THE RISE AND FALL OF FEDERAL

ENVIRONMENTAL ASSESSMENT LAW

NOVEMBER 11, 2013

Stephen Hazell

The Rise of Federal EA Law

• Key Influences – U.S. National Environmental Policy Act (1969), James Bay Project, Berger Inquiry

• Environmental Assessment and Review Process Guidelines Order (EARPGO)

• Rafferty-Alameda and Entrenching Federal EA Law

• CEAA 1995

Why a Law?

• Regulatory agencies already examine environmental effects

• Legal requirements limit discretion of governments to balance issues and respond appropriately to circumstances

• Delays good projects

Key Influences on Canadian EA Law Development 1970s to1990s

• National Environmental Policy Act of 1969 (United States)

• LaGrande Project and James Bay and Northern Quebec Agreement

• Berger Inquiry Mackenzie Gas Project• Successes of Environmental groups in

Rafferty-Alameda and Oldman cases

National Environmental Policy Act of 1969 (U.S.)

• Legislative response to community opposition to interstate highway construction and Santa Barbara oil spill

• Purpose - ensure that environmental factors are weighted equally with other factors in federal decision-making, including a multidisciplinary approach to considering environmental effects

NEPA

• No public hearings • No criminal or civil sanctions • Enforcement through judicial remedies

sought by communities, proponents etc

Environmental Assessment and Review Process Guidelines Order

• Charles Caccia appointed Environment Minister in 1983, pressed for federal EA statute

• Order in Council in June 1984 (final Trudeau government decision) reflected internal government conflict on issue of legally binding EA rules

EARPGO

• Similar to NEPA• If initial assessment determines that

proposal has adverse environmental effects that are insignificant or mitigable, proposal may proceed

• If initial assessment finds significant adverse effects, proposal referred to Environment Minister for detailed review

EARPGO

• EARPGO provides for public review by a panel, with public hearings as well as public input and comment on EIS prepared by proponent

• Conventional wisdom - EARPGO not mandatory. Why else would term “Guidelines” be used?

James Bay Hydro Project

• James Bay Hydroelectric Project (La Grande) proposed in April 1971 without consultation with Cree and Inuit of northern Quebec

• 1973 Quebec Superior Court injunction blocking development overturned by Quebec Court of Appeal

• James Bay and Northern Quebec Agreement (November 1975) includes EA regime for new development in Cree and Inuit regions

James Bay and Northern Quebec Agreement (JBNQA) and EA

• Established governance framework for social, economic development, environmental protection

• Environmental assessment process for Cree traditional territory – s. 22

• Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls

Mackenzie Valley Pipeline InquiryKey Features

• “(T)his inquiry is not just about a gas pipeline; it relates to the whole future of the North”

• Addressed a wide range of issues not just biophysical impacts

• Held preliminary hearings seeking input on process and scope

• Travelled to all 35 communities to hear evidence from residents in own languages

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Mackenzie Valley Pipeline InquiryTake Home Messages

• Public participation matters• Local residents have important

knowledge to offer • Canada must settle aboriginal claims

in northern Canada (Inuvialuit, Dene, Inuit, Yukon First Nations)

• Balance “Northern Frontier” against “Northern Homeland”

• Set the stage for federal environmental assessment processes for decades

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Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda Project

• February 1986 – Rafferty-Alameda project proposed

• Two dams in Souris River basin to control floods

• Souris river is international waterway, flowing south into North Dakota, looping back north into Manitoba

Rafferty – Alameda Project Federal Decision Making

• Boundary Waters Treaty• International Rivers Improvement Act • Fisheries Act • Navigable Waters Protection Act• Souris Basin Development Authority and

Saskatchewan attempted to shut feds out of review process

Rafferty – Alameda Project Federal Engagement

• January 1988 - SBDA applies for International Rivers Improvement Act licence

• Canadian Wildlife Federation calls for federal EARPGO environmental assessment

• June 1988 - Environment Minister refuses to apply EARGO, issues licence

• Elizabeth May resigns

Canadian Wildlife Federation Cases (Rafferty No. 1)

• November 1988 - CWF files application for judicial review in Federal Court seeking certiorari and mandamus against federal Environment Minister

Canadian Wildlife Federation Cases (Rafferty No. 1)

• Federal Court Trial Division quashed Iicence under International Rivers Improvement Act, issued certiorari and mandamus order that EARPGO be applied

• Federal Court of Appeal upheld Trial Division ruling

Outcomes from Rafferty-Alameda

• Hundreds of judicial review applications (including Oldman) follow based on decision that EARPGO is legally binding

• Federal government commits to federal statute, and introduces Bill C-78 in June 1990

• Resources and authority of FEARO increase dramatically

Legislating CEAA

• EARPGO widely considered within federal bureaucracy to be inadequate as a law:– “Proposal” too broad – applied to policies,

programs– EAs not linked to decision-making– Agency no legal “oversight” authority – No legal requirement to provide convenient

public access to EA information• Process to enact CEAA took five years (1987

– 1992)

Legislating CEAA: Lessons

• First, get their attention (Rafferty-Alameda and Oldman cases)

• Identify clear problem for government requiring legislation as key policy solution

• Work closely with inside champions• Build public support and line up allies• Neutralize bureaucratic and provincial

opposition

Key Features of CEAA 1995

• All federally triggered projects legally required to be assessed unless excluded

• All biophysical environmental effects assessed as well as directly related health and social effects

• Federal departments carried out screenings (self-assessment), Agency carried out panel reviews, comprehensive studies

