In a set of press releases issued today (here and here), the Government of Canada announced 5
principles that it says it will guide its discretionary
decision-making for projects being reviewed in environmental
assessment, along with a set of interim measures it says will be
implemented in two existing pipeline reviews.
While today's announcements will likely have an impact on
the Government of Canada's approach to its participation in
existing pipeline reviews conducted by the National Energy Board
(NEB), as well as its approach to decision making once the NEB
makes a recommendation to cabinet as to whether those projects
should proceed, today's announcements do not change any of the
regulations or legislation governing environmental assessments
currently being conducted. One possible exception is that the
Minister of Natural Resources has indicated he will seek an
extension to the legislated time for the Government to make a
discretionary and final decision on the Trans Mountain Expansion
Project and the Energy East Pipeline by 4 and 3 months,
respectively (likely under section 52(7) of the National Energy Board Act), as well
as an extension of the NEB's time to review the Energy East
project by 6 months (likely under section 54(3) of the National
Energy Board Act). The reference to "seeking" an
extension is that the Minister cannot extend the timelines he is
seeking on his own – the extension must be granted by
The purpose of seeking an extension of the timelines for review
is to allow deeper consultation with First Nations and gather input
from the public. The Government has also indicated that it will
assess the upstream greenhouse gas emissions associated with the
Trans Mountain and Energy East pipeline projects, though it is not
clear how those assessments will fit into the context of the
current reviews, given that the NEB has consistently ruled that
consideration of upstream greenhouse gas emissions is not within
the scope of its environmental assessment of pipeline projects.
Importantly, the Government of Canada has indicated that project
reviews currently underway will not need to restart – apart
from the extension of timelines, existing reviews will carry on
under the existing regulatory framework. It seems likely, however,
that we can expect to see actual changes to the regulatory
framework for environmental assessment of major projects in the
future. For now, while the Government of Canada's attitude
towards project reviews may have changed, the written rules have
not, or at least, not yet.
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