Week #3: Environmental Assessments Flashcards
What is the Purpose of Environmental Assessments?
- A planning tool that is integral to the decision making process
- Should take place early in the planning process, before irrevocable decisions are taken
- to ensure that environmental implications of all aspects of the project are considered
- To make decisions informed
- To adress environmental effects as best as possible
- The basic idea behind the EA: certain proposed activities should be scrutinized in advance from the perspective of the environmental consequence.
What are the main polarizing perspective of the EA process?
Real jobs and economic development
—-VS.—–
Rigorous assessments/mitigations
What are the 8 basic components of an EA?
- What does the EA apply to
- Who carries out the assessment?
- What is the scope? (social, technical and economical impacts, direct or indirect?)
- Second aspect of scope: does the EA limit to the project itself or does it consider stuff outside the scope? (alternatives to reach the same purpose etc.)
- Will there be review? By the ministry? Administrative bodies? Tribunals?
- Does the review body decide or recommend?
- What are the consequences of not passing the EA?
- Are follow-up measures in place? Monitoring….
When does the EA movement first started out?
Environmental Assessment and Review Process Guidelines Order
(EAPGO) – adopted as a cabinet policy in 1973 and 1984. Set out the basis for Environmental assessment.
• Although a policy document the Federal Court considered it legally binding and that compliance was required.
When was the CEAA act first passed?
(CEAA 1995) – Enacted in 1992 and proclaimed in 1995. Reformulated the federal environmental assessment regime.
Describe how the public participates in an EA and what is the purpose of that?
Public involvement and participation in the planning and assessment process often required under EA legislation.
• Contributes to the legitimacy of the proposal, accountability, and the transparency in decision-making process.
• Project acceptability and “social licence”?
When did CEAA act 1995 apply?
EA under CEAA was necessary when there was a “project” and a “federal trigger”
+ 1) “Project” (as defined under CEAA)
• a) Undertakings in relation to a physical work
• E.g. construction, operation, modification, decommissioning or abandonment of a hydroelectric dam
• b) Physical activities not in relation to a physical work – identified in the Inclusion List Regulations
• E.g. remediation of contaminated land in Canada
• Exceptions: if project on Exclusion List Regulations or carried out in certain emergency contexts
+ 2) Federal Triggers
• Federal authority exercised one the following types of powers, duties or functions:
• Federal authority is the proponent of the project
• Provides federal funding to enable the project to proceed
• Sells, leases or otherwise disposes of federal lands, or transfers their administration and control
• Issues a permit or licence, or grants an approval or takes any other action enabling the project to be
carried out.
• These federal decisions triggered the need for an EA under the CEAA and provided “hook” to
justify an assessment at the federal level.
Who conducted the EA in CEAA 1995?
Many responsible authorities were required to conduct an EA
• A federal authority exercising a federal trigger for a project became a responsible authority
and was required to conduct an EA of the project
• EA had to be completed before exercise of the trigger
• Scope of EA: project as proposed by the proponent and discretion of responsible
authority to enlarge scope of project.
• 4 EA Tracks: screening, comprehensive study, assessment by review panel, mediation.
What are the differences between CEAA 1995 and CEAA 2012?
Driven by designated project list & environmental effects (EE) linked to federal jurisdiction (triggers are gone)
• 3 Responsible Authorities (CEAA (agency), CNSC (nuclear) and NEB (National energy board)
• Two EA Tracks: Standard EA & Panel Review (Instead of 4)
• Timelines (12 months standard EA; 24 months panel) (instead of no fixed timelines)
• EA conditions are enforceable
• Substitution & Equivalency
Who is responsible to conduct EA’s under CEAA 2012?
3 Responsible Authorities (RA): Canadian Environmental Assessment Agency (Agency), Canadian Nuclear Safety Commission (CNSC) and the National Energy Board (NEB)
• NEB and CNSC carry out EAs of projects within their regulatory authority (Energy (oil gas etc. OR Nuclear)
• All other EAs are carried out centrally by the Agency
What projects are susceptible to CEAA 2012?
A project that is a “designated project” (defined under s.2)
• Regulations Designating Physical Activities – list of all designated projects and associated RA
• Project designated by way of order by the Minister of the Environment (sub.14(2))
• “Projects” (defined under s. 66) that are carried out on federal lands or outside Canada (ss.66-72)
• Designated Projects for which RA is the NEB or the CNSC automatically require EA
• Designated Projects for which RA is the Agency are subject to EA after Agency screening determining that
EA is required
How do the responsible agency decide regarding the EA?
Decision-maker must determine the signicance of the EA; issue decision statement
• When the EA is considered significant—the Agency making the decision cannot proceed with the designated project unless the EA are considered to be justified by the Governor in Council.
• Decision statement consists of:
(1) decision regarding significance of EA;
(2) any conditions that must be complied with.
• Conditions include: mitigation measures taken into account in decision-making and follow-up program.
• Conditions are mandatory
How does enforcment works in CEAA 2012?
Minister may designate persons to verify compliance with Act (s. 89)
• Offence for proponent to proceed with project before decision statement issued or to fail to comply with conditions (s. 6, 99)
• Conditions of decision statements (i.e. mitigation measures and follow-up program) are mandatory and subject to fines!
What is the role of the court in EA’s?
*Courts will intervene if the statutory process is not followed.
• In the past, courts intervened where the EA report was not prepared in compliance with the terms of EA legislation. EA was considered a statutory preliminary first step, before decision-making.
• EA reports were subject to judicial review.
Reluctance to scrutinize findings of the assessments:
• “It is not the role of the Court (..) to become an academy of science to arbitrate conflicting scientific predictions, or to act as a kind of legislative upper chamber to weigh expressions of public concern and determine which ones should be respected.” Inverhuron & District Ratepayers Ass. v. Canada (Minister of The Environment), 2001 FCA 203
