The new Canadian Environmental Assessment Act, 2012 ("CEAA2012") replaces the former legislation, the Canadian Environmental Assessment Act, S.C. 1992, c. 37. CEAA 2012 changes when environmental assessments are required, it re-jigs the environmental assessment process, significantly reduces the number of responsible authorities, provides a greater role for Cabinet, introduces deadlines and penalties for non-compliance, narrows the requirements for public participation and allows for greater cooperation with provinces.
"Designated Projects" Require Review
Under CEAA 2012, only "designated projects" will require an environmental assessment. Designated projects are generally designated by regulation or order of the Minister and include incidental physical activity. This represents a departure from the previous Act which required an environmental assessment whenever a federal authority exercised certain powers or performed certain functions, such as providing financial assistance.
A proponent of a designated project cannot do any act or thing in connection with that project which may cause an environmental effect unless: (a) the Canadian Environmental Assessment Agency (the "CEA Agency") makes a determination that no assessment is required; or (b) the proponent complies with the conditions set out in a "decision statement" issued by the designated decision maker after an assessment. Similarly, a federal authority is prohibited from exercising any power or performing any duty or function that would permit the designated project to be carried out in whole or in part unless one these prerequisites is met.
New Processes for Environmental Assessments
After the screening is completed, the CEA Agency will determine if an environmental assessment is required. The Minister may also order that a project undergo an environmental assessment. Environmental assessments under CEAA 2012 will be conducted either by the responsible authority or a review panel. Previously, under the old regime, up to 40 federal departments and agencies had authority for project reviews. At this point, CEAA 2012 provides for just three: the National Energy Board, the Canadian Nuclear Safety Commission and the CEA Agency. However, other responsible authorities may be designated.
After the environmental assessment report is completed, the "decision maker" must decide if, taking into account the implementation of any mitigation measures the decision maker considers appropriate, the designated project is likely to cause any significant adverse environmental effects. The decision maker must then issue a "decision statement." The decision maker in the environmental assessment track is the responsible authority for the project. If the Minister of Environment refers a project to environmental review by a review panel, the decision maker in the review panel track is the Minister. The decision statement may include conditions that are to be complied with by the project proponent.
If the decision maker decides that a project is likely to result in a significant adverse effect, the "matter" of whether those effects are justified in the circumstances must be referred to the Federal Cabinet, in which case Cabinet will determine whether the adverse effects of the project are justified in the circumstances.
Noteworthy in the new legislation are the timelines built into each stage of the environmental assessment process. Projects to be screened must be posted to the website within 10 days of receipt from the project proponent and must be screened within 45 days (the CEA Agency will consider public comments from the first 20 days).
Environmental assessments must be finished and have a decision statement issued no later than 365 days after the notice of commencement is posted to the website. If the Minister refers a project to a review panel, the Minister has two years in which to establish a panel, obtain the report from the panel and make a decision regarding the project.
The clock stops on the hard time limits for review panels and environmental assessments where the authority requires the proponent of a project to collect information, or undertake a study. As well, the Minister of the Environment may extend these time limits by up to three months. Further extensions may require the approval of Cabinet.
If a review panel cannot meet its deadline, the Minister must terminate the process and make a decision based on the available information gathered.
Compliance and Enforcement
CEAA 2012 grants considerable power to compliance officers to enter, search, seize and make orders in relation to projects. It also sets out considerable fines for failing to comply with the Act. Most offences are punishable on summary conviction and include fines of up to $400,000. This is a significant change from the old Act which did not have any express enforcement provisions.
The requirement for consideration of effects upon Aboriginal peoples appears to be enhanced in CEAA 2012. Changes with respect to Aboriginal health and socio-economic conditions, physical and cultural heritage, land and resource use, and cultural heritage are considered to be "environmental effects" under CEAA 2012.
The old Act provided for limited cooperation with Provincial or Aboriginal self-government authorities with joint reviews. Cooperation with provincial processes is a key goal of CEAA 2012. In an effort to reduce duplication, where a federal authority is satisfied that a provincial assessment process is sufficient, it may substitute the findings of the provincial process for its own decision making process. Additionally, if Cabinet thinks that a province will undertake an equivalent assessment, they can exclude a project from application of the federal environmental assessment process.
For screenings, public comments are invited and considered for the first 20 days that a project is posted on the website. Public participation for environmental assessments consists of the ability to comment on first drafts of the report. The report is finalized after considering public comments. Review Panels are public hearings and intervenors are permitted at the hearings. However, the definition of an "interested party" is narrowed in CEAA 2012. An interested party is now a person either directly affected by the carrying out of the designated project or a person with relevant information or experience.
Screenings begun under the previous legislation will continue; however the Minister may deem any projects currently being screened to be a designated project and therefore subject to the new 365 day time limit. Comprehensive studies begun under the old Act will continue to be completed as if the new Act had not been enacted; however, new time limits may apply. If, as a result of the study, it is determined that a review panel is necessary, CEAA 2012 will apply to the review panel and the Minister will determine its deadline. CEAA 2012 will also apply to ongoing review panels.
CEAA 2012 substantially overhauls the federal environmental assessment process. Fewer projects will likely be required to undergo a full environmental assessment, and when assessments do occur, procedural efficiencies should cause projects to be evaluated and determinations to be made sooner than they would have under the previous legislation. Proponents of projects will have clearer guidance regarding what projects to submit for evaluation ("designated projects"), authorities will be under time restrictions to make decisions, and there will a reduction in the duplication of environmental assessments with provincial authorities.