REFORMING FEDERAL ENVIRONMENTAL

ASSESSMENT LAW

MARCH 19, 2012

Overview

• Canadian Environmental Assessment Act Amendments since 1995

• CEAA Seven-year Review • Hazell Submission to Environment

Committee (October 2011)• A Checklist for Strong Environmental Laws

(ENGOs, February 2012)• Environment Committee Report on CEAA

Seven-year Review• What’s next?

CEAA Five-Year Review 2000 - 2003

• CEAA (1992) s.72.(1) Environment Minister to undertake “a comprehensive review of the provisions and operation” of the Act five years after the subsection comes into force.

• S.72.(2) Environment Minister to “submit a report to Parliament including a statement of any changes [he] recommends” within one year after his review.

CEAA Five-Year Review 2000 – 2003

• Minister and Agency announced in late 1999 that the three goals of the five-year review process and of reform to the law were “a certain, predictable and timely process,” “high-quality environmental assessments” and “more meaningful public participation.”

• Minister issued report to Parliament March 2001

CEAA 2003 Amendments

• Changes to Purposes of Act (s. 4)– RA coordination– federal-provincial cooperation/coordination– communication/cooperation with Aboriginal peoples– “timely and meaningful” public participation

“throughout” EA process – Government required to “exercise their powers in a

manner that protects the environment and human health and applies the precautionary principle”

• Crown corporations subject to EA • Participant funding required – comp study • Parliamentary seven-year review

Changes to Federal Environmental Assessment Law 2009

• Amendments to the Navigable Waters Protection Act (eliminating many projects that impair navigation from federal EA)

• Amendments to Exclusion List Regulations under CEAA (excluding thousands of federal infrastructure projects from federal EA)

• Adaptation Regulations under CEAA (withdrawn in 2010 as result of Ecojustice/Sierra Club Canada litigation)

Changes to Federal Environmental Assessment Law 2010

• CEAA amendments:– Authorize Minister of Environment to scope large

projects into smaller constituent elements (thus partially reversing Supreme Court of Canada decision in Red Chris

– Exempt from environmental assessment a host of federally funded infrastructure projects by operation of statute; and

• Conduct of public panel reviews for pipeline and nuclear energy projects are delegated to National Energy Board and Canadian Nuclear Safety Commission, respectively, from Canadian Environmental Assessment Agency

New Directions for Federal EA (Hazell Submission to Environment

Committee 2011)

• Sets out principles and key questions that the Environment Committee should be considering in its deliberations

• Not intended to provide hard policy recommendations

Core Elements of a Federal Assessment Process

• Legislated

• Engages the public effectively

• Accountable

• Avoids duplication

Key Questions

• Sustainability assessment as the focus rather than environmental assessment?

• Focus on achieving federal environmental commitments?

• Establish EA permits?

• Adopt single agency approach, drop self-assessment by multiple agencies?

• “One Project, One Federal Approval” to integrates EA into federal approvals for major projects?

A Checklist for Strong Environmental Laws (ENGOs)

• Statement of core principles and elements for federal EA Process

• Initiated by West Coast Environmental Law and MiningWatch Canada, endorsed by over 40 environmental groups, including Ecojustice

1. Adopt sustainability as the core objective

EA legislation should be directed, at its core, to achieving specific and measurable sustainability goals and leaving a positive environmental and socio-economic legacy

2. Strengthen public participation

An effective and inclusive EA should have early and ongoing processes to meaningfully engage the public in assessments of proposed projects or policies. This should include demonstrated participation opportunities from the initial identification of the proposal through to monitoring, full transparency and sharing of information not only by government but also by proponents, and funding that is provided for multi-faceted assistance to participants through an independent body and on an early and ongoing basis

3. Meaningfully involve Aboriginal governments as decision makers

An EA process should respect and accommodate Aboriginal and Treaty rights, including Aboriginal title, with Aboriginal rights-holders having a meaningful role in government-to-government decision making on resource development in their territories and all aspects of environmental planning and assessment

4. Establish legal framework for Strategic EAs

Strategic EA should systematically integrate environmental considerations into government planning and decision making processes relating to proposed policies, plans and programs. There should be public records to demonstrate how this integration has been carried out and implemented

5. Establish legal framework for regional EAs

Regional environmental assessments undertaken ahead of industrial development, or a major expansion of development, should be carried out to help define the terms and requirements of subsequent project assessments as well as providing baseline data and analysis for subsequent assessments.

