The Canadian Environmental Assessment Act
CEAA 2012 Summary
In June of 2012, Parliament passed the Jobs, Growth and Long-term Prosperity Act1 which repealed the Canadian Environmental Assessment Act2 (CEAA 1995) and replaced it with a completely new Canadian Environmental Assessment Act, 2012 (CEAA 2012). While the full implications of CEAA 2012 for federal environmental assessment (EA) remain to be seen, it is possible to offer some initial thoughts on this topic.
Under the new CEAA 2012, there are far fewer federal authorities involved in the federal EA process. Previously, all federal decision makers that had the power to make decisions that triggered an EA were known as “Responsible Authorities” (RAs). Under the new law, there are now only three (3) federal agencies that are ordinarily RAs and are required to conduct federal EAs: the National Energy Board (NEB), the Canadian Nuclear Safety Commission (CNSC) and the Canadian Environmental Assessment Agency (CEA Agency). The NEB and CNSC will conduct EAs for projects that fall within their regulatory authority, while the CEA Agency will be the default RA for conducting federal EAs for all other projects.3 This summary focuses on EAs conducted by the CEA Agency.
Determining When an EA is Required
Under the old CEAA 1995, whether a federal EA was required depended on whether there was a federal “trigger”.4 Under CEAA 2012, this trigger-based approach has been abandoned in favour of one that turns on whether the project in question fits the statutory definition of “designated project”. A project is a “designated project” if it a) fits the description of any of the projects listed in a regulation, or b) is specifically designated by the Minister of the Environment (the “Minister”).5 The Minister has the discretion to designate a project if it may cause adverse environmental effects or if public concern warrants the designation.
If a project is a “designated project” under the authority of the CEA Agency, the proponent must file a description of their project with the CEA Agency. If the designated project falls under the authority of the NEB or CNSC, the proponent is governed by the procedures of those bodies.
For designated projects that are under its authority, the CEA Agency will conduct a “screening” to decide whether to require a federal EA.6 [Note: this is unlike under CEAA 1995, where some type of EA was automatically required for every project registered.] The CEA Agency has a broad discretion whether to require an EA under CEAA 2012. In exercising this discretion, it must consider factors including the possibility of the project causing adverse environmental effects, comments received from the public and, the results of any regional level study.7
Environmental Assessment Processes
Under the former CEAA 1995, there were four options for EA processes which each required a different level of scrutiny depending on the severity of the predicted environmental effects.8 Under CEAA 2012, there are now only two ways for a project to undergo a federal EA: a “standard” EA process, or a more extensive “panel review” process.
“Standard” Environmental Assessment
The “standard” process is initiated for all “designated projects” that will fall under the CEA Agency’s authority, and commences when the proponent files its project information with the CEA Agency. The information that the proponent must provide to the CEA Agency is set out in the Prescribed Information for the Description of a Designated Project Regulations,9 and includes information about the project’s size, location, purpose, context, federal involvement, environment, and physical works and activities it will likely entail, etc.
The timelines for a “standard” EA under CEAA 2012 are as follows:
- Once it receives a project description, the CEA Agency has ten days to determine if it needs more information from the proponent.
- Once the project is filed on the electronic registry, notices must be made to the public. The public has twenty days from the date of notice to comment on whether an EA should be required.
- The CEA Agency has forty-five days from the day the notice is posted online to make its decision on whether an EA is required. During this time they may seek input from other federal agencies.
- At the end of this 45 day period, the CEA Agency’s decision must be posted on the electronic registry.
- If an EA is required, a notice of commencement must be posted on the electronic registry.
- The CEA Agency has 365 days (one year) to complete the EA.10 However, the Minister may grant an extension of up to three months.
“Panel Review” Environmental Assessment
The alternative to a “standard” EA process is the panel review, or hearing, process. CEAA 2012 provides little detail on what this process will involve.11 We do know that there will likely be fewer panel reviews than in the past, as CEAA 2012 prohibits the use of panel reviews for any project for which either the NEB or the CNSC are the RA. In fact, between July 6, 2012 and July 6, 2013, no projects were referred to a review panel.12 CEAA 2012 also provides that future panel reviews can be conducted by a single member, whereas in the past the minimum panel size was three.
The Minister is responsible for establishing time limits for specific steps within the panel review process. The general timelines for the panel review process are as follows:
- After the CEA Agency decides that a designated project requires an EA and posts a notice of commencement on the electronic registry, it has 60 days to decide whether to refer the EA to a panel review.
- The deadline for a panel review EA is two years, which can be extended up to three months by the federal RA, or the Governor in Council on recommendation from the Minister.
If the panel does not complete the EA within the two year timeline, the panel review is terminated by the Minister, and the CEA Agency will file an EA report with the Minister instead.
The new CEAA 2012 framework gives considerable discretion to federal RAs and decision makers.
The CEA Agency decides whether it has sufficient initial information from the proponent. The CEA Agency is then responsible for the initial screening of each registered project to determine whether an EA is required.
The Minister is empowered to decide whether to grant an extension to permit the CEA Agency to cooperate with another jurisdiction, or to take into account specific circumstances of the project. The Minister can decide whether another EA process would be an appropriate substitute for a federal “standard” EA.13 The Minister can also recommend to the Governor in Council that a substituted EA process should be entirely exempt from the application of CEAA 2012.
