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Feds Seek Comments on Impact Assessment Triggers (Project List)

While the proposed Impact Assessment Act (the “IAA”) in Bill C-69 is under review and possible amendment by the Senate, the federal government is seeking public comments this month on a new Discussion Paper on the proposed Project List regulation. The Project List sets out criteria that, if met, make a project subject to the federal assessment process. This post discusses some of the key proposed changes to the criteria.

For background on the IAA, which is proposed to replace the Canadian Environmental Assessment Act, 2012(“CEAA 2012”), see our previous posts.

The Discussion Paper identifies the types of projects that may be subject to a federal impact assessment. It outlines an approach that takes into consideration federal areas of jurisdiction related to the environment, as well as project types that are subject to regulation by a federal lifecycle regulator, and proposes criteria for reviewable projects in the following categories:

  • Renewable Energy
  • Onshore Oil and Gas
  • Offshore Oil and Gas
  • Linear and Transportation Related Projects
  • Marine and Freshwater Projects
  • Mining
  • Nuclear
  • Hazardous Waste
  • Federal Lands and Protected Areas

Annex 2 to the Discussion Paper provides a table comparing the proposed reviewable project criteria with the current criteria under CEAA 2012 and the current regulations. Some notable proposed changes include:

1. Renewable Energy

  • Stricter thresholds for in-stream tidal power generating facilities and expansions;
  • Stricter thresholds for other tidal power generating facilities and expansions;
  • New trigger with criteria for wind power generating facilities in marine or freshwater, and expansions.

2. Onshore Oil and Gas

  • New trigger with criteria for in situ oil sands facility, or expansion of same, unless it is within a legislated hard cap on greenhouse gas emissions.

3. Offshore Oil and Gas

  • No substantive changes.

4. Pipelines and Power Lines

  • Threshold increase for international/interprovincial oil or gas pipelines, other than offshore pipelines;
  • Removed trigger for decommissioning and abandonment of existing pipelines, other than offshore pipelines.

5. Transportation

  • Threshold increases for all-season public highways;
  • Threshold increases for certain railway lines and rail facilities;
  • New trigger with criteria for expansion of existing rail facilities;
  • Removed trigger for railway lines designed for trains with an average speed of 200 km/h or more;
  • Amended thresholds for aerodromes and runways.

6. Marine and Freshwater

  • Amended criteria for marine terminals and expansions;
  • New trigger with criteria for permanent causeways, and expansions of same, in natural water bodies.

7. Mining

  • Capacity threshold increases for metal mines of several types, and expansions;
  • Capacity threshold increase for metal mills and expansions;
  • Capacity threshold increases for coal mines and expansions;
  • Capacity threshold increases for diamond mines and expansions;
  • Removed trigger for apatite mines and expansions from the criteria list.

8. Nuclear

  • Threshold increase for nuclear fission or fusion reactors;
  • Removed trigger for expansion of various types of existing facilities from the criteria list:
    • existing facilities for processing, reprocessing or separation of an isotope of uranium, thorium or plutonium;
    • existing facilities for the manufacture of a product derived from uranium, thorium or plutonium;
    • existing facilities for the processing or use of certain nuclear substances with a half-life greater than one year;
    • existing nuclear fission or fusion reactors;
  • Threshold increases for uranium mines, uranium mills, and expansions of same.

9. Hazardous Waste

  • No substantive changes.

10. Federal Lands and Protected Areas

  • Addition of certain project types in National Wildlife Areas, Migratory Bird Sanctuaries and protected marine areas under the Canada Wildlife Act (e.g. aerodrome or runway, aquaculture facility);
  • New trigger with criteria for physical works in lands administered/managed by Parks Canada;
  • New trigger with criteria for certain projects in National Parks;
  • New trigger with criteria for certain projects in National Marine Conservation Areas.

Another proposed change is that under CEAA 2012 the Project List is a Ministerial regulation that can be changed by the Minister of Environment and Climate Change, whereas under the IAA the Project List will be a Governor in Council regulation that must be approved by a committee of Ministers.

The public may comment on the proposed Project List by visiting www.impactassessmentregulations.ca. Submissions are open until May 31, 2019.

*With thanks to Jocelyn McAdam, articling student for her assistance in drafting this blog.

If you would like to discuss the consultation process for the Project List or how the IAA and revised Project List may affect your project, please contact Jennifer Nyland at jnyland@lawsonlundell.com or any of the other partners in our Environmental & Regulatory Group.

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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.

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