An update on amendments to federal environmental assessment laws

An update on amendments to federal environmental assessment laws

Following public consultation on proposed amendments earlier this year, the federal government recently passed amendments to the Regulations Designating Physical Activities (RDPA).

The RDPA are promulgated under the Canadian Environmental Assessment Act, 2012 and are central to the act’s operation. Only projects that appear on the RDPA may be subject to federal environmental assessment (with the exception of individual projects designated by the Minister on a wholly discretionary basis). Even if a project appears on the RDPA, it may not actually be subject to a federal environmental assessment (unless it is a project regulated by the National Energy Board or the Canadian Nuclear Safety Commission) because the Canadian Environmental Assessment Agency may determine that a federal environmental assessment is not required.

In May, we provided a summary of the proposed amendments and our concerns on this blog. There is little difference between the amendments as proposed and the amendments as passed. Accordingly, our concerns with the RDPA remain. In our view, the RDPA should have embraced a broad, inclusive approach to listing projects.

While there have been a few additions, the federal government has chosen to remove several categories of projects from the RDPA. Project categories removed include groundwater extraction facilities, heavy oil and oil sands processing facilities, pipelines (other than offshore pipelines) and electrical transmission lines that are not regulated by the National Energy Board, potash and other industrial mineral mines, and a broad range of industrial facilities. In our view, no project categories should have been removed.

The RDPA continues to use project thresholds (that is, only projects above certain size thresholds may be subject to federal environmental assessment) and, in some cases, thresholds have been increased. These thresholds were initially developed in the context of the Comprehensive Studies List Regulations under the previous Canadian Environmental Assessment Act. Their purpose was to identify a subset of projects that required enhanced environmental assessment. These thresholds were not developed as a means to screen out projects from the need for federal environmental assessment altogether; yet that is exactly what is happening under the RDPA. In our view, these thresholds should have undergone a thorough examination with a view to decreasing or eliminating thresholds. This approach would have resulted in a more inclusive project list.

For those who are interested, the amendments and the accompanying Regulatory Impact Analysis Statement can be viewed in the November 6, 2013 edition of the Canada Gazette.

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