Last Tuesday (April 2nd), the Canadian Environmental Assessment Agency (the Agency) invited the public to give input on whether an environmental assessment should be conducted for a proposed Liquid Natural Gas (LNG) Export Terminal at Kitimat, BC. The $4 billion project, which would be built by Shell Canada, PetroChina and other oil and gas companies, is expected to produce 24 million tonnes of LNG per day. The public can comment until April 22nd (which, coincidentally, is Earth Day).
Prior to 2012, there would have been no question that the environmental impacts of such a large, environmentally and economically significant project would be assessed by the federal government. But last year Bill C-38 repealed the Canadian Environmental Assessment Act, and replaced it with a new Act. And now even major projects must be “screened” to see if an environmental assessment is necessary – the public is being asked to comment not on the environmental impacts of the LNG terminal, but on whether the project should even be assessed by the government. At the same time, the public is also invited to comment on a proposal from the BC government that it conduct the environmental assessment instead of the federal government.
Here’s how the Agency puts it:
As part of the strengthened and modernized Canadian Environmental Assessment Act, 2012 (CEAA 2012) put in place to support the government's Responsible Resource Development Initiative, the Canadian Environmental Assessment Agency must decide whether a federal environmental assessment is required for the proposed LNG Canada Export Terminal Project located in British Columbia (B.C.). [Emphasis added]
“Strengthened”? “Modernized”? In what way is CEAA 2012 strengthened, compared to the old CEAA?
And it’s not just this press release that contains this language. Do a Google search for the phrase “strengthened and modernized Canadian Environmental Assessment Act, 2012” and you get (at the time I post this) 63,900 hits – all or almost all of them a government-generated Agency press release, website or other publication.
Clearly Canadian government spin doctors are trying to brand CEAA 2012 as strong – despite the reality that CEAA 2012 has greatly weakened - or in many cases eliminated altogether - environmental assessments in Canada, falling short of Canada’s international environmental commitments. As for whether weakened environmental laws are “modern” or not – we certainly hope not.
In addition to allowing government officials to choose whether or not to do an environmental assessment – even for large projects – let’s recap some of the other ways in which CEAA 2012 weakened environmental assessment in Canada:
- Eliminating an estimated 4,000-6,000 environmental assessments per year (including approximately 3,000 that were cancelled when CEAA 2012 came into force in July 2012). Although many of these concerned small projects, a large number were environmentally significant and in many cases had no corresponding provincial assessment;
- Restricting who had a right to participate to “interested parties” in certain environmental assessments, a term which has been used to exclude legitimate public stakeholders in the past. Fortunately, some review panels conducting environmental assessments under CEAA 2012 have taken a fairly broad interpretation of this term to date, but the NEB has recently taken a more restrictive approach;
- Eliminating an estimated 4,000-6,000 environmental assessments per year (including approximately 3,000 that were cancelled when CEAA 2012 came into force in July 2012). Although many of these concerned small projects, a large number were environmentally significant and in many cases had no corresponding provincial assessment;
- Restricting who had a right to participate to “interested parties” in certain environmental assessments, a term which has been used to exclude legitimate public stakeholders in the past. Fortunately, some review panels conducting environmental assessments under CEAA 2012 have taken a fairly broad interpretation of this term to date, but the NEB has recently taken a more restrictive approach;
- Eliminating the possibility that future environmental assessments of pipelines will be conducted by “review panels” – panels of experts that are arms length from government; instead, assessments even of large and contentious projects will be handled by the National Energy Board (NEB).
- Limiting the “environmental effects” that must be evaluated, including eliminating assessment of how environmental changes may impact on non-Aboriginal human health and socio-economic conditions in most circumstances;
- Offloading responsibility for environmental assessment to provincial governments, without ensuring that there is a consistently high national standard for environmental assessment that must be met. The result in many cases will be weak environmental assessments.
- Setting arbitrary timelines for environmental assessment. While these timelines will be achievable in most assessments (and were being achieved under the old CEAA), there is the possibility that delays caused by the proponent or assessments of complicated and/or controversial projects will require longer time periods.
Against this, CEAA 2012 does contain some improved enforcement provisions (although arguably there is now less substance to ‘enforce’). But any independent assessment would hold that CEAA 2012 is substantially weaker than its predecessor. For example, this review by Dalhousie Law Professor and environmental assessment (EA) expert, Meinhard Doelle concludes:
The shift in responsibility for the EA process, the discretion introduced to the application, the changes to the process, the narrow scope, new powers of delegation, substitution and equivalency, the more restricted role of the public, all go counter to the improvements to CEAA 1995 suggested in the academic literature. …
In short, CEAA 2012 is a major step backward; it makes the EA less effective and less fair. It even makes the EA less efficient in the sense that it now completely duplicates the already existing regulatory process, and therefore is an additional regulatory burden without offering the value of good EA.
The government claims that these changes were necessary because of overly long environmental assessments, and backlogs. But a study released this past month in the Canadian Journal of Fisheries and Acquatic Sciences demonstrates that environmental assessments were generally completed in a timely manner, and that there were no backlogs. As Derrick de Kerckhove, the study’s author, explains:
You're really doing a potential disservice to Canadians by scrapping a system that was working really well rather than tailoring the more difficult reviews for those larger economic projects.
Will the federal government and its spin doctors get away with branding CEAA 2012 as “strengthened” when it’s anything but? We will continue reminding Canadians of the truth about what was done to our environmental assessment laws in an undemocratic (and huge) omnibus bill, and pressing for a truly strong and modern environmental assessment law.
By Andrew Gage, Staff Lawyer
Image adapted from a picture of earth by Azcolvin429 with permission under a Creative Commons - Attribution Share-alike 3.0 Licence.