Environmental Assessments for Energy, Infrastructure and Resource projects   challenges & opportunities
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Environmental Assessments for Energy, Infrastructure and Resource projects challenges & opportunities

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Understanding the new Canadian Environmental Assessment Act (CEAA) and how it relates to applicable provincial environmental assessment and planning legislation is critical to the success of your ...

Understanding the new Canadian Environmental Assessment Act (CEAA) and how it relates to applicable provincial environmental assessment and planning legislation is critical to the success of your projects. Navigating the challenges of multiple government bodies, project scoping considerations and your consultation responsibilities with First Nations are key to the approval process. Obtaining approvals for these assessments may unlock opportunities or cause challenges.

Presenters:
David Estrin, Partner, Gowlings (Toronto Office)
Rodney V. Northey, Partner, Gowlings (Toronto Office)

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Environmental Assessments for Energy, Infrastructure and Resource projects   challenges & opportunities Environmental Assessments for Energy, Infrastructure and Resource projects challenges & opportunities Presentation Transcript

  • Environmental Assessments for Energy, Infrastructure and Resource Projects: Challenges and Opportunities
  • Part One: Triggering CEAA, 2012 Sub-Topics 1. 2. 3. 4. 5. 6. 7. Designated Projects NEB/CNSC Trigger CEA Agency Trigger Definition of ―Designated Project‖ CEA Agency Screening Ministerial Trigger Federal Lands Trigger 2
  • 1.1 1st: 2nd: Designated Projects SOR/2012-147 SOR/2013-186 Schedule to Designated Physical Activities Regulation: (1) CEA Agency project list - Power generation facilities Dams Oil & gas (wells, pipelines, processing) Mines & quarries Military facilities Marine facilities, canals, locks Transportation (rail, airports, highways, international bridges) - Hazardous waste (2) NEB project list (transmission lines, offshore wells & pipelines, oil & gas processing & pipelines) (3) CNSC project list (mines, mills, processing, manufacturing, reactors, waste storage & disposal) 3
  • 1.2 NEB/CNSC Trigger Provision: 13. A designated project for which the responsible authority is referred to in any of paragraphs 15(a) to (c) is subject to an environmental assessment. Interpretive Aid: 15. For the purposes of this Act, the responsible authority with respect to a designated project that is subject to an environmental assessment is (a) the Canadian Nuclear Safety Commission, in the case of a designated project that includes activities that are regulated under the Nuclear Safety and Control Act and that are linked to the Canadian Nuclear Safety Commission as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); (b) the National Energy Board, in the case of a designated project that includes activities that are regulated under the National Energy Board Act or the Canada Oil and Gas Operations Act and that are linked to the National Energy Board as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); (c) the federal authority that performs regulatory functions, that may hold public hearings and that is prescribed by regulations made under paragraph 83(b), in the case of a designated project that includes activities that are linked to that federal authority as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2); or (d) the Agency, in the case of a designated project that includes activities that are linked to the Agency as specified in the regulations made under paragraph 84(a) or the order made under subsection 14(2). 4
  • 1.3 CEA Agency Trigger Provision: Interpretive Aids: 8. (1) The proponent of a designated project — other than one that is subject to an environmental assessment under section 13 or subsection 14(1) — must provide the Agency with a description of the designated project that includes the information prescribed by regulations made under paragraph 84(b). SOR/2012-147: Regulations Designating Physical Activities (2) If the Agency is of the opinion, after receiving the description of the designated project from the proponent, that a decision cannot be made under paragraph 10(b) because the description is incomplete or does not contain sufficient details, the Agency may, within 10 days after receiving it, require the proponent to provide an amended description that includes the information and details that the Agency specifies. SOR/2012-148: Prescribed Information for the Description of a Designated Project Regulations 5
  • 1.4 Definition of “Designated Project” “designated project” 2.(1) ―designated project‖ means one or more physical activities that (a) are carried out in Canada or on federal lands; (b) are designated by regulations made under paragraph 84(a) or designated in an order made by the Minister under subsection 14(2); and (c) are linked to the same federal authority as specified in those regulations or that order. It includes any physical activity that is incidental to those physical activities. 6
  • 1.4 Project: Illustrated Context LAKE FOREST NEW FACILITY FIRST NATION RESERVE Proposed Road FOREST Proposed Transmission Line Existing Road FOREST Existing Stream Existing Transmission Line 7
