INTRODUCTION CANADIAN ENVIRONMENTAL ASSESSMENT ACT (CEAA) SEPTEMBER 24, 2012

Overview Legislating CEAA: Policy and Politics Introduction to CEAA –Purposes –Projects –Federal and Responsible Authorities –Triggers –Categories of EAs Scoping the Project and the Assessment

Legislating CEAA Rafferty decision (April 1989) determined that EARPGO was a law of general application Widely considered to be inadequate as a law: –“Proposal” too broad – applied to policies, programs –EAs not linked to decision-making –Agency didn’t have legal authority for oversight –No legal requirement to provide convenient public access to EA information Inadequacies – key driver for statute

Legislating CEAA: Policy and Politics Process to enact a federal EA statute took five years (1987 – 1992), with two separate bills tabled in Parliament Sept. 87 Tom McMillan Green Paper on EA Reform Nov. 87 – Jan. 88 Public Consultations with funding for ENGOs ENGO advocacy RCEN EA Caucus

Legislating CEAA: Policy and Politics June 1990 – Bill C-78 tabled in Commons June 1990 – Cabinet Directive on strategic EA released Oct – April 1991 Environment Committee review April 1991 – Parliament prorogued May 1991 – Bill C-13 introduced Oct 91 – March 92 Environment Committee Review ENGO reps in drafting

Legislating CEAA: C-13 Improvements? “Convenient public access” to documents in public registry “Significance” determination to be objective, not at discretion of responsible authority Payments by proponent not to affect significance determination

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 (Ray Robinson, FEARO) Build public support and line up allies (EA Caucus of RCEN) Neutralize bureaucratic and provincial opposition

Purposes S.4(1) Ensures projects considered in careful and precautionary manner to ensure projects do not cause significant adverse environmental effects Encourage actions to promote sustainable development Ensure opportunities for timely and meaningful public participation throughout EA Ensure projects do not cause extra- jurisdictional significant adverse environmental effects

Additional S.4.(1) Purposes through Amendments Promote communication and cooperation with Aboriginal peoples Eliminate unnecessary duplication Promote federal – provincial cooperation and coordinated action

Definitions S.2.(1) Environmental assessment –assessment of the environmental effects of a project conducted under CEAA Environment –Land, water, air, atmosphere –All organic, inorganic matter, organisms –Interacting natural ecosystems

Definitions S.2.(1) Environmental effects –Change project causes in environment –Any effect of such change on health, socio- economic conditions, heritage, uses of lands for traditional purposes by aboriginal persons –Change to project caused by environment

Does the Act Apply?

Is there a Project? S. 2.(1) A project is either: Undertaking (e.g., construction, operation, modification, abandonment) in relation to a physical work Physical activity not relating to a physical work described in the Inclusion List Regulations (e.g., flying a supersonic aircraft)

Is the Project Excluded? S.7 Listed on Exclusion List Regulations/ Schedule (e.g., maintain physical work) National emergency for which special temporary measures are being taken under the Emergencies Act Emergency, and project will prevent damage to property, environment or in interest of public health or safety; Funding but essential details not known

Is there a Federal Authority? S.2(1) A federal body such as a Minister, department, agency or parent Crown corporation. Federal authority definition refers to Federal Authorities Regulations and to schedules I and II of Financial Administration Act

Is there a Trigger? S.5 Federal authority exercises a duty, power or function in relation to a project: –Proposes a project as its proponent –Provides financial assistance to proponent to enable project to be carried out –Disposes of interest in land to enable a project to be carried out –Exercises regulatory function in relation to a project listed in Law List Regulations

Categories of EAs Screenings Comprehensive Studies Panel Reviews Mediations

Screenings S. 18 Public participation is unusual Responsible authority ensures screening is carried out, report prepared, information on electronic registry RA determines if follow-up program necessary

Screenings S. 18 Projects subject to CEAA subject to screening unless comprehensive study or referred to panel review or mediation Screenings - vast majority of CEAA EAs Identify/document environmental effects and significance, determine mitigation measures, recommend panel/mediation Vary in time, length, depth of analysis

Model Class Screenings S. 19 Generic assessment of all projects within a class, declared by Agency RA uses information contained in model report, prepares individual screening reports for projects within class to account for location-specific or project- specific information. Information is accessible on registry

Replacement Class Screenings S. 19 Provides a generic assessment of all projects within a class, declared by Agency No location-specific or project-specific information, so RA does not prepare screening reports Statement of projects listed on the registry

