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BP-355E
ENVIRONMENTAL
ASSESSMENT:
CONFERENCE ON LAW AND PROCESS
IN ENVIRONMENTAL MANAGEMENT
Prepared by
Kristen Douglas
Law and Government Division
November 1993
TABLE
OF CONTENTS
INTRODUCTION
ENVIRONMENTAL
ASSESSMENT IN CANADA
EXPANSION OF THE ENVIRONMENTAL
ASSESSMENT
PROCESS
CLASS ASSESSMENTS
POLICY ASSESSMENT
JUDICIAL REVIEW OF ENVIRONMENTAL
ASSESSMENT
DECISIONS
HARMONIZATION OF ENVIRONMENTAL
ASSESSMENT
PROCESSES
CONCLUSION
ENVIRONMENTAL
ASSESSMENT:
CONFERENCE ON LAW AND PROCESS
IN ENVIRONMENTAL MANAGEMENT
INTRODUCTION
In May 1993, the sixth Canadian
Institute of Resources Law (CIRL) Conference was held in Ottawa. Its focus
was on law and process in environmental management, and many of the papers
presented dealt with current developments in environmental assessment
law and practice in Canada and elsewhere.(1) This summary will touch on some issues addressed, including:
expansion of the environmental assessment process; class assessments;
policy assessment; judicial review; and inter-jurisdictional issues.
"Environmental assessment"
is the process whereby a government determines which development proposals
will be approved. These proposals could include large undertakings like
hydroelectric plants or bridges, but might include smaller undertakings
and even programs or policies. Assessment may also involve the revision
of development plans to better accommodate and protect the natural assets
that would be affected by a permitted project. At the federal level, and
at most provincial levels in Canada, as well as in most other jurisdictions
around the world, the environmental assessment process has in recent years
been the subject of increasing attention.
The presenters and participants
at the CIRL conference considered the environmental assessment process
in light of the concept of sustainable development increasingly accepted
since the June 1992 "Earth Summit," the United Nations Conference
on Environment and Development (UNCED) in Rio de Janeiro, Brazil. Since
virtually all nations of the world have endorsed this concept, there is
expected to be a corresponding evolution in the theory and practice of
environmental assessment. Thus, the presenters who focused on environmental
assessment for the most part examined the process in the context of an
anticipated societal shift to policies and practices in line with sustainable
development.
ENVIRONMENTAL
ASSESSMENT IN CANADA
Across Canada, environmental
assessment is recognized as an important decision-making tool in the planning
and development process. Assessments within federal jurisdiction are conducted
pursuant to the 1984 Environmental Assessment Review Process (EARP)
Guidelines Order. Although Bill C-13, the Canadian Environmental
Assessment Act (CEAA), which will replace the EARP Guidelines Order,
was passed by Parliament in June 1992, the package of regulations necessary
to give effect to the legislation was not published until 18 September
1993. In the 60-day public comment period to which these regulations are
subject, the many newspaper and periodical accounts of reaction to them
have been overwhelmingly negative.(2)
At the provincial and territorial
levels, a variety of environmental assessment regimes prevail. The federal
environmental assessment scheme to be in place once CEAA is proclaimed
will include some elements new to the typical Canadian environmental assessment
regime, such as mediation as an alternative to panel review and the consideration
of cumulative environmental effects. A further expansion of the process
has taken place in a number of inter-jurisdictional forums such as land
claim negotiations.
EXPANSION
OF THE ENVIRONMENTAL
ASSESSMENT
PROCESS
At the opening plenary session
of the CIRL conference, the presenters identified some developments that
they anticipate may alter the environmental assessment process in Canada.
The two initial speakers disagreed on whether environmental assessment
should be expanded, either theoretically or practically. Peter Mulvihill,
a doctoral candidate in Environmental Planning and Design at the Université
de Montréal, advocated that the process be expanded to incorporate sustainable
development theory.(3) This view was
opposed by Michael Jeffery, a partner in the Toronto law firm Fraser &
Beatty, on the grounds of what he sees as private sector dissatisfaction
with environmental assessment procedures.
