Improving the environmental assessment process
As one hears on a near daily basis, developing most major projects faces significant regulatory challenges, most particularly in the area of environmental assessment.
Some projects have been within the environmental assessment process for longer than it took to fight the Second World War, and close to the time it took to put a man on the Moon. Should it really take this long just to decide if a mine or oil pipeline can go ahead?
Most people would say that the answer is no.
Yet most people also accept that environmental assessment is an essential component of sustainable development and must be a part of any major project development. How does one reconcile this? What are the reasons for the delays and how do we fix them?
• First and foremost, we must remain true to the purposes of environmental assessment. It is to determine — before a major project enters the permitting phase — whether it is likely to have “significant adverse effects” despite whatever mitigation measures can be put in place. There are few cases where significant adverse effects are ultimately found. This is because proponents undertake extensive consultation with interested parties and develop a range of project refinements and mitigation measures to avoid such effects. Indeed, a major project in British Columbia can have more than 100 legally binding commitments attached to it even before it enters the permitting phase. However, this does not mean that every issue and last detail can or should be resolved at the environmental assessment stage.
• Public input is necessary to ensure all relevant issues are duly assessed. Yet the environmental assessment process must not be allowed to become a political forum to simply oppose or support a particular project. Nor should it be allowed to involve protests that physically prevent access to public meetings or that involve people appearing at public meetings in costumes and engaging in disruptive behaviour. Environmental assessment officials must carefully ask themselves whether, and how, they must modify existing processes to avoid these problems. This may require some significant changes to the manner in which public input is sought and obtained.
• Stakeholders must also be realistic about the limits of the environmental assessment process. While emerging issues such as “cumulative environmental effects” certainly warrant consideration, there is significant disagreement as to what exactly that entails. Similar challenges exist in relation to aboriginal rights and claims of historic failures to consult aboriginal groups. The environmental assessment process is simply not suited to or charged with resolving all social disagreements or conflicts, particularly historic ones. Instead, we must recognize that the environmental assessment process can only go so far in building common ground or minimizing discord. At the end of the day, governments will still need to make difficult decisions.
• Federal Minister of Natural Resources Joe Oliver has recently spoken strongly in favour of the need to reform federal environmental legislation, and to provide more certain time frames. These are laudable goals, and the Canadian Environmental Assessment Act seriously needs reform. However, one should not believe that legislative reform alone is the answer. More specifically, one should not believe that imposing legislative time frames will ensure that projects are completed within those time frames. The real answer is to have a process that is clear and, more importantly, will empower officials to make principled but difficult decisions as the environmental assessment processes unfold.
Some of the greatest challenges with environmental assessments are well known, and they do not stem from the legislation or lack of time frames. They stem ( at least at times) from things like officials demanding permitting level detail at the environmental assessment stage, a reluctance to make difficult decisions that may be opposed by stakeholders or aboriginal groups ( even when the duty to consult has been met), and a bias toward inaction when there is a lack of consensus. These are matters that can only be addressed through strong leadership, policy direction and a willingness to support officials when they make decisions that are never going to make everyone happy.
• Finally, it should be noted that effective management of the environmental assessment process cannot be achieved simply through strong leadership in the bureaucracy or political direction. Rather, it requires commitment to the process by all interested parties. Proponents must be prepared to dedicate a significant, but not unreasonable, amount of time and resources, and to seriously consider issues and corresponding mitigation measures. Stakeholders and expert agencies must engage earnestly and in a timely manner. Any participant must also be vigilant and willing to push back on environmental officials if the process appears to be creeping off course on any individual file, which is a common occurrence in the difficult and challenging discipline that is environmental assessment.