Now that there has been some time to digest the proposal for a new CEAA, introduced as part of the Budget Bill C-38, it is appropriate to consider what it does not do. The most important failing of this proposed reform of federal EA is its failure to provide a precise standard of what constitutes a “significant adverse environmental effect” (SAEE).
Much has been made of issues with federal EAs duplicating provincial EAs and federal hearings taking too much time, but both of these concerns arise directly from the failure of the existing CEAA to provide any precision on SAEEs. The draft Bill setting out new CEAA continues this problem by demanding that every decision on every federal EA address whether a project is likely to cause a “significant adverse environmental effect”, but fails to provide any legal definition to this term. Nor does the draft Bill create any regulatory obligation on any federal department or agency to define what constitutes an SAEE for their areas of regulatory interest. Instead, every EA of every project will simply invent its own standards.
The lack of any standards on this key test is the reason why federal EA can take a long time. Under the present CEAA, a proponent does a self-assessment and, invariably, reaches the conclusion that none of the effects are significant. Then, every federal agency with an interest in the project reviews the proponent’s conclusions and determines whether it agrees with them. Somewhere along the way, others may also provide input on this topic. These “others” include provincial governments, First Nations, municipalities, and the public. Needless to say, this kind of process is incredibly inefficient.
After tens of thousands of assessments, it should be possible to say what kinds of effects on federal interests like fish, migratory birds, and endangered species are significant. Nevertheless, there is no such guidance. There has been extensive media attention in recent weeks to the example of a proposed mine affecting Fish Lake in British Columbia as a reason why federal EA is essential. There, a provincial EA reached the conclusion that the project was acceptable, but then the federal Department of Fisheries concluded that the project’s impacts were unacceptable. But why later? Why should any EA proceed in a vacuum on what is a significant effect?
It is said that a key rationale for environmental assessment is the principle of “Look before you leap”. That is essential. However, right now proponents do not know what to look for. The new and old CEAA regimes both make EA like a high jump competition where each applicant for approval is required to start running down a track towards the high jump posts with no idea where the bar is. Equally, under the new and old CEAAs, others like the public get to watch an applicant run down the track with no idea where the bar is.
The present reforms have the effect of defining, with more precision than ever before, that a every federal EA should have a time limit. The draft Bill says that an applicant’s run down the track will last a maximum of two years. But there is still no bar visible at the beginning or end of the process.
There are several ways to fix this problem. First, Parliament could amend the draft Bill to impose a duty on each federal agency with expertise relevant to federal EA to finalize specific standards on what constitutes an SAEE for effects within its expertise. Alternatively, Parliament could amend the draft Bill to demand that the Minister of the Environment or cabinet have the power and duty to pass regulations that define specific SAEEs. A third option is for Parliament to amend the draft Bill to expand the powers and duties of the CEA Agency and demand in section 106, for example, that this Agency provide such standards across the range of federal interests.
The Parliamentary process over the draft Bill is a clear opportunity to demand that there be SAEE guidance available in advance that is very specific. Then everyone knows from the outset what bar needs to be cleared. If a project meets the bar for such an effect, it passes. If a project cannot meet the bar, if fails. In some cases, the significance of some effects will be uncertain at the outset. Then the job of federal EA is to focus on those kinds of effects and deal with them.
If the new CEAA provided this reform to EA, proponents would know in advance what clears the bar and could then make every effort to design their projects to clear the bar.
Real reform to federal EA would fix the present uncertainty and thereby also speed up the process. EA focused on time limits but not substantive standards is hollow: it is all appearance with no core.