Note: This post was prepared jointly with my colleague, Professor John Sinclair at the University of Manitoba.
Environmental assessments in Canada have gone through many changes over the past 40 years. The federal process has evolved from the 1973 EARP process to the 1984 EARP Guidelines Order, the 1992, 2003, 2010, and 2012 versions of CEAA, and now the proposed IAA under Bill C-69. Through these various transitions, there have been changes to the triggering mechanism, the process options, scope and decision making (among others). A constant throughout has been that Review Panels have served as the high-water mark of assessments under the federal process. Of course, Review Panels have not been immune to change during this 40-year evolution of federal EA, and they have been affected by other changes to federal EA. In this post, we consider the proposed changes in Bill C-69 as they relate to the process for Review Panels. We consider these changes in the broader context of the transition that Review Panels have undergone prior to the introduction of Bill C-69. We particularly note the following in this regard:
- There has been a trend to reduce the Panel’s role in determining the scope of assessments, with the Minister gradually taking over the role of making scope determinations (in the form of the Terms of Reference for the Panel and the EIS Guidelines issued to the proponent). Both are now finalized before Panel’s are appointed.
- There has been a trend toward imposing legislated timelines on Review Panel processes.
- There has been a trend away from asking Panels to offer overall recommendations and conclusions about a proposed project.
- There has been a trend toward Joint Review Panels that include other interested jurisdictions as well as regulators.
- There has been a trend toward fewer Review Panels under the federal EA process, using substitution and other process options to reduce the number of Review Panels carried out.
A. What the Expert Panel Said about Review Panels
The Expert Panel (see previous posts) did not focus particularly on the Review Panel process. This was in part because of the Expert Panel’s focus on a consensus-based planning phase, and because the Expert Panel proposed the establishment of an Independent Commission to oversee the process and to make project decisions. These more fundamental recommendations were not taken up in Bill C-69. The Expert Panel nevertheless did make a couple of recommendations that have considerable relevance for the Review Panel process as envisaged under Bill C-69. First, it suggested that project decisions in case of Review Panels should be made by the Panel, with a limited right of appeal to Cabinet. Secondly, it highlighted the need to rebuild federal science capacity to properly support the assessment process, including the Review Panel process.
B. Key Changes in Bill C-69
In this section, we identify the key changes in the proposed IAA with respect to the Review Panel process compared to CEAA 2012. As discussed in a previous post, the public interest standing requirement has been eliminated. This means that any member of the public would be eligible to participate in the process. The timeline for the Review Panel process has been reduced from 2 years to 600 days. CEAA 2012 provides that any time spent by the proponent providing information requested by the Panel does not count toward the 2-year time limit. There is no equivalent provision in the proposed IAA. Instead, the Bill proposes giving discretion to the Minister to suspend the 600-day time period until the proponent has provided information required under regulations. This changes the suspension of time from an automatic suspension under CEAA 2012 to a suspension at the discretion of the Minister.
There is no legislative clarity on the role of the Review Panel in scoping and information gathering phases of the process. This is not new. However, there are reasons to highlight this aspect of Bill C-69 here. First, while the role of the Panel in these critical elements of the process were not set out in previous legislation, the practice has changed significantly over the past 25 years, resulting in a gradually reduced role of the Panel in scoping in particular. Furthermore, with the introduction of the planning phase in the Bill, and the proposed timing of the appointment of the Panel (i.e. after direction on what information is required has been issued to the proponent), it seems that the role of the Review Panel in scoping (and perhaps even information gathering) could be further eroded under the IAA.
Another key change in Bill C-69 is the approach to key ‘energy regulators’, such as the National Energy Board (to be changed to the Canadian Energy Regulator, or CER), the Canada Nuclear Safety Commission (CNSC), and the two offshore petroleum boards (CNSOPB, CNLOPB). Under CEAA 2012, the NEB and the CNSC were given control over any environmental assessments required of designated projects. Under Bill C-69, all assessments involving designated projects regulated by one of these four energy regulators would have to be assessed by way of a Review Panel. There would be no opportunity for substitution. A project would either be assessed by way of a Review Panel, or not assessed at all. Under section 39, these Review Panels involving energy regulators would have to be ‘federal only’ Review Panels, eliminating the option of Joint Review Panels with other interested jurisdictions.
The Bill proposes that the Review Panel process for projects regulated by one of the energy regulators would have its own unique rules. At least one out of three panel members would have to be appointed from a roster established by the CER and the CNSC, and at least two out of five for the offshore petroleum boards. In addition, the Panels would be tasked with carrying out both their assessment responsibilities under the IAA and their regulatory duties with respect to the proposed project under their home statute. Essentially, the end result is still a combination of the regulatory process and the assessment process (as was the case under CEAA 2012), but under the IAA rather than under the energy regulators’ home statutes.
The role of the Panel in the decision-making process is changing under the proposed IAA. Under the various versions of CEAA, the role of the Panel had gradually shifted from making significance findings and overall project recommendations to frequently only being asked to make ‘significance’ findings. Under the proposed IAA, there will no longer be a ‘significance’ finding. Rather, the project decision will be made by the Minister or Cabinet based on whether the project is in the ‘public interest’. That decision, in turn, is to be informed by factors set out in section 63 of the IAA. The Bill does not provide for any formal link between the report of the Panel and the ‘public interest’ determination.
