How will Canadian Environmental Assessment Act 2012 work for designated projects?

According to the Conservatives, the Canadian Environmental Assessment Act, 2012 (CEAA 2012) will streamline the EA process, avoid duplication and consolidate responsibility for [EA] to three agencies instead of 40.[1] These three agencies are the Canadian Environmental Assessment Agency (the Agency), the Canadian Nuclear Safety Commission (CNSC), or the National Energy Board (NEB).[2] The government hopes that CEAA 2012 will “make the regulatory system more predictable and timely”, and make it easier to get controversial resource projects, like major pipelines, approved.

Designated projects

CEAA 2012 applies to a relatively small number of projects described in the Regulations Designating Physical Activities or by ministerial order, and cuts the scope of how they are assessed.These projects– plus  physical activities incidental to them- are known as “designated projects”. Such activities are generally determined based on size or production capacity and relate to major oil and gas projects, electrical generating stations, water projects, mines, mills, nuclear facilities, industrial facilities and transportation.  This regulation is generally parallel to the (former) Comprehensive Study List Regulations under CEAA 1992,[3] except that the new regulation does not include projects relating to national parks or national park reserves, or national historic sites or historic canals).

All designated projects get a screening if the Agency is the RA. The proponent must submit a description of the designated project to the Agency – in accordance with the Prescribed Information for a Description of a Designated Project Regulations. Once the project description package is complete, the Agency has 45 days – including a 20-day public comment period – to conduct a screening of the designated project to determine if an EA is required.[4]

CEAA 2012 requires the federal government, Minister, Agency, federal authorities and responsible authorities to exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.[5] Where the Minister is of the opinion that the carrying out of the physical activity may cause adverse environmental effects or public concerns relating to such effects, he/she may order that a project be a designated project and that it undergo an EA.[6]

Designated projects regulated by the CNSC or NEB will automatically require an EA; these do not undergo a screening process. Nor would any projects designated by the Minister of the Environment (Minister) be subject to the screening provision under the CEAA 2012. Of note, the project description will be available to the public; proponents concerned about confidentiality of information to be provided to the Agency should contact the Agency prior to submission of the project description. [7]

Where an EA is required

Following the screening process, the responsible authority or a review panel appointed by the Minister will conduct the EA.[8] An EA completed by the Agency must be completed within 365 days, a timeline that is triggered when a notice of commencement of the EA is posted on the Registry site and ends when the Minister makes a decision concerning whether the designated project is likely to cause significant adverse environmental effects. An EA by a review panel must be completed within 24 months, starting when the proposed project is referred to the panel and ending when the Minister issues his/her EA decision statement. The Minister may extend time limits by up to three months; the governor in council (on recommendation by the Minister) may grant a further extension. The time taken by the project proponent to respond to a request from the Agency or review panel (e.g., to conduct studies, prepare environmental impact statements, collect additional information, etc.) is not counted in these timelines.[9]

In early August, the Agency announced timelines for nine projects under review, giving us a glimpse at how much time the government will allow for federal environmental assessments.

Where, in the opinion of the “decision maker” (i.e., the responsible authority or Minister) a designated project is likely to cause significant adverse environmental effects (even where mitigation measures are implemented), the matter must be referred to the Governor in Council to determine whether these effects are justified in the circumstances.[10] The decision maker must then issue a “decision statement” to the project proponent to inform them of the decision and set out any conditions the proponent must meet.[11]

Equivalent provincial process

Where the Minister is of the opinion that the provincial EA process would be an appropriate substitute for (or equivalent to) the federal process in respect of a designated project, he/she may approve substitution of a provincial process for an EA. [12]

What must an EA consider?

An EA of a designated project must consider several factors, including [13]

• the environmental effects of the designated project, including of malfunctions/accidents and cumulative environmental effects, and their significance;
• comments from the public;
• feasible measures to mitigate significant adverse environmental effects; and
• alternative ways of carrying out the designated project that are technically and economically feasible, and the environmental effects of these alternatives. [Of note, the CEAA 1992 specifically mandated consideration of alternatives that would mitigate any significant adverse environmental effects of the project – s. 16]

An EA of a designated project may (not must) consider community knowledge and Aboriginal traditional knowledge.

What are “environmental effects”?

The CEAA 1992 defined “environmental effect” much more broadly than the new statute. For example, such an effect meant (in respect of a project, whether such change or effect occurs in Canada or elsewhere) anychange the project may cause in the environment, including to a listed wildlife species, its critical habitat or residences (as defined in the Species at Risk Act); or any effect of any such change on health and socioeconomic conditions, physical and cultural heritage, current use of lands and resources for traditional purposes by aboriginal persons, or on any structure, site or thing of historical, archeological, paleontological or architectural significance; or any change to the project that may be caused by the environment.

On the other hand, the CEAA 2012 defines “environmental effects”[14] much more narrowly, i.e., by specifying that certain environmental effects be taken into account in relation to any act or thing, physical activity, designated project or project, namely

• a change that may be caused to fish and fish habitat, aquatic species, or migratory birds as these terms are defined in relevant federal legislation (not as these species may be defined in provincial statutes), or to other designated “components of the environment” set out in a Schedule to the Act (there are none yet);
• a change that may be caused to the environment that would occur on federal lands, in another province or outside Canada; and
• with respect to aboriginal peoples, an effect that occurs in Canada of any change that may be caused to the environment on health, socio-economic conditions, heritage, current use of lands/resources for traditional purposes (not former or future use), or structures/sites/things of historical, archeological, paleontological or architectural significance.

However, where carrying out a project or designated project requires a federal authority to do something from any

Who is an interested party?

CEAA 1992 defined an “interested party” in respect of an EA broadly, as “any person or body having an interest in the outcome of the environmental assessment for a purpose that is neither frivolous nor vexatious”. To be an “interested party” under the CEAA 2012, in the opinion of the responsible authority (e.g., the Agency, CNSB or NEB) or review panel a person must be directly affected by the carrying out of the designated project or must have relevant information or experience. This will make it much harder for urban environmentalists to protect remote areas, and may effectively prevent all input from those not in the local area.

Other projects

For projects that are not “designated projects”, but which are physical works on federal lands or outside Canada and federally funded, federal authorities must ensure that carrying out the project is not likely to cause significant adverse environmental effects.[15] This is why a process similar to EA is still being followed for many smaller projects.

Where screening commenced under CEAA 1992

Where screening of a project began under the CEAA 1992 prior to July 6, 2012 (when the CEAA 2012 came into force), where the project is a designated project, such screening must be completed.[16]

This means that, except for sixteen large projects[17] that have been specifically named by regulation, all projects that used to require screening (including those that were part way through the screening process) no longer require federal EA.

Offences and fines

The CEAA 2012 creates summary conviction offences for contravening certain provisions of the Act,[18] with fines of

• up to $200,000 for a first offence (up to $400,000 for subsequent offences) for doing anything in relation to a designated project if that act may cause an environmental effect;[19] breaching an order issued under the Act; [20]
• up to $100,000 for a first offence ($300,000 for subsequent offences) for obstructing or hindering a designated person exercising their duties under the Act;[21]
• up to $300,000 for knowingly making a false or misleading statement or providing false or misleading information in relation to any matter under the Act.[22]

There were no such provisions in CEAA 1992.

By Jackie Campbell and Dianne Saxe