The British Columbia Government’s Cabinet recently approved an “exemption regulation” under the Environmental Assessment Act (EAA) that will exempt previously approved and constructed projects from requiring an environmental assessment certificate.

The “exemption regulation” is made in response to the British Columbia Supreme Court (BCSC) decision in Coastal First Nations v. British Columbia (Environment). In that case (as discussed in our prior post), the BCSC set aside an “Equivalency Agreement” between the B.C. Government and the National Energy Board (NEB), pursuant to which the B.C. Government agreed to accept any NEB environmental assessment of an NEB-regulated project. Under the “Equivalency Agreement,” there would be no provincial environmental review. The BCSC set aside the “Equivalency Agreement” because it improperly takes away the B.C. Government’s obligation to exercise discretion to issue an “environmental assessment certificate” under section 17 of the B.C. Environmental Assessment Act (EAA). The BCSC also indicated that the “Equivalency Agreement” failed to recognize the Province’s duty to consult with First Nations.

In practical terms, the “exemption regulation” applies to five NEB-approved projects (Spectra South Peace Pipeline; Nova Gas Transmission Groundbirch Pipeline; Nova Gas Transmission Horn River Mainline Extension; Spectra Dawson Gas Plant; and Spectra Fort Nelson North Plant) that had been treated as being subject to the “Equivalency Agreement” and had not received any B.C. environmental assessment certificate. The stated reason for the exemption of these projects is that it would not be practical or procedurally fair to impose post-construction requirements on these projects.

On the other hand, the “exemption regulation” does not apply to projects that have not yet been constructed, but that had been treated as being subject to the “Equivalency Agreement.” This includes the Enbridge Northern Gateway Project (for which a three-year extension to the NEB approval is currently being requested) and the Trans Mountain Expansion Project (which very recently received a recommendation for conditional approval from the NEB). According to the B.C. Government’s news release, there will be a process convened by the B.C. Environmental Assessment Office that will make environmental assessment decisions on these projects. This will include consultation with Aboriginal groups. Presumably, these environmental assessment decisions will take the form of either endorsing or adding conditions to any NEB approvals for the projects. Otherwise, as we discussed in our prior post, issues of paramountcy could arise where the B.C. Government decided to deny environmental approval for a project that had already been approved by the NEB.

David Stevens is a partner and a member of Aird & Berlis LLP’s Energy Group. David has practised in the area of energy regulation for over ten years. He advises gas and electric utilities, and other participants in Ontario’s electricity market, on a wide range of regulatory and commercial issues, and regularly appears before the Ontario Energy Board. Among other things, David has expertise in regulatory issues related to ratemaking, policy interpretation, customer protection, cost allocation and stakeholder relations.