CBC Edition

Green groups outraged after Ottawa changes the rules on environmen­tal assessment­s

- David Thurton

Major industrial resource projects under provincial jurisdicti­on that spew mas‐ sive amounts of carbon emissions will no longer trigger federal environ‐ mental assessment­s - a move that's angering envi‐ ronmental groups.

The Liberal government walked back the requiremen­t in amendments to its contro‐ versial 2019 Impact Assess‐ ment Act, parts of which the

Supreme Court deemed un‐ constituti­onal in the fall.

Environmen­tal groups are raising the alarm and ex‐ pressing their "disappoint‐ ment" in a recent letter about the amendments in‐ troduced in Parliament on

Tuesday.

"We are concerned that the government is not fully living up to its responsibi­lity to protect Canadians and the environmen­t from the cli‐ mate impacts of major projects across Canada," says the letter, which was signed by various environmen­tal groups, including the envi‐ ronmental law group Ecojus‐ tice.

"We urge you to act im‐ mediately to retain these im‐ portant aspects of federal de‐ cision-making within scope of the act."

Major industrial projects, such as oilsands mines, tend to fall under provincial regu‐ latory authority. Under changes introduced to the Impact Assessment Act, oil‐ sands projects will no longer be subject to federal environ‐ mental reviews of the amount of emissions they would add to the atmos‐ phere.

They can still be assessed by the federal government the for their impacts on fish, aquatic species and migra‐ tory birds.

Under the original law, a major project could fall with‐ in Ottawa's regulatory juris‐ diction if it resulted in "a change to the environmen­t … in another province." The re‐ cent amendments dropped this part of the law, which would have allowed the fed‐ eral government to withhold approval of industrial

projects if their emissions could worsen the impact of climate change in other provinces and territorie­s.

"Certainly, cross-border GHGs (greenhouse gas) emis‐ sions have a national im‐ pact," said Ecojustice staff lawyer Josh Ginsberg.

"Canadians lose the pro‐ tection of assessment­s that consider, in a precaution­ary way, really significan­t air pol‐ lution and really significan­t GHG emissions."

Canadians are already seeing the impacts of climate change in the rising fre‐ quency of severe weather events, the disappeara­nce of freshwater resources, more frequent and intense forest fires, shrinking Arctic ice and the accelerati­on of glacial melting.

In 2023, Canada experi‐ enced its hottest summer ever, the largest wildfires in its history, drought in the Prairies and floods in British

Columbia and Nova Scotia, according to Environmen­t and Climate Change Canada.

Assessment reports from the Intergover­nmental Panel on Climate Change conclude unequivoca­lly that human ac‐ tivities have caused the planet to warm.

Guilbeault disagrees with environmen­tal groups

The proposed changes to the law are almost certain to pass. The NDP has said it will support the bill because it contains other measures New Democrats support.

Federal Environmen­t Min‐ ister Steven Guilbeault is backing the changes. He said Ottawa is regulating green‐ house gas emissions through strengthen­ed methane regu‐ lations, an electric vehicle sales mandate and a pro‐ posed cap on oil and gas sec‐ tor emissions.

Guilbeault said those measures were not in place when the Impact Assessment Act was updated through Bill C-69.

"All of these things have been developed since the Im‐ pact Assessment Act was adopted in 2019, so we have an arsenal of measures now to tackle climate change pol‐ lution," he said.

"I respectful­ly disagree with my ex-colleagues of the environmen­tal movement on that. The Supreme Court was very clear that, in its previous form, the Impact Assessment Act went too far in terms of imposing federal oversight over provincial projects."

WATCH | Steven Guil‐ beault defends changes to the Impact Assessment Act

On Oct. 13, the Supreme Court ruled that sections of the Impact Assessment Act were unconstitu­tional. Some parts of the law were found to fall within federal jurisdic‐ tion, but the court said other sections were too broad.

The Impact Assessment Act (IAA), previously known as Bill C-69, came into force in 2019. It allowed federal regulators to consider the potential environmen­tal and social impacts of various re‐ source and infrastruc­ture projects.

Writing for the majority in a 5-2 decision, Chief Justice of the Supreme Court Richard Wagner said the processes set forth in Sections 81 to 91 of the IAA were constituti­onal and could be separated out.

Stewart Elgie, a law pro‐ fessor at the University of Ot‐ tawa, said the top court did not forbid the federal gov‐ ernment from assessing greenhouse gas emissions.

"I was surprised to see the government retreat further than they need to to address the Supreme Court's decision and abandon important areas of federal authority over climate change and air pollution," Elgie said.

"I wouldn't be surprised to see them try and fix this problem before the bill is passed into law."

Martin Olszynski, a lawyer who intervened in the case, said Ottawa is probably tak‐ ing a strategic approach, opt‐ ing for changes to the Impact Assessment Act which would survive another constituti­on‐ al challenge.

Olszynski said he would have preferred to see the government tweak the legis‐ lation to satisfy the Supreme Court while still maintainin­g the federal government's role in regulating the approval of projects with high green‐ house gas emissions.

"There is a threshold at which the individual emission of projects … start to matter when we're thinking about net zero," said Olszynski, who is also an associate professor at the University of Calgary faculty of law. "Every little bit matters."

The Canadian Associatio­n of Petroleum Producers said it is reviewing the govern‐ ment's amendments. The Ontario and Alberta govern‐ ments, which opposed the act, did not immediatel­y pro‐ vide CBC with comments on the amendments.

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