On March 18, 2009, the federal government introduced regulatory amendments under the Canadian Environmental Assessment Act (“CEAA”) to spur the development of infrastructure while maintaining appropriate levels of environmental protection. The amendments exclude projects proposed under the Building Canada Plan – the infrastructure spending component of the federal government’s economic stimulus plan – from the federal environmental assessment (“EA”) process, and allow the federal Minister of the Environment (the “Minister”) to accept the substitution of a provincial EA process for a federal EA process under certain circumstances.

Certain Infrastructure Projects To Be Excluded

The amendments add certain categories of projects proposed under the Building Canada Plan to the Exclusion List Regulations, 2007 (the “List”), exempting them from the federal EA process. Examples of projects added to the List include modifications of municipal buildings to improve energy efficiency or to repair or prevent damage from natural disasters; modifications of municipal solid waste and water treatment facilities; widening of public roads and bridges; and the construction or removal of buildings for certain purposes that are not within 250 metres of environmentally sensitive areas (“ESAs”). ESAs are areas protected by federal, provincial or local governments for environmental purposes. Projects close to ESAs may only be excluded from the federal EA process if they are consistent with laws and management plans in place for that area, and for such areas protected by the federal government, if the total cost of the project is under $10 million and there are measures in place to protect the area.

Substitution of Provincial EA Process

New Infrastructure Projects Environmental Assessment Adaptation Regulations allow the Minister to substitute a provincial EA process in place of a separate federal process where the Minister is satisfied that the provincial process includes considerations of the factors set out in the CEAA (for example, the significance of the project’s adverse environmental effects); that the EA documents will be public; and that there will be opportunity for public participation. The Minister may also approve the substitution of a process that has completed a screening, as long as these conditions are met. If a provincial EA is substituted, the federal responsible authority retains ultimate decision-making responsibility following the EA and the Minister may still refer projects to a review panel.

These changes are effective until March 31, 2011. During this two-year period, the federal government plans to complete a comprehensive review of the CEAA, which will presumably encompass many efficiency considerations similar to those in this regulatory package.