Though the heavens fall -

Though the heavens fall


Having stuck up for Syncrude in the early stages of the blind, agonizing struggle over the Case of the Bitumen-Bathed Birds, I ought to express my disapproval of the high-pitched political threats made yesterday by the consortium’s lawyer, Robert White. White told the press that “If… Syncrude is guilty of this crime, the government is complicit and the industry is doomed… If by having a tailings pond we’re guilty of this charge, we have to stop having tailings ponds.”

When some business holds itself hostage, and argues that it must either be allowed to continue perpetrating illegal behaviour or it will vanish from existence, it’s a near-certain sign that its other legal and moral defences aren’t getting the job done. In this case the behaviour is only arguably illegal—that remains to be decided—but White isn’t arguing that it was, in fact, legal. His argument is that, no matter what the judge or any fair-minded observer might find, the consequences of a guilty verdict are simply intolerable. He has departed from making a defence under the law, and chosen to attack the power of the court to decide what the law is.

This would be understandable if the law, in this case, were unreasonable, dangerously subjective, or tyrannical. Speaking as someone who would be as happy as a cat in a yarn factory if the regulatory apparatus of state were reduced to 1% of its current size, I don’t see that this is so. Reasonable efforts to protect migratory birds, as the judge rightly reminded White this morning, are among the conditions of Syncrude’s license to create gigantic tailings ponds. The key issue in the trial is whether the efforts Syncrude did make were, in fact, reasonable. “Provincial law does not require that Syncrude performs the impossible,” observed Judge Tjosvold; he might have added that if Syncrude’s activity is inherently incompatible with provincial law, then either legislators must change the law or Syncrude must stop. That’s what the word “law” means, yes?


Though the heavens fall

  1. Clearly Mr. White is demonstrating the skill set for the next available Senate appointment and the initiative to go directly to Cabinet.

  2. First off Colby, having linked to your original NP column, I thought you would have taken the opportunity to correct the record. No, it wasn't 500 ducks as originally reported, it was 1600. This was quietly corrected once the original hype had died down.

    Secondly, the use of tailings ponds by Syncrude are an economic legacy. Today, at the current world price for oil, there's no need to have tailings ponds at all – provided you are prepared to further process the waste water through centrifuges, filtration, use of a flocculant etc. Yes, this costs money. It's simply cheaper for the Syncrude consortium to allow the water to sit there, contaminated and contained, and have lawyers make these lame arguments – which to your credit, you are properly criticizing.

  3. Your point that tailings ponds could be replaced is an interesting one. I was under the impression that given the sheer scale of the tailings ponds, the cost of replacing them with water processing/bitumen separation plants would be astronomical. Do you have any links that support a viable alternative to tailings ponds?

  4. The ERCB required Syncrude, Suncor, Shell etc (the surface miners) to submit plans to get rid of tailings ponds – clean them up- which is supposed to be underway now, or begin shortly. Hold on, I'll see if I can find a link.

  5. Thanks. Sounds like a massive undertaking. The cost of Syncrude's duck disaster will probably end up being millions of dollars for each dead duck.

  6. "He has departed from making a defence under the law, and chosen to attack the power of the court to decide what the law is."

    In court, yes. But the broader message he was sending to the judge and to the Alberta public was, if you hold us to the law and find us guilty, we and much of the industry may pack up and leave.

  7. Earlier, I remember reading one news item that said that they were prevented from putting up the scarecrows to keep birds away from the tailings ponds by unsafe driving conditions, but would have done so later. If this is indeed the reason, I certainly hope the law won't require them to put human lives in danger to protect ducks.

  8. Yes, that's how a bean counter would do the math.

  9. Both. Clean up existing. Tougher regulations on new – that's my understanding. Another article:

    The ERCB added that there are now 170 square kilometres of tailings ponds in the Fort McMurray area, containing about 840 million cubic metres of liquid tailings.

    The ponds are employed by oilsands mining companies to store water used in the oil transportation and upgrading process. Particles of heavy bitumen, sand and clay settle in the ponds so the water can be reused.

    The directive requires that the ponds be solid enough to walk on and ready to be reclaimed within five years of not being actively used.Syncrude Canada has been granted extra time to meet new tailings pond cleanup standards in the first plan by an existing oilsands miner to be accepted by the provincial regulator.

    The approval announced Friday morning comes a day after Premier Ed Stelmach warned he will “get more aggressive” to force companies to clean up their lakes of sand, clay and chemical residue left after the sticky heavy oil is extracted.

