Federal Government Seeks To Overhaul The Environmental Assesement Process


Recently the Federal Government introduced amendments to several environmental statutes through Bill C-38, titled the “Jobs, Growth and Long-Term Prosperity Act”. Bill C-38 is a budget implementation bill that seeks to implement provisions of the budget tabled on March 29th, 2012. 

Bill C-38, amongst other measures,  proposes to enact the Canadian Environmental Assessment Act, 2012 (the “CEAA”) which will establish a new federal environmental assessment regime.

Designated Projects
Under the CEAA, “designated projects” will be subject to environmental assessment. The CEAA contemplates regulations that will enumerate what constitutes a “designated project”. At the time of the writing of this blog entry, those regulations have not been publicly released.
 

Statements made by the federal government suggest that designated projects will be defined to focus on “major projects”, although there has been little direction provided to date as to what would constitute a major project.
 

Responsible Authorities


The CEAA designates the Canada Nuclear Safety Commission, the National Energy Board (the "NEB") and the Canadian Environmental Assessment Agency as “responsible authorities” for designated projects that are subject to environmental assessment. In addition, the CEAA holds that a federal authority that performs regulatory functions may hold public hearings in the case of designated projects that include activities that are linked to that federal authority.


Time Limits for Review
One of the central elements of the CEAA is that it sets express time limits in which environmental assessments must be concluded. The CEAA imposes the following time-limits:

  • General Environmental Assessment: within 365 days after the date on which the notice of commencement of the environmental assessment is posted.
  • Panel Review: within 24 months of the establishment of the review panel, the review panel must submit their report to the Minister and the Minister must issue a decision statement.

The Minister has authority to vary these time-limits.

  • National Energy Board Review: NEB environmental assessments must be completed within18 months. The amended National Energy Board Act states that the NEB must submit a report to the Minister no later than 15 months after the day on which the applicant has provided a complete application. This 15 month time period may, by order, be extended by a maximum of three months.

Transition
 

The CEAA includes several transitional provisions to deal with projects that will be already be undergoing environmental assessment at the time the CEAA comes into force.

  • Screening: any screening of a project commenced under the former Act, subject to some exceptions, will be continued as if the former Act had not been repealed
  • Comprehensive Studies: Any comprehensive study of a project which was commenced under the Canadian Environmental Assesement Act, 1992 (the "former Act"), is continued as if the former Act had not been repealed. However, for projects commenced before July 12, 2010 and where the responsible authority is not the Canadian Nuclear Safety Commission, a time limit has been introduced: a comprehensive study report must be provided by the responsible authority to the Minister and the Canadian Environmental Assessment Agency within six months of the day on which the CEAA comes into force.
  • Review Panel: Any assessment by a review panel that was commenced under the former Act will be continued under the CEAA once it comes into force. In such a case, the Minister is required to establish a time limit within which the decision statement must be issued.
     
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The transitional provisions of the CEAA do not give guidance on how the Ministerial requirement to establish time limits will interact with previously agreed to timelines.
 

Delegation and Substitution
 

The CEAA seeks to establish an environmental assessment process guided by the principle of “one project, one review”.


Under the CEAA, if the Minister is of the opinion that a provincial government’s (or any agency or body of a provincial government) environmental assessment process would be an appropriate substitute, the Minister must, on request of the Province, approve the substitution of the provincial environmental assessment process

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The Minister may not, however, substitute a process if the Canadian Nuclear Safety Commission or National Energy Board is the responsible authority or if the project has already been referred to a review panel.


Public Participation
Public participation in the environmental assessment process under the CEAA, will be limited to interested parties who are “directly affected by the carrying out of the designated project”

The determination of whether a person or group is directly affected will be made either by the responsible authority or the review panel, as applicable.
 

Decision Statement


Under the CEAA, at the end of an environmental assessment process, the decision maker (e.g. the responsible authority, the review panel, etc.) must issue a decision statement to the proponent of the project, which will inform the proponent of the decisions made and include any conditions that the proponent must comply with to carry out the project.
 

Enforcement

The CEAA holds that any person who contravenes an order or does not comply with the conditions of a decision statement is guilty of an offence and is subject to a fine not exceeding $200,000 for a first offence and a fine not exceeding $400,000 for a subsequent offence.
 

Any person who is held to have obstructed or hindered a designated person from exercising their duties under the CEAA is guilty of an offence and is subject to a fine not exceeding $100,000 for a first offence and is subject to a fine not exceeding $300,000 for a subsequent offence.
 

Conclusion:
 

The CEAA constitutes a comprehensive overhaul of the federal environmental process and represents one of the most fundamental shifts in Canada’s regulatory and environmental policy in its history.
 

It must also be noted that the CEAA is not yet law, and further changes and clarifications could emerge through the parliamentary process.
 

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