The ELC submits Comments on the Regulations Designating Physical Activities under the new CEAA, 2012

The ELC submits Comments on the Regulations Designating Physical Activities under the new CEAA, 2012

On July 6, 2012, the new Canadian Environmental Assessment Act, 2012 (CEAA, 2012) – along with the Regulations Designating Physical Activities (RDPA) – came into force by Order-in-Council.  The RDPA plays a central role in the federal environmental assessment scheme.  With the exception of individual projects designated by the Minister in an ad hoc discretionary manner, only those physical activities/projects which appear on the RDPA may be subject to a federal environmental assessment.

The RDPA is essentially the same as the Comprehensive Studies List Regulations, SOR 94/638 (“CSLR”) under the previous CEAA.  The CSLR served a very different function under the previous CEAA than the RDPA does under CEAA, 2012.  Under the previous federal environmental assessment regime, the CSLR identified those physical activities/projects that required a high level of scrutiny under the CEAA (i.e. comprehensive studies).  In contrast, the RDPA represents the total extent of those physical activities/projects that may be subject to any form of environmental assessment (aside from the ad hoc discretionary Ministerial decisions to designate a particular project).

Given the different functions of the CSLR and RDPA, it is the ELC’s view that adoption of only the physical activities/projects listed in the CSLR is not sufficient for designating physical activities under CEAA, 2012.  For example, the thresholds describing the size of physical activities/projects may have made sense in the context of the CSLR but should be closely and thoroughly examined for the RDPA (as it now stands, these thresholds have been carried forward into the RDPA).  It is the ELC’s view that many, if not all, of the thresholds may no longer be appropriate in the new federal environmental assessment scheme.

The ELC is also concerned that some types of physical activities/projects do not appear in the RDPA.  For example, activities relating to national parks or national parks reserves – such as ski hills and golf courses – are not included in the RDPA (although these were included in the CSLR).  The RDPA also makes no mention of physical activities/projects which may impact on listed species and their critical habitat designated pursuant to the federal Species at Risk Act.

We have previously posted about the disappointing process that has led to the substantial changes to Canada’s federal environmental assessment laws. Firstly, the truncated statutory review process meant that the opportunity to conduct a thorough review of CEAA and to learn from years of experience under CEAA was lost. Secondly, the changes to federal environmental assessment laws were buried within the omnibus budget bill providing little opportunity for elected officials and the public to review the amendments in a thoughtful and thorough manner.

The ELC is equally disappointed with the process that has led to the development and implementation of the RPDA pursuant to CEAA, 2012.  The ENGO community was not consulted on the RPDA prior to its implementation.  Rather, the CEA Agency is seeking comments on the RPDA after the fact.

The Environmental Law Centre recently submitted its comments on the RDPA to the CEA Agency.  If you would like a more detailed analysis of the RDPA, please read our comments posted on our website.

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