When was the last time you heard so much about a federal budget bill? They don't usually get much attention because they speed through Parliament on the fast track. Then again, budget bills don't usually involve a wholesale assault on environmental laws.
Bill C-38 is no ordinary budget bill. The bill overwrites the entire Canadian Environmental Assessment Act among other damaging measures (which really don't belong in the budget, by the way).
We don't yet know exactly how these changes will play out. The new rules leave much up to the discretion of federal Cabinet Ministers, and they are tight-lipped about how they intend to use their new discretionary powers.
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But the changes to the Canadian Environmental Assessment Act in Bill C-38 insert an obstacle course of political hurdles and constraints from start to finish of the environmental assessment process.
Hurdle 1: Designation
Consider a hypothetical project subject to federal regulation. Currently, an environmental assessment is usually required for any project involving the federal government — with specified exceptions. But under the new rules, assessment will only be required for projects designated by the Environment Minister. We do not yet have information about which types of projects (if any) the Minister intends to designate. The politicization of this process opens the door for intense lobbying by industry proponents keen on keeping their projects off the list.
Hurdle 2: Screening
Let's say the Minister designates our hypothetical project for environmental assessment. Unless it's a nuclear project or a pipeline (or other energy infrastructure project regulated by the National Energy Board), an assessment still isn't automatic. As a first step, the Canadian Environmental Assessment Agency will conduct a screening. Screening is part of the current environmental assessment process, but under the new rules it will be downgraded to a six-week preliminary review with a more limited scope. For example, screenings will no longer be required to consider the environmental effects of malfunctions or accidents that may occur in connection with the project or cumulative environmental effects that are likely to result from the project, in combination with other projects or activities. On completion of this screening, the Agency will decide — at its discretion — if an environmental assessment is required.
Hurdle 3: Substitution
If an environmental assessment is required, there's still one more "out." If a provincial environmental assessment is also underway, the federal requirements can be waived — even if the provincial environmental assessment has a narrower scope and more limited opportunities for public participation. The federal government may then base its decision on the conclusions of the provincial assessment or decide to exempt the project from the Act altogether.
Hurdle 4: Assessment by independent panel only at the Minister's discretion
Imagine that our project makes it past the first three hurdles and a federal environmental assessment is eventually conducted under the new rules. Don't hold your breath for the appointment of an independent review panel. Under the current rules, the Environment Minister is required to refer an assessment to an independent review panel (or mediator) if screening indicates that a project is likely to cause significant adverse environmental effects, if environmental effects are uncertain or if public concerns warrant, or at the request of a federal departments responsible for conducting a comprehensive environmental assessment. Under the new rules, assessment of pipelines and nuclear projects can no longer be eligible for review by an independent panel; they will now be assessed in-house by government agencies (only if the Environment Minister designates such a project for assessment, that is). The Environment Minister may refer other projects to an independent panel for assessment, but is no longer required to do so under the circumstances outlined above. Again, this invites lobbying from industry proponents to avoid the scrutiny of an independent panel. Although the scrutiny will be less scrupulous under the new rules.
Hurdle 5: Scope of review
In some cases, the new Act limits assessment of environmental impacts to effects on fish and fish habitat, other aquatic species and migratory birds, as well as other environmental effects, "directly linked or necessarily incidental" to the government's role in the project. This could mean that certain indirect impacts are no longer considered — like effects on endangered terrestrial species and their habitat (except if the effect occurs on federal land or crosses provincial or international borders). The Environment Minister may require other environmental impacts to be assessed, but we do not yet know if he or she will do so.
Additionally, the new Act specifies that public participation in some environmental assessments will be restricted to individuals, "directly affected" by the proposed project or deemed to have, "relevant information or expertise." It is not clear how these criteria will be assessed. Participant funding programs to facilitate public involvement in the environmental assessment process will also be scaled back.
There are also new time limits imposed on environmental assessments — two years for assessments conducted by independent panels and one year for assessments conducted by the Canadian Environmental Assessment Agency.
Hurdle 6: Decision by Cabinet
If our hypothetical environmental assessment identifies significant adverse impacts, under the new rules Cabinet will decide whether the project should proceed despite its impact on the environment — rather than the department or agency that conducted the assessment — and is responsible for regulating the proposed project.
The Canadian Environmental Assessment Agency's website points out, "Protecting our fragile environment while building a strong economy is a sustainable development challenge that Canadians face every day. Environmental assessment responds to this challenge by helping to eliminate or reduce a project's potential impact on the environment before a project begins."
Unfortunately, under the new rules for environmental assessments, an even bigger challenge might be securing a mandate to conduct meaningful assessments in the first place.