Intervener Costs for CFO Applications

The Government of Alberta has consistently reduced the role of municipalities in the approval process involving confined feeding operations (CFOs). The most recent legislation, the Agricultural Operation Practices Amendment Act, 2004, allows approval officers to only consider the consistency with the municipal development plan regarding land use provisions. This modification effectively waters down municipal involvement in the approval process by not allowing the approval officer the ability to consider other factors. The approval authority for CFOs now rests with the Natural Resources Conservation Board (NRCB). The NRCB is a government board with members appointed by the government. The NRCB has consistently stated that decisions respecting CFOs will be based on science. The approval process for CFOs involves the applicant providing specific information to the NRCB including soils testing and water well reports. Municipalities are not allowed access to this information during the initial review process. The NRCB reviews the technical information provided with respect to soils while Alberta Environment considers the water information. Government is responsible for evaluating all of the technical information provided with the application. Recent reviews before the Board have demonstrated serious flaws in the technical evidence given to the Board to consider by both the applicant and government departments. The legislation provides for a review of the decision of the approval officer. In pursuing a review of any decision, the municipality and the public must be prepared to debate the technical merits of the application. A review of the technical aspects of an application will involve the use of outside consultants and lawyers in order to present a bona fide case to the NRCB. The retention of experts is expensive and it is often beyond the financial ability of the municipal government or the public to shoulder such costs. The Energy and Utilities Board has recognized the rights of interveners in the regulatory process. In doing so this Board has allowed cost recovery for the interveners in order to provide for a fair and equitable process. The government should require the same for the NRCB, cost recovery for interveners. Lastly, once a decision of the NRCB is rendered denying an application, there is nothing in legislation that prohibits the proponent from filing another application(s) on the same property. In this scenario all those in opposition to the application would be required to intervene yet again incurring the same expenses a second time, thus committing to a never-ending cycle of applications, reviews and expenses. This might be resolved if interveners were allowed costs.