• Evolution towards sustainability assessment

Environmental Assessment Aboriginal Claims Agreements

• Claims agreements and federal laws entrench environmental assessment:– Northern Quebec– Inuvialuit Settlement Region– Mackenzie Valley– Nunavut– Yukon– Northern Labrador

• Excludes CEAA 2012 unless national interest determination

Mackenzie Valley Resource Management Act

• Enacted in 1998 following completion of land claims agreements with Gwich’in, Sahtu Dene, later Tlicho Dene

• Establish Review Board as main EA instrument

• Process includes:– Preliminary Screening– Environmental Assessment– Environmental Impact Review

MVRMA Guiding Principles

• Timely and expeditious• Have regard to:

– protection of environment from significant adverse impacts of developments

– protection of social, cultural and economic well-being of residents and communities

– importance of conservation to well-being and way of life of aboriginal people

Yukon Environmental and Socio-economic Assessment Act

Purposes• Provide a comprehensive, neutrally conducted

assessment process • Require consideration of environmental, socio-

economic effects before projects undertaken • Ensure projects are undertaken in accordance

with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend

Trends in Aboriginal Claims EA

• EA regimes co-managed with aboriginal communities

• Assessing sustainability, nor just environmental effects

• CEAA doesn’t apply except for large, transboundary projects in “national interest”

The Fall Of Federal EA Law

• Bill C-38 Omnibus Budget Bill introduced House of Commons March 2012, enacted June 2012

• Perfunctory Environment Committee hearings in late 2011

• House Finance Committee hearings on C-38 in May-June 2012

• Government accepted not a single amendment to Bill C-38

CEAA 2012 Key Features • No legal requirement to undertake EAs• Dramatic reduction in number of EAs• Narrowed scope• Constraints on public participation• Centralization of Federal EA

Administration • Legislated timelines • Substitution by provincial EA processes • Equivalency (exemption)

NO LEGAL REQUIREMENT TO UNDERTAKE EAs (ALMOST)

• Only projects designated by regulation or Ministerial order (and NEB/CNSC projects) subject to EA

• Designated projects not necessarily assessed: Agency has discretion to decide no EA is required

• NEB/CNSC projects must be assessed • Result: politicization of decision-making

on triggering EAs

DRAMATIC REDUCTION IN NUMBER OF FEDERAL EAs

• Number of federal EAs carried out has fallen dramatically – 5000 screenings, comprehensive studies

and panel review under CEAA (2008) – 28 standard EAs, zero panels initiated

under CEAA 2012 between July 6, 2012 and July 6, 2013

Narrowed Scope

S.5.(1) Definition of environmental effects narrowed

• (1)(a) components of the earth include fish, aquatic species at risk, migratory birds, other component on Schedule 2

• (1)(b) “a change that may be caused to the environment that would occur (i) on federal lands” (ii) another province or (iii) outside Canada

Narrowed Scope

• (2) Other environmental effects to be taken into account where federal authority required “to exercise a power or perform a duty or function conferred on it” under another statute

• (a) a change “that is directly linked or necessarily incidental to a federal authority’s exercise of a duty or function” permitting the carrying out of that physical activity

Constraints On Public Participation

• Public participation narrowed to "interested parties", persons "directly affected by the carrying out of the Project" or having "relevant information or expertise“

• “Interested party” determinations to be made by CEAA panels, NEB, CNSC

• Result: limited uneven public participation, law suits

Centralization Of Administration

• “Self-assessment” approach by federal departments abandoned

• Federal EAs to be carried out by:– CEA Agency– National Energy Board (pipeline projects,

offshore oil and gas development)– Canadian Nuclear Safety Commission

(nuclear power projects)• Result: Streamlining

Legislated Timelines

• Legislated timelines (defined through regulation) for federal EAs where the Agency is responsible authority and for all review panels

• Environment Minister may terminate review panel if timelines not being met; Agency then completes review

Substitution By Provincial EA Processes

• Mandatory if province requests substitution, Minister of opinion process is “appropriate substitute” (s. 32, 34)– Include consideration of s. 19(1) factors– Public has opportunity to participate– Public has access to records to allow

meaningful participation – Report submitted to RA and publicly

available

Substitution By Provincial EA Processes

• Individual or class of designated projects

• Not for panel or NEB/CNSC reviews• Approved process deemed to meet

CEAA 2012 EA requirements• RA/Minister makes project decision

based on substitute process report

Exemption Of Substituted Projects (Equivalency)

• Cabinet may exempt a designated project from CEAA 2012 if provincial process is equivalent (s.37)

• Provincial process must first be approved for substitution

• Province must identify significant adverse effects, ensure mitigation

• But no link to federal decision-making—leading to duplication?

CEAA 2012 Process

Implications

• Federal EA process politicized• Federal EA activity reduced by several

orders of magnitude (5000 to 28) • Opportunities to influence federal

environmental assessment process expanded

• Substitution and exemption features further weaken federal EA role, and fragment EA across Canada

CEAA 2012 – Constitutional?

• CEAA 2012 abandons the constitutional support provided in Oldman decision

• Valid criminal law under s. 91 of Constitution Act (S. 6 and 7 Prohibitions, SS. 89 – 102 Administration, Enforcement powers)?

• Valid under peace, order and good government clause of s. 91?

EA Law – Rise Again?

• Have environmental issues related to development projects been resolved?

• A new paradigm perhaps? • Sustainability assessment rather than

environmental assessment? • Move away from project assessment to

planning-based, ecologically grounded approaches?