CEAA REGULATIONS AND PROCESS OPTIONS

SEPTEMBER 24, 2012

Overview

• Regulatory Process and CEAA

• Regulations under CEAA

• Regulatory Authority:– Project Cost exemption – Henry VIII Gambit and Adaptation

Regulations

• Process Options (LNG Projects in eastern Canada)

Regulatory Process

• Statutes, Regulations, Orders, Guidelines

• Cabinet Directive on Streamlining Regulation

• Statutory Instruments Act

• Canada Gazette Parts I and II

Regulatory Process under CEAA

• CEAA enacted in June 1992, came into force June 1995

• Why the delay?

• Four regulations necessary to bring CEAA into force (Inclusion List, Exclusion List, Comprehensive Study List, Law List)

• Regulations determined projects/ federal authorities subject to CEAA)

Consultation Process for Regulations

• Senior Management Committee on Environmental Assessment (federal agencies)

• Regulatory Advisory Committee (stakeholders)

• RCEN Environmental Assessment Caucus (environmental groups)

• Friday Group (national industry associations)

Consultation Challenges

• Cone of Silence (Cabinet Confidentiality Doctrine)

• Death by a thousand cuts

• Solicitor-client privilege

• Election of Jean Chretien’s Liberals to government in 1993

Consultation Process since 2006

• No consultations on CEAA amendments or on CEAA 2012 development

• No RAC meetings since 2008, but not formally disbanded

• Some regulations promulgated without Canada Gazette Part I pre-publication

• Funding for RCEN and EA Caucus stopped

Other CEAA Regulations

• Canada Port Authority EA Regulations• Crown Corporations involved in

Commercial Loans EA Regulations• Establishing Timelines for

Comprehensive Study Regulations• Federal Authority Regulations • Projects Outside Canada Regulations• Regulations respecting Coordination by

Federal Authorities of EA Procedures

Regulatory Authority Project Cost Exemption

s. 59. The Governor in Council may make regulations

(c) exempting any projects . . . from the requirement to conduct an assessment that

(ii) have insignificant environmental effects, or

(iii) have a total cost below a prescribed amount and meet prescribed environmental conditions

Regulatory Authority Project Cost Exemption Pre-2003

s. 59. The Governor in Council may make regulations

(c) prescribing any project . . . for which an environmental assessment is not required where the Governor in Council is satisfied that

(ii) the environmental effects of the project are insignificant or the contributions of the responsible authority . . . in relation to the project is minimal

Regulatory Authority Henry VIII Gambit

• Infrastructure Projects Environmental Assessment Adaptation Regulations 2009

• s. 3 “adapts” ss. 43 - 45 of CEAA to authorize Minister to substitute provincial EA process for federal EA

• ss. 43 to 45 allow substitution of a more rigorous federal process (no mention of provincial process)

Regulatory Authority Henry VIII Gambit

• Where is regulatory authority under s.59?

• Do Adaptation Regulations effectively amend the statute without parliamentary approval?

• Sierra Club/Ecojustice challenge Adaptation Regulations in 2009

• Adaptation Regulations repealed in 2010 as part of omnibus budget bill

Process Options (LNG Projects in Eastern Canada)

• Anadarko, Bear Head Nova Scotia

(Screening)

• Irving, Saint John New Brunswick (Comprehensive Study)

• Keltic/Maple, Goldboro Nova Scotia (Comprehensive Study)

• Rabaska, Levis Quebec (Panel Review)

Screenings

• Self-assessment (controlled by Responsible Authority)

• Public participation discretionary and rare

• Ministerial Guideline on Public Participation in Screenings

• Individually or through replacement or model screening

• Limited range of s.16 factors

Anadarko Screening

Anadarko Screening

• Initially triggered by Fisheries Act and Navigable Waters Protection Act in 2003

• DFO later drops out• Scoped initially as comprehensive study

(LNG facilities and marine terminals)• Later scoped as “wharf” only, changed to

screening assessment (a la Red Chris)• Onshore facilities did not require federal

approval

Anadarko Screening

• EA commenced November 2003, completed August 2004

• Public given two weeks to comment on draft screening report in July 2004

• Avoided most critical issues relating to LNG terminals

• No construction as yet

Comprehensive Study

• Undertaken by Agency, formerly undertaken by RA, reviewed and approved by Agency

• Additional mandatory s.16 factors

• Mandatory public participation and funding

• More onerous notice and registry requirements

Irving Canaport Comprehensive Study

• Triggered same time as Anadarko

• Fisheries Act, NWPA and CEPA (ocean dumping permit) triggered

• Project scoped as LNG project and marine terminal

• Better coordinated, broadly scoped

• Active public participation

• Project was built and is in operation

Irving Canaport Comprehensive Study

Panel Reviews

• Independent ad hoc panel appointed• Mandatory public participation and funding• Mandatory hearings with opportunities to

present evidence and question witnesses• Mandatory s. 16 factors same as

comprehensive study• Panel report reviewed by Cabinet, followed

by Cabinet response, RA determinations

Rabaska Panel Review

Rabaska Panel Review

• Triggered by Fisheries Act, NWPA in 2004• Tracked as comprehensive study, then

referred to review panel by Minister• Broadly scoped • Participant funding provided $100,000• Public hearings held with active participation • Better consideration of implications of LNG • No construction as yet

Conclusions

• How can it be that such different EA processes were applied to such similar projects?

• Is consistency with respect to process necessarily a good thing?

• Would there be greater consistency under CEAA 2012? (only two assessment levels)

• What about a strategic EA for LNG before the CEAA project EAs?