On June 11, Quebec's Minister of Sustainable Development, Environment and the Fight Against Climate Change (the Minister) tabled a green paper on the modernization of the environmental authorization regime set out in the Environment Quality Act.1 Special consultations and public hearings on the green paper are to be held before the Committee on Transportation and the Environment from August 31 to September 15, 2015 before a bill amending the Environment Quality Act is tabled in the fall of 2015 in order to implement the new environmental authorization regime.
In the years since it was passed (1972), the Environment Quality Act has undergone a myriad of amendments that have increased the number of regimes and made the Act more complicated to implement. Hence the need for reform.
By modernizing the Act, the Ministry of Sustainable Development, Environment and the Fight Against Climate Change (the Ministry) hopes to achieve a number of objectives, including updating the authorization regime by integrating the fight against climate change and the sustainable development principles into it. It also wants to provide guidance for strategic environmental assessments.
By adopting an approach based on environmental risk, the Ministry wishes to focus its efforts on projects with the greatest environmental impact by simplifying the authorization process for lower-risk activities. Objectives also include streamlining and clarifying the application process for authorizations and increasing information thoroughness, consistency, uniformity and sharing. Lastly, the Ministry wants to improve access to information, public participation and transparency and to internalize the costs associated with the authorization regime.
The modernization of the environmental authorization regime is predicated upon the following seven orientations:
Orientation 1: Making the fight against climate change part of the authorization process
According to the Ministry, it can require proponents to consider greenhouse gas emissions only as part of the environmental impact assessment and review procedure. It is therefore proposing to design tools that would also take climate change issues into account in the Ministry's authorization process to ensure they are integrated at the project design stage and to give the Ministry the power to impose conditions related to greenhouse gas emissions and climate change adaptation when issuing an authorization. Under another proposal, the Ministry would be able to bring an activity within the scope of the environmental impact and review procedure on an ad hoc basis even when it is not a priori covered by that procedure, if it involves important climate change issues.
Orientation 2: Better integrate the 16 principles set out in the Sustainable Development Act2
The sustainable development principles would be taken into account in the strategic environmental assessments carried out for the development of strategies, plans and programs. This would be set out in the Act along with a public consultation process. The project authorization process resulting from a strategy, plan or program for which a strategic environmental assessment would therefore be simplified because part of the analysis would have already been done.
Orientation 3: Make adjustments to the authorization regime based on environmental risk without reducing environmental requirements
The proposed authorization regime would involve four categories of activity defined by the degree of risk they pose to the environment. High-risk activities would correspond to the current environmental impact assessment and review procedure; the list of prescribed projects would be reviewed, however, and as previously mentioned, the government would have the power to bring a project within the scope of the procedure even if it is not on the prescribed list. Moderate-risk activities would be the equivalent of the certificate of authorization set out in section 22 of the Environment Quality Act; it is a type of authorization by default because no list would be prescribed. Low-risk activities would not require any authorization, but the project proponent would have to file a declaration of compliance; a list would be prescribed by regulation. Negligible-risk activities would not require any prior formality; a list would be prescribed by regulation and, in certain cases, a declaration of activity might have to be filed.
Orientation 4: Increase available information concerning authorizations and the number of opportunities for public participation
One of the proposals involves creating an environmental assessment registry in order to make all the information and documents pertaining to projects subject to the environmental impact assessment and review procedure available at the start of the process and at each subsequent stage so that the public can have a say on a project before the impact study is carried out. In addition to the public hearing held by the Bureau d'audiences publiques sur l'environnement (BAPE), the agency in Quebec that conducts public hearings on the environment, alternative consultation methods would be provided for and environmental mediation would be formally recognized. The Act is also expected to clearly set out the method for selecting and appointing members of the BAPE. Lastly, it is expected that Ministry authorizations will be made available, with enhanced content, on the Ministry's website and that information regarding declarations of compliance will also be made available.
Orientation 5: Simplify authorizations and the analysis process
Several solutions are proposed for Ministry authorizations. First and foremost, the Ministry is considering grouping all certificates, authorizations, approvals, permits and permissions into one authorization covered by a single application. Moreover, rather than issuing a new authorization when an authorized activity is modified, the existing authorization would be amended so that all the conditions would appear on the same document. The Ministry's power to impose conditions at the time of issuance, amendment or renewal of an authorization would be expressly set out in the Act and administrative and regulatory tools would be developed so the conditions that may be imposed are more predictable. The assignment of authorizations could be made upon ordinary notice rather than requiring an authorization from the Ministry. Furthermore, a separate process would be provided for the performance of emergency work in the event of a real or anticipated disaster and to facilitate the carrying out of pilot projects.
Orientation 6: Review the responsibilities of the Ministry and project proponents
To make proponents accountable, the Ministry is proposing to give the Minister the power to declare an impact study inadmissible if it is incomplete. The same power would be granted in the event of an incomplete authorization application. Thought needs to be given, however, to the identification by the Ministry of the information and documents it deems essential to obtain. The Ministry also wants to extend its power of refusal when a previous authorization is not abided by and to set time limits on the validity of authorizations. Lastly, the Ministry is proposing to require that the premises be left in good condition upon the cessation of an authorized activity. A notice of cessation could be given to the Ministry and the Ministry would have the power to request any information regarding such cessation. Financial instruments may be developed to ensure that the obligations in the event of cessation of activities can be met without the government bearing the cost.
Orientation 7: Better internalize the costs of environmental authorizations and the resulting activities
Finally, in accordance with the user-pay principle and with a view to recovering a larger percentage of the costs generated by the processing of authorization applications, the Ministry is proposing to revise the schedule of fees payable for the analysis of authorization applications and to charge a separate rate to open a file when an authorization application is filed.
Anyone can consult the green paper on the modernization of the environmental authorization regime set out in the Environment Quality Act (French only) and send a comment to the Committee for Transportation and the Environment of the National Assembly by going to the following address on the National Assembly website: http://www.assnat.qc.ca/en/travaux-parlementaires/commissions/cte/mandats/Mandat-32865/index.html.
1 CQLR, c Q-2
2 CQLR, c D-8.1.1
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