It’s Not Easy Being Green

Although it’s not an area of the law in which I practice, in the spirit of fitting in with the green-themed edition (and also because I care about our environment) here I am writing about “green” laws. Before I wrote this article, I was vaguely aware that the Federal Government made some big change to environmental law legislation lately and so that is where I turned my attention.

It turns out that in July 2012, the new Canadian Environmental Assessment Act (“CEAA”) came into effect. The previous CEAA was entirely repealed and replaced with this new legislation. The changes were criticized at the time by environmental advocacy groups as an oversimplification of the environmental review process. Indeed, the government didn’t hide that the new CEAA was their effort to simplify the environmental review process. The government argued that the new rules needed to be put in place to create more predictability for investors. I have my own views of whether predictability for investors or protection of the environment is more important.

Environmental assessments are now required under the CEAA only when a proposed project is a “designated project.” Most projects are considered “designated projects” when production of electricity, collection of oil or bitumen, or oil and gas pipeline development reach a certain level. Of note is that any project dealing with nuclear energy development would require an assessment, regardless of the level of production. But the point is that many projects that would have required an assessment under the previous CEAA, no longer require an assessment. Further still, even if a project meets the applicable level, an environmental assessment will only be required where the project may cause an “environmental effect.”

The CEAA also simplifies the assessment process. An initial screening is required only for projects that are “designated projects.” On completion of the screening, it is determined whether the project will require an environmental assessment. This is a significant departure from the previous CEAA, which had a two-stage process for reviewing the environmental impact of proposed projects with varying levels of review at both stages.

The CEAA requires that the following factors be considered at the screening stage: the description of the designated project, the possibility of adverse environmental effects, comments from the public, and the results of a regional study, if one has been done. Again, this is a simplification of the screening that was required under the previous CEAA, which also required consideration of cumulative environmental effects, feasible mitigation measures, and alternatives to the project. It is only when a full environmental assessment is required that these factors are considered.

The CEAA also implements statutory timelines for completion of an assessment, whereas none were in place before. The screening assessment is to be conducted within 45 days and the standard environmental assessments must be completed within a year.

The new rules will give authorities more power to approve industrial projects in a shorter period of time, like the Northern Gateway pipeline in BC. The 1,177-km Northern Gateway pipeline would carry diluted bitumen from Alberta to Kitimat, where oil tankers would transport the bitumen to Asia for refining. Approval of the Northern Gateway pipeline would pave the way for hundreds of new tankers to carry bitumen through the passages of British Columbia’s north coast. This doesn’t seem to be something that should be rushed through without proper deliberation.

Indeed, earlier this year, five environmental groups sued the Federal Government, claiming it had failed to protect wildlife with the proposed pipeline. The environmental groups argued that the pipeline would impact four endangered species: the Pacific Humpback Whale, the Nechako White Sturgeon, the Marbled Murrelet and Southern Mountain Caribou.

I find all of this completely overwhelming; it feels like there’s nothing to be done about these gigantic projects that might have a detrimental effect on our environment. But, even though there are bigger things out there, we can all do our part: reduce your consumption, recycle, bike to work, etc… If all of us do our part, there will surely be a positive impact.