Finally, the decision to refer a project to a Review Panel is guided by section 36 of the CIAA. The decision is to be based on the public interest, to be determined by the Minister based on direct or indirect effects on areas of federal jurisdiction, public concern, and opportunities for cooperation with another jurisdiction.
C. Recommendations for Amendments
In this section, we offer our recommendations for law reform grouped into four categories. First, we consider the connection between the planning phase and the work of Review Panels, with a focus on scoping and information gathering. We then consider the role of Review Panels in project decision-making. This is followed with recommendations for the Review Panel process involving projects regulated by energy regulators. Finally, we offer some miscellaneous recommendations dealing with timelines, secretariat and powers of Review Panels.
- Panel Role in Planning, Scoping and Information Gathering
We recommend that Panels be appointed earlier than currently anticipated under Bill C-69. Ideally, Panels would be appointed during the planning phase, at least for projects for which it is clear that a Review Panel is the appropriate assessment process. At the latest, Panels should be appointed at the conclusion of the planning phase, while the proponent starts to gather the information it is required to provide under section 19. The Panel should have a legislative right to conduct scoping hearings, and have input into the scope of the assessment and the information needed to complete its assessment. This can be done without any delay to the overall timelines if Panels are appointed early and scoping sessions are held in parallel with the proponent’s information gathering. This would mean, however, that decisions made during the planning phase about the scope of the assessment, the information needed for the assessment and who is required to provide the information cannot be final decisions about the scope of the assessment by a Review Panel or the information required. They have to remain open to input from the Panel during its scoping and assessment processes. In other words, the direction to the proponent on information to be provided under section 19 cannot amount to a final scope determination. As well, our suggestions here require that the Panel be struck and be interacting with the public, proponent and IA Agency well before the 600 day clock starts.
We recommend that Bill C-69 be amended to offer more clarity, perhaps through a specific regulation making responsibility under section 112, not only on what the proponent is required to do at the end of the planning phase, but also on what everyone else is expected to do to prepare for the assessment phase while the proponent provides the information required under section 19. What are the responsibilities of the Agency, federal regulators and federal authorities? What contributions will other jurisdictions make to the process in case of Joint Review Panels? What needs to be done during this period to ensure the public is adequately prepared for the assessment phase? The lack of clarity on these responsibilities has hampered the federal assessment process in the past. The broader sustainability focus, the addition of the planning phase, and the introduction of timelines for the assessment phase all make it more imperative than ever to be clear about the allocation of responsibility to ensure the appropriate information is gathered, and that effective steps are taken to engage the public and to ensure interested members of the public are able to engage effectively once the assessment process is initiated.
- The Panel’s Role in Project Decision-Making
There has been much debate over the best way to make project decisions at the end of the project assessment process. As discussed above, some, such as the Expert Panel, have suggested that project decisions be taken out of the hands of elected officials and instead be made by Panels or an independent commission. It is not our intention here to weigh in on this debate. Rather, we offer suggestions on how to improve the political decision-making process as envisaged in Bill C-69, and, in particular, how to take advantage of the unique contribution Panels can make to good project decisions by the Minister or Cabinet.
Our basic proposition is that Panels will spend two years or more immersed with the assessment of the full range of predicted impacts and benefits, with the risks and uncertainties associated with proposed projects, and with alternatives and alternative means of carrying out the project. There will be no one else involved in the process, and certainly not the Minister of Cabinet, who will have the unique combination of having carried out a detailed analysis of the proposed project’s impacts and benefits and the big picture perspective on its contribution to the public interest. This is particularly true now that the scope has been broadened to include all benefits and impacts of a proposed project. In light of this, we feel that it is a missed opportunity not to require the Panel (under section 51) to apply the criteria in section 63 and make recommendations to the Minister and Cabinet about each of the criteria (in accordance with guidance to be set out in regulations), and to reach its own conclusion on whether and under what conditions the project is likely to be in the public interest.
The Minister or Cabinet can, of course, reach a different conclusion, either because she disagrees with the analysis of the Panel, or because Nation to Nation negotiations carried on outside the assessment process warrant a different conclusion. In that case, we recommend a provision that would require the Minister to give written reasons for deciding not to follow a recommendation of the Panel, creating transparency and accountability for the final project decision, while leaving ultimate accountability in the hands of elected officials and allowing the results of Nation to Nation negotiations to feed into the final project decision. There was a similar provision in section 38(2) the original version of CEAA 1992, but it was later repealed. CEAA 1992 used the following wording:
Without a clear role in applying the section 63 criteria and in reaching a ‘public interest’ conclusion, Review Panels are at risk of becoming little more than facilitators of hearings and note takers. It is important to consider, in particular, the impact of eliminating the ‘significance’ test, whether the project is likely to cause significant adverse environmental effects, from the federal assessment process. The responsibility to make ‘significance’ findings has been at the heart of the responsibility of Review Panels under CEAA. If this responsibility is not replaced with a clear role in informing the application of section 63 criteria and the “public interest” determination, the role and value of Review Panels will be drastically diminished under the proposed IAA.
