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THE RISE AND FALL OF FEDERAL ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013

THE RISE AND FALL OF FEDERAL ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013. Stephen Hazell . The Rise of Federal EA Law . Key Influences – U.S. National Environmental Policy Act (1969), James Bay Project, Berger Inquiry

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THE RISE AND FALL OF FEDERAL ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013

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  1. THE RISE AND FALL OF FEDERAL ENVIRONMENTAL ASSESSMENT LAWNOVEMBER 11, 2013 Stephen Hazell

  2. The Rise of Federal EA Law • Key Influences – U.S. National Environmental Policy Act (1969), James Bay Project, Berger Inquiry • Environmental Assessment and Review Process Guidelines Order (EARPGO) • Rafferty-Alameda and Entrenching Federal EA Law • CEAA 1995

  3. Why a Law? • Regulatory agencies already examine environmental effects • Legal requirements limit discretion of governments to balance issues and respond appropriately to circumstances • Delays good projects

  4. Key Influences on Canadian EA Law Development 1970s to1990s • National Environmental Policy Act of 1969 (United States) • LaGrandeProject and James Bay and Northern Quebec Agreement • Berger Inquiry Mackenzie Gas Project • Successes of Environmental groups in Rafferty-Alameda and Oldman cases

  5. National Environmental Policy Act of 1969 (U.S.) • Legislative response to community opposition to interstate highway construction and Santa Barbara oil spill • Purpose - ensure that environmental factors are weighted equally with other factors in federal decision-making, including a multidisciplinary approach to considering environmental effects

  6. NEPA • No public hearings • No criminal or civil sanctions • Enforcement through judicial remedies sought by communities, proponents etc

  7. Environmental Assessment and Review Process Guidelines Order • Charles Caccia appointed Environment Minister in 1983, pressed for federal EA statute • Order in Council in June 1984 (final Trudeau government decision) reflected internal government conflict on issue of legally binding EA rules

  8. EARPGO • Similar to NEPA • If initial assessment determines that proposal has adverse environmental effects that are insignificant or mitigable, proposal may proceed • If initial assessment finds significant adverse effects, proposal referred to Environment Minister for detailed review

  9. EARPGO • EARPGO provides for public review by a panel, with public hearings as well as public input and comment on EIS prepared by proponent • Conventional wisdom - EARPGO not mandatory. Why else would term “Guidelines” be used?

  10. James Bay Hydro Project • James Bay Hydroelectric Project (La Grande) proposed in April 1971 without consultation with Cree and Inuit of northern Quebec • 1973 Quebec Superior Court injunction blocking development overturned by Quebec Court of Appeal • James Bay and Northern Quebec Agreement (November 1975) includes EA regime for new development in Cree and Inuit regions

  11. James Bay and Northern Quebec Agreement (JBNQA) and EA • Established governance framework for social, economic development, environmental protection • Environmental assessment process for Cree traditional territory – s. 22 • Separate process for federal or provincial assessment of projects depending on constitutional jurisdiction within which project falls

  12. Mackenzie Valley Pipeline InquiryKey Features • “(T)his inquiry is not just about a gas pipeline; it relates to the whole future of the North” • Addressed a wide range of issues not just biophysical impacts • Held preliminary hearings seeking input on process and scope • Travelled to all 35 communities to hear evidence from residents in own languages f

  13. Mackenzie Valley Pipeline InquiryTake Home Messages • Public participation matters • Local residents have important knowledge to offer • Canada must settle aboriginal claims in northern Canada (Inuvialuit, Dene, Inuit, Yukon First Nations) • Balance “Northern Frontier” against “Northern Homeland” • Set the stage for federal environmental assessment processes for decades f

  14. Rafferty – Alameda – Legal Entrenchment of Federal EA

  15. Rafferty – Alameda – Legal Entrenchment of Federal EA

  16. Rafferty – Alameda Project • February 1986 – Rafferty-Alameda project proposed • Two dams in Souris River basin to control floods • Souris river is international waterway, flowing south into North Dakota, looping back north into Manitoba

