by Richard King and Lauren Heuser
The authors act for power producers, transmitters, distributors, traders, marketers, and First Nations in the Ontario power sector.
Bill C-38, the budget implementation legislation known as the Jobs, Growth and Long-term Prosperity Act, brought with it significant changes to Canada’s federal environmental assessment regime. The Canadian Environmental Assessment Act (CEAA) statute was repealed and replaced by the Canadian Environmental Assessment Act, 2012 (CEAA 2012). This article highlights a few of the key changes that could impact Ontario power plant developers.
Applicability: Under the former CEAA, a federal environmental assessment (EA) was required for projects that received federal funds, required federal regulatory approval, or used federal lands. Only projects expressly listed in regulation were exempt from the EA requirement. The CEAA 2012 inverts this model. Going forward, only projects listed in the Regulations Designating Physical Activities (Designation Regulation), which came into force this past July, will be subject to CEAA 2012.
The Designation Regulation specifically lists the construction, operation, decommissioning or abandonment of the following: fossil fuel-fired and hydroelectric generating stations 200 MW or greater, tidal power stations greater than 5 MW, and electricity transmission lines greater than 345 kV that is more than 75 km or in a new right of way. These and other energy projects (certain nuclear facilities and certain power generation expansion projects) are all subject to the CEAA 2012.
Streamlining: The new CEAA 2012 contains a couple of very clear efforts to streamline and make the EA process more efficient. First, subject to a Ministerial-granted extension, federal EAs must now be completed within one year, or by a review panel within two years. Second, the scope of an environmental screening and an EA study has been significantly narrowed so that only the environmental effects that a designated project will have on specific areas of federal jurisdiction, namely fish and fish habitat, aquatic species under the Species at Risk Act, migratory birds, federal lands, cross border issues (provincial and national), aboriginal peoples, etc. are considered in the federal EA. This is a significant change – under the former CEAA, once the federal EA applied, the EA process included assessment of all more most effects of a project even if they were in areas largely within provincial jurisdiction.
Delegation: To eliminate the duplication of project reviews, the CEAA 2012 has introduced substitution provisions that permit a federal responsible authority to delegate responsibility for an EA to a province, or require the Minister to forfeit responsibility for an EA where the province requests it, provided that in each scenario the Minister is satisfied that the province’s EA will serve as an adequate substitute for a federally-conducted one. The federal government has been clear about its intention to improve the efficiency with which EAs are conducted. Accordingly, it would not be surprising to see the federal government download its EA responsibilities to provinces that have roughly comparable EA processes in place. Ontario already has a specific energy project regulation in effect under the provincial Environmental Assessment Act. Provided the federal government satisfies itself that EAs conducted pursuant to these regulations are adequate, it is likely to allow the province to take the helm in conducting EAs of power projects within Ontario.
The implication for Ontario power plant developers is clear: they are likely to end up dealing more with Ontario government officials on EAs than with federal authorities. To the extent that they do, project developers can expect to be influenced more by provincial practices and guidelines in their consultations with potentially impacted Aboriginal groups.