  • 1.4 Illustration (1): Resource Activity Trigger LAKE FOREST NEW FACILITY (DPA) FIRST NATION RESERVE Proposed Road (not DPA) FOREST Proposed Transmission Line (not DPA) Existing Road FOREST Existing Stream Existing Transmission Line 8
  • 1.4 Illustration (2): Infrastructure Trigger LAKE FOREST NEW FACILITY (not DPA) FIRST NATION RESERVE Proposed Road (DPA) FOREST Proposed Transmission Line (not DPA) Existing Road FOREST Existing Stream Existing Transmission Line 9
  • 1.5 CEA Agency Screening SCREENING DECISION: SOR/2012-148: Prescribed Information for the Description of a Designated Project Regulations • General Info • Project Info • Project Location Info • Federal Involvement • Environmental Effects • Summary 10. Within 45 days after the posting of the notice on the Internet site, the Agency must (a) conduct the screening, which must include a consideration of the following factors: (i) the description of the designated project provided by the proponent, (ii) the possibility that the carrying out of the designated project may cause adverse environmental effects, (iii) any comments received from the public within 20 days after the posting of the notice, and (iv) the results of any relevant study conducted by a committee established under section 73 or 74; and (b) on completion of the screening, decide if an environmental assessment of the designated project is required. 10
  • 1.6 Ministerial Trigger 14.(2) The Minister may, by order, designate a physical activity that is not prescribed by regulations made under paragraph 84(a) if, in the Minister’s opinion, either the carrying out of that physical activity may cause adverse environmental effects or public concerns related to those effects may warrant the designation. (3) The Minister may require any person to provide information with respect to any physical activity that can be designated under subsection (2). 11
  • 1.7 Federal Lands Trigger Definitions 66. ―authority‖ means (a) a federal authority; and (b) any other body that is set out in Schedule 3. ―project‖ means a physical activity that is carried out on federal lands or outside Canada in relation to a physical work and is not a designated project. • Schedule 1 re Federal Authorities, includes port authorities • Schedule 3 re Bodies, includes designated airport authorities Project carried out on federal lands: 67. An authority must not carry out a project on federal lands, or exercise any power or perform any duty or function conferred on it under any Act of Parliament other than this Act that could permit a project to be carried out, in whole or in part, on federal lands, unless (a) the authority determines that the carrying out of the project is not likely to cause significant adverse environmental effects; or (b) the authority determines that the carrying out of the project is likely to cause significant adverse environmental effects and the Governor in Council decides that those effects are justified in the circumstances under subsection 69(3). 12
  • 1.7 Illustration (3): Federal Lands Trigger LAKE FOREST NEW FACILITY (not DPA) FIRST NATION RESERVE Proposed Road (not DPA) FOREST Proposed Transmission Line (not DPA) Existing Road FOREST Existing Stream Existing Transmission Line 13
  • Part Two: CEAA/12 & Environmental Effects Three key definitions (1) ―environment‖ (2) ―environmental effect‖ – narrow (3) ―environmental effect‖ – broad 14
  • 2.1: Definition of “Environment” ―environment‖ 2. (1) ―environment‖ means the components of the Earth, and includes (a) land, water and air, including all layers of the atmosphere; (b) all organic and inorganic matter and living organisms; and (c) the interacting natural systems that include components referred to in paragraphs (a) and (b). 15
  • “Environmental Effect” - Narrow 2.2 5.(1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are (a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament: (i) (ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act, (iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and (iv) (b) fish as defined in section 2 of the Fisheries Act and fish habitat as defined in subsection 34(1) of that Act, any other component of the environment that is set out in Schedule 2; a change that may be caused to the environment that would occur: (i) (ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or (iii) (c) on federal lands, outside Canada; with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on: (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. (Note: Format altered from CEAA/12 to highlight discrete components.) 16
  • 2.3 “Environmental Effect” - Broad 5.(2) However, if the carrying out of the physical activity, the designated project or the project requires a federal authority to exercise a power or perform a duty or function conferred on it under any Act of Parliament other than this Act, the following environmental effects are also to be taken into account: (a) a change, other than those referred to in paragraphs (1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the physical activity, the designated project or the project; and (b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on • health and socio-economic conditions, • physical and cultural heritage, or • any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. 17
