The Canadian EIA Process: The Purpose, The Process, The Players and The Pitfalls Part I The Purpose and Process

Transcription

1 The Canadian EIA Process: The Purpose, The Process, The Players and The Pitfalls Part I The Purpose and Process Presented by: Teresa Meadows, Senior Associate TODAY S SESSION 1. Why does a project engineer need to know this stuff? 2. Why do we do environmental impact assessments? 3. What are some key concepts in environmental impact assessment? 4. What are the recent changes to the environmental impact assessment process in Canada and Alberta? 1

2 Why Do Project Engineers Need to Know This? As the Keystone Pipeline and Prosperity Gold-Copper Mine Project have indicated until an EIA has been concluded and regulatory approvals granted you may not have a project When approvals are given the basis for limits, design criteria, operating parameters and monitoring are the EIA report and recommendations EI, EI, EIA Environmental Impact Assessment Regimes 2

3 Why Do We Do Environmental Assessment? the problems to be addressed, from the beginning to the end, should not be limited to problems of engineering and construction. Social, economic and environmental considerations should be addressed at this early stage and throughout, with the same intensity and concern as technical and engineering questions. Thomas Berger, Mackenzie Valley Pipeline Inquiry: Synopsis of Volume Two. (Online version available from the National Energy Board website) The Conceptual Basis for EAs The basic concepts behind environmental assessment are simply stated: (1) early identification and evaluation of all potential environmental consequences of a proposed undertaking; (2) decision making that both guarantees the adequacy of this process and reconciles, to the greatest extent possible, the proponent's development desires with environmental protection and preservation. [Purpose of EA in an early textbook discussing the subject as cited with approval by the Supreme Court of Canada in Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (S.C.C.)] 3

4 Key Concepts: Environmental Assessment Adaptive Management In the face of uncertainty AM is an iterative process of decisionmaking that involves making initial decisions based on the existing data, monitoring and evaluating the effectiveness of decisions made (including things like mitigation measures) and adjusting the future actions to reflect the monitoring data and the consideration of the effectiveness of the measures taken Key Concepts: Environmental Assessment Precautionary Principle Where there are threats of serious or irreversible damage, a lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation To see a practical example of how the precautionary principle and adaptive management can play out in an EIA check out the Nunavut Impact Review Board s decision in the Mary River Project 4

5 Key Concepts -- Significance no significant impact In Environmental Assessment, a finding of no significant impact is NOT the same as stating zero impact or zero negative impact no significant impact means that the impacts are manageable, capable of being limited, managed, mitigated or responded to in a way that does not result in significant, permanent, irreversible environmental effects/impacts Key Concepts Cumulative Effects Must consider this project in the context of other impacts in the area, and in general, cumulative effects assessment requires an understanding of: The resources that will likely be affected directly or indirectly The geographic scale where the projected impacts are anticipated to accrue The timeframe in which the effects of the projected impacts will occur These considerations should lead to an overall assessment of the impacts that can be expected if the individual impacts are allowed to accumulate over time 5

6 The Canadian Environmental Assessment Act, S.C. 1992, c. 37 Federal Environmental Assessment: CEAA 2012 Introduces Sweeping Changes In the first omnibus budget bill introduced April 26, 2012 and came into force on July 6, 2012, the Federal Government replaced the Canadian Environmental Assessment Act (CEAA) with an entirely new Act, CEAA, 2012 Key changes: CEAA 2012 changes from requiring EA if triggered to only applying to designated projects as defined under the Regulations Designating Physical Activities, SOR/ and the RA assessing whether EA is required 6

7 Sweeping Changes (cont d) Reduces the number of Federal agencies responsible for reviews conducted by a panel from more than 40 to just 3, the Canadian Environmental Assessment Agency, the National Energy Board and the Canadian Nuclear Safety Agency The types of assessment have been reduced from 4 to 2: general EA and review panel There are cost recovery provisions for the responsible authorities conducting a general EA or the parties conducting a Panel Review Sweeping Changes (cont d) Establishes that the Canadian Environmental Assessment Agency must screen the project and decide whether a federal environmental assessment is required of designated projects within 45 days of receipt of a complete project description Also establishes time limits in which EA must be concluded (exclusive of time where authority awaits response from Proponent): General EA 365 days from the date the notice of commencement is posted Review Panel 24 months from establishment of panel (Minister has authority to vary) NEB Review: months CNSC Review: No prescribed timeline 7

8 Sweeping Changes (cont d) If the Minister is of the opinion that a provincial EA process would be an appropriate substitute for the Federal process (e.g. Prosperity Mine in BC), the Minister must, upon request of the Province substitute the Provincial process and no federal EA is conducted Note: substitution does not apply if the CNSC or NEB are the responsible authorities for the project or if the project has been sent to a panel review already Significant change in public participation, as definition changes from broad CEAA def n of interested party (essentially having an interest in the outcome that is not frivolous or vexatious) to those who are directly affected by the carrying out of the project Developing Issues CEAA 2012 It is anticipated that challenges to the interested parties determinations will be forthcoming, particularly for aboriginal groups that were not consulted about the repeal of CEAA and replacement with CEAA 2012 (see the recent approach of the Joint Review Panel in Shell s Jackpine Mine Expansion Hearing) and Idle No More protests The Regulations Designating Physical Activities remove several types of activities related to National Parks that formerly required comprehensive study level assessments from the definition of designated projects in response, Parks Canada is indicating that to fulfill their mandate they may require their own form of EA 8

9 So WHAT? There will be very little Federal EA estimates that of the 2950 projects that had a trigger for a screening level EA under the former CEAA, 0 will meet definition of designated project and of the 39 projects sent for comprehensive study under the former CEAA only 7 would now likely be required to proceed under CEAA 2012 The Provincial process will be under much more scrutiny AND this process for energy developments is undergoing a massive overhaul after the passage of Alberta s Bill 2: The Responsible Energy Development Act including the addition of a new regulator, the Alberta Energy Regulator There are court challenges to these amendments on the basis of a lack of consultation with aboriginal persons (a constitutionally protected right to nation-to-nation consultation) BOTTOM LINE: Uncertainty abounds for regulators, proponents, aboriginal participants and, yes, even lawyers, as we all attempt to figure out the new rules Provincial EIA Requirements Consult: EPEA ss ; Mandatory and Exempted Activities Reg. A.R. 111/93 Environmental Assessment Reg. A.R. 112/93 9

10 What Does A Provincial EIA Currently Look Like? Key areas included in most Alberta EIAs: Public Engagement and Aboriginal Consultation; Project Description (including evaluation of alternatives to the project and measures for preventing environmental impacts); Environmental Assessment (baselines, projection of impacts and monitoring mechanisms); Historical Resources; Traditional Ecological Knowledge and Land Use; Key areas in Alberta EIAs (cont d) Public Health and Safety Assessment; Socio-Economic Assessment (baselines and projected impacts); Mitigation Measures; Residual Impacts; and Monitoring See for example Guide to Preparing Environmental Impact Assessment Reports in Alberta (updated February 2011) available online at: the Standardized Terms of Reference for EIAs provided by Alberta Environment for in situ projects, oilsands, coal mines and industrial plants (updated January 2013) and available on-line at: 10

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