The federal government is preparing for a comprehensive review of the federal environmental assessment (EA) process (Mandate Letter: http://tinyurl.com/zowsukt). As a result of changes made between 2010 and 2012, the federal EA process (largely under CEAA 2012) has suffered greatly in terms of the number of projects assessed, the scope of the assessments carried out, the engagement of the public in the assessment process, and the transparency of project decision making (CEAA 2012 Assessment: http://ssrn.com/abstract=2104336). The result has been an erosion of public confidence in federal decision-making on proposed new projects. It has also resulted in an avalanche of court cases on major projects, and political battles with affected provincial, municipal and aboriginal levels of government.
Of course, the problems with EA predate the 2010-2012 changes. In over 40 years of EA practice, it has rarely lived up to its potential to serve as a tool for ensuring new proposals move affected communities and jurisdictions toward sustainable prosperity. It will be critical, therefore, in reviewing and reforming federal EA in Canada, to look beyond the damage done to EA in recent years, and to take advantage of this opportunity to reform the federal EA process so that it can finally live up to its potential (See Next Generation EA: http://ssrn.com/abstract=2670009).
To this end, WCEL (http://wcel.org/) organized an EA Summit in Ottawa from May 1-3. The Summit brought together 40 leading academics and practitioners on a range of EA topics to explore the key elements of “Next Generation EA”. I had the fortune to be part of this Summit, and would like to briefly share my reflections on the results of the Summit.
The Summit was build around 8 workshops, complemented by a number of plenary discussions to explore the connections among the issues covered in the workshops. Three workshops combined to explore the nesting of project EA within the broader context of decision-making. One workshop considered the need to bring regional and strategic assessments into the fold; another discussed how the results of project EA link with post project decision processes such as follow-up, compliance and regulatory processes. A third workshop focused on cumulative effects, and concluded that cumulative effects assessment in REAs, SEAs, and other relevant decision making processes in addition to project EA is critical if we are to overcome the long standing challenges with cumulative effects at the project level (http://ssrn.com/abstract=2774579).
Another set of workshops dealt with the multi-jurisdictional nature of EA. One workshop broadly considered the connection between federal EA and provincial, territorial, aboriginal, and municipal jurisdictions affected. Another workshop focused more specifically on the role of EA in implementing the federal commitment to a nation-to-nation approach to engagement with aboriginal peoples in Canada.
A third set of workshops considered the broadening of the scope of EA from a focus on biophysical effects to a comprehensive consideration of ecological, economic, social, and cultural considerations, with the aim of ensuring approved projects make a net contribution to sustainability, and that the opportunity for affected communities to move toward sustainability is maximized. One workshop dealt with the issue broadly, whereas another focused on the issue of climate change in the context of sustainability. A final workshop focused on the importance of effective public engagement.
The overall picture that emerged from the Summit was that EA has been too disconnected from overall decision-making, and that it cannot, in its current form, hope to move us toward sustainable prosperity. It is time to integrate environmental considerations fully into deliberative, collaborative, and transparent decision making processes that are committed to making a contribution to solving the sustainability challenges we face, rather than processes that just avoid making things significantly worse.
Achieving this goal requires the full integration of regional and strategic assessments into the process. It requires a collaborative approach to harmonization that actively engages all affected jurisdictions, including federal, territorial, provincial, aboriginal, and municipal, in a deliberative process. It requires a shift from a focus on biophysical effects to a process designed to ensure projects make a net contribution to sustainability. It requires a process that recognizes the role of science, of traditional knowledge, and of the values and priorities of affected communities; a process designed for mutual learning. It requires an ongoing commitment to improvement, both of approved projects, and of the process.
For those who feel that such a process will take too long, or cost too much, experience suggests otherwise. First, there are examples of deliberative, collaborative and integrated processes delivering results (See, for example: http://ssrn.com/abstract=2480346, and http://ssrn.com/abstract=2463759). Second, we have learned over the years that not doing it right creates more uncertainty and delay, and costs more than good processes that get it right the first time. For example, as discussed to some extent in a previous post (http://tinyurl.com/hm9g6ym), the economic viability and social licence of the Muskrat Falls hydro-electric project have been seriously undermined in part because recommendations of the Panel to carry out independent economic viability and alternatives assessment, to study the methylmercury issue, were ignored. A proposed framework for ensuring a net contribution to sustainability was not applied by decision makers. (http://ssrn.com/abstract=2480368).
Finally, here are some of the more specific ideas that I took from the Summit that I think are well worth considering as we prepare for the review and reform of the federal EA process:
- The importance of using REAs and SEAs to send signals to investors and project proponents to encourage projects that are consistent with the values and priorities of affected jurisdictions and communities
- The idea of setting a goal for approved projects to make a contribution to reconciliation with aboriginal peoples affected
- The idea of collaborative consent as a basis for engagement with aboriginal communities, but more broadly with jurisdictions, communities and stakeholders affected
- The need for an appropriate framework for considering the GHG emissions of assessed projects, including an assessment of the effect of the project on Canada’s emission reduction goals in light of the Paris Climate Agreement, on the long term goal of keeping temperature increases to well below 2 degrees, and on the global effort to transition away from fossil fuel based energy sources by the second half of the century.
- The need to consider “the level of risk” climate change poses to affected communities, giving communities particularly at risk a voice in decisions about climate mitigation
- The need to better understand, acknowledge and consider the level of risk and uncertainty associated with predictions made about impacts and benefits
- The need to consider the implications of investor protection mechanisms in trade and investment agreements for assessment processes.
The upcoming review and reform of federal EA provides a historic opportunity to move EA to the next level so that it can finally fulfill the promise of putting us on the path to sustainability. Stay tuned for the announcement of the federal review process in the coming months.
Director, Marine & Environmental Law Institute