Last week we summarized the recommendations set out by the Expert Panel established by the Minister of Environment and Climate Change in its report entitled Building Common Ground – A New Vision for Impact Assessment in Canada, The Final Report of the Expert Panel for the Review of Environmental Assessment Processes (the “Report”). One of those recommendations was to change the way projects “trigger” the federal environmental assessment (“EA”) or impact assessment (“IA”) requirement. This post provides an overview of the former and present triggers for federal EA, and the proposed new approach in the Report.
The Previous Approach: CEAA 1992
Under the previous legislation, thousands of projects per year “triggered” the federal EA requirement because they needed a federal permit, licence, or other approval under one or more of the numerous legislative provisions listed in the old Law List Regulations. This broad net approach meant that many projects triggered a federal EA irrespective of the project’s anticipated impact on the environment.
The Current Approach: CEAA 2012
Under the current legislation, federal EAs may be required where a project:
- is a “designated project” pursuant to the Regulations Designating Physical Activities;
- meets the scale threshold prescribed by the Regulations; and
- may cause adverse “environmental effects” (as defined for this purpose, which include environmental aspects within the federal legislative authority).
These requirements create a list of the type and scale (and sometimes location) of projects that generally require a federal EA by one of three federal authorities, the Canadian Environmental Assessment Agency (the “Agency”), the National Energy Board, or the Canadian Nuclear Safety Commission, depending on the type of project involved. Designated projects for which the Agency has responsibility trigger a “screening” phase in which the Agency determines whether a federal EA is required. The Minister of Environment also has the power to designate additional physical activities in an Order, in which case such projects would require a federal EA. Under the current scheme several dozen projects a year trigger a federal EA.
The Proposed Approach
The new approach described in the Report would focus on matters of federal interest and consequential impacts on present and future generations. The three proposed trigger mechanisms are as follows:
- a new Project List which includes “projects that are likely to adversely impact matters of federal interest in a way that is consequential for present and future generations.” These projects would automatically require a federal IA;
- for projects not on the Project List, a set of non-discretionary statutory criteria which require an IA of “projects that have the potential to impact present and future generations in a way that is consequential.” These projects would automatically require a federal IA; and
- a process to allow proponents or any person or group to request that a Project IA be carried out. In each case the decision whether to grant the request would be made by the new IA Authority envisioned in the Report.
The Expert Panel anticipates that hundreds of Project IAs would be triggered each year under this proposal. However, the Report presents the proposed triggers in conceptual form only. It suggests that the most important factor should be “effects on federal interests” (to be defined more broadly than under CEAA 2012). The Report also indicates that there should be a materiality test so that Projects with “a trivial impact” on federal interests do not trigger IA. The Report states that the threshold should be defined as a “consequential impact” and tied to the sustainability framework described elsewhere in the Report. It does not give concrete examples of a potential test for a “consequential” impact.
The extent to which the Report’s recommendations will be adopted by the federal government remains to be seen. The federal government will be accepting public comments on the Report until May 5, 2017.
With special thanks to Rochelle Collette for her assistance in researching and drafting this post.
On Friday, April 21, Lawson Lundell will be hosting a seminar on the Expert Panel’s report, and potential implications. For more information about the seminar, or to register please email firstname.lastname@example.org with your name and company name by Wednesday, April 19th. We will have video conferencing available for those participating outside of Vancouver. If you would like to join via video conference, please let us know in your RSVP response and we will send you the video and dial-in information. Please note: spaces are limited.
Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.