More Changes to Federal Environmental Assessment Laws on the Horizon

The federal government has recently proposed amendments to the Regulations Designating Physical Activities (RDPA) which are central to the operation of the Canadian Environmental Assessment Act, 2012. With the exception of individual projects designated by the Minister on a discretionary basis, only those projects which appear on the RDPA may be subject to federal environmental assessment.

The amendments will result in the addition of some projects to the RDPA. These additions include diamond mines, apatite mines, railway yards, international and interprovincial bridges and tunnels, bridges that cross the St. Lawrence Seaway, the first offshore exploratory wells in Exploration Licence areas and expansions to oil sands mines.

Unfortunately, the list of projects being removed from the RDPA is much larger. Those items that will no longer be subject to federal environmental assessment include:

• ground water extraction facilities,
• heavy oil and oil sands processing facilities,
• pipelines and electrical transmission lines not regulated by the NEB,
• potash mines and other industrial mineral mines (salt, graphite, gypsum, magnetite, limestone, clay, asbestos), and
• a variety of industrial facilities (pulp and paper mills, steel mills, metal smelters, leather tanneries, textile mills and facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particle-board and plywood, chemical explosives, lead acid batteries and respirable mineral fibres).

It is disappointing that projects – including oil and gas seismic activities in marine areas, oilsands steam assisted gravity drainage (SAGD) projects and projects within national parks – suggested for inclusion in the RPDA in our previous comments do not form part of the draft regulations.

The federal government is seeking comments on the proposed amendments by May 20th. The proposed amendments, along with the process to submit comments, can be viewed here.

The federal government also has changes in store for environmental assessment in Nunavut. Currently, the environmental assessment process in Nunavut is conducted by the Nunavut Impact Review Board established under Articles 10 and 12 of the Nunavut Land Claims Agreement.

With Bill C-47, the federal government intends to enact the Nunavut Planning and Project Assessment Act. This act is intended to confirm the establishment of the Nunavut Impact Review Board (and also the Nunavut Planning Commission) and to describe the processes under which these bodies will operate. As well, the act is intended to establish a more streamlined process for environmental assessments and land-use approvals in Nunavut.

Currently, Bill C-47 has passed through the House of Commons and is working its way through the Senate. The status and text of Bill C-47 can be accessed on the LEGISinfo website.

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Is federal environmental protection keeping pace with resource development?

The answer seems to be NO.

The most recent Report of the Commissioner of the Environment and Sustainable Development (the “Report”) was tabled last week. The Report examines three federal programs which are meant to ensure that natural resource development happens in a responsible and sustainable manner. These programs are:

• protecting oceans by establishing marine protected areas;
• managing environmental risks associated with offshore oil and gas development; and
• setting financial guarantees and liability limits for mining, shipping and offshore platforms, and nuclear power.

The Report also includes a study of federal support to the fossil fuel sector. As usual, the Report also includes a review of environmental petitions over the audit period.

The Commissioner’s audit of these three federal programs reveals significant questions about the federal government’s capacity to keep pace with its enthusiastic promotion of resource development.

Marine protected areas

A national network of marine protected areas, as envisaged in Part II of the Oceans Act, S.C. 1996, c. 31, would provide protection of species and ecosystems and act as carbon sink. As well, such a network could provide social, cultural and economic benefits (such as, fisheries, recreation, tourism and research). As the world’s oceans face greater development pressures – including offshore oil and gas activities – the urgency and need for marine protected areas increases.

However, with respect to the federal government’s progress on establishing marine protected areas, the Report concludes that “conservation actions are not keeping up with the increasing pressures faced by our oceans” (page 3). Canada has committed to establishing a network of marine protected areas covering 10% of its marine areas under the United Nations Convention on Biological Diversity. In the 20 years since making that commitment, only about 1% of Canada’s marine areas have been designated as marine protected areas. There is no national network of marine protected areas.

Atlantic offshore oil and gas activities

The Report looks at the management of environmental risks associated with offshore oil and gas development in Atlantic Canada. Two joint federal-provincial bodies – the Canada-Newfoundland and Labrador Offshore Petroleum Board and the Canada-Nova Scotia Offshore Petroleum Board (together, the “boards”) – are responsible for regulating offshore oil and gas development in Atlantic Canada. This includes managing environmental impacts and risks associated with offshore oil and gas development.

