INTRODUCTION CANADIAN ENVIRONMENTAL ASSESSMENT ACT (CEAA) FEBRUARY 16, 2012
Dec 13, 2015
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