Peter Mulvihill outlined
some of the evolutionary steps in the environmental assessment process
since early efforts to include conservation and pollution considerations
in development planning. Since 1975, social impact assessment has become
more popular, and public participation has become an integral part of
the process. The acceptance of the concept of sustainable development
since the 1987 Brundtland Report has been particularly important. Now,
virtually every Canadian jurisdiction has a formal environmental assessment
process in place, and such processes have become more transparent, participatory
and accessible.
In practice, the effectiveness
of environmental assessment continues to be hindered by two problems,
according to Mr. Mulvihill. First, there is a tension between science
and theory, in that the assessment process cannot be objective and value-free,
as we expect scientific data to be. Decisions will thus be made in a context
of both objective, scientific data and selective cultural values. Also,
the idea that assessments can be carried out in a one-time closed process,
in which all the impacts of a project can be identified, predicted and
mitigated before it is approved, conflicts with the inherent uncertainty
associated with development and its biophysical and other effects.
To expand the environmental
assessment process in light of a growing recognition of the need for a
more continuing, adaptive approach, Mulvihill proposed a number of new
directions, including: the ecosystem approach; pluralistic project planning
for integrated and overlapping developments; policy assessments of the
causes of unsustainable development; alternative dispute resolution, such
as mediation, as provided for in CEAA; and less formal and interactive
processes where appropriate.
Using the example of the
site selection process provided in Ontario under its 1992 Waste Management
Act, Michael Jeffery outlined the costs, time and litigation created
by what he described as an inadequate process. While agreeing on the need
for more prevention of negative environmental impacts, he urged that there
be no expansion of the existing process without correction of the present
practical problems.
CLASS ASSESSMENTS
One of the innovations the
CEAA will introduce to the federal environmental assessment process is
"class assessment," the assessment of classes of undertakings
or activities. Such assessment has already become a component of Canadian
environmental assessment laws and processes in other jurisdictions, but
its purpose and potential are uncertain. It has been presented as a method
of avoiding the duplication of assessments of similar undertakings. Used
to expand the environmental assessment process, this tool could consider
classes of individually modest activities that might have significant
overall effects, and might streamline the process for repetitive or continuous
activities not requiring independent assessment. Robert Gibson, of the
Faculty of Environmental and Resource Studies at the University of Waterloo,
discussed the practice of class assessment as it is carried out under
Ontario's Environmental Assessment Act.
Once a class has been defined,
a special process is set out for all undertakings that fall within it.
Experience with Ontario's four-year Timber Management Class Assessment,
which Gibson described as a costly lesson, has made it clear that the
class assessment process must become more efficient. For example, the
hearing process used there may not have been appropriate for consideration
of such broad policy questions. Gibson proposed that for groups of activities
with potential environmental impacts the policy implications of the class
should be identified, with specific undertakings then being considered
in that context.
Derek Doyle, Director of
the Environmental Assessment Branch of the Ontario Ministry of the Environment,
while agreeing that the Timber Management case, and the quasi-judicial
system in general, were expensive and time-consuming, suggested that the
costs are an inevitable part of the democratization of the process. He
pointed out that 4,000 to 5,000 decisions are made under Ontario's Environmental
Assessment Act every year, of which 76% are class assessments. Only
1% require public hearings.
POLICY ASSESSMENT
Judith Hanebury, a lawyer
for the National Energy Board, pointed out that site-specific assessment
of projects may not reveal the impact of individually innocuous activities.
Noting that the assessment of policies, plans and programs has been discussed
in Canada since the Brundtland Report recommended the incorporation of
environmental considerations into all decision-making, Ms. Hanebury expressed
disappointment with the status of policy assessment today.
At the federal level, policy
assessment is governed by the non-legislated but Cabinet-approved 1993
document Environmental Assessment Process for Policy and Programs Proposals.
Proposals to Cabinet with potential environmental effects and involving
regulatory instruments will generally be assessed. The document provides
for ministerial accountability, with the Minister of the Environment acting
as a facilitator. The document does not require the outcome of assessments
to be made public, but the fact that a policy has been assessed must be
announced when the policy is released.
Ms. Hanebury described the
policy assessment process, both federally and provincially, as requiring
improvement. There is a need for agreement on the overall values that
should be considered and applied in these assessments, such as what should
be the guiding criteria for decision-making. There are also gaps in the
data available and shortcomings in the substantive methodology to be applied;
for example, how decision-makers should value the effects of policies
on this and future generations and how they should weigh the local and
global costs and benefits. Ms. Hanebury also recommends adoption of alternatives
to traditional Cabinet secrecy, such as public participation in at least
the initial part of the process.
