Environmental Assessment at a Crossroads

Stephen Hazell

December 5, 2012

Overview

• Environmental Assessment: Successes and Shortcomings

• Rethinking the Objectives of EA • Possible Goals for a Next Generation

Assessment Law • Model EA Law (Environmental Law Centre)

EA Successes

• Thousands of good and bad projects improved through mitigation, bad projects rejected (White’s Point Quarry, Ontario Electricity Demand-Supply Plan)

• Proponents earning social licence from communities and civil society groups, adjusting to sustainability paradigm

• Mechanism to meet constitutional requirements to consult aboriginal people

• Due diligence for federal decisions

EA Shortcomings

• Bad projects often approved • Weak follow-up on mitigation measures• Too little sweating of big stuff (GHG

emissions, catastrophe avoidance)• Too much sweating of small stuff (legal

requirements for small projects)• Duplication in EA effort• Delays and added costs for proponents

What do Proponents Want?

• One project, one assessment • Certainty in permitting• Clarity in application of EA and other

environmental laws• Elimination of environmental assessment

laws?

Environmental Assessment: The End of the Road?

• Federal and provincial governments generally not committed to rigorous EA laws

• Trend to more discretion in EA process, fewer EAs, more exemptions, less public engagement, fewer public hearings, less rigorous processes due to timeframe constraints

Possible Goals for a Next Generation Assessment Law

• Demonstrate due diligence in approvals of development projects

• Avoid or mitigate significant environmental effects

• Serve as process for implementing environmental laws, policies, commitments

• Drive transition to a sustainable society and economy

Demonstrate Due Diligence

• Governments need to demonstrate that reasonable care has been exercised to ensure that projects are approved lawfully:– Constitutional duty to consult and as necessary

accommodate aboriginal peoples has been met – Avoid significant environmental effects in areas of

federal authority – Ensure that other federal and provincial laws not being

breached by project• CEAA 2012 interpreted as a “due diligence”

policy framework?

Demonstrate Due Diligence

• Due diligence achievement consistent with minimal federal government regulatory role in resource development– Reduction in fish habitat protection measures in

Fisheries Act– Reduction in scope of application of Navigation

Protection Act

• Environmental issues to be overtaken by aboriginal consultation issues?

Avoid or Mitigate Significant Environmental Effects

• Reversion to CEAA 1992

• Focus on most egregious projects/effects

• Elasticity of “significance” concept remains

• Cumulative effects (threatened species habitat loss), and global effects (climate change) continue to be addressed poorly

Process to Implement Environmental Strategies, Policies • Ensure that projects are consistent with

federal policies, strategies as well as laws

• Examples include: – Federal Sustainable Development Strategy– International Commitments (UNFCCC,

Biodiversity Convention) – Chemicals Management Strategy

Drive Transition to Sustainable Society and Economy

• Assumes that human use of global resources is currently unsustainable

• Sustainability assessment – focus of recent panels (Mackenzie Gas Project)

• Embedded (partially) in aboriginal claims laws (Yukon Environmental and Socio-economic Assessment Act, Mackenzie Valley Resource Management Act)

Sustainability Assessment• Focuses on economic, social and environmental

sustainability, not just significance of adverse effects

• Does project advance economy and society toward a desirable, durable future? not just: How can this project be made less bad?

• Seeks to improve positive effects of project as well as mitigate negative effects

• Questions intergenerational as well as intragenerational equity

Model Environmental Assessment Laws Project

• Project conducted by Environmental Law Centre (Edmonton) and funded by Alberta Ecotrust Foundation and the Alberta Law Foundation

• Developing model provincial and federal environmental assessment laws – to be published end of 2012

• Incorporate environmentally sound principles, enabling sustainable decision-making to become part of Canada’s landscape.

Model Environmental and Sustainability Assessment Act

Features • Seeks to provide model federal and

provincial EA law• Purposes (s.3) focus on positive contribution

to sustainability • Principles (s.4) include precautionary

principle, pollution prevention, intergenerational equity, public participation, evidence-based open, transparent, accountable

Model ESA Act Features

• Broad factors (alternatives, cumulative effects, malfunctions and accidents)to be considered for Strategic ESAs (s.28) and Project ESAs (s.29)

• Broad definitions of “environment” and “environmental effect” (s.1)

• Sustainability criteria provided (s.23) • “Meaningful and effective” public participation

required (s.1)• Public participation funding

expanded (ss.51 – 55)

Model ESA Act Features • Project environmental and sustainability assessments

(ESAs) required (s.11)• Strategic ESAs (plans, policies or programs) required

(s.7) • Federal project ESAs required for project categories

included on schedule (s.12) and for projects of “national concern” (s.11)

• ESAs carried out by Agency or Panel (s. 30) • Retains CEAA 2012 screenings (s.25), includes pre-

assessments (s.26), provides for joint panels (s.30)

Model ESA Act Features

• CEA Agency retains central role for federal ESAs (s.60)

• Enhanced follow-up program requirements (ss.38 – 39)

• Judicial reviews (possibly appeals) provided for (ss.41, 42)

• Citizen petitions for ESAs authorized, with Ministerial response required (ss.57 – 59)

Model ESA Act Issues

• Would all resource development grind to a halt with such a law?

• Is the s. 11 “national concern” trigger constitutional? Is it too vague?

• Are s. 7 triggers for Strategic ESA’s too vague?

• Are the links between federal and provincial ESAs clear enough?

Conclusions

• Is it likely that any government would propose or any legislature enact a statute similar to the Model ESA Act until consensus emerges that human activities cannot be sustained by ecosystems?

• Would a federal government committed to making the transition to sustainability be better off with CEAA 2012, given the discretion and flexibility it affords?