  • 2.4 Illustration (4): Effects - Narrow LAKE FOREST NEW FACILITY (DPA) FIRST NATION RESERVE Proposed Road (not DPA) FOREST Proposed Transmission Line (not DPA) Existing Road FOREST Existing Stream Existing Transmission Line 18
  • 2.5 Illustration (5): Effects - Broad LAKE FOREST NEW FACILITY (DPA) FIRST NATION RESERVE Proposed Road (not DPA) FOREST Proposed Transmission Line (not DPA) Existing Road FOREST Existing Stream Existing Transmission Line 19
  • Part Three: Substitution of EAs ** Options Option 1: Substitution of provincial EA for federal EA Option 2: Substitution of federal EA for provincial EA 20
  • 3.1 Substitution of Provincial EA for Federal EA Provision: s. 32(1) Subject to sections 33 and 34, if the Minister is of the opinion that a process for assessing the environmental effects of designated projects that is followed by the government of a province — or any agency or body that is established under an Act of the legislature of a province — that has powers, duties or functions in relation to an assessment of the environmental effects of a designated project would be an appropriate substitute, the Minister must, on request of the province, approve the substitution of that process for an environmental assessment. Interpretive Aids: 34. (1) The Minister may only approve a substitution if he or she is satisfied that (a) the process to be substituted will include a consideration of the factors set out in subsection 19(1); (b) the public will be given an opportunity to participate in the assessment; (c) the public will have access to records in relation to the assessment to enable their meaningful participation; (d) at the end of the assessment, a report will be submitted to the responsible authority; (e) the report will be made available to the public; and (f) any other conditions that the Minister establishes are or will be met. 21
  • 3.2 Substitution of Federal EA for Provincial EA Ontario EAA, section 3.1 (1) This section applies, (a) if another jurisdiction imposes requirements with respect to an undertaking to which this Act applies; and (b) if the Minister considers the requirements imposed by the other jurisdiction to be equivalent to the requirements imposed under this Act. (2) The Minister may by order vary or dispense with a requirement imposed under this Act with respect to the undertaking in order to facilitate the effective operation of the Example: Harmonization Order with Stillwater Canada Inc. Re Marathon Platinum Group Metals and Copper Mine Project (August 8, 2011) requirements of both jurisdictions. (3) The Minister may by order declare that this Act does not apply with respect to the undertaking. 22
  • Part Four: EA & First Nations Sub-topics: (1) CEAA/12 & First Nations (2) Ontario EA & First Nations (3) Comparison of these EA regimes on key topics 23
  • 4.1 CEAA/12 & First Nations 1. Part of all CEAA EAs (within ―narrow‖ environmental effects definition) 2. Similarity to CEAA/95: - not comprehensive in scope of impacts: 1. 2. must be physical change to ―environment‖ to trigger relevant FN effect; and where physical change to environment, there are four kinds of effects to consider on FNs 24
  • 4.2 Ontario EA & First Nations: Scope of EA Unless specified otherwise, Ontario EA has detailed minimum requirements to: 1. Identify alternative methods (e.g., locations, designs) for all components of the project (―undertaking‖). 2. For each alternative: a) describe existing FN ―environment‖, including physical, biological, health, and social, cultural and economic conditions of FN communities, b) describe environmental effects on the full FN ―environment‖, c) describe all measures to avoid or mitigate effects on the FN environment, and d) evaluate each alternative method for 1-3 above and select alternative with preferred mix of advantages and disadvantages. 25
  • 4.2 Ontario EA & FNs: Def’n of “environment” ―environment‖ means, (a) air, land or water, (b) plant and animal life, including human life, (c) the social, economic and cultural conditions that influence the life of humans or a community, (d) any building, structure, machine or other device or thing made by humans, (e) any solid, liquid, gas, odour, heat, sound, vibration or radiation resulting directly or indirectly from human activities, or (f) any part or combination of the foregoing and the interrelationships between any two or more of them, in or of Ontario; 26
  • Comparing CEAA/12 & OEAA re FN Topics CEAA/12 OEAA Focus on effects & mitigation for project Requires equal attention to describing existing situation, effects & mitigation for project and alternatives Does not include direct projects effects on FNs Includes direct effects on FNs Defines four types of defined effects on FN Covers virtually all effects on FNs Focus on avoiding significant adverse environmental effects (SAEE), including effects on FNs Focus on benefits exceeding impacts, including effects on FNs Narrow scope to assessing alternatives: any alternative which is not likely to cause SAEE Broad scope to assessing alternatives: must provide rationale for preferred alternative re advantages and disadvantages 27
  • QUESTIONS? DAVID ESTRIN Tel: 416.862-4301 Email: david.estrin@gowlings.com ROD NORTHEY Tel: 416.369.6666 Email: rodney.northey@gowlings.com montréal ottawa toronto hamilton waterloo region calgary vancouver beijing moscow london