By Chris Tollefson for IRPP.
The Trudeau government has recently announced a sweeping review process that could culminate in what has been described as “the most fundamental transformation of federal environmental law in a generation.” This review, among other things, will determine the fate of the controversial law that governs federal environmental assessments, known as the Canadian Environmental Assessment Act, 2012 (CEAA, 2012).
Ironically, CEAA, 2012, a statute that the Harper government radically revamped to be industry-friendly, nowadays has very few friends. Even key industry insiders admit that the legislation, aimed primarily at expediting the approval of major new resource development projects, has been a spectacular failure. Not only are many major environment assessments (EAs) that are underway under CEAA, 2012 stalled, mired in controversy, tied up in litigation (or all of the above), but more importantly, Canadians have lost trust in the way we assess and make decisions about these projects.
- Trust. During the last federal election, a key theme that resonated with many voters was Mr. Trudeau’s claim that the institutions and processes we have put in place to assess major new projects have lost the trust of Canadians. Once lost, trust is not something that is easily regained. Band-Aid solutions that seek to remedy the deep-seated flaws of processes by annexing new reviews (such as creating a new consultation panel after the NEB’s review of the Kinder Morgan Trans Mountain Expansion (TMX) project), have little or no chance of restoring trust let alone the social licence upon which such projects must ultimately depend.
- The need for a new approach to EA. Our current EA system is primarily focused on identifying whether proposed projects will have “significant” adverse environmental effects. This approach is misguided. Large, controversial projects should not be able to secure approval simply because the proponent’s scientists manage to persuade federal regulators that the predicted adverse effects of a project fall below this ill-defined “significance” threshold. We need assessments to do more than generate predictions about the significance of a project’s adverse effects. Future assessments should instead ask, as Robert B. Gibson, Meinhard Doelle and A. John Sinclair advocate, will this project make a net contribution to our sustainability as a nation? This question becomes especially critical post-Paris. In Warren Buffett’s words: “Predicting rain doesn’t count. Building arks does.”
- The National Energy Board. Under CEAA, 2012, the National Energy Board (NEB) was given exclusive jurisdiction over federal EAs involving pipelines and other major energy projects. This was a job the NEB neither wanted nor was suited to. Traditionally, its wheelhouse has been technical issues, such as pipeline thickness requirements, not the value-laden or science-driven questions that the Canadian Environmental Assessment Agency is more accustomed to dealing with. And while the NEB approves projects based on a “public interest” test, it has tended to regard the public interest as being largely synonymous with the interests of western Canadian energy producers. To secure the trust of Canadians, federal EAs need to be conducted by an agency that has the expertise and the independence from the interests it is charged with regulating.
- Catastrophic but “unlikely” project effects. Increasingly, companies have been able to persuade the NEB to interpret CEAA, 2012 in ways that undermine its most basic purposes, including its obligation to assess projects in a manner consistent with the precautionary principle. For instance, in the Northern Gateway and TMX review processes, proponents of the projects argued that they should not be required to model the effects of a large catastrophic oil spill because the odds of such a spill were not “likely” (i.e., less than 50 percent probable). As BC Nature argued in its legal challenge against the Northern Gateway approval, such an interpretation of CEAA, 2012 which the NEB accepted, deprives the ultimate decision maker (a responsible minister or the cabinet) of key information about the potential catastrophic impacts of a project, simply because the disaster is not statistically likely to happen.
- Federal leadership. For major projects, especially those with serious climate change implications, the federal government should not allow the provinces simply to take on responsibility, or substitute (“sub in”) for doing the required federal EA. The federal government gave itself the power to agree to substituted EA’s under CEAA, 2012, primarily at the urging of the province of British Columbia. Since then, B.C. has been given permission to sub in for the federal government on fourteen occasions; mainly on mines and liquid natural gas project assessments. These delegation arrangements raise serious public trust issues, particularly given the perception that provincial assessments are less rigorous and more prone to regulatory capture. A case in point is theTaseko mine review that swiftly secured EA approval from B.C., but was later twice turned down by federal EA assessors. A new generation EA system should encourage mutual cooperation and integration, and eschew delegation of key assessment duties.
