This blog originally appeared in Slaw, Canada's online legal magazine.

The BC government rammed through two controversial bills aimed at fast-tracking project approvals: Bill 14, Renewable Energy Projects (Streamlined Permitting) Act, and Bill 15, Infrastructure Projects Act. They appear to be intended as a response to US tariffs, economic uncertainty and affordability concerns: Adrian Dix, Minister of Energy and Climate Solutions, cited “this period of global market uncertainty” in a statement accompanying Bill 14, while Premier David Eby referred to this “time of uncertainty caused by Donald Trump’s tariffs” in the public announcement of Bill 15.

But instead of providing greater certainty and improving the efficiency of environmental decision making for “priority” projects, the bills could have the opposite effect. While they have been accompanied by assurances that environmental standards will be upheld and First Nations’ rights and authority respected, neither bill provides the necessary guardrails to ensure that happens. And based on past experience, reducing transparency, engagement and oversight is very likely to lead to public and Indigenous pushback and legal challenges. Both bills have been met with concern and criticism from municipalities, First Nations and opposition MLAs.

What do the Renewable Energy Projects (Streamlined Permitting) Act (Bill 14) and Infrastructure Projects Act (Bill 15) do?

Bill 14 applies to the North Coast Transmission Line (a proposed $3-billion, 450 km transmission line to electrify liquefied natural gas and other industrial facilities in BC), nine wind energy projects, and any other renewable projects that government may add to the regulations in future. It vests regulatory authority for those projects in the BC Energy Regulator (formerly the BC Oil and Gas Commission) and exempts them from the Environmental Assessment Act.

Bill 15 applies to local and provincial infrastructure projects like schools, hospitals and housing, as well as any other project deemed “provincially significant,” including mines. There is also nothing in the bill that would prevent it from being used to fast-track pipelines and dams. It allows Cabinet to grant broad powers to the Minister to prioritize the permitting of prescribed projects, speed up or rubber stamp provincial and local government permitting, delegate regulatory authority to self-regulated private sector “qualified professionals,” and expedite provincial environmental assessment processes.

The bill does not describe what “expedited” environmental assessments will look like. Instead, it authorizes Cabinet to make regulations to prescribe shorter timelines, narrow the scope of the assessment (including to scope out things like climate, health and species effects), and prescribe when and how the government will seek the “consensus” of First Nations. Apparently, this government has lost the memo about the fact that consultation and cooperation processes need to be co-designed.

Several of the most contentious parts of Bill 15 update and replace the existing 2003 Significant Projects Streamlining Act. While the Streamlining Act has never been used, it raised similar concerns about the sweeping powers it conferred. Debating the bill in the Legislature at the time, MLA Joy McPhail described it as allowing the Premier to “micromanage the entire province if he wants to.”

It should be noted that Bill 15 does not automatically fast-track projects or exempt them from planning or regulatory tools. Rather, it gives Cabinet broad powers to do those things for projects – or entire classes of projects – that it has designated in regulations.

Like the Streamlining Act, Bill 15 (with authorization from Cabinet) allows anyone developing or operating designated projects to identify “constraints” that are impeding, or may in the future impede, the “completion or operations” of their project. “Constraints” can include laws, regulations, policies, or other government requirements.

The breadth of this definition is troublesome and raises questions about what could be considered a constraint and what Cabinet could do to remove them. For example, could health or labour standards or the need for environmental studies be construed as constraints and done away with? It appears so.

Once a proponent identifies a constraint, Bill 15 set out a process for resolving it. First, the proponent must consult with a relevant local government or cabinet-named authority to identify ways to overcome it. If the proponent and authority cannot agree on how to overcome the constraint, Cabinet can appoint a facilitator to help them reach agreement. If an agreement is reached, the minister has to accept it. If an agreement is not reached, Cabinet may make an order setting out replacement measures. Either way, the proponent no longer has to comply with any legal “constraints” impeding the proponent’s ability to get a permit, approval or consent. Instead, the replacement measures are deemed to be the bypassed legal requirement, and the authority must issue the necessary permits, approvals or consents.

Currently, this legal process for addressing constraints is only available where constraints are caused by local government measures like laws, plans and policies, but Cabinet can by regulation make this process available in respect of the “constraints” occurring because of provincial laws, policies and other measures.