The Report concludes that the boards and their federal partners are not adequately prepared to respond to a major spill in the Atlantic. The Report identifies “several shortcomings, including insufficient spill response tools across the federal government, inadequately tested capacity, poorly coordinated response plans, and out-of-date or missing agreements between the boards and supporting departments” (page 4). The Report also notes that the boards need to determine how they will meet the objectives of their legislation in light of the changes introduced by the new Canadian Environmental Assessment Act, 2012 (for details on these changes, see here). In particular, the Report notes the boards need to update their environmental assessment policies and procedures and to begin systematically tracking measures taken to prevent or reduce environmental impacts.

Financial assurances for environmental risks

The federal government does require financial assurances – including letters of credit, trust funds, guarantees and insurance – to help protect the Canadian public from the costs of environmental protection, cleanup and reclamation for a range of natural resource development projects. This practice is in accordance with the well-established environmental principle of “polluter pays” (that is, the cost of pollution ought to be borne by the polluter).

The Report considered four areas of federal regulation – mining, nuclear, offshore oil and gas and marine transportation – to assess the sufficiency of financial assurances for environmental risks. The conclusion of the Report is that the federal government “lacks information to know if the assurances received are sufficient to cover the financial risks of projects, such as the costs of decommissioning and reclamation” (page 15). This includes lack of knowledge of the total dollar value of securities held, whether the securities are still valid and whether securities are sufficient to cover environmental risks. In addition, the Report finds that liability limits for damages to third parties are outdated and generally lower than those in other countries. This means that the Canadian “taxpayers may have to cover shortfalls and pay for environmental remediation” (page 15).

What does this mean?

Clearly, the Report reveals some big holes in the federal government’s ability to protect the Canadian environment from risks associated with resource development. The federal government has been enthusiastically promoting Canada as a “Global Energy Superpower” whilst systematically reducing the level of federal environmental protection.

With the budget bills introduced in 2012, the landscape of federal environmental regulation was dramatically changed (see here and here). In addition, the federal government has slashed funding for scientific and on the ground work that supports environmental protection (see Who Needs Science when We Have Propaganda?). The ELC hopes that, in light of the Report, the federal government will begin to fill the holes in federal environmental protection rather than creating more.

On another note, the ELC notes that this is the last report that will be tabled by Scott Vaughn. Mr. Vaughn is leaving his post as Commissioner of the Environment and Sustainable Development to head up the International Institute for Sustainable Development. The ELC thanks Mr. Vaughn for 5 years of invaluable service to Canadians in his post as Commissioner of the Environment and Sustainable Development.

Photo credit: archer10 (Dennis) / Foter.com / CC BY-SA

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The ELC submits Comments on the Regulations Designating Physical Activities under the new CEAA, 2012

On July 6, 2012, the new Canadian Environmental Assessment Act, 2012 (CEAA, 2012) – along with the Regulations Designating Physical Activities (RDPA) – came into force by Order-in-Council.  The RDPA plays a central role in the federal environmental assessment scheme.  With the exception of individual projects designated by the Minister in an ad hoc discretionary manner, only those physical activities/projects which appear on the RDPA may be subject to a federal environmental assessment.

The RDPA is essentially the same as the Comprehensive Studies List Regulations, SOR 94/638 (“CSLR”) under the previous CEAA.  The CSLR served a very different function under the previous CEAA than the RDPA does under CEAA, 2012.  Under the previous federal environmental assessment regime, the CSLR identified those physical activities/projects that required a high level of scrutiny under the CEAA (i.e. comprehensive studies).  In contrast, the RDPA represents the total extent of those physical activities/projects that may be subject to any form of environmental assessment (aside from the ad hoc discretionary Ministerial decisions to designate a particular project).

Given the different functions of the CSLR and RDPA, it is the ELC’s view that adoption of only the physical activities/projects listed in the CSLR is not sufficient for designating physical activities under CEAA, 2012.  For example, the thresholds describing the size of physical activities/projects may have made sense in the context of the CSLR but should be closely and thoroughly examined for the RDPA (as it now stands, these thresholds have been carried forward into the RDPA).  It is the ELC’s view that many, if not all, of the thresholds may no longer be appropriate in the new federal environmental assessment scheme.