Comprehensive Studies S.21 Projects listed on Comprehensive Study List Regulations Larger projects having potential for significant or that may generate public concerns (e.g., mines, oil and gas projects, nuclear facilities) Public participation and follow-up program mandatory

Comprehensive Studies S. 21 Agency conducts comprehensive studies, except NEB and CNSC projects Agency coordinates with departments, provinces, ensures public participation Required to produce comprehensive study report (CSR) with 365 days Minister issues decision statement on significance, mitigation and follow-up

Panel Reviews SS. 25, 28, Group of experts appointed by Minister based on knowledge and expertise on referral from RA or at his/her discretion Appointed to assess, impartially, objectively project with likely significant adverse environmental effects, or where public concerns warrant Recommendations submitted to Minister and RA

Panel Reviews SS. 25, 28, Hearings held with evidence presented by proponent (Environmental Impact Statement) and members of public, with opportunities for questioning Review panel reports made public Funding made available to participants Joint review panels established with provincial/federal agencies s.40

Mediations SS Voluntary process of negotiation in which an independent and impartial mediator helps resolve project issues Interested parties must be identified and indicate willingness to participate Mediator appointed by Minister Mediator submits report, made public No CEAA mediation ever, although a few informally

Scoping the Project and the Assessment Scoping includes: –Determining the scope of the project S. 15 –Determining the scope of the assessment S. 16 (Factors to be considered)

Scoping the Project S. 15 Responsible authority determines project scope for screenings, Minister for panel reviews s. 15.(1) Two or more projects can be reviewed as single project in discretion of RA/Minister s.15.(2) All undertakings likely to be carried out in relation to physical work to be assessed s.15(3)

Project Scoping Issues Is the scope of the project: As the proponent proposed? Limited to the undertaking or physical activity that triggered the Act? Limited to that triggering undertaking plus other undertakings, activities or physical works?

Project Scoping Issues What is the degree and nature of the discretion afforded to RA and Minister to determine project scope? What is the relationship between s.15.(1) and s. 15.(3)?

Scoping the Assessment S. 16 Once project scoped, assessment scoped under s. 16 S.16.(1) mandatory factors: environ. effects, malfunctions, accidents, cumulative effects, significance, public comments, mitigation S.16.(2) mandatory factors (except screenings): purpose, need, alternative means, follow-up, capacity of renewable resources to meet needs

Scoping Cases Sunpine (Friends of the West Country, 1999) True North (Prairie Acid Rain Coalition, 2006) Red Chris (Miningwatch Canada, 2011)

Sunpine

Application for NWPA permit for two bridges associated with logging road and forest cutting operations Does s.15.(3) require RA include road and forest cutting within scoped project? Gibson J. (FCTD) applied “independent utility test”: bridges have no indep. utility S. 15.(3) mandatory all undertakings in relation to physical work (the bridges) to be included

Sunpine Federal Court of Appeal reversed, rejecting “independent utility test” Applied “life-cycle test” only those undertakings relating to the life-cycle of the physical work (such as operation, abandonment of bridge) not others But why does s. 15.(3) use “in relation to” rather than “of”?

TrueNorth (Fort Hills)

Oil sands project (already provincially approved) required Fisheries Act authorization because Bragg Creek was proposed to be destroyed Project scoped as “river destruction project” not “oil sands project” by DFO If scoped as oil sands project, comprehensive study triggered

TrueNorth (Fort Hills) DFO - “scope of the project should be limited to those elements over which the federal government can assert authority” FCA – DFO’s decision to scope the project as river destruction reasonable Responsible authorities have broad discretion to scope project But scope not limited to matters within federal jurisdiction

Red Chris

Proposed B.C. copper and gold mine application for B.C. and Fisheries Act approvals DFO initially scoped project as mine and mill project requiring comprehensive study, later as stream destruction screening

Red Chris SCC – CEAA requires that EA track be determined as per project as proposed Generally not open to responsible authority to change that track to reduce the scope of the project “Project” in s. 21 of the CEAA means “project as proposed” by the proponent, not “project as scoped” (former is consistent with definition of “project”)

Red Chris Where project as proposed is listed in the CSL, the requirements in s. 21 are mandatory Tracking and scoping are distinct steps No discretion with respect to assessment track, RA has discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a) of the CEAA

CEAA 2012 Project and Assessment Scoping Is project scoping likely to be an issue under CEAA 2012? S. 15(1)(a) is not included in CEAA 2012 Is assessment scoping likely to be an issue? “Federal” effects are set out in s. 5 of CEAA 2012.