Current Issues in Environmental Law – Part 4 – How to make the Most of the New Environmental Assessments

This is the 4th post in our series about recent changes to Canadian environmental law. Here, we discuss another element of environmental assessment – the new, more stringent timelines under the Canadian Environmental Assessment Act, and strategies that will help make the most of the process.

In previous posts we discussed changes in the coverage and scope of federal environmental legislation and assessments. In this post we are switching gears and discussing strategies that will help you adapt to the new federal EA regime – and use it to full advantage.

Time

Under the previous Act there was no set time limit for the completion of screening or a comprehensive study resulting from an assessment. The Act only required assessments to be completed in a “timely” or “reasonable” manner.

CEAA 2012, on the other hand, contains strict – and relatively short – timelines. The initial screening, during which the Canadian Environmental Assessment Agency (the Agency) determines whether an EA will be required, must be posted online and then completed within 45 days. In these 45, days the Agency considers the description of the project, the possibility of adverse effects and any comments received from the public, and then makes a decision. The window for public participation at this stage is only twenty days from the posting of the notice. Anyone wishing to comment must be vigilant and ready to act within those tight timelines.

A standard EA must be completed, and the Agency’s decision rendered, within 365 days of the beginning of the assessment. The Minister may grant a three-month extension to the Agency to complete the assessment in special cases. If the matter proves to be more complex, the Minister may refer it to the more in-depth “panel review” process within 60 days of beginning the assessment. A review panel’s assessment and decision must be completed within 24 months.

Since an EA is primarily a means of collecting as much information as possible to make an informed decision on whether the project should go ahead, and since it can take a long time to collect quality data, such strict timelines may compromise the quality of the assessment.

Notwithstanding the timelines provided for in the CEAA 2012, the clock does not run during the period when participants are asking questions of the proponent and the proponent is amending its proposal. That means that participants can buy time by getting involved in the process early and asking plenty of questions right from the beginning.

Money

Research costs money – expertise costs money – lawyers costs money – travel to meetings and hearings costs money. You may need to pay someone to review the many documents, to attend the many meetings and hearings, and to advocate on your behalf throughout the process. In short, participating in an environmental assessment is not cheap.

Fortunately, whenever a federal EA takes place, the federal body that is conducting the EA must establish a participant funding program to help offset those costs. When you become involved in an assessment, be sure to ask about the funding that is available and the process for accessing it.