BCCA confirms that approval of a monitoring plan submitted under an environmental permit falls within the definition of a “decision” under the appeal provisions of the EMA

The Environmental Management Act allows for a broad right of appeal from decisions made directly under the Act and those that are made under a permit pursuant to the Act.

Administrative law – Decisions reviewed – Environmental Appeal Board – Review Board – Judicial review – Appeals – Standard of review – Unreasonableness

Unifor Local 2301 v. British Columbia (Environmental Appeal Board), [2017] B.C.J. No. 1617, 2017 BCCA 300, British Columbia Court of Appeal, August 18, 2017, R.J. Bauman C.J.B.C., H. Groberman and P.M. Willcock JJ.A.

The appellant operated a smelter under the Environmental Management Act (the “Act”) authorizing the discharge of emissions.  In 2013, the appellant successfully applied to increase emissions and obtained a permit subject to an Environmental Effect Monitoring (EEM) plan to be reviewed and approved by the director on or before December 30, 2013.  The appellant submitted an EEM plan on December 31, 2013, and received revisions from the Ministry of Environment which was eventually approved by the director’s delegate on October 7, 2014.

A union representing the workers at the smelter submitted that the permit did not comply with a provision in the permit as it did not include a consideration of human health and filed a notice of appeal under the Environmental Appeal Board (EAB).

The EAB found that the director’s decision to approve the EEM was not an appealable decision under the legislation and therefore dismissed the union’s appeal.  The EAB concluded that a “decision” required direct authorization by statute and that the authority to approve the EEM plan arose from an amended permit, not the provision of a statute.  The union successfully brought a judicial review decision which held that the EAB’s interpretation of the Act was unreasonable.

On appeal, the court reviewed the Appeal Board decision and agreed that the Act allowed for a broad right of appeal from decisions.  The Court of Appeal observed that the Appeal Board incorrectly distinguished between decisions made directly under the Act and those that are made under a permit pursuant to the Act.  As such, the approval of the EEM fell within the definition of a “decision” under the Act.

In the result, the Court of Appeal agreed with the chambers judge and found that the Appeal Board’s decision was unreasonable.

This case was digested by Jackson C. Doyle and edited by William S. Clark of Harper Grey LLP.  If you would like to discuss this case further, please feel free to contact them directly at jdoyle@harpergrey.com or wclark@harpergrey.com or review their biographies at http://www.harpergrey.com.

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