Three regulations related to the Canadian Environmental Assessment Act, 2012 ( “CEAA 2012”) have been released. The regulations set out the designated projects for which an environmental assessment is required, the information required in project descriptions, and the types of costs incurred by the Canadian Environmental Assessment Agency (the “CEA Agency”) in the course of environmental assessments that may be recovered from project proponents. All three regulations have been published in their final version and will come into force concurrently with CEAA 2012.
The list of designated projects under CEAA 2012 generally aligns with projects that currently require comprehensive studies under the current Canadian Environmental Assessment Act (“CEAA”). The new project description information requirements reflect the narrowing of “environmental effects” in CEAA 2012, and the scope of potential cost recovery by the CEA Agency is likely to increase for panel assessments.
On July 18, 2012, three regulations to the CEAA 2012 were published in the Canada Gazette, Part 2. All three regulations will come into force concurrently with CEAA 2012, which will be determined by an order of the Governor in Council. The three new regulations have some similarities to their equivalent regulations under the current CEAA, but with some significant changes.
Regulations Designating Physical Activities
Under the current CEAA, proposed projects must undergo environmental assessment if there is a federal “trigger”, such as when the proponent is a federal entity, the project involves federal funds or is on federal land, or when a listed federal permit or approval is required. CEAA 2012, however, removes the concept of federal triggers in favour of designating the types of projects that may be subject to an environmental assessment in the Regulations Designating Physical Activities (“RDPA”).
Most of the projects designated in the RDPA will be subject to reviews conducted by the CEA Agency, which will screen projects to determine if they may cause adverse environmental effects or public concerns related to those effects and, if so, refer the project for a full environmental assessment. Designated projects set out in the RDPA that are to be reviewed by either the Canadian Nuclear Safety Commission or National Energy Board will automatically require a full environmental assessment.
The types and sizes of projects designated in the RDPA are very similar to the list of projects requiring a comprehensive study under the current CEAA, such as fossil fuel or hydro generating facilities with capacities of 200MW or more, oil and gas pipelines in excess of 75km, metal mines (other than gold) with production capacities of 3,000 tonnes per day or more, and pulp and paper mills of any capacity.
The RDPA does not include certain projects involving physical works on federal lands like national parks and national park reserves that are currently subject to comprehensive studies, such as commercial ski developments. Such projects are now covered by provisions in CEAA 2012 that deal with federal lands. The applicable provisions require the applicable federal authority to determine whether the project is likely to cause significant adverse environmental effects and, if so, require the Governor in Council to determine whether such effects are justified in the circumstances.
Prescribed Information for the Description of a Designated Project Regulations
The Prescribed Information for the Description of a Designated Project Regulations sets out what information must be included in a project description for designated projects. The requirements are very similar to those for comprehensive study project descriptions under the current CEAA.
In all areas except “environmental effects”, the old and new regulations are substantially the same. The narrowing of environmental effects in the new regulation mirrors the narrowing of the environmental effects that will generally be considered in environmental assessments under CEAA 2012. Environmental effects that must be taken into account are now limited to areas of federal jurisdiction such as effects on fish and fish habitat, aquatic species, migratory birds, and changes in the environment on federal lands. In addition, the regulation includes a requirement to describe the effects on Aboriginal peoples of changes to the environment arising from proposed projects.
Cost Recovery Regulations
The Cost Recovery Regulations are similar to the Environmental Assessment Review Panel Service Charges Order under the current CEAA. The Cost Recovery Regulations set out the types of costs incurred by CEA Agency and members of a review panel in the course of environmental assessments that may be recovered from project proponents. Significant changes from the old regulation include the elimination of prescribed rates charged for third party services, which will result in proponents being charged actual market rates for those services, and the addition of amounts related to the exercise of the CEA Agency’s responsibilities such as federal government employees’ salary, benefits, and travel expenses.
CEAA 2012 will require environmental assessments for substantially the same projects that currently require comprehensive studies under CEAA. The changes to the project description requirements reflect the narrowing of the scope of “environmental effects” in CEAA 2012 more generally, and the CEA Agency’s cost recovery for panel assessments is likely to increase as the rates for certain costs have been eliminated, and other additional cost areas have been added.