How to restore trust in environmental regulations
The federal government recently launched a comprehensive review of its environmental regulatory processes for approving major resource projects with the aim of restoring the public’s trust in its decision-making. The ultimate success of this review will depend on whether the government has the courage of its convictions to truly overhaul a broken system and put in its place a sciencebased regime centred on sustainability and meaningful public participation.
How did we get here? In 2012, the Harper government gutted the Canadian Environmental Assessment Act, the National Energy Board Act, the Fisheries Act and the Navigable Waters Protection Act. Thousands of natural resources projects were exempted from assessments of their potentially significant adverse environmental effects.
Energy projects — including politically charged pipeline proposals — were subjected to far narrower reviews with radically restricted public participation. Fish habitats have been put in serious jeopardy, with 99 per cent of Canada’s rivers and lakes left unprotected.
Summing up the state of Canadian environmental law following the controversial 2012 omnibus amendments, Devon Page, the executive director of Ecojustice, frankly observed that “Canada has some of the worst environmental laws in the world.”
Ironically, the 2012 amendments were lobbied for and literally written by industry advocates to reduce red tape and expedite project approvals.
But many of the major project assessments undertaken under the amended Canadian Environmental Assessment Act, 2012 are tied up in court or community opposition, or both.
It is hardly surprising, then, that as the federal government announced its review, the City of Vancouver commenced a judicial review of the National Energy Board’s conditional recommendation of Kinder Morgan’s proposed $6.7-billion expansion of the Trans Mountain pipeline through nearby Burnaby, B.C.
Suffice it to say that no one has much confidence in the federal government’s environmental decision-making nowadays.
The new Liberal government’s “sunny ways” notwithstanding, it is at risk of losing credibility on this file.
It is worth recalling, however, that even before the 2012 amendments Canada’s environmental record was questionable.
According to the Canadian Environmental Assessment Agency, approximately 25,000 natural resources projects were assessed between 1995 and 2000. An astonishing 99.9 per cent were approved.
No wonder a leading scholar of Canadian environmental assessments, Bob Gibson of the University of Waterloo, recently characterized the 40-year legacy of environmental assessment in Canada as “making bad projects a little less bad.”
So what is the government proposing to do?
Building on its interim measures announced earlier this year, it will appoint expert panels to review the key environmental laws gutted in 2012.
They will report back in January 2017, have a mandate to rebuild trust in environmental assessment processes, modernize the National Energy Board and introduce safeguards to the Fisheries Act and Navigation Protection Act.
Will the government’s promised overhaul work? Success will ultimately depend on three factors.
First, the government’s review truly has to be an overhaul, not merely a touch up. With just over 1,000 days until the next election, the government may be tempted to do the bare minimum to declare victory. At a recent meeting of leading environmental assessment practitioners and scholars, for example, the Minister of Environment and Climate Change asked whether there was anything “worth keeping” in the Canadian Environmental Assessment Act, 2012. The answer, no matter how politically inconvenient, is no.
Second, the fundamental assumption underlying environmental assessment must shift from how a proposed project will proceed to whether it proceeds at all. And the way to answer that question is not by mitigating adverse biophysical impacts, but by assessing whether a project will make a net contribution to sustainable development and decarbonization, thereby helping us meet our Paris climate change commitments.
Finally, the government says that public consultation will be the core of its review. It promises a co-ordinated, open and transparent process based on scientific evidence, working in partnership with indigenous peoples, provinces and territories and input from the public, industry and environmental groups.
That is the right approach, but the government must not stop there. Instead, it must translate consultation into a new regime that mirrors all of those commitments while encouraging and enabling more Canadians to become meaningfully involved in environmental decision-making. Only then will Canadians trust the government as an environmental steward.
Ottawa’s review truly has to be an overhaul, not merely a touch up