By Robert Colman

Federal Environment Minister Jim Prentice confirmed last week that Ottawa has moved to make cuts to the federal environmental review process. The purpose of the cuts is to make environmental review processes less cumbersome, but the move raises concerns that the government may be abdicating its environmental responsibilities in the name of economic stimulus.

Minister Prentice made the announcement before a Calgary business audience last Monday night. Last month, federal minister in charge of infrastructure John Baird said that the streamlining would cut 90 per cent of the reviews Ottawa manages. Instead, provincial assessments would be relied upon for review purposes.

The government contends that federal environmental assessment has overlapped and duplicated provincial processes.

As Paul Manning, a partner at Willms & Shier Environmental Lawyers LLP explains it, plans for this have been in the works since early in the year.

"NGOs have been concerned, based on a presentation they saw back in January, that something was afoot," notes Manning. "There had been talk of exempting projects under a certain capital cost limit. And of course, even in the budget, we’ve seen several statutes amended, not least of which is the Navigable Waters Act, where some very subtle changes will have the effect of removing projects in navigable waters from federal environmental assessment."

As Manning explains it, many were concerned that the changes to the Navigable Waters Act were tagged onto a budget - a confidence vote - rather than being given a full debate "when effectively environmental assessment involves the right of the public to be consulted. A lot of people felt that that was too swift a way of dealing with it, and at the very least there should have been an opportunity for debate."

Minister Prentice confirmed that the exemption of projects from the requirement for environmental assessment will not be based on capital cost thresholds but on the government’s experience dealing with these matters - "Presumably, the wish to prevent shovel-ready projects from being held up by environmental regulatory delay is the main reason behind government’s action," suggests Manning.

Manning notes that NGOs are concerned about these changes.

"Once you’ve removed the right of environmental assessment, not only does the government give away what some might view as a trusteeship of the environment over these projects, but also you lose the public right of consultation - at least for projects at the federal level. And that has all sorts of ramifications. Procedurally, environmental assessment is one of the ways in which the public can make its voice heard. If the public is denied a  voice, the ability to express its concerns in the environmental assessment procedure, then a sufficiently determined and financed objector will look for other legal routes to pursue, and will lean more on the sophistry of lawyers to see what other ways there may be - be it judicial review or some other approach — to have its voice heard."

In response to the government’s claim that the move is in the interest of avoiding duplication, Manning notes that there are already some arrangements for coordination of federal and provincial environmental assessment.

"Regulatory burden and the attendant delay and cost has been a particular concern for developers and particularly for the energy industry. Even  a renewable energy project requires  numerous regulatory approvals that are often duplicative." notes Manning. "Even if you are extremely enthusiastic about protecting the environment, it is untenable to argue in favour of regulatory duplication and  delay.. I think the problem here is that there is a concern and a suspicion among NGOs that what appears to be streamlining for the sake of  regulatory efficiency will turn out to be a lessening of environmental consultation, environmental consideration and environmental protection overall."

The Sierra Club of Canada seemed to express this very sentiment in a recent statement on the issue.

"The Conservative government contends that federal environmental assessment results in overlap and duplication with provincial processes," it reads. "Duplication of effort has largely been eliminated due to the efforts of the Canadian Environmental Assessment Agency as well as the Major Projects Management Office established by the Harper government a year ago. Overlap with provincial environmental assessment processes has also been dealt with by so-called harmonization agreements between the federal government and several provinces. However, a federal role remains important given that many provincial processes have limited coverage of even major development projects."

The statement goes on to outline a number of areas in which federal assessment is critical. For example, Ontario’s environmental assessment process does not apply to private sector projects, only to public sector projects. "Even public sector projects such as nuclear power plants are so frequently exempted from environmental assessment that Ontario’s law has long been referred to as the Environmental Exemption Act," says the statement.

It will be interesting to see whether this new environment will change the way in which environmental groups raise their concerns over projects. Will it speed up processes or mire them in new forms of appeal?

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