JUDICIAL
REVIEW OF ENVIRONMENTAL
ASSESSMENT
DECISIONS
Judgments by Canadian courts
reviewing environmental assessment decisions have been interpreted as
contributing to the increased legalization of Canadian environmental policy,
according to Alistair Lucas of the Faculty of Law at the University of
Calgary. After reviewing the important cases where the courts have reviewed
the EARP Guidelines Order, he concluded that traditional judicial review
reasoning was applied in most cases, and that Canadian courts have not
engaged in the type of judicial activism seen in the United States under
the National Environmental Protection Act (NEPA).
For example, Canadian courts
have been cautious in granting remedies when finding that projects have
been improperly assessed and have not granted mandatory remedies to shut
down projects already started. In other aspects of judicial review cases,
such as the right of parties to standing before the court, the scope of
judicial review, and the standard of review, the courts have followed
principles applicable in other areas of law. Lucas did not predict any
major shift in judicial approach once the new federal legislation has
been proclaimed.
HARMONIZATION
OF ENVIRONMENTAL
ASSESSMENT
PROCESSES
Another innovation in federal
environmental assessment law that CEAA will introduce is harmonization
of regimes by the federal and any provincial government(s). The status
of efforts to harmonize environmental law and processes across Canadian
jurisdictions was the topic of a paper presented by Stephen Kennett, of
the Canadian Institute of Resources Law. His view is that such harmonization
is being attempted as a solution to inconsistency and overlap between
jurisdictions and as an alternative to constitutional amendment.
Kennett proposed three objectives
for the harmonization of environmental law and practice: first, streamlining
and simplifying existing processes; second, creating procedural certainty;
and third, maintaining the integrity and basic standards of the systems
already in place in the respective jurisdictions. He recommended that
harmonized processes be kept simple, and should not necessitate the creation
of new organizations or processes. He listed a series of factors in Canadian
society that will likely serve as incentives to harmonization of environmental
assessment processes, including the constitutional division of power to
legislate in the area of environmental protection, political pressure
from business and environmental groups to clarify processes and reduce
duplication, and inter-governmental competition for decision-making power.
Legislation permitting the
harmonization of environmental assessment processes is already in place
in several Canadian jurisdictions, the most detailed provisions being
in the federal and Alberta statutes. As Kennett pointed out, a general
imprecision about how systems are to be harmonized allows a great deal
of room for ministerial discretion in negotiating. A series of multilateral
negotiations by the Canadian Council of Ministers of the Environment (CCME)
has resulted in a model for bilateral agreements called the "Draft
Framework for Environmental Assessment Harmonization (1992)."
Kennett outlined a series
of requirements he sees as necessary to any bilateral harmonization agreement:
criteria for deciding which process applies in cases of overlapping jurisdiction;
specifics as to the process to be followed, including provision for public
access and participation; and an open process for the negotiation of any
further agreements. A harmonization agreement that includes these elements
may serve as a model for the environmental management of other legislative
and policy areas involving overlapping jurisdiction.
CONCLUSION
At the federal level, legislators
and officials are completing the regulatory package that will permit the
proclamation of CEAA, the first legislated federal environmental assessment
regime. Meanwhile, their counterparts in various other jurisdictions are
wrestling with current processes and a number of reform options. Environmental
lawyers, practitioners and advocates are developing proposals to enhance
and expand existing processes, through many observers are expressing concerns
about the effectiveness and efficiency of these processes. This work reflects
a concerted effort by virtually all concerned in environmental protection
to integrate the concept of sustainable development more fully into planning
and development at all stages. For environmental assessment to be fully
effective as a tool in the shift to sustainable development practices,
it will require ongoing improvement and review.
(1) The Canadian Institute of Resources Law will publish
all of the papers from the conference, probably by the end of 1993.
(2)
Most of the presenters at the May 1993 CIRL Conference spoke with the
expectation that Bill C-13 would be proclaimed in force before the federal
election.
(3)
His paper was co-written with Peter Jacobs, Faculté de l'Aménagement,
Université de Montréal, and Barry Sadler, EcoSys Corp.
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