The U.S./Canada Flathead Energy/Water Dispute

The U.S./Canada Flathead Energy/Water Dispute by Allan Ingelson, Lincoln Mitchell and Sean Assie, May 20, 2009, Haskayne School of Business, University of Calgary

The Flathead River flows from B.C. into Montana
Proposed coal and coalbed methane development along the Flathead River in B.C.
Downstream – wilderness areas and Glacier National Park, Montana
“The last uninhabited major watershed in Canada with unsurpassed water quality..the ESA listed bull trout is doing better in the Flathead than anywhere else in the region…crucial spawning grounds”
First B.C. CBM production in 2009 Canadian CBM production from “dry coals”
Significant uncertainty and risk to fisheries
… No one knows what the long term impacts will be
What are Canada’s legal obligations to the downstream state?

Under emerging international environmental law Canada is obligated to avoid degradation of the river from coal mining and CBM operations
“A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction.” Responsibility of States in International Law, 1928, p.80

2. Which EIA process should be used to evaluate the mineral development impacts?
3. In Canada how do the federal and provincial EIA regimes interact?
… In light of the uncertain transboundary impacts from coal mining and CBM development and a national park downstream– cumulative impacts need to be considered carefully [Emphasis added]