The ELC is also concerned that some types of physical activities/projects do not appear in the RDPA.  For example, activities relating to national parks or national parks reserves – such as ski hills and golf courses – are not included in the RDPA (although these were included in the CSLR).  The RDPA also makes no mention of physical activities/projects which may impact on listed species and their critical habitat designated pursuant to the federal Species at Risk Act.

We have previously posted about the disappointing process that has led to the substantial changes to Canada’s federal environmental assessment laws. Firstly, the truncated statutory review process meant that the opportunity to conduct a thorough review of CEAA and to learn from years of experience under CEAA was lost. Secondly, the changes to federal environmental assessment laws were buried within the omnibus budget bill providing little opportunity for elected officials and the public to review the amendments in a thoughtful and thorough manner.

The ELC is equally disappointed with the process that has led to the development and implementation of the RPDA pursuant to CEAA, 2012.  The ENGO community was not consulted on the RPDA prior to its implementation.  Rather, the CEA Agency is seeking comments on the RPDA after the fact.

The Environmental Law Centre recently submitted its comments on the RDPA to the CEA Agency.  If you would like a more detailed analysis of the RDPA, please read our comments posted on our website.

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An Overview of Bill C-38: The Budget Bill that Transformed Canada’s Federal Environmental Laws

In late April 2012, the federal government introduced Bill C-38: An Act to Implement Certain Provisions of the Budget tabled in Parliament on March 29, 2012 and Other Measures which received Royal Assent on June 29, 2012 and is now known as the Jobs, Growth and Long-Term Prosperity Act, S.C. 2012, c. 19. 

While Bill C-38 purports to implement the most recent budget of the federal government, it does much more than implement budgetary objectives.  Bill C-38 substantively changes federal environmental law in Canada. Over ten pieces of federal environmental legislation are amended or repealed by Bill C-38.  Significant changes are made to federal environmental assessment law, fisheries law, and the operation of the National Energy Board.   As well, Bill C-38 amends the charity provisions of the Income Tax Act which may have profound implications for many of Canada’s ENGOs.

The Environmental Law Centre has posted a detailed review of the transformation of Canada’s federal environmental laws as a result of Bill C-38 on its website.

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Failing Grade: New Federal Approach to Environmental Assessment Leaves Canadians at Risk and Without a Voice

West Coast Environmental Law released a report card yesterday that “measures the final content of Bill C-38 – the omnibus Budget Bill passed Monday by the House of Commons – against a checklist of principles endorsed earlier this year by over 55 Canadian organisations coast to coast representing scientists, physicians, lawyers, advocates for democracy and citizen groups.”

Click here to read the release, see the checklist and download the report.

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Environmental Shock Doctrine

The 2012 federal Budget Bill is out. Once again it will change environmental laws in ways not directly related to government spending or savings. The bill is certain to pass, so why all the supporting rhetoric? If anything, zealous arguments in favor of a sure thing expose the motivation for this style of lawmaking. Changes to federal environmental law in Canada have become a textbook example of how democratically elected governments pursue policies that, if widely understood, would be widely unpopular.

First consider the lead up to the 2012 bill. Since 2009, the federal environmental assessment regime has been changed by:

• Not using the regulatory advisory committee,
• Exempting government-supported infrastructure from assessment;
• Making regulations to speed up comprehensive studies;
• Changing the law to avoid a Supreme Court of Canada decision that favored public participation;
• Cutting funding to the Canadian Environmental Assessment Agency;
• Cutting funding to the Canadian Environmental Network;
• Conducting a Parliamentary review selective invitation;
• Closing the review without hearing from environmental organizations that requested to appear, and
• Expediting a report that is disproportionately supported by regulated industries.

Now consider the effects of the 2012 bill.  These may include:

• Moving environmental concerns from the regulatory sphere to the political sphere. Powers to not require environmental assessments will intensify lobbying. Project reviews will be fewer and more frequently assigned to industry regulators. As for big pipelines, the final say will go to Cabinet and this change may apply to hearings in progress.
• Limiting the ability of environmental representatives to operate in any official sphere. In the regulatory sphere, participating in pipeline reviews will require proving that one is directly affected or possesses the right information and expertise. In the political sphere, the activities of charities will be regulated, monitored and enforced against.

