Two environmental watchdog groups are taking the Alberta Energy Regulator (AER) to court after CEO Rob Morgan cancelled a public hearing into Mine 14, a proposed coalmine near Grand Cache.
Last week the TheRockies.Life reported on Morgan’s overruling of a decision by AER staff to hold the hearing. The ruling came after mine proponent Valory Resources Inc., the Australian owner of subsidiary Summit Coal Inc., filed a complaint about the regulatory process with the AER and the Ministry of Energy and Minerals.
In a joint effort, the Alberta Wilderness Association (AWA) and Canadian Parks and Wilderness Society (CPAWS) are asking the Alberta Court of Appeal to reverse Morgan’s controversial ruling.
“Judge, jury and executioner”
“In his decision to cancel the Mine 14 public hearing, Morgan appointed himself the de facto judge, jury, and executioner in regulating resource development in Alberta,” said Kennedy Halvorson, conservation specialist with Alberta Wilderness Association, in a media release.
“It should concern everyone that despite the checks and balances meant to be in place, and the separation of powers supposedly inherent in Alberta’s governing and regulatory processes, one person would assume absolute authority to veto public participation. It is a dangerous precedent we must challenge.”
The two conservation groups are arguing that Morgan, a career oil industry executive appointed to head up the AER last February, does not have the authority to overrule the supposedly independent AER panel’s decision to hold a public hearing.
Did the CEO break the rules?
In 2013, the Alberta government introduced the Responsible Energy Development Act (REDA). It named the AER as a one-stop regulatory body for the energy sector. It also laid out the AER’s governance structure, including which level of the AER is responsible for holding hearings on energy applications.
AWA and CPAWS say Morgan broke REDA rules.
In an emailed statement to TheRockies.Life, Halvorson said lawyers for the two groups are asking the Alberta Court of Appeal to consider if Morgan misinterpreted REDA when he intervened in an ongoing AER proceeding, and whether he breached his statutory authority.
The lawyers filed an application to appeal and an affidavit with the Court of Appeal of Alberta. The affidavit includes an AER letter dated Oct. 3, 2024 informing the regulator’s Chief Hearing Commissioner Alex Bolton that Summit’s applications “should be decided by a panel of hearing commissioners.”
The lawsuit states that the “CEO’s unprecedented assumption of jurisdiction over reconsideration requests undermines the statutory division of authority under REDA, directly compromises the independence of the hearing commissioners in any future proceeding, and creates a precedent by which applicants can bypass the hearing process altogether.”
It also notes that Morgan admitted that the “AER has never previously cancelled a hearing where a full participant had not chosen to withdraw.” Consequently the “applicants have been deprived of their right to a hearing on Proceeding 449 granted by the Hearing Panel,” according to the appeal application.
“One individual should not have the power to cancel a public hearing, especially after the panel assigned to this project had reviewed thousands of pages of submissions and had deemed the hearing useful to their decision-making process,” said Kecia Kerr, executive director at CPAWS Northern Alberta.
She called it an “extraordinarily dangerous precedent for all future coal mine or energy development projects — and eliminates Albertans’ trust in their ability to participate in the regulatory process.”
“As our lawsuit alleged, the CEO lacks the legal authority to make this type of unprecedented decision,” Kerr said
If the appeal court gives the lawsuit the green light to proceed, the AER’s Rob Morgan will be required to defend in court his decision to cancel the public hearing into Mine 14.
