May 27, 2019
In November 2018 we wrote about the proposed federal Impact Assessment Act. In this article we discuss the proposed regulations under the new Act for designating the types of projects that will be subject to federal environmental review and the information requirements and timelines for those reviews. These regulations will not be finalized until after the Act has received Royal Assent, but consultation on the proposed regulations is open until May 31.
This article provides a synopsis of the proposed regulations and some interpretations.
Regulations Designating Physical Activities (Project List)
Although both proposed regulations will affect federal environmental assessment, the Regulations Designating Physical Activities arguably has the greatest implication for developers because this “Project List” determines the thresholds requiring federal impact assessment.
The discussion paper on this regulation describes the project types that are proposed for inclusion on the Project List and the approach used to create the list, which is intended to capture major projects with the greatest potential for adverse effects on areas of federal jurisdiction (Section 7 of the new Act). The proposed thresholds continue to be based on easily measured metrics such as production capacity and are listed by project type or based on the location of a project on federal lands and in protected areas. A review of the Project List is proposed every five years.
The discussion paper describes the types of projects that will be triggered (i.e., subject to federal EIA), and includes a multi-page table that compares existing and proposed thresholds. Although it was widely expected that the revised thresholds under the Impact Assessment Act would increase the number and type of projects subject to federal EIA, relative to the Canadian Environmental Assessment Act 2012, this does not appear to be the case. Many thresholds from the CEAA 2012 legislation remain the same or have been subject to minor changes classified as “Technical Amendments” to wording or units to increase clarity. Some thresholds have been increased, thus capturing fewer projects (including for pipelines, mining, and transportation). Some thresholds have been decreased or are new, thus capturing more projects. For example, new thresholds will require federal EIA for wind power projects in marine or fresh water (for ten or more turbines). Also, port/causeway and airport thresholds are new or substantially amended so as to capture more projects. Some of the thresholds have exceptions based on the conduct of (and consistency with) a regional assessment; and in the case of oil sands development, consistency within a legislated hard cap on greenhouse gas emissions.
Information Requirements and Time Management Regulations
The Information Requirements and Time Management Regulations discussion paper explains how information and timelines will be managed, and when and how lifecyle regulators such as the National Energy Board and Canadian Nuclear Safety Commission will participate in the assessment process.
Timelines for review phases presented in the discussion paper have not changed from the 2018 Technical Guide to the proposed impact assessment system. Proposed timeframes within each review phase are:
Early Planning Phase
- The time limit is 180 days.
- Ministerial referral to a panel will be no later than 45 days after the end of the Early Planning Phase.
Impact Statement Phase
- Time is determined by the proponent (up to three years, or longer on request).
Impact Assessment Phase
- The time limit is 300 days if led by the Impact Assessment Agency (compared with 365 in CEAA 2012) or 600 days for a review panel (compared with 720 in CEAA 2012).
- The Minister may set shorter or longer timelines depending on the scope and scale of the project.
- The time limit is 30 days for a decision by the Minister or 90 days for a decision by Governor in Council for panels and integrated Agency / lifecycle regulator assessments.
Timelines also include a limit of 90 days to respond to a request for a regional or strategic assessment (regional under Section 35 of the Act and strategic under Section 73).
Time limits may be altered through proponent-driven suspensions approved by the Minister, or to address matters within the Government’s mandate through an extension. The Minister may extend timelines once for 90 days, with further extensions requiring Governor in Council approval. Suspension timelines for newly identified information needs are no longer proposed because the new process is expected to reduce new information needs and unexpected issues, allowing the legislated timeline to proceed without suspensions.
The discussion paper describes the proposed requirements for Project Descriptions; format and accessibility of documentation; Agency deliverables in the Early Planning Phase; and transparency of the process.
The proposed regulations set out the components of the Project Description that the proponent is required to provide at the outset of the Early Planning Phase and update later in the Early Planning Phase along with the proponent response to issues. Annex 1 of the discussion paper lists required components of the Project Description, including a description of the potential effects to components under federal jurisdiction. This represents a revised approach, such that a single set of requirements is provided for the initial draft only and the final draft addresses responses to issues rather than a second set of requirements. More information about the project must now be provided up front. However, alternatives, best available technologies, and climate change are no longer included. Options to update Project Descriptions are available throughout the assessment process.
The discussion paper provides the anticipated content for Agency deliverables for each project, i.e., the Tailored Impact Statement Guidelines; Cooperation Plan; Indigenous Engagement and Partnership Plan; Public Participation Plan; and Permitting Plan. These will be developed collaboratively for each project.
To make information accessible to a wide range of readers, information must be provided in a machine-readable, accessible format. The regulations will require a plain-language summary of information for all documents provided by the proponent, including the Project Description.
Timeframe for Implementation
The timeframe for implementation of the two regulations depends on both the legislative process for Royal Assent of the Impact Assessment Act and the regulatory process for ministerial or Governor in Council approval of the regulations. Parliament has discretion regarding the timeframe for the Impact Assessment Act and may choose to move the Act forward for Royal Assent before the summer recess, assuming the Senate hearings are complete, or may wait until after the October election to minimize pre-election press coverage over a contentious bill. It is likely that the regulations will be approved shortly after Royal Assent.