The supposed trigger for this overhaul is that environmentalists did something wrong at the Northern Gateway Pipeline hearings.  Never mind that the intervention of environmental organizations is a different issue from the sheer number of participants. The big contest is not about the project review, it’s about the law of project reviews. Take that view, and a bill that leaves the environmental sector reeling looks more proactive than reactive.  The script is disturbingly familiar: eliminate public discourse, cut program spending, and liberate corporate action. Attribute broad public concern with certain private projects to a narrow, anti-social element. Confirm the existence of that element through surveillance tactics, and use the findings as grounds to suspend legal and political rights. Don’t worry if the effect is to breed more radicals. The appeal of this war is that it never ends. Just be sure to avoid ideological statements, especially faith in trickle-down economics. I would definitely not point out that disasters like the Exxon Valdez oil spill create jobs and GDP. Staying reasonable is what allows any backlash to be blamed on individual strong-armed leaders. A rational understanding of the long-term requires that “we” act now.  This is just “responsible resource development”.

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Environmental assessment and duplication: “Don’t we have a photocopier?”

There is significant rhetoric around how the federal and provincial governments have duplicative and therefore inefficient environmental assessment processes. The federal government has fully bought in on it and has indicated its intent to remove itself from many environmental assessments.

I for one find the duplication argument, while having some truth to it, to be quite misleading as to the underlying concerns with federal environmental assessments.  Rather than being truly frustrated with duplication I see proponents simply frustrated with the scope and rigour with which federal environmental assessments are conducted.  It seems to me that the federal system has, on occasion, more review and analysis of proponent environmental impact assessment than the provincial processes.  Admittedly this is anecdotal opinion on my part, garnered through exposure to both federal environmental assessment (comprehensive studies and joint panel reviews) and the Alberta assessment approach.

The rigour of review and analysis is one concern; the scope of potential federal reviews is the other.  Countless activities can proceed in Alberta with impacts on fisheries habitat without triggering an environmental assessment.   These same activities have the potential to trigger a federal environmental assessment through operation of section 35(2) of the Fisheries Act.   Recent media about a leaked draft of the Fisheries Act suggests the federal government may minimize the relevance of habitat, and appears to coincide with broader lobbying efforts to get the federal government to minimize its role around environmental management (i.e., assessment and protection).

When one goes on to consider the mandates of various provincial and federal departments and the provisions they enforce, the issue of minimizing environmental assessment on the basis of duplication argument becomes increasingly worrying.  Alberta doesn’t have substantive habitat protection provisions like those found in the Fisheries Act.  If the federal role is minimized in environmental assessment, what type of provincial mandate will adequately replace the Department of Fisheries and Oceans mandate.

Further, coinciding with the federal move to step back from environmental assessment, there are questions about whether federal enforcement will be pulled back.  While provincial provisions relating to the disturbance of public land that results in harm to the bed and shore of a water body could stand as an inadequate proxy for the habitat provisions of the Fisheries Act, concerns remain as Alberta rarely if ever prosecutes offenders of these provisions.    In contrast, the Fisheries Act has (historically) seen more proactive enforcement (and is more favourable towards private prosecutions).

So, does the rhetoric about duplication between federal and provincial environmental assessments justify removal of federal oversight?  Not nearly; rather, the duplication argument is being used as a red herring for more fundamental reasons to avoid federal involvement in environmental assessment processes and environmental management more broadly, i.e., getting rid of the broad scope of assessments and rigourous reviews conducted by the federal government.  As for an activity’s environmental impact on federal constitutional matters, it seems they don’t account for much.

If environmental assessments, processes and mandates are truly that duplicative, then simply walk down to the photo copy room and change the address on the covering letter.

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Core Principles for Environmental Assessment

Following on the heels of a disappointing process for the seven-year review of the Canadian Environmental Assessment Act (“CEAA”), core principles for environmental assessment laws have been endorsed by numerous environmental groups across Canada. The core principles for environmental assessment are:

1. adopt sustainability as the core objective;
2. strengthen public participation;
3. meaningfully involve Aboriginal governments as decision-makers;
4. establish a legal framework for strategic environmental assessments;
5. establish a legal framework for regional environmental assessments;
6. require comprehensive, regional cumulative effects assessments;
7. employ multi-jurisdictional assessment and avoid substitution;
8. ensure transparency and access to information;
9. make environmental assessment procedures fairer, more predictable and accessible; and
10.apply design principles throughout the environmental assessment process to ensure that focus and efficiency do not come at the expense of democratic and constitutional rights

Further discussion of these principles is available online at envirolawsmatter.ca.