When the RA is the CEA Agency, the Minister will take into account the EA report and must decide whether or not the project is likely to cause certain significant adverse environmental effects, taking into account the implementation of any mitigation measures that the Minister considers appropriate.14
The Minister decides whether certain projects require a panel review, and what some of the time limits will be. The Minister appoints the panel members and establishes their terms of reference.
The Review Panel has a variety of powers in relation to the conduct of the hearing process. These include the power to require disclosure of information relevant to the hearing, and to summon witnesses or documents.
The Governor in Council exercises the final say in some scenarios. For example, on the Minister’s recommendation, it may exempt a project from the application of CEAA 2012 if a substituted EA process is completed.15 In addition, when the Minister determines that a project is likely to cause significant adverse environmental effects,16 the Governor in Council must determine whether the effects are justified in the circumstances. If the effects are justified, the Governor in Council sets out the necessary mitigation measures or conditions within which the project must be completed.
The term “scoping” refers to the process of deciding what will be included in, and excluded from, an EA. CEAA 1995 generally required considering all of the environmental and some socio-economic effects of everything a proponent proposed. Overall, compared to its predecessor legislation, CEAA 2012 narrows the scope of the project, the definition of environmental effect, and the factors to be considered in an EA.
The scope of the project that will be assessed includes: “any physical activity that is incidental” to the physical activity that triggered the EA.17 However, depending on the definition of “incidental,” the scope of the project could be limited to the specific component of the project listed on the project list, rather than the project in its entirety.
The only environmental effects that will be taken into account in an EA under CEAA 2012 are those environmental components specifically listed18 which are:
a change to the following components within the legislative control of Parliament:
- fish and fish habitat as defined in the Fisheries Act;
- aquatic species as defined in the Species at Risk Act;
- migratory birds as defined in the Migratory Birds Convention Act; or
- any other component in Schedule 2 (which can be amended by the Governor in Council);
a change that may be caused to the environment that would occur:
- on federal lands;
- across a provincial boundary; or
- outside Canada;
with respect to aboriginal peoples, an effect of any change that may be caused to the environment on:
- health and socio-economic conditions;
- physical and cultural heritage;
- the current use of lands and resources for traditional purposes; or
- any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.
There are some additional environmental effects that must be considered when a federal authority must make regulatory decisions about the project outside of CEAA 2012.19 These include the social, economic and cultural effects of those environmental effects listed above.
In addition to the environmental effects, the factors that the EA must take into account include: public comments, mitigation measures, purpose of the project, alternatives etc.20 In the case of a Review Panel, the RA or the Minister has the authority to determine the scope of these factors that will be assessed.21 The EA may include consideration of community knowledge and Aboriginal traditional knowledge.22
Harmonization with Provincial Environmental Assessment
In situations where a standard EA is required under CEAA 2012, but another jurisdiction will also be conducting a similar assessment, the Minister is empowered to use the other jurisdiction’s process as a “substitute” for the federal EA process. The Minister is required to substitute an EA process if she considers the process to be an appropriate substitute, and if the other jurisdiction requests the substitution.23 If the Minister approves a substitution, she must inform the proponent in writing.24 Substitution may be granted for a specific project or an entire class of projects.25
If substitution is granted, the EA completed by the jurisdiction conducting the assessment must be submitted to the CEA Agency, and subsequently referred to the Minister. The Minister must then make a final decision on whether the project will likely result in significant adverse environmental effects, taking into account the implementation of any mitigation measures that the Minister considers appropriate.26 In this situation, while no federal EA will be conducted the proponent may still require certain federal permits, approvals or licences to be issued before the project can proceed. Once the EA is complete, the proponent can apply for these authorizations. The granting of these authorizations will be governed by the applicable enactment. In short, the final decision made under CEAA 2012 is a decision about the significance of adverse environmental effects; whether the project will proceed will then turn on whether it secures applicable regulatory authorizations.
Substitution Plus Exemption
CEAA 2012 also allows for the Governor in Council to exempt a project entirely from the requirements of CEAA 2012, leaving final decision making authority on the significance of adverse environmental effects to the jurisdiction that has completed a substituted EA.27 The substituted process can only exempt a project from CEAA 2012 if it includes a determination of the significance of adverse effects, and the other jurisdiction ensures the implementation of mitigation measures and a follow up program and meets any additional conditions of the Minister.28
The Minister is permitted to enter into agreements with other jurisdictions for the purposes of coordinating an EA,29 or a review panel30. CEAA 2012 therefore does not seem to prohibit another jurisdiction from substituting the federal EA process for its EA process.
CEAA 2012 sets out the minimum requirements for public participation although RAs, such as the CEA Agency, have discretion to extend more opportunities for public participation than are legally required. The first mandatory opportunity for public participation arises once the project has been filed with the CEA Agency. The public then has twenty days to comment on whether an EA should be conducted.
Under the “standard” EA process, there are few legislative requirements regarding public participation although there is a general obligation for public notice, and a vague requirement for the public to be able to participate.
At a panel review hearing, the only people the panel must give full participation rights to are those it determines to be “interested parties”.31 The panel has the discretion to determine who is an “interested party”.32 “Interested party” is defined as someone either “directly affected by the carrying out of the designated project or” someone with “relevant information or expertise”.33 However, any comments received from other members of the public must still be collected and summarized for the decision maker.
The general provisions requiring and allowing for public participation and the guidance documents currently provided on the CEA Agency’s website suggest that discretion may be exercised to allow more public participation than the minimum legal requirements set out in CEAA 2012. However, the CEA Agency should be contacted to confirm what opportunities to participate will be provided in a particular assessment.