On June 7, 2016, David Heurtel, Minister of Sustainable Development, Environment and the Fight Against Climate Change, introduced Bill 102 entitled “An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund” (the “Bill”) in Quebec’s National Assembly. This Bill proposes, among other things, a new ministerial authorization scheme that will replace the current attestation and certificate of authorization schemes, which are the subject of this bulletin.
The Bill’s proposals would replace the following:
- the current authorization certificate scheme as well as the depollution attestation scheme applicable to certain industrial establishments;
- the authorization schemes applicable to certain water withdrawals, to water management and treatment facilities and to the installation and operation of equipment designed to reduce or prevent releases of contaminants into the atmosphere; and
- the permit scheme applicable to hazardous materials management.
One of the clear objectives of this overhaul is to reduce the number of authorizations and decrease processing delays.
The cornerstone of the proposed scheme is the environmental impact or risk of a project or an activity and the proposed legal framework is founded on the notion of environmental risk of an activity:
- High-risk activities: The environmental impact assessment and review procedure is maintained for high-risk activities. Projects specifically identified by regulation will be subject to this procedure (under the new version of section 31.1 of the Environment Quality Act (“EQA”)) and will require governmental authorization. Through this same provision, the Government is also enabled to subject projects not identified by regulation to the environmental impact assessment and review procedure on an exceptional basis. The Bill further proposes a new version of section 18.104.22.168 to the EQA according to which the Minister will maintain a register of projects subject to the environmental impact assessment and review procedure and that many documents filed during this procedure will be made available to the public.
- Moderate-risk activities: Moderate-risk activities refer mainly to the activities specifically mentioned in the amended version of section 22 of the EQA or those that are likely to result in the release of contaminants into the environment or affect the quality of the environment. Such activities are subject to ministerial authorization.
The Bill introduces several significant innovative measures:
- The new version of section 30 of the EQA introduces the possibility for a holder of an authorization to obtain from the Minister an amendment of his authorization when his activities become different from the activities authorized, instead of applying for a new authorization;
- It is now possible to transfer an authorization without prior ministerial approval. However, the transferor must first notify the Minister of the transfer after which the Minister has 30 days to notify the parties of his intention to oppose the transfer. If the Minister has not notified the parties of his opposition within 30 days, the transfer is deemed to have been completed (amended version of section 31.0.2 of the EQA);
- When assessing a project’s impact on the quality of the environment, the Minister may now, in cases provided for by regulation, take into account the greenhouse gas emissions attributable to the project and assess any climate change impact mitigation and adaptation measures a project may entail (new version of section 24 of the EQA);
- On issuing an authorization, the Minister may prescribe conditions, restrictions or prohibitions he deems advisable for protecting the quality of the environment, human health or other living species, such as the period of validity of the authorization, waste management, etc. He may also, in the exercise of his discretionary power when he believes it necessary for the adequate protection of the environment, human health or other living species, prescribe in an authorization any standards, restrictions or prohibitions that may differ from those prescribed by regulation (new version of sections 25 and 26 of the EQA); and
- The Minister will maintain a register in which the authorizations issued, amended or renewed as well as all the information, documents, studies and analyses that are part of the authorization, will be made available to the public (new section 118.5 of the EQA
- Low-risk activities: Instead of a ministerial authorization, only a declaration of compliance is required for low-risk activities designated by the Minister by regulation and that would otherwise be subject to ministerial authorization under section 22 of the EQA (new section 31.0.6 of the EQA).
This new declaration of compliance scheme may be very helpful to accelerate and simplify procedures, but it carries an important risk: a person or municipality that carries on an activity in violation of the conditions, restrictions or prohibitions determined in a regulation made under section 31.0.6 of the EQA is deemed to carry on the activity without the authorization required and is liable to the penalties, remedies, fines and other measures applicable in such a case (new section 31.0.10 of the EQA).
- Negligible-risk activities: the Minister may, by regulation and subject to any conditions, restrictions and prohibitions specified in it, exempt certain activities normally subject to section 22 of the EQA and this regulation may also prescribe an impact assessment methodology that the Minister may apply to assess whether the environmental impact of an activity not exempted is negligible. If so, the negligible-risk activity may be exempt from the obligation to obtain an authorization once its negligible impact is confirmed (new section 31.0.12 of the EQA).
Should the Bill pass unaltered, major changes to the Environment Quality Act will be implemented and even if it is very difficult to precisely assess the extent of those changes before the prescribed regulations are also amended or passed, we can expect a significant shift in the authorization procedures. We now wait for the Bill to be discussed, debated and eventually passed by the National Assembly.