- Provincial leadership. For similar reasons, the provinces should not hand off the ball to federal agencies to do EAs that profoundly affect provincial interests. Effective EA require both levels of government to show leadership. At around the same time that the B.C. government was gearing up to lobby Ottawa for the right to sub in for the federal government under CEAA, 2012, it also inked an agreement with the NEB that delegated to the feds the province’s power to assess and render an EA decision on all future major energy projects (including Northern Gateway and TMX). In a powerfully worded decision, the B.C. Supreme Court recently called this agreement an “abdication” of provincial responsibility. B.C. now finds itself in the unenviable and difficult position of conducting its own assessment of the Northern Gateway and TMX applications, after the fact.
- Cumulative effects. CEAA, 2012 fails almost completely to grapple with one of the most pervasive and vexing issues in environmental assessment: the phenomenon of cumulative effects—predicted changes to the environment from a proposed project in conjunction with past, present, and future projects or other activities in the same region. For those who work in EA, the pressing need to be more rigorous and systematic about how we account for cumulative effects is beyond dispute. In Northern Gateway, one of the few cases where a federal agency found that there were likely to be significant adverse cumulative effects on an endangered species (the iconic Woodland Caribou), that same agency recommended that the effects were “justified in the circumstances” without offering reasons other than the project was in the public interest. We need to fundamentally rethink the way we assess and make decisions about cumulative effects. And because the nature of those effects can often implicate national interests, it is essential that the federal government take leadership.
- Aboriginal rights and title. Some of the loudest voices in the chorus of those calling for the complete repeal ofCEAA, 2012 are Indigenous Peoples. And understandably so. There is complete and utter confusion over the role of EA authorities, as opposed to other processes and venues, in discharging the Crown’s constitutional duty to consult. This is a key issue that the Federal Court of Appeal addressed in its recent decision in the Northern Gateway case. Now that Canada has finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, it is time for it to turn its mind to how to redesign federal EA in a manner that complies with its legal duties and responsibilities under domestic constitutional and international law.
- Independent science. CEAA, 2012 depends heavily on the science put forward by industrial proponents and their hired consultants. It is then largely left to the community organizations, conservation groups and First Nations to bring forward scientific evidence that casts doubt on the proponent’s science. This model assumes that such groups have the capacity and opportunity to present competing science; it also assumes that the process will assess and weigh these competing scientific perspectives in a sound, fair and balanced way. The recently concluded NEB assessment in TMX underscores just how misplaced these assumptions are. At a minimum, contrary to the approach adopted by the NEB in TMX, where there is conflicting scientific evidence on key issues before the reviewing agency, federal law should require that the reviewing agency order cross examination to help ensure that the applicable federal decision-maker has a proper evidentiary record upon which to make a decision about the fate of the project. Moreover, agencies should be required to render reasons in project assessments that take into account relevant independent science.
- Paris. Perhaps the biggest single reason why CEAA, 2012 is now completely outmoded and must be re-engineered from the ground up is Canada’s new international commitments under the Paris climate agreement. This agreement obliges Canada to do its best to help keep average global temperature increases below 1.5 degrees C. This commitment means that we have now embarked on the path of decarbonizing our economy. The implications of this are only now sinking in. Going forward, the federal government, as of January 2016, now requires all new major energy projects to be assessed for their direct and upstream GHG emission effects. For projects currently being assessed under CEAA, 2012, this new climate test is being conducted as an add-on to the EA done by the originally assigned agency. The quality of these add-on climate assessments is mixed. While some have been quite sophisticated (Woodfibre and Petronas) others (including TMX and Enbridge Line 3) have been more superficial, particularly in their treatment of upstream GHG impacts. If we are to chart a realistic path towards complying with our Paris commitments, these analyses must become a central feature of a new generation federal EA law, and be carried out by credible and independent scientists.
There are many more reasons why it is necessary to re-engineer our federal environmental assessment law from the ground up. Among them is the need to make room for new ideas, perspectives and processes that can bring Canadians together. CEAA, 2012 did just the opposite. Paradoxically, however, the discontent and appetite for change that the CEAA, 2012 reforms have generated may well have created precisely the right conditions for the once-in-a-generation law-making opportunity that lies ahead.
Chris Tollefson is a Professor of Law at the University of Victoria. Chris combines teaching and research on environmental issues with counsel work for various public interest environmental clients. His publications cover a range of environmental and natural resource topics including environmental assessment, eco-certification, and access to justice. Chris is a former President of Ecojustice and founding executive director of the UVic Environmental Law Centre.
Image: Adam Scotti/Prime Minister's Photo Gallery