake Watershed Stewards Society and Terrace residents Charles Claus and Lynda Gagne.

The appeal specifically targets an increase in sulphur dioxide to 42 tonnes per day from 27 tonnes per day from Rio Tinto’s modernization of its aluminum smelter in Kitimat.

Kitimat, on the coast, is about 50 kilometres from Terrace as the crow flies, and both are located in a narrow valley penned in by steep mountains.

Citing air and other environmental concerns such as acid rain and soil acidification, the groups and residents appealing the air permit want to see Rio Tinto put pollutant scrubbers in place at a cost of $ 150 million to $ 200 million.

Those appealing the permit noted the Northern Health Authority has expressed concerns about the health impacts of increased emissions, and has sent letters to Rio Tinto Alcan. The B. C. Ministry of Environment recommended sulphur dioxide scrubbers be installed.

Greg Knox, with the SkeenaWild Conservation Trust, said it was important to establish the ability to have some influence on the air permit because many more LNG, pipeline and mining projects are coming to the region.

Sulphur dioxide has been linked to health effects such as lung problems and also acid rain, he noted.

Nitrogen oxide, which would be produced if natural gas is used to power the LNG plants, produces similar health effects and acid rain, said Knox.

“If we don’t deal with this issue right now, we are going to be locked in with these air quality impacts for 30- plus years,” he said.

“If this was happening on the Lower Mainland or Vancouver Island, there’s no way they would let them put this amount of pollution into the local airshed. People would be outraged.”

The appeal case is scheduled to begin May 27.

The groups and the Terrace residents had been initially rejected to participate in the appeal because none of them was directly affected — a “person aggrieved” — under the province’s environmental laws, according to court documents.

Rio Tinto officials could not be reached for comment Sunday.

In arguing the groups and individuals’ standing in the air permit appeal, Rio Tinto said all emissions other than sulphur dioxide from the smelter would be reduced, that sulphur dioxide emissions outside Kitimat will not exceed provincial objectives, and that sulphur dioxide exceedances in Kitimat will not have any material impacts on human health, according to court documents.

The company also said claims that agriculture, food and fish would be affected by increased sulphur dioxide emissions were “highly speculative.”

Terrace resident Charles Claus, who runs a bakery and farm, said he’s concerned the increased sulphur dioxide emissions will have a long- term effect on soils and hurt his ability to sell produce.

Claus, who suffers from asthma, said if the air quality deteriorates he would have to move away.

The province announced last October it had commissioned a $ 650,000 study to investigate the potential pollution effects on the Kitimat- Terrace airshed from proposed industrial projects, which scientists said was better late than never.

The projects include three proposed LNG plants, the proposed oil refinery, a crudeoil export facility to serve Enbridge’s $ 6.5- billion Northern Gateway pipeline and Rio Tinto’s aluminum smelter.

The study is slated to be complete this month.