Proposed amendments to the Regulations Designating Physical Activities under the Canadian Environmental Assessment act, 2012

On Monday, May 20th, 2013 in Backgrounder

John McCauley
Director, Legislative and Regulatory Affairs
Canadian Environmental Assessment Agency
160 Elgin Street, 22nd Floor
Ottawa, Ontario
K1A 0H3

RE: PROPOSED AMENDMENTS TO THE REGULATIONS DESIGNATING PHYSICAL ACTIVITIES UNDER THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT, 2012

May 20th, 2013

Dear Mr. McCauley:

The following comments are submitted as a response to the government’s call for comments on the Regulations Amending the Regulations Designating Physical Activities under the Canadian Environmental Assessment Act, 2012 (CEAA 2012), which were published in the Canada Gazette, Part I: Notices and Proposed Regulations, Vol. 147, No. 16, on April 20th, 2013.

Before commenting on the nature of the new changes, I would like to echo comments made by environmental groups and other concerned parties regarding the Conservative administration’s absolute disregard for public and parliamentary input on the new legislative framework for federal environmental assessment. CEAA 2012 and the current regulations came into force on July 6th, 2012. Comments on the regulations were only solicited after the regulations were promulgated, thereby precluding any meaningful public participation in their formulation.  This objectionable approach simply reflected and amplified the shockingly antidemocratic and authoritarian manner in which the new act was fast-tracked through Parliament, buried within 425 pages of omnibus budget implementation legislation. In my capacity as an MP and leader of the Green Party, I opposed the repealing of the Canadian Environmental Assessment Act and its replacement with a whole new federal environmental assessment regime in Bill C-38. However, I made a good faith effort in the circumstances to correct the deficiencies of the legislation. Of the 302 substantive, policy-oriented amendments that I drafted to the bill, over a hundred were directed at improving CEAA 2012. Even though I was mindful of heeding the executive’s stated objectives, keeping the new timelines for project reviews intact, not one of my amendments was considered by the government.

In the Regulatory Impact Analysis Statement accompanying the draft amendments, it is stated that “the Regulations must be designed in consideration of the structure of CEAA 2012. “ Unfortunately, this banal statement of the status quo only hints at the gravity of the situation. The discussion throughout the impact statement about striking a ‘balance’ between projects  listed in the Regulations that have ‘low or limited potential for significant adverse environmental effects’ and those that have a high potential does not properly account for the dramatically restricted scope and compromised nature of the new act. “Environmental effects’ under the new Act are limited to effects on fish, aquatic species under the Species at Risk Act, and migratory birds. As Robert Gibson of Waterloo University put it, “the narrow definition of ‘environmental effects ‘ and the narrow focus on particular matters of federal mandate mean that even in a case where significant adverse environmental effects were identified, these effects would represent only a fraction of the overall biophysical implications of the proposed project [...] Without expansion of this agenda,  CEAA 2012 would  cease to be an environmental assessment law –it would be little more than an information gathering exercise for permitting other federal decisions in a limited set of areas where the federal government chooses to act” [i] Any serious consideration of achieving effective and efficient environmental assessment has to go beyond the focus on questions of ‘balancing’ the project list and ministerial designation and involve redrafting the framework of the act.

Barring the complete redrafting of CEAA 2012, my immediate concerns with the regulations amending the regulations may be summarized as follows:

  1. There should be no de-listing or removal of items from the project list once they are established on the list.  To begin with, the current project list is essentially the Comprehensive Studies List carried over from the former Act. This list was never intended to capture all adverse environmental effects, but was the higher level of study for projects considered to require more comprehensive environmental assessment. In the RIAS, the government claims that the amendments are being proposed to ‘ensure the Regulations appropriately reflect those major projects that have the greatest potential to cause significant adverse environmental effects in areas of federal jurisdiction.” Given that the former Comprehensive List aimed to capture these major projects, and that the government has advanced absolutely no evidence to explain why certain items should be removed from the current list, it can only be concluded that the deletions from the list are arbitrary and political. The list should be treated as a workable base to which inclusions are added based on evidence, not as a wish-list subject to the whims of government and industry.
  2. There is no evidence to suggest that regulatory burdens exist for proponents in preparing project descriptions under CEAA 2012, or that the Agency resources may be constrained by an ‘overly broad pool of projects’. Given the highly restricted scope of ‘environmental effects,’ not to mention the paucity of information required for project descriptions, these claims are ludicrous.   All significant environmental activities that involve federal powers should be included on the project list so that they can be subject to the screening process. (This is not as satisfactory an option as requiring environmental assessments of all projects on the project list, however.) Under CEAA 2012, where the CEA Agency is the responsible authority, it cannot be argued that the simple addition of an activity on the project list results in any burden for proponents or the Agency, as the decision to undertake an environmental assessment is discretionary and rests with the Agency (s. 10, CEAA 2012).
  3. The government has stated that the amendments are being proposed to ensure that the Regulations ‘appropriately reflect’ the ‘major projects’ that have the ‘greatest potential to cause significant adverse environmental effects in areas of federal jurisdiction’ and, secondly, to ‘improve the clarity of the Regulations and their internal consistency.” The amendments achieve neither objective and offer no policy rationale, not to mention supporting evidence, for the advisability of adding or removing specific items to or from the list. For instance, how was it determined that heavy oil and oil sands processing facilities do not have the potential to cause significant adverse environmental effects? Why is it that the first offshore exploratory wells in Exploration Licence areas will be included but not the later ones? Why is it that expansions of oil sands mines will be included but not in situ projects like steam assisted gravity drainage oil sands projects? In terms of the fragmentation of habitat, the latter is much worse than the former. These inconsistent and perplexing additions and omissions do not suggest that decisions were made on evidence-based policy.

In my view, any projects involving federal funds, federal lands or requiring a permit from a federal authority should be added to the project list.

Respectfully submitted,

 

Elizabeth May, O.C., M.P.
Member of Parliament for Saanich-Gulf Islands
Leader of the Green Party of Canada


[i] Robert G. Gibson, “What would remain? Notes on the key substantive changes to federal environmental assessment in the proposed Canadian Environmental Assessment Act 2012 included in the omnibus legislation budget implementation C-38” (draft paper, 16 May 2012). Accessed 20 May 2013.

http://www.envirolawsmatter.ca/environmental_assessment

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