The federal government recently released draft regulations for comment, which will play a key role in determining which types of projects will be subject to federal environmental assessments. The proposed amendments makes changes to which types of projects will be subject to federal EAs, and to the magnitude of projects that will require a federal EA, in some cases. These proposed amendments are open to public comment until May 20, 2013.
Under the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”), projects that may be subject to federal environmental assessments (“EAs”) are those that fall within the list of physical activities and associated thresholds contained in the Regulations Designating Physical Activities (the “Regulation”). Recently, the Canadian Environmental Assessment Agency posted proposed amendments to this Regulation. Under these proposed amendments, the following projects would be subject to an EA under CEAA 2012:
- diamond and apatite mines;
- railway yards;
- international and interprovincial bridges and tunnels;
- bridges that cross the St. Lawrence Seaway;
- the first offshore exploratory wells; and
- expansions to oil sands mines.
The following would be excluded from the federal EA process:
- groundwater extraction facilities;
- heavy oil and oil sands processing facilities;
- pipelines and electrical transmission lines not regulated by the National Energy Board;
- potash and other mineral mines (i.e., salt, graphite, gypsum, magnetite, limestone, clay and asbestos);
- pulp and paper mills;
- steel mills and metal smelters;
- leather tanneries and textile mills; and
- facilities for the manufacture of chemicals, pharmaceuticals, pressure-treated wood, particle board and plywood, chemical explosives, lead acid batteries and reparable mineral fibres.
According to the Regulatory Impact Analysis Statement issued by the federal government, the intent of the proposed amendments is to capture major projects that will have the greatest potential for significant adverse environmental effects. A review of the proposed amendments suggests, however, that several larger projects that previously required federal EAs will now be exempt from the CEAA 2012 process. Notably, although oil sands mines remain on the list, oil sand steam assisted gravity drainage (“SAGD”) projects are excluded. Thresholds for expansions of liquefied natural gas storage facilities, mines, and general facilities have also been increased under the proposed amendments, meaning fewer of these proposed projects will be subject to federal EA review.
Although the Regulation sets out the default list of project types that will be subject to a federal EA, it should be noted that under CEAA 2012, the Minister also retains the authority to designate a physical activity as a designated project, thereby requiring that it undergo a federal EA regardless of whether it is listed in the Regulation. That discretion may be exercised if the Minister considers the proposed project to have unique characteristics or if a project’s proposed location is expected to cause environmental effects sufficient to warrant an EA.
As noted above, interested persons may provide comment on these proposed changes to the Regulation until May 20, 2013.