The “Public Interest” in Section 3 of Alberta’s Energy Resources Conservation Act: Where Do We Stand and Where Do We Go From Here?

Abstract

Section 3 of the Energy Resources Conservation Act (ERCA) requires the Energy Resources Conservation Board (ERCB) to consider whether a proposed energy resource project is “in the public interest” having regard to three factors, the social and economic effects of the project and its impact on the environment. Although the concept is fundamental to the discharge of the Board’s mandate, the phrase “in the public interest” is not defined in the ERCA.

Since little has been written about section 3 of the ERCA and since Alberta Energy propose to change to how the public interest is engaged in the course of regulation of the upstream oil and gas industry, this paper sets out to assess the current state of the interpretation and application of that provision by the ERCB against the background of relevant social science literature on the topic of the public interest and applicable court decisions. The paper concludes with a series of recommendations for the way forward. Section 3 of the Energy Resources Conservation Act (ERCA) requires the Energy Resources Conservation Board (ERCB) to consider whether a proposed energy resource project is “in the public interest” having regard to three factors, the social and economic effects of the project and its impact on the environment. Although the concept is fundamental to the discharge of the Board’s mandate, the phrase “in the public interest” is not defined in the ERCA.

Since little has been written about section 3 of the ERCA and since Alberta Energy propose to change to how the public interest is engaged in the course of regulation of the upstream oil and gas industry, this paper sets out to assess the current state of the interpretation and application of that provision by the ERCB against the background of relevant social science literature on the topic of the public interest and applicable court decisions. The paper concludes with a series of recommendations for the way forward.