In a set of press releases issued today (here and here), the Government of Canada announced 5 principles that it says will guide its discretionary decision-making for projects being reviewed in environmental assessment, along with a set of interim measures it says will be implemented in two existing pipeline reviews.
While today’s announcements will likely have an impact on the Government of Canada’s approach to its participation in existing pipeline reviews conducted by the National Energy Board (NEB), as well as its approach to decision making once the NEB makes a recommendation to cabinet as to whether those projects should proceed, today’s announcements do not change any of the regulations or legislation governing environmental assessments currently being conducted. One possible exception is that the Minister of Natural Resources has indicated he will seek an extension to the legislated time for the Government to make a discretionary and final decision on the Trans Mountain Expansion Project and the Energy East Pipeline by 4 and 3 months, respectively (likely under section 52(7) of the National Energy Board Act), as well as an extension of the NEB’s time to review the Energy East project by 6 months (likely under section 54(3) of the National Energy Board Act). The reference to “seeking” an extension is that the Minister cannot extend the timelines he is seeking on his own – the extension must be granted by cabinet.
The purpose of seeking an extension of the timelines for review is to allow deeper consultation with First Nations and gather input from the public. The Government has also indicated that it will assess the upstream greenhouse gas emissions associated with the Trans Mountain and Energy East pipeline projects, though it is not clear how those assessments will fit into the context of the current reviews, given that the NEB has consistently ruled that consideration of upstream greenhouse gas emissions is not within the scope of its environmental assessment of pipeline projects.
Importantly, the Government of Canada has indicated that project reviews currently underway will not need to restart – apart from the extension of timelines, existing reviews will carry on under the existing regulatory framework. It seems likely, however, that we can expect to see actual changes to the regulatory framework for environmental assessment of major projects in the future. For now, while the Government of Canada’s attitude towards project reviews may have changed, the written rules have not, or at least, not yet.
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.