Rebuilding Federal Environmental Assessment

Why CEAA, 2012 is a tear-down not a reno

Rebuilding Federal Environmental Assessment

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 currently governs federal environmental assessments, known as the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012”).

Environmental assessment (EA) laws are intended to generate information about proposed future projects in order to support prudent decision-making by elected officials. EA laws are also an important way for the public to be heard, and for proposed projects to earn social licence.

CEAA, 2012 has few friends. Designed by the Harper government to expedite the approval of major new resource development projects, even key industry insiders admit it has been a spectacular failure. Instead of making our assessment process more efficient and effective, it has done the opposite. A key reason for this is that CEAA, 2012 has lost the trust of Canadians, and its capacity to generate social licence. It is also a regime that has failed to articulate, let alone discharge, the constitutional duty of the Crown to deal honourably with Indigenous peoples.

But the reasons that CEAA, 2012 is a tear-down not a renovation project go much deeper.

Regulatory independence and expertise. CEAA, 2012 gave exclusive jurisdiction to the National Energy Board (NEB) to conduct EAs of pipelines and other major energy projects. This is a daunting task for which the NEB was neither designed nor equipped. There is also a strong and growing appetite to wean federal EAs off the heavy reliance they place on the science provided by project proponents. Confirming the right of cross-examination where the science is conflicting, and creating an independent federal science officer would be steps in the right direction.

The need for a new approach to EA. Our current EA system is primarily focused on identifying whether proposed projects will cause “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 effects of their project satisfy this ill-defined significance test. Future assessments should instead ask: will this project make a net contribution to our sustainability as a nation?

The need for a federal and provincial leadership. A defining feature of CEAA, 2012 was how it enabled both the feds and provinces to “sub in” for each other, ostensibly to harmonize overlapping assessment processes. When it comes to major projects, such substitutions raise serious trust and transparency issues; and, as the BC Supreme Court has recently held, they can also be unlawful. A next generation EA regime should encourage mutual cooperation and integration, and eschew delegation of key environmental assessment duties.

Paris. Perhaps the biggest single reason why CEAA, 2012 is now completely outmoded is Canada’s new international commitments under the Paris climate agreement. If we are to chart a realistic path toward complying with our Paris commitments, credible and independent climate analyses must become a central feature of a next generation federal EA process.

There are many more reasons why it is both prudent and necessary to scrap CEAA, 2012. Canada needs to make room for new ideas, perspectives and processes that can bring us together. CEAA, 2012 did the opposite. Paradoxically, the discontent and appetite for change that it has generated may have created precisely the right conditions for the once-in-a-generation law-making opportunity that lies ahead.

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