- Role of Energy Regulators in the Review Panel Process
Regulators have important expertise to bring to the Review Panel process. At the same time, it is clear that the central role some regulators have played in EA’s under CEAA 2012 has undermined the public credibility of the federal EA process. More fundamentally, the merging of EA and regulatory processes ignores the fundamental differences, and the sequential nature of planning and regulating. The work of assessing and approving a project must occur separate from and before the regulatory processes. This was the case under the original CEAA, but was changed under CEAA 2012 for projects regulated by the CNSC and NEB. This clearly did not work. Bill C-69 is an improvement over CEAA 2012, in that it has the potential to ensure proper assessment approval before regulatory considerations and may focus the role of energy regulators in the assessment process to its appropriate role as a source of technical expertise about the proposed project. It does not, however, as currently drafted, adequately protect the integrity and independence of the assessment process. The IAA needs to limit the role of energy regulators to ensure the assessment process will take an impartial independent look at the proposed project, and fairly and impartially considers issues such as need and alternatives. To achieve this goal, we recommend the following:
- The number of panel members to be appointed from a roster of an energy regulator (CER, CNSC, CNSOPB, CNLOPB) should be limited to a maximum of one, rather than a minimum of one or two, as proposed in Bill C-69.
- Panel members appointed from the regulators’ rosters should not be eligible to serve as Panel chairs, as this would risk having energy regulators in control of the assessment process, rather than their intended focus on having them contribute their technical expertise.
- Regulatory decisions should be made by energy regulators following the assessment decision, not in parallel. The Panel hearings can, in appropriate circumstances, serve to inform the regulatory process, but only when this does not risk undermining the planning nature of an assessment process, such as the consideration of alternatives and alternative means.
- Contrary to section 39, Joint Review Panels for assessments involving energy regulators should be encouraged, not prohibited.
- Other Recommendations to Improve the Review Panel Process
In addition to the three broad areas of reform we have covered above, there are a number of specfic issues related to Review Panels that we feel warrant attention. Some deal with the timelines for Review Panels. Others are more technical in nature, but are in our view equally important to the effectiveness of the Review Panel process:
- Appropriate timelines for Review Panels should be determined at the conclusion of the planning phase in consultation with the Panel. The 600-day period should serve as a default, not as a rigid legislative timeline.
- Panels, not the Minister, should have discretion to suspend time while the proponent is responding to the Panels’ information requests.
- Panels should have direct control over a budget for hiring experts and for pursuing alternative dispute resolution options in appropriate circumstances. Experience has shown that delays in federal decision-making during the Panel process (such as Ministerial or Agency approval) hampers the ability of Panels to retain experts and to pursue mediation or other forms of ADR to resolve disputes that arise during the course of an assessment. This problem has been exacerbated through rigid legislated timelines under CEAA 2012. An important part of the solution to this problem is to give Panels the authority to directly retain experts and mediators or facilitators, and to ensure they have direct budgetary control.
- To be effective, Panels need to have access to competent analysts with respect to the broad range of subject matters covered under sections 22 and 63 of the IAA.
- The Agency should have clear legislative responsibility to serve as Panel secretariat, resolving any doubt that the secretariat will be provided by the Agency, and not by regulators.
- The Act should be clear that even for Joint Review Panels, and Panels involving energy regulators, Panels need to include and should focus on) panel members with local expertise, relevant local and traditional knowledge, and project specific expertise.
- The Act should be clear that project descriptions prepared during the planning phase will be tested and may be altered during the Review Panel process.
- The Act should provide for a panel procedures regulation to further clarity the process and to help implement the recommendations we have made.
Review Panels continue to be critical to effective federal assessments. The proposed IAA does not directly make significant changes to the Review Panel process, missing an opportunity to correct some of the recent practice, as noted at the outset of this post, and respond to key changes to the federal assessment process, such as the planning phase, the broader sustainability focus. The recommendations we have made here are designed to respond to these threats to the integrity and effectiveness to the Review Panel process under the proposed IAA.
Finally, we would like to draw your attention to the work of Peter Usher, a member of multiple Review Panels under CEAA. His unique perspective as a former panel member, along with our own experience, has helped to inform our views on how to ensure the effectiveness of Review Panels under the IAA. We would particularly encourage you to read the following sources, all of which are available from Peter Usher at email@example.com:
- Peter J. Usher, November 15, 2011, Submission to the House of Commons Standing Committee on Environment and Sustainable Development
- Peter J. Usher, “Making Major Project Assessment Work”, Submission to the Expert Panel Reviewing the Environmental Assessment Process (2017)
- Peter J. Usher, Frances Abele, “Strengthening Environmental Reviews of Major Projects”, Policy Options, November 14, 2017, available at: http://policyoptions.irpp.org/magazines/november-2017/strengthening-environmental-reviews-of-major-projects/.
Professor, Schulich School of Law