INTRODUCTION CANADIAN

ENVIRONMENTAL ASSESSMENT ACT

(CEAA)

FEBRUARY 16, 2012

Overview

• Legislating CEAA: Policy and Politics• Introduction to CEAA

– Purposes– Projects– Federal and Responsible Authorities– Triggers– Categories of EAs

• Scoping the Project and the Assessment

Legislating CEAA: Policy and Politics

• First, get their attention (Rafferty-Alameda and Oldman cases)

• Identify clear problem for government requiring legislation as key policy solution

• Work closely with inside champions (Ray Robinson, FEARO)

• Build public support and line up allies (EA Caucus of RCEN)

• Neutralize bureaucratic and provincial opposition

Purposes S.4(1)

• Ensures projects considered in careful and precautionary manner to ensure projects do not cause significant adverse environmental effects

• Encourage actions to promote sustainable development

• Eliminate unnecessary duplication• Promote fed – prov cooperation and

coordinated action

Purposes S.4(1)

• Promote communication and cooperation with Aboriginal peoples

• Ensure projects do not cause extra-jurisdictional significant adverse environmental effects

• Ensure opportunities for timely and meaningful public participation throughout EA process

Definitions S.2.(1)

• Environmental assessment – assessment of the environmental effects of

a project conducted under CEAA

• Environment – Land, water, air, atmosphere– All organic, inorganic matter, organisms– Interacting natural ecosystems

Definitions S.2.(1)

• Environmental effects – Change project causes in environment– Any effect of such change on health, socio-

economic conditions, heritage, uses of lands for traditional purposes by aboriginal persons

– Change to project caused by environment

Does the Act Apply?

Is there a Project? S. 2.(1)

A project is either:

•Undertaking (e.g., construction, operation, modification, abandonment) in relation to a physical work

•Physical activity not relating to a physical work described in the Inclusion List Regulations (e.g., flying a supersonic aircraft)

Is the Project Excluded? S.7

• Listed on Exclusion List Regulations/ Schedule (e.g., maintain physical work)

• National emergency for which special temporary measures are being taken under the Emergencies Act

• Emergency, and project will prevent damage to property, environment or in interest of public health or safety;

• Funding but essential details not known

Is there a Federal Authority? S.2(1)

• A federal body such as a Minister, department, agency or parent Crown corporation.

• Federal authority definition refers to Federal Authorities Regulations and to schedules I and II of Financial Administration Act

Is there a Trigger? S.5

• Federal authority exercises a duty, power or function in relation to a project:– Proposes a project as its proponent– Provides financial assistance to proponent

to enable project to be carried out– Disposes of interest in land to enable a

project to be carried out– Exercises regulatory function in relation to

a project listed in Law List Regulations

Categories of EAs

• Screenings

• Comprehensive Studies

• Panel Reviews

• Mediations

Screenings S. 18

• Public participation is unusual

• Responsible authority ensures screening is carried out, report prepared, information on electronic registry

• RA determines if follow-up program necessary

Screenings S. 18

• Projects subject to CEAA subject to screening unless comprehensive study or referred to panel review or mediation

• Screenings - vast majority of CEAA EAs

• Identify/document environmental effects and significance, determine mitigation measures, recommend panel/mediation

• Vary in time, length, depth of analysis

Model Class Screenings S. 19

• Generic assessment of all projects within a class, declared by Agency

• RA uses information contained in model report, prepares individual screening reports for projects within class to account for location-specific or project-specific information.

• Information is accessible on registry

Replacement Class Screenings S. 19

• Provides a generic assessment of all projects within a class, declared by Agency

• No location-specific or project-specific information, so RA does not prepare screening reports

• Statement of projects listed on the registry

Comprehensive Studies S.21

• Projects listed on Comprehensive Study List Regulations

• Larger projects having potential for significant or that may generate public concerns (e.g., mines, oil and gas projects, nuclear facilities)

