The great CEAA debate

Few pieces of environmental legislation have aroused as much controversy in the country as the Canadian Environmental Assessment Act. Non-governmental environmental groups, industry actors, and politicians have frequently weighed in on CEAA’s strengths and weaknesses ever since the act was proclaimed in the early 1990s. Now, with a statutory review of CEAA underway by Parliament’s standing committee on the environment and sustainable development, a forum has been created for all of these interested parties to express their views. The testimony to date has provided some surprising confluence of views that CEAA should be reformed, and what is needed in that reform.
The committee started hearing from witnesses on CEAA in mid October. It has heard to date from officials of the Canadian Environmental Assessment Agency, lawyers, academics, industry representatives, and NGOs. In broad strokes, the witnesses have focused on issues relating to CEAA’s process efficiency, the type of activities it covers, how those activities get assessed, and whether or not CEAA should have enforcement mechanisms.

With regard to the efficiency of the CEAA process, there appears to be widespread agreement among industry officials that the legislation needs significant improvements, as, in its current form, it leads to unnecessarily lengthy processes for the completion of assessments.

A favourite recommendation is that the act should have regulated time frames for the completion of assessments, such as exist in some provincial environmental assessment statutes. Amendments in 2010 did address some of these “time frame” issues but there is, nevertheless, a view that the amendments did not go far enough in bringing regulatory rigour to the federal process. However, although NGOs do not appear to have a strong view on regulated time frames, one committee member expressed a view that concerns over lengthy assessments may be undue with regard to significant, complicated projects that, because of their complexity, may well require a lengthy period of review.

Another efficiency issue frequently raised before the committee reflects the tension between provincial and federal assessments. There is significant concern, particularly from industry, that federal assessments often repeat provincial assessments resulting in needless duplication. Terms such as “harmonization,” “process substitution,” and “one project, one assessment” were used to describe potential remedies to this problem. Again, even though attempts have been made through CEAA amendments and federal-provincial co-operation agreements, the concern remains that not enough has been done to address the issue. Even one industry group that believed the 2010 amendments have gone a long way in addressing efficiency improvements nevertheless proposed further ideas to make the process better.

Perhaps a simple example of the current awkwardness and inefficiency associated with CEAA and provincial assessments working together is demonstrated by the elongated and convoluted language used in a recent public notice for a joint provincial-federal assessment:

“The Canadian Environmental Assessment Agency (CEA Agency) and the BC Environmental Assessment Office (EAO) are inviting the public to attend public meetings as part of the public comment period on the draft Application Information Requirements/Environmental Impact Statement Guidelines document (draft AIR/EIS Guidelines document), which specifies the studies to be conducted and information to be provided by the Proponent in its Environmental Impact Statement and application for a provincial Environmental Assessment Certificate.”

A member of the general public could understandably be mystified by such a notice that, while simply inviting public comment, uses unnecessary and duplicative bureaucratic terms to reflect each assessment regime’s requirements.

More substantively, the committee has heard that harmonization — or the lack thereof — between federal and provincial assessments has resulted in conflicting outcomes. Examples include one assessment approving a project when it is rejected by the other, or different conditions for approval. Some NGOs see this as a strength as they see the need for two different views on a project. And some academics note that there is a “dog’s breakfast” of quality among provincial assessment regimes such that a national independent standard of assessment under CEAA must continue to exist. Nonetheless, it seems more needs to be done on the harmonization effort.

The committee has also heard from a variety of witnesses about what triggers a CEAA assessment in the first place. The current principal trigger is a list of federal permits or authorizations — if a project needs a permit from the list, an assessment of some type is required. There has been debate before the committee as to the efficacy and suitability of this approach.

One view is that rather than focus on permit requirements, CEAA should have a list, such as is used in some provinces, of project types that would require a federal assessment. The view is that a project-list approach would be simpler to determine whether or not a federal assessment is required and would eliminate unnecessary assessments for minor projects. However, one industry group has opposed this proposed approach as, in its view, it has the potential to expand the federal jurisdiction into provincial legislative territory.

Others have pointed out that the permit list approach already gives CEAA very broad assessment powers, and once triggered, the current federal assessment regime is not limited to only assessing the environmental issues related to a head of federal jurisdiction.

In addition to the CEAA triggers issue, there has been lengthy discussion before the committee about the value of “strategic environmental assessments.” These would be less focused on project-specific matters, but instead would consider broad issues related to the need for a type of activity in a region, and how it should or should not be undertaken.

Both industry and NGO groups have spoken in favour of such assessments. However, others have suggested this type of assessment is better left as a matter of political debate among a wider audience than just those who participate in an assessment process. Moreover, while strategic assessments may have the benefit of answering broader land-use questions, experience with such assessments in Canada has demonstrated that their process can be very long, and they may not necessarily result in the desired consensus of approach. To illustrate, the Ontario timber management assessment took six years to complete, and at its end the provincial government, paying as little attention as possible to its result, proceeded to pass its own forest management legislation.

The NGOs and business community appear to be more divided when it comes to enforcement issues. NGOs, and some environmental commissioners and government auditors, want a greater level of enforcement and monitoring mechanisms built into CEAA; while industry officials want to rely on or enhance the enforcement and compliance tools in the underlying environmental statutes such as the Fisheries Act. Indeed, adding enforcement provisions to CEAA would move the legislation from a process to a more substantive-oriented statute, and would, at the same time, increase the potential for the very type of duplication and redundancy in legislation that many are now seeking to reduce.

Paul Cassidy practises environmental and energy law with Blake Cassels & Graydon LLP. Any opinions expressed above are solely his own.

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