ACHIEVING LEGALLY ENTRENCHED

ENVIRONMENTAL ASSESSMENT

MARCH 19, 2013

Stephen Hazell

Overview

• Comparison of U.S. and Canadian Federal Legislative Development in EA

• Rafferty-Alameda and Entrenching Federal Environmental Assessment Law

Why a Law?

• Regulatory agencies already examine environmental effects

• Legal requirements limit discretion of governments to balance issues and respond appropriately to circumstances

• Delays good projects

Key Influences on Canadian EA Law Development 1970s, 1980s

• LaGrande Project and James Bay and

Northern Quebec Agreement

• Berger Inquiry Mackenzie Gas Project

• National Environmental Policy Act of 1969 (United States)

• Successes of Environmental groups in Rafferty-Alameda and Oldman cases

National Environmental Policy Act of 1969 (U.S.)

• Legislative response to community opposition to interstate highway construction and Santa Barbara oil spill

• Purpose - ensure that environmental factors are weighted equally with other factors in federal decision-making, including a multidisciplinary approach to considering environmental effects

NEPA Process • Agency determines that proposed action

(federal funding or permit for project) is covered by NEPA

• Three levels of analysis:– preparation of Categorical Exclusion (CE)– preparation of Environmental Assessment

(EA), Finding of No Significant Impact (FONSI)

– Preparation/drafting of Environmental Impact Statement (EIS)

NEPA

• No public hearings

• No criminal or civil sanctions

• Enforcement through judicial remedies sought by communities, proponents etc

Environmental Assessment and Review Process Guidelines Order

• Charles Caccia appointed Environment Minister in 1983, pressed for federal EA statute

• Order in Council in June 1984 (final Trudeau government decision) reflected internal government conflict on issue of legally binding EA rules

EARPGO – Similarities to NEPA

• Applies to “proposals” not “actions”

• Proposals are initiatives, undertakings or activities for which Canada has a decision-making responsibility

• Projects not having adverse environmental effects excluded

• Initial assessments akin to EAs under NEPA, no public input

EARPGO

• If initial assessment determines that proposal has adverse environmental effects that are insignificant or mitigable, proposal may proceed

• If initial assessment finds significant adverse effects, proposal referred to Environment Minister for detailed review

EARPGO

• EARPGO provides for public review by a panel, with public hearings as well as public input and comment on EIS prepared by proponent

• Conventional wisdom - EARPGO not mandatory. Why else would term “Guidelines” be used?

Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda – Legal Entrenchment of Federal EA

Rafferty – Alameda Project

• February 1986 – Rafferty-Alameda project proposed

• Two dams in Souris River basin to control floods

• Souris river is international waterway, flowing south into North Dakota, looping back north into Manitoba

Rafferty – Alameda Project Environmental Effects

• Loss of critical riparian habitat for endangered, threatened, rare species

• Mercury contamination, eutrophication of reservoirs

• Concern that reservoirs might not fill due to higher evapotranspiration from shallow, long (22km) reservoirs

Rafferty – Alameda Project Federal Decision Making

• Boundary Waters Treaty

• International Rivers Improvement Act

• Fisheries Act

• Navigable Waters Protection Act

• Souris Basin Development Authority and Saskatchewan attempted to shut feds out of review process

Rafferty – Alameda Project SBDA Environmental Impact

Statement • Failed to consider environmental effects

in Manitoba and North Dakota

• Inadequate data on filling times for reservoirs

• Inadequate for licence under International Rivers Improvement Act

Rafferty – Alameda Project Federal Engagement

• January 1988 - SBDA applies for International Rivers Improvement Act licence

• Canadian Wildlife Federation calls for federal EARPGO environmental assessment

• June 1988 - Environment Minister refuses to apply EARGO, issues licence

• Elizabeth May resigns

Canadian Wildlife Federation Cases (Rafferty No. 1)

• November 1988 - CWF files application for judicial review in Federal Court seeking certiorari and mandamus against federal Environment Minister

• Advantages of judicial reviews/actions by way of statement of claims?

Canadian Wildlife Federation Cases (Rafferty No. 1)

• Legal Arguments favouring “Mandatory” interpretation– Use of word “shall” throughout indicates

intention that EARGO binds all to whom they are addressed, including Minister

– Applies to wide range of activities over which feds decide; must be mandatory

– “Applies to any proposal” s. 6 – Exceptions provided s.7,8,11(a)

Canadian Wildlife Federation Cases (Rafferty No. 1)

• Legal Arguments opposing “Mandatory” interpretation– Ordinary meaning of Guidelines connotes

discretion on part of decision-maker – Minister of the Environment Act permits the

Minister to issue guidelines for use by regulatory bodies in the exercise of their powers not binding orders or regulations

Canadian Wildlife Federation Cases (Rafferty No. 1)

• Federal Court Trial Division quashed Iicence under International Rivers Improvement Act, issued certiorari and mandamus order that EARPGO be applied

• Federal Court of Appeal upheld Trial Division ruling

Outcomes from Rafferty-Alameda

• Hundreds of judicial review applications (including Oldman) follow based on decision that EARPGO is legally binding

• Federal government commits to federal statute, and introduces Bill C-78 in June 1990

• Resources and authority of FEARO increase dramatically

Legislating CEAA

• EARPGO widely considered within federla bureaucracy to be inadequate as a law:– “Proposal” too broad – applied to policies,

programs– EAs not linked to decision-making– Agency no legal “oversight” authority – No legal requirement to provide convenient

public access to EA information• Inadequacies – key driver for bureaucratic

support for statute

Legislating CEAA: Policy and Politics

• Process to enact a federal EA statute took five years (1987 – 1992) with two separate bills tabled in Parliament

• Sept. 87 Environment Minister McMillan releases EA Reform Green Paper

• Nov. 87 – Jan. 88 Public Consultations with funding for ENGOs

• ENGO advocacy through RCEN EA Caucus

Legislating CEAA: Lessons

• First, get their attention (Rafferty-Alameda and Oldman cases)

• Identify clear problem for government requiring legislation as key policy solution

• Work closely with inside champions (Ray Robinson, FEARO)

• Build public support and line up allies (EA Caucus of RCEN)

• Neutralize bureaucratic and provincial opposition