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Expert Panel Outlines Future Direction of Federal Environmental Reviews, but Significant Gaps Remain

Earlier this week (April 5, 2017) the federal government’s Expert Panel on the Review of the Federal Environmental Assessment Process tabled its final report. The panel was set up as one of four elements of the Federal Environmental and Regulatory Review process announced in June 2016. The review process was intended to fulfil the Liberal government’s campaign promises to review Harper government’s Bill C-38 changes to the Canadian Environmental Assessment Act (CEAA), National Energy Board (NEB) Act, Fisheries Act and Navigable Waters Protection Act. A second review panel is expected to report on the review of the NEB in May, and parliamentary committees have delivered reports on the future of the Fisheries Act and the Navigation Protection Act, which replaced the Navigable Waters Protection Act.

In its report, the expert panel highlights the failure of Harper government’s attempts to streamline the federal environmental approvals processes for energy infrastructure, particularly pipelines to carry Alberta oil sands bitumen to tidewater. In the view of many of the witnesses head by the panel, the Bill C-38 changes intensified, rather than resolved, the social, environmental, political and legal conflicts around these projects.

In response, the panel proposes major reforms to the federal environmental assessment process. The panel emphasizes the goal of advancing sustainability, as opposed to merely mitigating the negative effects of projects, as the primary purpose of the assessment process.  There is an emphatic rejection of Harper government’s attempts to limit public participation in decision-making processes. Rather the panel stresses the importance of inclusion, and especially engagement with indigenous people, in a manner consistent with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).

Under the panel’s proposals decision-making authority be vested in a new environmental assessment authority rather than cabinet, as under the C-38 amendments to CEAA and the NEB Act. The authority’s decisions would, however, be subject to a cabinet appeal process. Importantly, responsibility for the conduct of energy related assessments would be transferred from the NEB and Canadian Nuclear Safety Commission (CNSC) to the new agency. This recommendation reflects the very strong and consistent comments received from the public and indigenous representatives that the NEB and CNSC were seen to be “captured” by the industries they were to regulate.

The panel recommends introducing a planning phase into the assessment process for large projects, with the intention of improving the overall efficiency of reviews. There are also extensive recommendations the conduct and structure of regional level and strategic (policy, program, and plan-level) assessments, and around the incorporation of climate change considerations into assessments. A strong emphasis is placed on the upwards harmonization of requirements were federal and provincial assessment processes apply to the same project.

The panel’s report is generally very comprehensive in outlining a renewed federal approach to environmental assessment. However, the panel’s recommendations are very much formulated around the assessment of major resource and infrastructure projects, like the Northern Gateway and Kinder-Morgan/Transmountain pipelines. Although somewhat ambiguous, the report seems to retain Harper-era approach to the designation of projects for assessments via a designated projects list, rather than the triggers-based approach that was the foundation of the pre-Bill C-38 CEAA. Under the pre-C-38 model, federal assessments were required as a result of the need to obtain specific federal approvals, such as permits to “harmfully alter or destroy fish habitat” under s.35 of the Fisheries Act, or where projects were on federal lands, involved federal funds, or where a federal agency was the proponent.

The panel’s approach potentially leaves some very significant gaps in the federal assessment process. In particular, smaller projects that were subject to at least screening level assessments as a result of requiring approvals under federal legislation like the Fisheries Act and the former Navigable Waters Protection Act, will no longer be subject to any review at all. Although individually of limited significance, the cumulative effects of these types of undertakings on important environmental features, like shorelines, can be very important.

The report also seems to limit project assessments on federal lands or where federal agencies, like Parks Canada, or the Departments of National Defense or Agriculture and Agri-Food are proponents, to the kinds of large projects that appear on the designated project list. The panel's approach would again leave a major gap, as the screening level assessments for smaller projects on federal lands, or with federal proponents, that occurred under the pre-Bill C-38 version of CEAA, limited as they were, were typically the only form of environmental review for such undertakings that occurred at all.

Federal Minister of the Environment Catherine McKenna has indicated her intention, following public consultations on the panel’s report, to introduce revisions to CEAA in 2018. The NEB review report is due in May, and there are indications that the CNSC and NEB are lobbying internally already against stripping them of responsibility for the environmental review of energy projects.

The outcome of the review process remains very much in doubt as a result. Having approved a series of carbon-export infrastructure projects, including the Kinder-Morgan and Line 3 pipelines and the Pacific Northwest Liquid Natural Gas Project, the pressure is now very much on the Trudeau government to deliver on its promises to deliver a “new, fair and robust” federal environmental assessment process.

Mark Winfield is a Professor of Environmental Studies at York University. He was author of the Metcalf Foundation’s May 2016 Green Prosperity Challenge Paper A New Era in Environmental Governance in Canada: Making Better Decisions About Infrastructure and Resource Development Projects