Standing Committee on Environment and Sustainable Development issues its report on the CEAA Seven Year Review

21 Mar Standing Committee on Environment and Sustainable Development issues its report on the CEAA Seven Year Review

Standing Committee on Environment and Sustainable Development
issues its report on the CEAA Seven Year Review

Last week, the Standing Committee on Environment and Sustainable Development issued its report entitled Statutory Review of the Canadian Environmental Assessment Act: Protecting the Environment, Managing our Resources. The report contains 20 recommendations which are ostensibly designed to “streamline” the federal environmental assessment process.

It should be noted that both the New Democratic Party and the Liberal Party issued dissenting opinions to the Standing Committee report. Both dissents raised concerns with the process that was used to review CEAA, such as lack of clarity in the process and limited testimony. As well, both parties were concerned that the report did not address all concerns raised by witnesses who appeared before the Standing Committee (for example cumulative effects and strategic environmental assessments).

The ELC has previously expressed its concerns with the truncated review process. It is the ELC’s view that the statutory review of CEAA needs to be thorough and comprehensive to truly achieve a more efficient and effective federal environmental assessment process. A thorough and comprehensive statutory review of CEAA has not occurred.

In addition to our concerns with the inadequate statutory review process, the ELC is concerned about several of the recommendations made by the Standing Committee. Significant changes to the operation of CEAA have been proposed by the Standing Committee. These include a change in the manner in which CEAA is triggered, a shift away from self-assessment and several process changes.

Triggers versus Project List

Currently, the requirement to conduct an environmental assessment under CEAA is based upon the existence of a federal “trigger” (such as certain decisions made pursuant to the Fisheries Act or the Navigable Waters Protection Act). The Standing Committee recommends a move from the current “trigger” approach to a “project list” approach wherein environmental assessments will be required only for listed projects.

Since this proposed “project list” is not available for review, it is not possible to fully comment on this proposed approach. It has been suggested in the Standing Committee’s report that budget size may be used as a factor for placing a project onto the project list. In the ELC’s view, this is not an appropriate method for determining whether or not a project should be subject to environmental assessment. Small budget size does not translate to small environmental impact. Rather, the project list must be developed with consideration of potential environmental impacts that a particular type of project may have (regardless of its budgetary requirements). The development of the project list must also take into consideration the environmental matters over which the federal government has jurisdiction (interprovincial and international matters, fisheries and oceans, navigable waters, migratory birds).

It is the ELC’s recommendation that, if a project list approach is to be adopted, there be a process to require environmental assessment of projects which are not on the project list. Federal environmental assessment should be required whenever there is potential for impacts on environmental matters within federal jurisdiction.

Self-Assessment versus a Central Environmental Assessment Body

Currently, the model for environmental assessment under CEAA is based on self-assessment. This means that the federal Responsible Authority conducts the environmental assessment and makes the ultimate decision that triggered CEAA in the first place. The Standing Committee has recommended a shift from self-assessment to making the Canadian Environmental Assessment Agency responsible for all federal environmental assessments (unless there is a best-placed regulator).

The ELC has previously recommended that the self-assessment model be abandoned and that the Canadian Environmental Assessment Agency be made responsible for all environmental assessments under CEAA. The ELC notes that, in order for this approach to succeed, there must be sufficient funding for the Canadian Environmental Assessment Agency. It is the ELC’s view that a central environmental assessment agency will improve the efficiency and effectiveness of federal environmental assessment process.

Proposed Changes to Environmental Assessment Process

Several other significant changes to the federal environmental assessment process have been recommended by the Standing Committee. For example, the Standing Committee has recommended that the requirement to consider alternatives (in screenings) and to consider the effects of a project on the capacity of renewable resources to meet current and future needs be eliminated. The ELC objects to these recommendations. Both factors are valid considerations in environmental assessments; both factors should remain part of the federal environmental assessment process.

The Standing Committee has also recommended legislated timelines for the completion of federal environmental assessments. The ELC is concerned that this recommendation will compromise the quality of environmental assessments. The federal environmental assessment process should be thorough; it should not be driven by arbitrary timelines. It is the ELC’s view that issues of delay should be addressed by concerted effort to coordinate the environmental assessment processes at both the federal and provincial levels.

The Standing Committee, in an effort to address concerns about delay and duplication, has recommended that provincial environmental assessment processes be substituted for the federal environmental assessment process. The ELC objects to this recommendation. The federal government has jurisdiction over important environmental matters that fall outside provincial jurisdiction and, as such, plays an essential role in Canadian environmental assessment. As well, the ELC is concerned that the quality of environmental assessment varies province to province, which will lead to uneven protection of federal environmental matters. The ELC agrees that federal/provincial process duplication can be reduced. However, this issue should be addressed by better coordination and cooperation – not by federal abdication of its responsibilities over environmental matters.

Matters not Addressed by the Standing Committee

The ELC is concerned that the Standing Committee has failed to consider several important matters associated with environmental assessment. With respect to regional environmental assessments, the Standing Committee simply stated that it would not make recommendations in this regard because it would be an intrusion on provincial jurisdiction. The ELC disagrees with this analysis; the federal government has clear jurisdiction to deal with interprovincial matters, international matters and matters of national concern. Certainly, the federal government can take steps to engage the provinces in regional environmental assessment.

The ELC notes that the Standing Committee report has no discussion or recommendations regarding strategic environmental assessments. Similarly, there is no discussion or recommendation regarding cumulative effects. These are important issues that ought to have been considered by the Standing Committee.

Conclusion

It is typical for the government to issue a response to the reports and recommendations made by Standing Committees. Given recent public comments by the Prime Minister and the federal Natural Resources Minister, it seems likely that the government will propose legislative amendments to CEAA in the near future.  There is some speculation that amendments may be included in the next federal budget bill on March 29, 2012.

At the end of the report, the Standing Committee indicates that reform of CEAA is only the starting point in reforming Canada’s environmental laws. If further environmental law reform is planned, it is the ELC’s hope that such reform proceed in a thoughtful and transparent manner with full participation of all stakeholders.

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