Canada: Proposed Changes To The Provincial Environmental Impact Assessment And Review Regime

Last Updated: January 19 2018
Article by Julie Belley Perron and Roger Bill

On December 13, 2017 the Quebec government published a draft regulation entitled "Environmental impact assessment and review procedure of certain projects" (the "Draft Regulation") which is to replace the Regulation respecting environmental impact assessment and review. The Draft Regulation is a cornerstone of the implementation of the Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund ("Bill 102"), which was assented to on March 23, 2017. The Draft Regulation is scheduled to come into force on March 23, 2018, subject to any amendments that may be made thereto following the consultation period ending on February 11, 2018.

The Draft Regulation proposes various changes to the current environmental impact assessment and review regime, including increased public participation in the process, greater disclosure by project proponents and a change in the list of projects subject to the environmental assessment process, as well as the applicable thresholds for those projects.

Increased public participation

The Draft Regulation introduces a new obligation for project proponents to publish a notice announcing the commencement of the project's environmental assessment within 15 days after receiving a directive from the Minister regarding the carrying out of the environmental impact assessment. Any person, group or municipality will then have 30 days to make observations on the issues that, in their view, should be addressed by the environmental impact assessment. Within 20 days following the end of this consultation period, the Minister will send the project proponent such observations "whose relevance warrants that it be mandatory to take them into account in the project's impact assessment".

The Draft Regulation also provides for the creation of a new public register, the register of projects subject to the environmental impact assessment and review procedure, which is intended to provide the public with more thorough information, and earlier in the process. It should be noted that the Draft Regulation proposes reducing the duration of the public consultation period to 30 days from the current 45, and a reduction in the time for the Minister to make his or her recommendation to the government regarding the project, i.e., from 15 to 13 months for projects to which a time limit already applies, and from 13 to 18 months, depending on the type of project, for projects to which no time limit currently applies.

Included in the list of new factors that a project proponent must address in its impact assessment, in addition to the issues raised by the public regarding the project, is the quantification of the greenhouse gas emissions that would be attributable to the project and an analysis of the expected impacts of climate change on the project and the local environment where the project will be carried out. Finally, where the project would affect wetlands and bodies of water, proponents must provide additional information and documents on how those areas will be protected.

Projects subject to an EIA

With respect to the proposed changes to the list of activities that are subject to the impact assessment and review procedure, the applicable thresholds for certain projects will, according to the Draft Regulation, be more permissive. In particular:

  • for the construction of dams or dikes, the applicability threshold for the surface area of the reservoir or group of reservoirs that would be created will increase from 50,000 m2 to 100,000 m2;
  • for work in wetlands or bodies of water, the applicability threshold will increase from 300 m to 500 m for work within the 2-year flood line; and
  • the construction of a pulp and paper mill will only be subject to the environmental impact assessment procedure if the mill's maximum annual production capacity would be 400,000 metric tons or more.

However, the Draft Regulation will be stricter in its application to certain industries. In particular:

  • guided or rail public transportation systems and related infrastructures will become subject to review;
  • work related to the production and storage of petroleum, and any oil or gas drilling in wetlands or bodies of water within the meaning of the Petroleum Resources Act will become subject to review;
  • for ore treatment projects, the production of rare earth, uranium and radioactive elements or compounds will become subject to review, and the definitions of "treatment" and "treatment plant" will be clarified; and
  • the applicability threshold for chemical plants will be reduced to 50,000 metric tons of annual production from 100,000 metric tons.

It should also be noted that any project, once in operation, that would emit 100,000 metric tons or more of greenhouse gases expressed in CO2 equivalent per year would also become subject to the environmental impact assessment and review procedure.

One of the major changes proposed by the Draft Regulation concerns its application to increases in the production capacity of existing projects. For example, any increase in the daily production capacity of a factory covered by the new regulation would be subject to the impact assessment and review procedure where the increase exceeds a defined threshold, ranging from 10% to 50% depending on the type of activity, regardless of whether or not the increase results in a greater project footprint.

It will be important to monitor the evolution of the Draft Regulation and other draft regulations soon to be published pursuant to Bill 102, before they officially come into force on March 23, 2018.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Julie Belley Perron
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