    The Alberta Energy and Resources Conservation Board issued a directive last winter requiring companies provide plans to deal with their fluid fine tailings. Nine plans were submitted last September.

    Three plans have been accepted — one for the unsanctioned and oft-delayed Suncor Energy Fort Hills project and two at Syncrude, where 500 million cubic metres of fine tailings in six ponds are to be restored to a “trafficable surface” on timelines ranging from 2016 to 2037.

  10. No, that's how a duck counter would do the math. ;-)

  11. Bean counting has its place…but so does dead duck counting. Balance……

  12. What's the duck exchange rate for black bears these days?

    The disclosed SRD information covers only three oil companies and shows reported deaths of 27 black bears, 67 deer, 31 red fox, 21 coyote, as well as moose, muskrats, beavers, voles, martens, wolves, and bats.

  13. Thirty to one?

    Most of those animals were struck by vehicles. From the link you provided, here are the mammals whose deaths are attributed to tailings ponds:

    Muskrat – October 2001
    Coyote – October 2001
    Beaver – June 2002
    Coyote – Sept. 2003
    (none since 2003)

  14. Well, that's reassuring. More to hang out on Colby's picnic table.

  15. Mr White ain't doing much to enhance the reputation of lawyers… was painful to listen to him go on and on during the radio news reports over the last few days.

  16. The cost of Syncrude's duck disaster will probably end up being millions of dollars for each dead duck.

    I did not realize that Uncle Scrooge was one of the victims. So, in addition to the massive inheritance, Huey Dewey and Louie must be embarking an a massive wrongful death suit…

  17. To be fair to White, he's saying that a) to convict you have to get creative with your interpretation of the statutes, and b) you shouldn't get creative with your interpretation because it may have untoward consequences – he's not saying that you shouldn't apply the law per se because of the potential consequences of doing so. There is a subtle difference.

    The text of the relevant provisions follows below:

    Section 5.1 of the Migratory Birds Convention Act:
    5.1 (1) No person or vessel shall deposit a substance that is harmful to migratory birds, or permit such a substance to be deposited, in waters or an area frequented by migratory birds or in a place from which the substance may enter such waters or such an area.

    Section 155 of the Alberta Environmental Protection and Enhancement Act:
    155 A person who keeps, stores or transports a hazardous substance or pesticide shall do so in a manner that ensures that the hazardous substance or pesticide does not directly or indirectly come into contact with or contaminate any animals, plants, food or drink.

    • I dunno…

      I read Directive 74 a couple of times, and as well just happened to chat with a former co-worker who is somewhat up to speed in the oilsands business; I still lean towards believing that the ERCB directive applies specifically to the tailings stream that is being produced from this day forward, and not to the existing tailings ponds, which are, of course, the net accumulation of tailings material that has been produced up until today.

      Even with this new directive there will still be a wet tailings stream created as a part of the mining/extraction process, which will still be pumped to a disposal area (the DDA), which will still basically be a pond. The difference is that the DDA should have less fluids and is therefore supposed to be ready to convert to a "trafficable surface" much sooner than the existing ponds are turning out to be.

      Do you know for sure one way or the other?

      • Phil, you're correct.

  18. "If by having a tailings pond we're guilty of this charge, we have to stop having tailings ponds.”

    Huh – sounds like he has presented an interesting solution. I hope the courts give it serious consideration.

    On the other hand, I hate a-holes who try to strong-arm me rather than seek a constructive solution, so that's something to consider…

  19. Are Syncrude (and the other 3 existing operations) "just" being asked to switch to systems that will stop adding to the tailings ponds or are they really being asked to remove the existing tailings ponds? I read the article a few times and I'm not 100% sure.

    Assuming that they were to switch to a newer extraction technique within a few years – one that allows them to at least stop adding fresh material to the existing ponds – it isn't clear to me that the newer technique would affect the plans that are already in place for reclamation of those ponds.

  20. (none since 2003) Why the drop off?

    Same time frame. Same Premier:

    Ranchers Taking Advice To
    'Shoot, Shovel & Shut Up'

    By Kristen Enevold
    Calgary Sun

    Ranchers suffering from the mad cow crisis may be delaying the U.S. border from opening to live Canadian cattle after shooting, shovelling and shutting up. A 119-page report by Alberta Auditor General Fred Dunn suggests ranchers are following the mock advice of Premier Ralph Klein by abandoning cattle carcasses rather than taking them in for BSE testing.

