Bill 30 pits regulatory efficiency against trust and effectiveness in decision-making
By Jason Unger
Bill 30 was tabled in the Alberta Legislature on April 14 and aims to provide the executive branch of government the power to expedite authorization decisions for activities, requiring decisions to be made within 120 business days (or up to 168 days).
What types of decisions must be made within 120 days?
Bill 30 allows the proponent of a project to apply to have it designated as a qualified project (hereinafter referred to as an “expedited project”). A project is defined as a “physical activity carried out in Alberta that requires an approval”.
The activities this covers essentially be anything but is likely focused on projects for which environmental assessments are mandatory and for projects that may be subject to hearings (as other approvals are likely to be issued within a shorter time). While the government’s media release focused on the Bill highlighted energy projects, any activity requiring an approval can be considered under the law: from coal mines to pipelines (that don’t cross provincial or territorial boundaries), to mines, to oilsands projects.
The Bill creates a process whereby the Minister makes a recommendation for an expedited approval, and Cabinet makes an order (through the Lieutenant Governor in Council) if it accepts the recommendation . The “Minister” in question isn’t named in Bill 30, leaving that to the Government Organization Act, and relevant regulations.
There are no strict pre-qualifiers for the Minister to recommend a project for the expedited process but there are discretionary considerations listed in the Bill including whether (at s.3):
- the project strategically aligns with the Government’s priorities, goals and outcomes
- the project is of strategic importance to Alberta’s economy through increased investment, jobs, Government revenues and economic activity,
- the benefits of the project outweigh any residual impacts,
- the minimum capital spending threshold for the project exceeds $250 million,
- the project advances national and provincial security by recognizing provincial autonomy and respecting Alberta’s areas of provincial jurisdiction,
These considerations are not determinative, and some appear more political in nature (such as the last bullet).
Once affirmed by Cabinet as an expedited project (and a Cabinet order is issued to that effect) the various approvals that are governed by the order must be made within either 120 days or within the time prescribed by the specific approval (which can be less, for instance, following Water Act amendments, the timelines for decisions can be set out in regulations). It is notable that there are no timelines associated with the Minister’s recommendation or the Cabinet order about whether a project should be designated as an expedited project.
How does environmental assessment fit in with expedited approvals?
The impact of the Bill on environmental assessments is a bit uncertain at this stage. The Bill merely says that an expedited project application must include “proof acceptable to the Minister of the status of the environmental impact assessment reports, if any, required to be prepared and submitted under Part 2 of the Environmental Protection and Enhancement Act for the project;”.
Insofar as it is simply a status report as to the state of the environmental impact report, there is uncertainty as to what this means. Implicit in the framing of the legislation is that there has been prior regulatory engagement on the project with an environmental assessment screening, terms of reference and possibly subsequent internal government review for deficiencies. This coincides with messaging around the Bill that any assessments will be “substantially” complete.[1] On the other hand, it is clear is that the Bill does not use the word “complete” or similar language in terms of the status of an environmental assessment (as the Bill could have referenced section 53 of the Environmental Protection and Enhancement Act directly if they wanted the assessment to be “complete”). This raises questions around process management and the ability to ensure the assessment report is finalized by the decision point that is prescribed in the Bill.
Practically speaking, the assessment report must be complete prior to any hearings on the matter, as to proceed otherwise is to increase the risk of successful judicial review (more on that below).
Further, the Bill is clearly linked to ongoing discussions around federal impact assessments under the Impact Assessment Act and the operation of the Memorandum of Understanding on major project assessments and a Co-operation Agreement on Environmental and Impact Assessment.
Is 120 days enough to make good decisions?
There has been a concerted effort both federally (see Building Canada Act and setting shorter timelines under the federal Impact Assessment Act) and provincially (see Bill 7 amendments to the Water Act) to curtail decision-making timelines around environmental authorization decisions. While it is understandable that longer timelines are potentially frustrating to investors, so too is arbitrarily curtailing the investigative, consultative, and deliberative/adjudicative processes around large projects.
Foundational to this context is, in this author’s opinion, the view of what regulatory processes are for: what is their purpose? Specifically, impacted communities (and individuals) and public interest-focused NGOs see these processes as points for decision-making whereby substantive determinations around whether a project should proceed are made. Whereas for proponents, and often for governments, these processes are less about decisions (yes or no) and more like regulatory procedural hurdles. The notion for proponents and (often) regulators is that a process once started, entitles proponents to check the boxes and get an approval. If the approval is denied, we often see litigation against the government to get compensation or a reversal of the denial.
Therein lies the crux of curtailed timelines. Substantive decisions require rigour, data, experts, and time to clearly identify the issues, test evidence, identify mitigations and determine whether a project has significant and long-term impacts that cannot be effectively mitigated. Curtailing timelines and condensing the process inherently marginalizes substantive considerations, engagement, and deliberation, to the detriment of making the best decisions feasible. This “time” issue is often not a problem of duplication or regulatory redundancy; it is a problem of taking time to listen to communities and to gather and test evidence around project impacts.
Is this all to say that efficiency is not important? Not in the least, but arbitrarily curtailing timelines and the ability to request full information about a project is a direct undermining of principles of sustainable development (along with intergenerational equity) and public participation; core principles set out in the purpose section of Alberta’s Environmental Protection and Enhancement Act (at s.2).
Does 120 days make approvals more susceptible to judicial review?
It is foreseeable that curtailing decision-making timelines could result in additional challenges to decisions based on whether a decision is “reasonable.” As an overriding principle, decisions of government must be reasonable and must reflect a reasonable interpretation of their enabling legislation. (For those interested in learning more about this administrative law principle see Paul Daly’s article “Vavilov and the Culture of Justification in Contemporary Administrative Law”) Therein lies one of the challenges of making extremely complicated, far-reaching, and harmful (whether to property, people, or planet) decisions on an expedited basis.
Conclusion
Decision making regarding resource extraction is rushed at the public’s’ and the planet’s peril. The risks of developments are less likely to be identified and assessed in the face of unreasonably compressed decision-making timelines.
If history is to be our guide, an understanding of risks and related liabilities to development is essential to environmental management and regulation. One need only consider the billions of dollars in environmental liabilities in Alberta and Canada around past developments where regulatory systems did not have sustainable development, public participation and the polluter pay principle in mind.
The challenge is to ensure a robust review process that is not arbitrarily curtailed. Admittedly, this creates tension when values of minimizing investment risk run headlong into environmental and community expectations and needs. An ideal system requires proactive planning, proactive assessment, clear thresholds (i.e. clear policies and regulation around what is to be protected) and proactive engagement with communities.
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