  17. Rafferty – Alameda Project Federal Decision Making • Boundary Waters Treaty • International Rivers Improvement Act • Fisheries Act • Navigable Waters Protection Act • Souris Basin Development Authority and Saskatchewan attempted to shut feds out of review process

  18. Rafferty – Alameda Project Federal Engagement • January 1988 - SBDA applies for International Rivers Improvement Act licence • Canadian Wildlife Federation calls for federal EARPGO environmental assessment • June 1988 - Environment Minister refuses to apply EARGO, issues licence • Elizabeth May resigns

  19. Canadian Wildlife Federation Cases (Rafferty No. 1) • November 1988 - CWF files application for judicial review in Federal Court seeking certiorari and mandamus against federal Environment Minister

  20. Canadian Wildlife Federation Cases (Rafferty No. 1) • Federal Court Trial Division quashed Iicence under International Rivers Improvement Act, issued certiorari and mandamus order that EARPGO be applied • Federal Court of Appeal upheld Trial Division ruling

  21. Outcomes from Rafferty-Alameda • Hundreds of judicial review applications (including Oldman) follow based on decision that EARPGO is legally binding • Federal government commits to federal statute, and introduces Bill C-78 in June 1990 • Resources and authority of FEARO increase dramatically

  22. Legislating CEAA • EARPGO widely considered within federal bureaucracy to be inadequate as a law: • “Proposal” too broad – applied to policies, programs • EAs not linked to decision-making • Agency no legal “oversight” authority • No legal requirement to provide convenient public access to EA information • Process to enact CEAA took five years (1987 – 1992)

  23. Legislating CEAA: Lessons • 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 • Build public support and line up allies • Neutralize bureaucratic and provincial opposition

  24. Key Features of CEAA 1995 • All federally triggered projects legally required to be assessed unless excluded • All biophysical environmental effects assessed as well as directly related health and social effects • Federal departments carried out screenings (self-assessment), Agency carried out panel reviews, comprehensive studies • Evolution towards sustainability assessment

  25. Environmental Assessment Aboriginal Claims Agreements • Claims agreements and federal laws entrench environmental assessment: • Northern Quebec • Inuvialuit Settlement Region • Mackenzie Valley • Nunavut • Yukon • Northern Labrador • Excludes CEAA 2012 unless national interest determination

  26. Mackenzie Valley Resource Management Act • Enacted in 1998 following completion of land claims agreements with Gwich’in, SahtuDene, later TlichoDene • Establish Review Board as main EA instrument • Process includes: • Preliminary Screening • Environmental Assessment • Environmental Impact Review

  27. MVRMA Guiding Principles • Timely and expeditious • Have regard to: • protection of environment from significant adverse impacts of developments • protection of social, cultural and economic well-being of residents and communities • importance of conservation to well-being and way of life of aboriginal people

  28. Yukon Environmental and Socio-economic Assessment Act Purposes • Provide a comprehensive, neutrally conducted assessment process • Require consideration of environmental, socio-economic effects before projects undertaken • Ensure projects are undertaken in accordance with principles that foster beneficial socio-economic change without undermining ecological/social systems on which communities, residents, and societies in general, depend

  29. Trends in Aboriginal Claims EA • EA regimes co-managed with aboriginal communities • Assessing sustainability, nor just environmental effects • CEAA doesn’t apply except for large, transboundaryprojects in “national interest”

  30. The Fall Of Federal EA Law • Bill C-38 Omnibus Budget Bill introduced House of Commons March 2012, enacted June 2012 • Perfunctory Environment Committee hearings in late 2011 • House Finance Committee hearings on C-38 in May-June 2012 • Government accepted not a single amendment to Bill C-38