These principles align well with the ELC’s recommendations regarding CEAA (see our comments on our website here and here).  For example, the ELC has recommended the extension of public participation rights to all levels of environmental assessment under CEAA (including screenings). Effective public participation requires that all necessary and relevant information must be required by the regulator and be made easily accessible to the public. 

Given recent comments by the Prime Minster and the federal Natural Resources Minister, it is apparent that the current government is contemplating changes to “streamline” the federal environmental assessment process. No proposed amendments to CEAA have yet been released by the federal government.  Certainly, the current environmental assessment processes in Canada can be improved and strengthened.  However, these processes should not be diminished. 

The ELC is developing model provincial and federal environmental assessment laws (the “Model EA Laws”).  It is the ELC’s goal that the Model EA Laws will be used by both provincial and federal governments to improve Canada’s environmental assessment processes.  The Model EA Laws will incorporate environmentally sound principles, enabling sustainable decision-making to become part of Canada’s landscape. 

The ELC thanks its funders – Alberta Ecotrust Foundation and the Alberta Law Foundation – for supporting the Model EA Laws project. 

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Seven Year Review of CEAA: An Update

A comprehensive review of the provisions and operation of the Canadian Environmental Assessment Act (CEAA) was due to be conducted in 2010 (by section 32 of Bill C-9: An Act to Amend the Canadian Environmental Assessment Act). With a late start, the review began in early 2011 but was cut short with the federal election call. The review started anew in October of this year. The ELC participated in the seven year review by submitting written comments to the Standing Committee on Environment and Sustainable Development in both March and November 2011 (which can be found on our website at http://www.elc.ab.ca/Content_Files/Files/BriefsAndSubmissions/ELCAlbertaCEAAreview2011_Final_EN.pdf and http://www.elc.ab.ca/Content_Files/Files/CEAA_Comments_November_2011.pdf)

The ELC welcomes and encourages a thorough review of CEAA and the federal environmental assessment process. However, we are concerned that a thorough review will not happen given the process followed by the Standing Committee.

Individuals and organizations began receiving calls to appear as witnesses before the Standing Committee in October – often with very little notice to appear and little direction from the Standing Committee as to which issues it particularly wanted input. Then, with barely two business days  notice, the Standing Committee set a deadline for written submissions (November 28). The hearing and witnesses scheduled for November 29 were cancelled. A confidential draft report to the Standing Committee is due December 6^th. As abruptly as it started, the seven year review appears to have come to an end.

It is disappointing that the opportunity to conduct a thorough review and learn from years of experience under CEAA has not been seized. Environmental assessment is a cornerstone of sustainable development – unfortunately, it appears an opportunity to improve upon CEAA and environmental assessment in Canada may have been squandered by not pursuing a more thorough and structured review process.

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Timelines placed on federal comprehensive studies

The Establishing Timelines for Comprehensive Studies Regulations under the Canadian Environmental Assessment Act were recently published in the Canada Gazette.  These timelines apply to all Comprehensive Studies under the Canadian Environmental Assessment Act except where the responsible authorities are the Canadian Nuclear Safety Commission or the National Energy Board.

Summary flow chart

The Regulations requires the completion of a comprehensive study within 365 days of the notice of the commencement of the environmental assessment.  This 365 days excludes:

1. Time during which the proponent is collecting information to complete the EIS Guidelines (unless the Agency has sufficient information to continue with the Comp Study)
2. Any period requested in writing by the proponent, or
3. Any time (up to 30 days) following receipt of the environmental impact statement needed to determine whether the information has met the Guidelines.

Timelines for public comment on the comprehensive study (which are prescribed in the public notice) and the government response to the study and related public input are not prescribed.

Concerns had been raised about the impact of placing such timelines on environmental assessments where the capacity of both the CEA Agency and consulting departments may be under pressure.  The Regulatory Impact Analysis Statement, oddly in my view, addresses this point stating that the Agency “has been resourced accordingly and has the expertise and the capacity to deliver high quality environmental assessments”.  It is not clear how this conclusion was made and, how, even if currently accurate, it won’t change tomorrow.

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