Environmental, Indigenous and Natural Resources Blog

Several important changes to the environmental assessment process were introduced with the enactment of the new Canadian Environmental Assessment Act, 2012 (“CEAA 2012”) on July 6, 2012. The Canadian Environmental Assessment Act (1992), has been repealed. As we reported in a previous post, several regulations related to CEAA 2012 have also come into force:

• Prescribed Information for the Description of a Designated Project Regulations;
• Cost Recovery Regulations; and
• Regulations Designating Physical Activities.

Triggers and Exemptions

Environmental assessments under CEAA 2012 are triggered where a proposed project is a “designated project” prescribed by the Regulations Designating Physical Activities.  Most projects are considered “designated projects” when a threshold production capacity is reached.  Examples  include:

•  a fossil fuel-fired electrical generating station with a production capacity of 200 MW or more;
• a hydroelectric generating station with a production capacity of 200 MW or more;
• a heavy oil or oil sands processing facility with an oil production capacity of more than 10 000; m3/d;
• an oil sands mine with a bitumen production capacity of more than 10 000 m3/d;
• an oil and gas pipeline more than 75 km in length on a new right of way; and
• an offshore oil and gas pipeline, if any portion of the pipeline is outside the limits of a study area.

Note that, even if a project meets the applicable threshold, an environmental assessment will only be required where a designated project may cause an “environmental effect” on a component of the environment that is within federal legislative authority, as further explained below under “Factors to be Considered”.

By creating a definitive list of the type and scale of projects that require an environmental assessment, CEAA 2012 allows project proponents to more easily determine whether an environmental assessment for a particular project is required.

Responsible Authority

CEAA 2012 has altered the way a responsible authority is selected in order to limit the number of governmental agencies involved in overseeing environmental assessments.  Section 15 permits the Governor in Council to specify by regulation which agencies will act as responsible authorities, and the activities for which the Canadian Environmental Assessment Agency (the “Agency”) will act as the responsible authority.  Section 15 also specifies that:

• the National Energy Board (“NEB”) will act as the responsible authority for designated projects that include activities regulated under the National Energy Board Act or the Canada Oil and Gas Operations Act and that are linked to the National Energy Board as specified in the regulations; and
• the Canadian Nuclear Safety Commission (“CNSC”) will act as the responsible authority for activities regulated under the Nuclear Safety and Control Act and that are linked the the CNSC as specified in the regulations.

Types of Assessments

CEAA 2012 has simplified the different stages of the federal environmental assessment process. An initial screening is required only for projects that are “designated projects”, and all such screenings are to be carried out by the Agency.  On completion of the screening, the Agency determines whether the project will require an environmental assessment (a “standard environmental assessment”).  Thereafter – except where the responsible authority for the project is the NEB or CNSC – the Minister may refer the project to an assessment by review panel if a greater scope of review is determined to be in the public interest.

This is a significant departure from CEAA 1992, which had a two-stage process for reviewing the environmental impact of proposed projects with varying levels of review at both stages.

Factors to be Considered

CEAA 2012 requires that the following factors be considered at the screening stage:

• the description of the designated project provided by the proponent
• the possibility of adverse environmental effects
• comments from the public, and
• the results of a regional study (undertaken by a joint provincial-federal committee studying the effects of existing and future activities) if one has been commissioned by the Minister.

A screening under CEAA 1992 also required consideration of cumulative environmental effects, feasible mitigation measures, and alternatives to the project.  Under CEAA 2012, these factors are considered only at the environmental assessment stage, not the screening stage.

Where a standard environmental assessment or a review panel assessment is required, CEAA 2012 mandates that the responsible authority or the review panel consider the following:

• the environmental effects of the designated project (including risks of accidents and cumulative effects);
• the significance of those effects;
• comments from the public (or from “interested parties” for review panel assessments or assessments conducted by the NEB[1]);
• feasible mitigation measures ;
• the requirements of the follow-up programs ;
• the purpose of the designated project;
• feasible alternative means of carrying out the designated project and the environmental effects of those alternative means;
• any change to the designated project that may be caused by the environment;
• the results of a regional study if one has been commissioned by the Minister; and
• any other matter relevant to the environmental assessment that the responsible authority or – if the environmental assessment is referred to a review panel – the Minister, requires to be taken into account.

The environmental effects that are considered by an environmental assessment under CEAA 2012 are limited to those within areas of federal jurisdiction: i) fish and fish habitat ii) other aquatic species at risk iii) migratory birds iv) federal lands v) effects that cross provincial or international boundaries vi) effects that impact on Aboriginal peoples, such as their use of lands and resources for traditional purposes, and vii) changes to the environment that are directly linked to or necessarily incidental to any federal decisions about a project.

Timelines

CEAA 2012 provides greater predictability in the environmental assessment process by introducing statutory timelines for completion of an assessment.  The Agency is given 45 days after posting the project description online to conduct the screening of a designated project. Thereafter, the following timelines for completion apply:

• 12 months from the commencement of the assessment for standard environmental assessments
• 24 months after being referred by the Minister for review panel assessments, and
• 15 months after the applicant has filed a complete application for assessments conducted by the NEB (followed by three months for the Governor in Council to review the report and make a decision).

Where a proponent is required to collect information of undertake a study for the environmental assessment, these time periods are deemed not to run during the time necessary for the proponent to collect the information or undertake the study.

Substitution of Provincial Environmental Assessments

Under the CEAA 1992 regime, many projects would require environmental assessments at both the provincial and the federal level.  CEAA 2012 requires a provincial environmental assessment to substitute for the federal process where the Minister is of the opinion that the provincial assessment meets the substantive requirements of the federal statute.  However, substitution is not permitted for projects which fall under the jurisdiction of the NEB or CNSC, or for assessments that have been referred to a review panel.

Compliance and Enforcement Measures

CEAA 2012 has added several significant enforcement powers to ensure compliance with the federal environmental assessment process. The new measures include:

• a requirement for follow-up programs after all environmental assessments which verify the accuracy of the assessment’s predictions regarding potential environmental effects and determine the effectiveness of mitigation measures;
• decision statements for environmental assessments which include enforceable conditions;
• authorization for federal inspectors to examine whether or not the conditions provided in a decision statement are being met;
• offences for non-compliance with conditions in a decision statement or with a compliance order, with penalties ranging from $100,000 to $400,000 upon conviction; and
• the application of administrative monetary penalties provided for in the Environmental Violations Administrative Monetary Penalties Act (not yet available) for contraventions of CEAA 2012, resulting in potential penalties of up to $5,000 for an individual and $25,000 for corporations regardless of fault.

Conclusion

CEAA 2012 has introduced measures that are intended to create more simplicity, efficiency, and predictability in the environmental assessment process without compromising the substantive protection of the environment.  Whether CEAA 2012 achieves these laudable goals remains to be seen.  Proponents of major resource projects will want to track the implementation of

CEAA 2012 closely in order to see the benefits of the new streamlined process.