  31. CEAA 2012 Key Features • No legal requirement to undertake EAs • Dramatic reduction in number of EAs • Narrowed scope • Constraints on public participation • Centralization of Federal EA Administration • Legislated timelines • Substitution by provincial EA processes • Equivalency (exemption)

  32. NO LEGAL REQUIREMENT TO UNDERTAKE EAs (ALMOST) • Only projects designated by regulation or Ministerial order (and NEB/CNSC projects) subject to EA • Designated projects not necessarily assessed: Agency has discretion to decide no EA is required • NEB/CNSC projects must be assessed • Result: politicization of decision-making on triggering EAs

  33. DRAMATIC REDUCTION IN NUMBER OF FEDERAL EAs • Number of federal EAs carried out has fallen dramatically • 5000 screenings, comprehensive studies and panel review under CEAA (2008) • 28 standard EAs, zero panels initiated under CEAA 2012 between July 6, 2012 and July 6, 2013

  34. Narrowed Scope S.5.(1) Definition of environmental effects narrowed • (1)(a) components of the earth include fish, aquatic species at risk, migratory birds, other component on Schedule 2 • (1)(b) “a change that may be caused to the environment that would occur (i) on federal lands” (ii) another province or (iii) outside Canada

  35. Narrowed Scope • (2) Other environmental effects to be taken into account where federal authority required “to exercise a power or perform a duty or function conferred on it” under another statute • (a) a change “that is directly linked or necessarily incidental to a federal authority’s exercise of a duty or function” permitting the carrying out of that physical activity

  36. Constraints On Public Participation • Public participation narrowed to "interested parties", persons "directly affected by the carrying out of the Project" or having "relevant information or expertise“ • “Interested party” determinations to be made by CEAA panels, NEB, CNSC • Result: limited uneven public participation, law suits

  37. Centralization Of Administration • “Self-assessment” approach by federal departments abandoned • Federal EAs to be carried out by: • CEA Agency • National Energy Board (pipeline projects, offshore oil and gas development) • Canadian Nuclear Safety Commission (nuclear power projects) • Result: Streamlining

  38. Legislated Timelines • Legislated timelines (defined through regulation) for federal EAs where the Agency is responsible authority and for all review panels • Environment Minister may terminate review panel if timelines not being met; Agency then completes review

  39. Substitution By Provincial EA Processes • Mandatory if province requests substitution, Minister of opinion process is “appropriate substitute” (s. 32, 34) • Include consideration of s. 19(1) factors • Public has opportunity to participate • Public has access to records to allow meaningful participation • Report submitted to RA and publicly available

  40. Substitution By Provincial EA Processes • Individual or class of designated projects • Not for panel or NEB/CNSC reviews • Approved process deemed to meet CEAA 2012 EA requirements • RA/Minister makes project decision based on substitute process report

  41. Exemption Of Substituted Projects (Equivalency) • Cabinet may exempt a designated project from CEAA 2012 if provincial process is equivalent (s.37) • Provincial process must first be approved for substitution • Province must identify significant adverse effects, ensure mitigation • But no link to federal decision-making—leading to duplication?

  42. CEAA 2012Process

  43. Implications • Federal EA process politicized • Federal EA activity reduced by several orders of magnitude (5000 to 28) • Opportunities to influence federal environmental assessment process expanded • Substitution and exemption features further weaken federal EA role, and fragment EA across Canada

  44. CEAA 2012 – Constitutional? • CEAA 2012 abandons the constitutional support provided in Oldman decision • Valid criminal law under s. 91 of Constitution Act (S. 6 and 7 Prohibitions, SS. 89 – 102 Administration, Enforcement powers)? • Valid under peace, order and good government clause of s. 91?

  45. EA Law – Rise Again? • Have environmental issues related to development projects been resolved? • A new paradigm perhaps? • Sustainability assessment rather than environmental assessment? • Move away from project assessment to planning-based, ecologically grounded approaches?

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