Last week we
summarized the recommendations set out by the Expert Panel
established by the Minister of Environment and Climate Change in
its report entitled Building Common Ground – A New Vision
for Impact Assessment in Canada, The Final Report of
the Expert Panel for the Review of Environmental Assessment
Processes (the "Report"). One of those
recommendations was to change the way projects "trigger"
the federal environmental assessment ("EA") or impact
assessment ("IA") requirement. This post provides an
overview of the former and present triggers for federal EA, and the
proposed new approach in the Report.
The Previous Approach: CEAA 1992
Under the previous legislation, thousands of projects per year
"triggered" the federal EA requirement because they
needed a federal permit, licence, or other approval under one or
more of the numerous legislative provisions listed in the old
Law List Regulations. This broad net approach meant that
many projects triggered a federal EA irrespective of the
project's anticipated impact on the environment.
The Current Approach: CEAA 2012
Under the current legislation, federal EAs may be required where
is a "designated project"
pursuant to the Regulations Designating Physical
meets the scale threshold prescribed
by the Regulations; and
may cause adverse "environmental
effects" (as defined for this purpose, which include
environmental aspects within the federal legislative
These requirements create a list of the type and scale (and
sometimes location) of projects that generally require a federal EA
by one of three federal authorities, the Canadian Environmental
Assessment Agency (the "Agency"), the National Energy
Board, or the Canadian Nuclear Safety Commission, depending on the
type of project involved. Designated projects for which the Agency
has responsibility trigger a "screening" phase in which
the Agency determines whether a federal EA is required. The
Minister of Environment also has the power to designate additional
physical activities in an Order, in which case such projects would
require a federal EA. Under the current scheme several dozen
projects a year trigger a federal EA.
The Proposed Approach
The new approach described in the Report would focus on matters
of federal interest and consequential impacts on present and future
generations. The three proposed trigger mechanisms are as
a new Project List which includes
"projects that are likely to adversely impact matters of
federal interest in a way that is consequential for present and
future generations." These projects would automatically
require a federal IA;
for projects not on the Project List,
a set of non-discretionary statutory criteria which require an IA
of "projects that have the potential to impact present and
future generations in a way that is consequential." These
projects would automatically require a federal IA; and
a process to allow proponents or any
person or group to request that a Project IA be carried out. In
each case the decision whether to grant the request would be made
by the new IA Authority envisioned in the Report.
The Expert Panel anticipates that hundreds of Project IAs would
be triggered each year under this proposal. However, the Report
presents the proposed triggers in conceptual form only. It suggests
that the most important factor should be "effects on federal
interests" (to be defined more broadly than under CEAA
2012). The Report also indicates that there should be a
materiality test so that Projects with "a trivial impact"
on federal interests do not trigger IA. The Report states that the
threshold should be defined as a "consequential impact"
and tied to the sustainability framework described elsewhere in the
Report. It does not give concrete examples of a potential test for
a "consequential" impact.
The extent to which the Report's recommendations will be
adopted by the federal government remains to be seen. The federal
government will be accepting public comments on the Report until
May 5, 2017.
With special thanks to articling student Rochelle Collette
for her assistance in researching and drafting this post.
On Friday, April 21, Lawson Lundell will be hosting a
seminar on the Expert Panel's report, and potential
implications. For more information about the seminar, or to
register please email email@example.com with your name
and company name by Wednesday, April 19th. We will have video
conferencing available for those participating outside of
Vancouver. If you would like to join via video conference, please
let us know in your RSVP response and we will send you the video
and dial-in information. Please note: spaces are limited.
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