6. Require comprehensive, regional cumulative effects assessments

Create and implement a mechanism so that comprehensive, regional cumulative effects assessments are conducted based on the need to manage for sustainability and the outcomes legally integrated into decision making

7. Employ multijurisdictional assessment, avoid substitution

Effective EA should require that all provinces, in serious consultation with Aboriginal governments, execute harmonization agreements with the federal government that allow for predictable sharing of EA responsibilities that follows the highest standards and best practices, and allows for efficient administration of the process among all affected governments, departments

8. Ensure transparency and access to information

For any EA process to be credible and transparent, access to all project information, including that not required by the assessor but produced by the proponent, should be readily accessible online

9. Make EA procedures more fair, predictable, and accessible

An EA regime should have simplified processes and procedures, but any measures carried out in name of simplification must justify how information required to make the best environmental decisions in the public interest, which is necessarily complex and detailed, is being fully captured by assessors, Aboriginal groups and public. An efficient EA regime should provide for clear rights of appeal

10. Apply design principles throughout the EA process to ensure that focus and efficiency do not come at expense of democratic and constitutional rights A successful EA regime must be applied

broadly and consistently, while ensuring particular reviews are focused and efficient. Any policy or proposed project that could inhibit progress toward sustainability goals or cause significant adverse environmental impacts must undergo an EA

PROTECTING THE ENVIRONMENT, MANAGING OUR RESOURCES

• Report of the Standing Committee onEnvironment and Sustainable Development, March 2012

• NDP and Liberals issued separate dissenting reports

IMPROVING EFFICIENCY

• Improve Timeliness– Single Federal Agency to Address Federal

Coordination– Remove Unnecessary Steps– Legislated Timelines for Federal

Environmental Assessments– Early Triggering of Federal EAs– Strategic Environmental Assessment to

Facilitate Project Assessment

SINGLE FEDERAL AGENCY

1. Canadian Environmental Assessment Agency be made responsible for exercising powers and performing the duties and functions of the responsible authority unless another “best-placed regulator” — is better suited to perform the role of the responsible authority

LEGISLATED TIME LINES

5. Canadian Environmental Assessment Act be amended to enable or require, where appropriate, binding timelines for all environmental assessments

IMPROVING EFFICIENCY

• Decrease Duplication and Target Significant Projects– Coordination with Provincial Regimes– Target Projects of Environmental

Significance– Class Screenings and Use of Previously

Conducted EAs

COORDINATION WITH PROVINICAL REGIMES

7. Canadian Environmental Assessment Act be amended to empower Agency to determine that another jurisdiction’s environmental assessment process fulfils the requirements of the federal process, and therefore that an environmental assessment carried out under that jurisdiction is equivalent to a CEAA EA

COORDINATION WITH PROVINICAL REGIMES

8. Canadian Environmental Assessment Act be amended to exempt CEAA assessment requirement where a provincial EA is required

TARGET PROJECTS OF ENVIRONMENTAL SIGNIFICANCE

10. Agency focus the application of the Canadian Environmental Assessment Act on projects of environmental significance

11. Federal government modify CEAA so that assessments under the Act are triggered via a project list instead of the current “all in unless excluded” approach

IMPROVING EFFICIENCY

• Aboriginal Consultation– Fulfilling the Duty Effectively– Fulfilling the Duty Efficiently

• Enhance Public Participation

IMPROVING OUTCOMES

• Ensure Early Application of the Act

• Positive Environmental Aspects of Projects

• Economic Impacts of Projects

• Learn from Past Assessments to Improve Future Assessments– Follow-up Programs– Enforcement

ENFORCEMENT

20. Federal government study alternative approaches for ensuring conditions and requirements stemming from environmental assessments are enforceable, and that the federal government subsequently introduce statutory changes necessary to implement its conclusions.

WHAT’S MISSING IN COMMITTEE REPORT ?

• Sustainability not mentioned (Rec. 3, 4 downgrade sustainability but Rec. 18)

• Concern for environment weak “broad sentiment toward ensuring that development does not irresponsibly degrade that natural heritage for future generations” (p. 1)

• Appropriate role for federal government in environmental assessment?

• Participant funding?

WHAT’S NEXT?

• Government response to Committee Report

• CEAA Amendments likely in March 29, 2012 budget bill