Aside from the nine wind farms and the North Coast Transmission Line, we do not know which infrastructure projects would be designated for expedited approval under these two bills, but in February the Premier’s office shared a list of projects identified for fast tracking, including:

• Four mines deemed to be “critical minerals” mines, despite the fact that one (Eskay Creek) is a gold and silver mine, neither of which are considered critical minerals, and there is no evidence that the copper mined from the other three mines will be used to support the energy transition.
• Three petroleum projects: Cedar LNG, the NEBC Connector gas pipeline, and Enbridge T-North pipeline.

What effect will Bills 14 and 15 have?

It is hard to predict how the executive branch of the provincial government will use the sweeping powers that the Legislature has given it, but history gives us an indication of the risks. Think of disasters like the tailings dam breach at the Mount Polley Mine, which did not go through an independent environmental assessment and which the Auditor General of British Columbia found had inadequate oversight and was not designed or operated in accordance with the original certificate.

Or think of cautionary tales from other jurisdictions such as the Kearl Oil Sands Mine leak in Alberta, which released millions of litres of toxic tailings into muskeg, forested lands and waterbodies and which experts say revealed serious flaws in federal and provincial oversight. Or the Rainbow Pipeline oil spill in northwestern Alberta, which released approximately 4.5 million litres of crude oil into the environment and cost the company roughly $110 million to clean up.

Some environmental disasters have been caused not by one-time incidents but by decades of inadequate attention to the direct and cumulative effects of myriad industrial activities in a region. For instance, the rampant cumulative effects in Treaty 8 territory in northeastern BC led the Blueberry River First Nation to successfully sue the provincial government for violating its treaty obligations.

There are also risks associated with handing regulatory power to the private sector. As a study out of the University of Victoria’s Environmental Law Centre found, handing the regulatory reins to qualified environmental professionals “raises irresolvable conflicts of interest and a lack of democratic accountability for many resource management decisions.”

It is trite but true that prevention is worth far more than a cure. We have environmental laws and assessments for a reason: to protect people and the environment from the potential harms of projects and activities that could affect the environment. It is far more efficient to prevent problems from happening than to have to clean them up.

And environmental disasters are not the only risk of deregulation. History has also taught us that when people are shut out of decisions that affect them, they often take to the streets or to the courts to defend their rights and their interests.

The Northern Gateway pipeline and tankers project – which in 2012 the federal government shredded its environmental safety net trying to ram through – died following a successful lawsuit by First Nations. Also, a study of wind energy projects in Atlantic Canada found that wind projects are more likely to be successful “when there is early, sustained and consistent two-way communication” with communities.

First Nations leaders are already warning of lawsuits and ongoing protests because of Bill 15.

What are the solutions?

Infrastructure Minister Bowinn Ma said that the purpose of Bill 15 “is to get to a yes or no decision more quickly.” The purpose of environmental assessment is to inform those kinds of decisions. Skipping or hastening assessments could lead to uninformed – and costly – decisions.

Happily, there are proven ways to make sound, fair decisions efficiently. The BC government can get to yes (or no) faster without compromising environmental or community safety.

For example, undertaking proactive environmental assessments of entire watersheds – known as “regional assessments” – and land use planning can help set the stage for more efficient and effective project-level assessment and decision-making. Similarly, doing assessments of categories of projects – known as “strategic assessments” – can lessen the information requirements for individual project reviews.

To reduce duplication, the federal and provincial governments should jointly appoint review panels (something existing laws already allow them to do), along with willing First Nations jurisdictions to achieve the goal of ‘one project, one assessment.’ Decades of experience with joint review panels shows that they tend to be both more efficient and more effective than government-run assessments. And drawing on the vast knowledge and expertise of scientists, Indigenous knowledge holders and other experts can ensure that environmental assessments and decision-making processes focus on the things that matter most and adhere to high standards without wasting time and resources.

Yes, the climate crises and our needs for affordable housing demand urgent action, and governments need to find ways to protect Canadians from the economic fallout of tariffs. But ramming risky projects through with little or no oversight is not the pathway to a resilient, sustainable and fair economy. Instead, the BC government should work with First Nations, local governments and the public to find solutions that work.