    And the government isn't doing enough in forcing ranchers to report diseased and dead cattle for provincial and national BSE surveillance programs, said Dunn.

    "If the farmers do not respond professionally, if they don't respond appropriately and rather hold the samples from you — i.e. just bury the dead cow — then you run the risk of not getting sufficient (numbers) of the higher-risk ones to test," said Dunn.

  21. So when a poorly designed law by people who have no sense of economics or indeed human psychology is passed, and all sorts of predictable yet unintentional consequences develop, its surely the fault of self-interested individuals acting from sincere motivation?


  22. If you really want to feel pain, imagine what he is billing for his services.

  23. you shouldn't get creative with your interpretation because it may have untoward consequences

    Yeah, it will cost the consortium some money, including that environmental steward The Communist Party of China, and he will have to drop his hourly rate from $600 to $500.

    • No. You've entirely missed the point.

      I'm not trying to defend Syncrude or industry – I'm trying to defend a clear-eyed and even-handed application of the law, which is something that Colby uncharacteristically missed in his criticism of White's argument above (and, parenthetically, White's hourly rate likely exceeds $600, or it should, and has absolutely no relevance to this debate other than that in these sorts of circumstances we want the Court to have access to the best arguments and the best advocates from each side).

      Let me make my point in more detail. There are two charges: a federal charge under the MBCA, and provincial one under the EPEA.

      The MBCA prohibits allowing a toxic substance to be deposited in a place frequented by migratory birds. In the case of a tailings pond, it is the toxic substance itself that the birds are attracted to. The offence under the MBCA, if any, is the creation of the tailings pond and not the operation of it. But Syncrude has a licence from the ERCB that contemplates the operation of a tailings pond. White is therefore arguing that Syncrude can't be convicted for "depositing a substance" by operating a tailings pond when it has a licence from the government to construct and operate a tailings pond. And, by extension, if by constructing and operating a tailings pond, *irrespective of whether Syncrude operated it properly*, Syncrude is guilty, then all of industry is guilty. .

      As to EPEA, his argument is that if the industry-standard approach to operating a tailings pond constitutes storing a hazardous substance in a manner that contaminates waterfowl, then all tailings ponds are guilty of the same crime. Following White's argument, under the EPEA charge the Court is free to find based on the evidence that Syncrude's conduct did not meet industry practices, was not duly diligent, and therefore was "improper storage".

      White is trying to a) keep the law focused on Syncrude's conduct and cauterize an interpretation of the law that would convict based on having a tailings pond, instead of convicting based on improperly operating a tailings pond, and b) establish the threshold for improper operation of the tailings pond.

  24. My point was that Ralph was/is a buffoon.

    • Ralph may or may not be a buffoon (hint, its closer to the latter option), but Ralph wasn't the first person to come up with "shoot, shovel, and shut up", nor was he the first person to talk about it in the media. Meanwhile, I defy you to come up with a single better idea than "the buffoon" that could be delivered to beseiged farmers and ranchers in 2004. I have a weird feeling any of the suggestions you gave them would make them think "shoot, shovel, and shut up" and it wouldn't be the cattle in their crosshairs.

  25. Right after the oils sands producers get the volume of the tailings ponds to start trending downwards, they should get together and work with Bruce Power (or equivalent) to build a few nuclear reactors, sized to deliver their entire steam, electrical and hydrogen demand.

    With those two initiatives in place, the tailings ponds and CO2 emissions would be non-issues.

  26. Amen to that. He was a drunken buffoon for many years; I dunno about nowadays.

  27. I think the lawyer is pushing the oil industry line. Dave Yeager was pushing it on the radio too, arguing something like the government has allowed them to make these huge tailings ponds and now they are afraid they could be sued over and over again because the tailing ponds are still there. Good, sue them, say I.

    He also said something I didn't quite catch about many coal miners dying in mines in China – maybe he was saying it's better to kill ducks than people? Of course the oil sands are probably killing people in Fort Chip, but I don't think he mentioned that.

  28. Oh I forgot, he mentioned that "unfortunate" event in the Gulf. Unfortunate? It's a massive #$%^& disaster!

  29. Well, I think you are reading too much into my original citation.

    Nevertheless, as premier, he should have never said such things publicly, because a trade dispute is affected greatly by perceptions and consumer confidence. His statements, if anything, probably extended the import ban from the US, Korea and Japan.

    The three s program would have probably been put to better use directed at Ralph.