• Public participation and follow-up program mandatory

Comprehensive Studies S. 21

• Agency conducts comprehensive studies, except NEB and CNSC projects

• Agency coordinates with departments, provinces, ensures public participation

• Required to produce comprehensive study report (CSR) with 365 days

• Minister issues decision statement on significance, mitigation and follow-up

Panel Reviews SS. 25, 28, 33 - 36

• Group of experts appointed by Minister

based on knowledge and expertise on referral from RA or at his/her discretion

• Appointed to assess, impartially, objectively project with likely significant adverse environmental effects, or where public concerns warrant

• Recommendations submitted to Minister and RA

Panel Reviews SS. 25, 28, 33 - 36

• Hearings held with evidence presented

by proponent (Environmental Impact Statement) and members of public, with opportunities for questioning

• Review panel reports made public

• Funding made available to participants

• Joint review panels established with provincial/federal agencies s.40

Mediations SS. 29 - 30

• Voluntary process of negotiation in which an independent and impartial mediator helps resolve project issues

• Interested parties must be identified and indicate willingness to participate

• Mediator appointed by Minister

• Mediator submits report, made public

• No mediation yet under CEAA

Scoping the Project and the

Assessment

• Scoping includes:– Determining the scope of the project S. 15– Determining the scope of the assessment

S. 16 (Factors to be considered) r

Scoping the Project S. 15

• Responsible authority determines project scope for screenings, Minister for panel reviews s. 15.(1)

• Two or more projects can be reviewed as single project in discretion of RA/Minister s.15.(2)

• All undertakings likely to be carried out in relation to physical work to be assessed s.15(3)

Project Scoping Issues

Is the scope of the project:

•As the proponent proposed?

•Limited to the undertaking or physical activity that triggered the Act?

•Limited to that triggering undertaking plus other undertakings, activities or physical works?

Project Scoping Issues

• What is the degree and nature of the discretion afforded to RA and Minister to determine project scope?

• What is the relationship between s.15.(1) and s. 15.(3)?

Scoping the Assessment S. 16

• Once project scoped, assessment scoped under s. 16

• S.16.(1) mandatory factors: environ. effects, malfunctions, accidents, cumulative effects, significance, public comments, mitigation

• S.16.(2) mandatory factors (except screenings): purpose, need, alternative means, follow-up, capacity of renewable resources to meet needs

Scoping Cases

• Sunpine (Friends of the West Country, 1999)

• True North (Prairie Acid Rain Coalition, 2006)

• Red Chris (Miningwatch Canada, 2011)

Sunpine

• Application for NWPA permit for two bridges associated with logging road and forest cutting operations

• Does s.15.(3) require RA include road and forest cutting within scoped project?

• Gibson J. (FCTD) applied “independent utility test”: bridges have no indep. utility

• S. 15.(3) mandatory all undertakings in relation to physical work (the bridges) to be included

Sunpine

• Federal Court of Appeal reversed, rejecting “independent utility test”

• Applied “life-cycle test” only those undertakings relating to the life-cycle of the physical work (such as operation, abandonment of bridge) not others

• But why does s. 15.(3) use “in relation to” rather than “of”?

True North

• Oil sands project (already provincially approved) required Fisheries Act authorization because Bragg Creek was proposed to be destroyed

• Project scoped as “river destruction project” not “oil sands project” by DFO

• If scoped as oil sands project, comprehensive study triggered

True North

• DFO - “scope of the project should be limited to those elements over which the federal government can assert authority”

• FCA – DFO’s decision to scope the project as river destruction reasonable

• Responsible authorities have broad discretion to scope project

• But scope not limited to matters within federal jurisdiction

Red Chris

• Proposed B.C. copper and gold mine application for B.C. and Fisheries Act approvals

• DFO initially scoped project as mine and mill project requiring comprehensive study, later as stream destruction screening

Red Chris

• SCC – CEAA requires that EA track be determined as per project as proposed

• Generally not open to responsible authority to change that level, reduce the scope of the project

• “Project” in s. 21 of the CEAA means “project as proposed” by the proponent, not “project as scoped” (former is consistent with definition of “project”)

Red Chris

• Where project as proposed is listed in the CSL, the requirements in s. 21 are mandatory

• Tracking and scoping are distinct steps

• No discretion with respect to assessment track, RA has discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a) of the CEAA