Federal EA and the Canadian Environmental Assessment Act, 2012

Presentation to theBras d’Or Lakes Collaborative Environmental Planning Initiative (CEPI)

July 10, 2013

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Outline

Introduction Overview of the Act and Regulations Determining if an EA is Needed Standard EA and Review Panel Process Aboriginal Consultation Decision Making and Enforcement Recent Changes Questions and Discussion

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The Act

The Canadian Environmental Assessment Act, 2012 (CEAA 2012)• Came into force July 6, 2012• 129 Sections (~68 pages)• 3 Regulations:

1. Regulations Designating Physical Activities

2. Prescribed Information for the Description of a Designated Project Regulations

3. Cost Recovery Regulations

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The Act

Purposes of the Act (s.4)• Protect components of the environment within federal jurisdiction• Ensure designated projects and projects on federal lands are

considered and carried out in a careful and precautionary manner• Promote coordination with provincial governments• Promote communication with Aboriginal peoples and provide

opportunity for public participation• Establish timelines for federal environmental assessments• Promote sustainable development• Encourage regional cumulative effects studies

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Who’s Involved?

The Proponent• Consultants

The Responsible Authority• The Canadian Environmental Assessment

Agency (the Agency), the NEB, or the CNSC

Expert Federal Departments Major Projects Management Office

(MPMO) Other jurisdictions

• Provincial and Municipal governments Public and Aboriginal groups

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Determining if an EA is Needed Regulations Designating Physical Activities (“project list”) identify

types of projects that may be subject to a federal environmental assessment

Proponents of designated projects must provide the Agency with a project description

• Information requirements are set out in the Prescribed Information for the Description of a Designated Project Regulations

Minister of the Environment may designate a project not on list

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Examples of Designated Projects Oil refinery Metal or coal mine (above certain size) Offshore O&G production facility Marine terminal Certain highways, railways and air transport

facilities Electrical Transmission Lines

See Regulations Designating Physical Activities for the complete list and full text

Amendments have been proposed to the Regulations

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Canadian Environmental Assessment Registry

Internet Site + Project File Internet Site contains

information and public notices for all projects undergoing a federal EA• www.ceaa-acee.gc.ca

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Screening Step Agency has 45 days, including a 20-day public and Aboriginal

comment period, to decide whether an EA is required • Screening step must consider: description of the project, possibility of adverse

environmental effects, comments received during the comment period, results of any relevant regional studies

CNSC/NEB-regulated projects skip screening step and automatically require an EA

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Environmental Effects (s.5) Change that may be caused to fish and fish habitat, aquatic species or

migratory birds

Change to the environment that would occur on federal lands or in a province other than the site of the project or outside Canada

With respect to aboriginal peoples, an effect of any change to the environment on• health and socio-economic conditions• physical and cultural heritage,• current use of lands and resources for traditional purposes• elements of historical, archaeological, paleontological or architectural

significance.

Changes to the environment directly linked or necessarily incidental to federal decisions

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Types of EA and Cooperative Mechanisms

Designat

ed

ProjectCEAA 2012

Environmental Assessment by

RA

Environmental Assessment by a

Review Panel

CoordinationFederal Only Federal Only Joint Review Panel

Substitution orEquivalency*

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Standard EA Conducted by either the Agency, CNSC or NEB

• Federal authorities provide expert advice related to their mandate

EAs by the Agency must be completed within 365 days of government time from notice of commencement (s.27)• Timelines can be extended under certain circumstances

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Standard EA Four opportunities for public participation:

• Summary of the project description (during the screening process)

• Draft EIS guidelines• EIS or EIS summary• Draft EA report

Agency, CNSC and NEB must establish participant funding programs• Agency provides participant funding for all EAs that it

conducts

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EA by Review Panel Minister of the Environment has 60 days from notice of

commencement to refer a project to a review panel (s.38) Minister must consider:

• Potential for significant adverse environmental effects;• Public concerns related to those effects; and• Harmonization opportunities with another jurisdiction.

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EA by Review Panel Panel must hold hearings that provide opportunity for “interested

parties” to participate• “Interested parties” are those directly affected by the project or that

have relevant information/expertise• Panel determines who is an ‘interested party’

Supported by participant funding

24-month time limit from time of referral to Minister issuing EA decision statement• Timelines can be extended

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EA Processes & Timelines

Pre-EA

55 days*

EA Commencement

Conduct the Analysis

EA Report EA DecisionCompliance & Enforcement

60 days 245 days** 60 days

Max 24 months**Rev

iew

Pa

nel

EA b

y th

e A

genc

y

EA startsLimit for referral to review panel

Max 365 days**

* Includes 10 days to review project description and 45 days to determine whether an EA is required** Government time only, federal clock may be stopped when the proponent is required to provide information 16

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Aboriginal Consultation

Crown has a legal duty to consult Aboriginal peoples about the potential impact of decisions associated with projects on their rights

Agency integrates consultation into the environmental assessment process to the greatest extent possible

Participant funding program will continue to be used to provide capacity funding to enable Aboriginal groups to engage in consultations

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Federal-Provincial Mechanisms Act contains tools for coordination, delegation and joint review

panels Equivalency and Substitution

• Equivalency = No Federal Decision• Substitution = Federal decision retained

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Factors to Consider What is examined during a federal EA? (s.19)

• Environmental effects, including effects caused by accidents and malfunctions

• Cumulative environmental effects• Public and Aboriginal comments• Mitigation measures and follow-up program requirements• Purpose of the project• Alternative means of carrying out the designated project• Changes to the project caused by the environment• Results of any relevant regional study• Any other relevant matter

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EA Outcomes

EA is fundamentally a planning and decision making tool Goal of EA is to plan and design the project in a way that will

minimize adverse effects and maximize positive effects Determination of Significance

• Are the environmental effects adverse?• Are the adverse environmental effects significant?

• Duration, frequency, magnitude• Geographic extent• Reversibility• Ecological context

• Are the significant adverse environmental effects likely?• Are the likely significant adverse environmental effects justifiable?

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Decision making

Minister of the Environment issues a decision statement after an EA by the Agency or by a review panel

Decision statement must include conclusion on significance of adverse environmental effects and set out mitigation and follow-up requirements• Requires referral to Cabinet whenever environmental effects are

significant (for both standard EAs and panels) for a determination as to whether the effects are justified

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Enforcement S.6: Proponent prohibited from proceeding with

a designated project that causes adverse environmental effects unless• Agency has determined no EA is required• Proponent complies with the conditions in a

decision statement Minister designates officers to verify compliance

• Fines range from $100K to $400K per day• Administrative monetary penalties may be set

under regulations

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CEAA 2003 EA Process

Driven by federal involvement in a project

Applies broadly to many project types and sizes

Responsibility is dispersed among departments

Some harmonization with provinces

No real ability to enforce EA or set conditions

Timelines not broadly applied

CEAA 2012

Driven by a project list and potential adverse environmental effects within areas of federal jurisdiction

Focussed on major projects with greater environmental risk

EA responsibility consolidated with CEA Agency (and NEB, CNSC)

Provincial harmonization still available

Provincial process substitution and equivalency are options

EA conditions are enforceable

Timelines apply to all EAs

Overview of Changes

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The End

Questions?