Federal EA and the Canadian Environmental Assessment Act, 2012 Presentation to the Bras d’Or Lakes Collaborative Environmental Planning Initiative (CEPI) July 10, 2013

2 Outline Introduction Overview of the Act and Regulations Determining if an EA is Needed Standard EA and Review Panel Process Aboriginal Consultation Decision Making and Enforcement Recent Changes Questions and Discussion

3 The Act The Canadian Environmental Assessment Act, 2012 (CEAA 2012) Came into force July 6, Sections (~68 pages) 3 Regulations: 1.Regulations Designating Physical Activities 2.Prescribed Information for the Description of a Designated Project Regulations 3.Cost Recovery Regulations

4 The Act Purposes of the Act (s.4) Protect components of the environment within federal jurisdiction Ensure designated projects and projects on federal lands are considered and carried out in a careful and precautionary manner Promote coordination with provincial governments Promote communication with Aboriginal peoples and provide opportunity for public participation Establish timelines for federal environmental assessments Promote sustainable development Encourage regional cumulative effects studies

5 Who’s Involved? The Proponent Consultants The Responsible Authority The Canadian Environmental Assessment Agency (the Agency), the NEB, or the CNSC Expert Federal Departments Major Projects Management Office (MPMO) Other jurisdictions Provincial and Municipal governments Public and Aboriginal groups

6 Determining if an EA is Needed Regulations Designating Physical Activities (“project list”) identify types of projects that may be subject to a federal environmental assessment Proponents of designated projects must provide the Agency with a project description Information requirements are set out in the Prescribed Information for the Description of a Designated Project Regulations Minister of the Environment may designate a project not on list

7 Examples of Designated Projects Oil refinery Metal or coal mine (above certain size) Offshore O&G production facility Marine terminal Certain highways, railways and air transport facilities Electrical Transmission Lines  See Regulations Designating Physical Activities for the complete list and full text  Amendments have been proposed to the Regulations

8 Canadian Environmental Assessment Registry Internet Site + Project File Internet Site contains information and public notices for all projects undergoing a federal EA

9 Screening Step Agency has 45 days, including a 20-day public and Aboriginal comment period, to decide whether an EA is required Screening step must consider: description of the project, possibility of adverse environmental effects, comments received during the comment period, results of any relevant regional studies CNSC/NEB-regulated projects skip screening step and automatically require an EA

10 Environmental Effects (s.5) Change that may be caused to fish and fish habitat, aquatic species or migratory birds Change to the environment that would occur on federal lands or in a province other than the site of the project or outside Canada With respect to aboriginal peoples, an effect of any change to the environment on health and socio-economic conditions physical and cultural heritage, current use of lands and resources for traditional purposes elements of historical, archaeological, paleontological or architectural significance. Changes to the environment directly linked or necessarily incidental to federal decisions

11 Types of EA and Cooperative Mechanisms Designated Project 11

12 Standard EA Conducted by either the Agency, CNSC or NEB Federal authorities provide expert advice related to their mandate EAs by the Agency must be completed within 365 days of government time from notice of commencement (s.27) Timelines can be extended under certain circumstances

13 Standard EA Four opportunities for public participation: Summary of the project description (during the screening process) Draft EIS guidelines EIS or EIS summary Draft EA report Agency, CNSC and NEB must establish participant funding programs Agency provides participant funding for all EAs that it conducts

14 EA by Review Panel Minister of the Environment has 60 days from notice of commencement to refer a project to a review panel (s.38) Minister must consider: Potential for significant adverse environmental effects; Public concerns related to those effects; and Harmonization opportunities with another jurisdiction.

15 EA by Review Panel Panel must hold hearings that provide opportunity for “interested parties” to participate “Interested parties” are those directly affected by the project or that have relevant information/expertise Panel determines who is an ‘interested party’ Supported by participant funding 24-month time limit from time of referral to Minister issuing EA decision statement Timelines can be extended

16 EA Processes & Timelines Pre-EA 55 days* EA Commencement Conduct the Analysis EA ReportEA Decision Compliance & Enforcement 60 days 245 days** 60 days Max 24 months** Review Panel EA by the Agency EA starts Limit for referral to review panel Max 365 days** * Includes 10 days to review project description and 45 days to determine whether an EA is required ** Government time only, federal clock may be stopped when the proponent is required to provide information * Includes 10 days to review project description and 45 days to determine whether an EA is required ** Government time only, federal clock may be stopped when the proponent is required to provide information 16

17 Aboriginal Consultation Crown has a legal duty to consult Aboriginal peoples about the potential impact of decisions associated with projects on their rights Agency integrates consultation into the environmental assessment process to the greatest extent possible Participant funding program will continue to be used to provide capacity funding to enable Aboriginal groups to engage in consultations

18 Federal-Provincial Mechanisms Act contains tools for coordination, delegation and joint review panels Equivalency and Substitut ion Equivalency = No Federal Decision Substitution = Federal decision retained

19 Factors to Consider What is examined during a federal EA? (s.19) Environmental effects, including effects caused by accidents and malfunctions Cumulative environmental effects Public and Aboriginal comments Mitigation measures and follow-up program requirements Purpose of the project Alternative means of carrying out the designated project Changes to the project caused by the environment Results of any relevant regional study Any other relevant matter

20 EA Outcomes EA is fundamentally a planning and decision making tool Goal of EA is to plan and design the project in a way that will minimize adverse effects and maximize positive effects Determination of Significance Are the environmental effects adverse? Are the adverse environmental effects significant? Duration, frequency, magnitude Geographic extent Reversibility Ecological context Are the significant adverse environmental effects likely? Are the likely significant adverse environmental effects justifiable?

21 Decision making Minister of the Environment issues a decision statement after an EA by the Agency or by a review panel Decision statement must include conclusion on significance of adverse environmental effects and set out mitigation and follow- up requirements Requires referral to Cabinet whenever environmental effects are significant (for both standard EAs and panels) for a determination as to whether the effects are justified

22 Enforcement S.6: Proponent prohibited from proceeding with a designated project that causes adverse environmental effects unless Agency has determined no EA is required Proponent complies with the conditions in a decision statement Minister designates officers to verify compliance Fines range from $100K to $400K per day Administrative monetary penalties may be set under regulations

23 CEAA 2003 EA Process Driven by federal involvement in a project Applies broadly to many project types and sizes Responsibility is dispersed among departments Some harmonization with provinces No real ability to enforce EA or set conditions Timelines not broadly applied CEAA 2012 Driven by a project list and potential adverse environmental effects within areas of federal jurisdiction Focussed on major projects with greater environmental risk EA responsibility consolidated with CEA Agency (and NEB, CNSC) Provincial harmonization still available Provincial process substitution and equivalency are options EA conditions are enforceable Timelines apply to all EAs Overview of Changes

24 The End Questions?