A bad process made worse

When the Harper government streamlined environmental assessments for major development projects in 2012, environmentalists howled. Impact review would be gutted, they said, by what the government called “one project, one review,” designed to ensure that Canada had the infrastructure to deliver energy exports. Since Environment Minister Catherine Mckenna introduced the Trudeau government’s assessment reforms in February, the resource industry has done the howling. Investment will be brought to a standstill, it claims, by uncertainties and delays from a process hostile to energy development.

You wouldn’t know it from the noise, but as legal regimes, these two supposedly opposing versions of environmental assessment (EA) are largely the same. They are empty procedural shells within which governments do as they deem best, adhocandcasebycase.yes, under the Liberals’ new Bill C-69, processes will be uncertain, complicated and potentially lengthy. Yes, the bill signals the government’s receptiveness to constituencies hostile to project approvals. Yes, it calls for climate-change accounting and gender-based analysis, whatever that is. yes, itempowers the minister and the cabinet to delay, obstruct or refuse. But EA regimes are, by definition, arbitrary and political. Should pipelines be approved? Don’t look to the statute for the answer but to the political inclinations of the government in power. The Trudeau proposals do not make a good thing bad. They make a bad thing worse.

EA embodies the idea of law as process. The statutes establish complicated procedures to study proposals and their expected impacts, solicit public input and conduct reviews before the projects can proceed. Those steps, whatever their particularities, are not subject to substantive criteria. There are no environmental rules, standards or rights to apply. EA provides government with broad discretion to seek the public interest — which, like beauty, depends on the eye of the beholder.

Mckenna claims that decisions under C-69 will be “based on science,” but scientific data alone are incapable of providing answers in EA reviews. Whether a pipeline or adam should be approved is not a scientific question. Instead, each decision requires trade-offs between competing interests. EA processes contain policy choices made on the fly and no amount of scientific information can change them into purely factual inquiries.

Formalized, intricate, expensive and time-consuming procedures obscure the function that EA actually serves, which is to legitimize contentious decisions. An anthropologist might say that EA is political ritual; it blesses the outcome, whatever it happens to be. Although the process does not determine the content of the decision, it nevertheless legitimizes the result. The purpose of EA is

THE BETTER ALTERNATIVE TO ENVIRONMENTAL ASSESSMENT IS RULES.

to be able to say that EA has been carried out. Environmentalists favour extensive EA procedures for resource developments because they create hurdles for proponents and provide a platform for opponents to object. The result is a figurative shouting match over whose values should prevail. EA empowers officials to listen to the voices that they prefer to hear. What determines the outcome is not the content of the legislation but the priorities of the government that wields it.

The better alternative to environmental assessment is rules: substantive requirements for all to see before projects are even proposed. Any pipeline project that complied would be permissible, and any proposal that did not would be prohibited. Law is best made in legislatures and best enforced by courts, which are the closest thing we have to genuinely independent, neutral adjudicators. No politicized EA process would be necessary because predetermined criteria would dictate the result.

The Harper government had its chance to transform project approvals from discretionary case-by-case reviews to a rules-based system. Instead the Conservatives chose to fiddle with EA. They preserved their ability to manage development as they went along, but also enabled the next government to do likewise. At Mckenna’s press conference to announce C-69, a reporter asked her what would happen when another government came into power with a different view of the proper balance between the environment and the economy in the public interest. Mckenna ignored the question. A straight answer might have revealed that under the latest proposals, environmental assessment remains an empty shell.