From Environmental Assessments to Impact Assessments: New Federal Impact Assessment Act Coming Into Force Soon

Courtesy of McCarthy Tetrault. View original article here.

On August 28, 2019, the Impact Assessment Act (the “IAA”) will come into force and replace the Canadian Environmental Assessment Act, 2012 (“CEAA 2012”). We have previously written about the IAA and the changes that it will bring to the environmental assessment (now impact assessment) process in Canada.

The projects and activities that will be subject to the IAA are set out in the Physical Activities Regulations under the IAA, commonly referred to as the “Projects List”. The Projects List under the IAA is very similar to the categories of projects that are subject to environmental assessments under CEAA 2012. However, some changes have been made to the list: certain new thresholds or projects have been introduced (for e.g. oil sands operations in provinces that do not have, or have inadequate, greenhouse gas emissions limits are now caught by the IAA) whereas other thresholds have increased (for e.g. a new rare earth mine must have an ore production capacity of 2500 t/day to be captured by the IAA, whereas under CEAA 2012 the threshold was 600 t/day).

While the Physical Activities Regulations, which were published in Part II of the Canada Gazette on August 21, 2019, are intended to set out the projects that always trigger an assessment, the IAA also gives the Minister the power to designated a physical activity (that is not on the Projects List) if the Minister is of the opinion that the activity “may cause adverse effects within federal jurisdiction or adverse direct or incidental effects, or public concerns related to those effects warrant the designation.” In addition to the Physical Activities Regulations, the Information and Management of Time Limits Regulations were also published in Part II of the Canada Gazette on August 21, 2019. The Information and Management of Time Limits Regulations describe the circumstances in which the time limits in the IAA may be suspended, as well as information requirements for the initial and detailed description of projects.

As the IAA comes into force on August 28, 2019, the most immediate concern for many project proponents may be the transitional provisions i.e. those provisions that address the range of scenarios where the act will apply to existing or planned projects. In certain cases, projects undergoing assessment under CEAA 2012 will be grandfathered into the new regime. The key transitional provisions are as follows:

  1. Any screenings that commenced under CEAA 1992 and are still underway will be terminated.
  2. Any comprehensive study commenced under CEAA 1992 in respect of which notice of the comprehensive study report has not yet been published will be terminated.
  3. Any comprehensive study commenced under CEAA 1992 and for which notice of the comprehensive study report has been published will be continued as an environmental assessment under CEAA 2012.
  4. Any comprehensive study that was the subject of an order made by the Minister under CEAA 2012 will continue as an environmental assessment under CEAA 2012.
  5. Any CEAA 2012 screening that is still in progress will be terminated and the project description will be deemed to be an initial description under s. 10(1) of the IAA.
  6. Any ongoing environmental assessment under CEAA 2012 for which the Agency has posted a notice of commencement (pursuant to section 17 of CEAA 2012) is continued under CEAA 2012, provided that the proponent must provide the Agency with the required information or studies within three years of the date the IAA comes into force. If the proponent fails to provide the required information or studies within this time limit, the environmental assessment is terminated. Notwithstanding the foregoing, the proponent may request that its environmental assessment be continued as an impact assessment under the IAA within 60 days of the IAA coming into force.
  7. Any ongoing environmental assessment being conducted by the Canadian Nuclear Safety Commission or the former National Energy Board is continued under CEAA 2012.
  8. Any environmental assessment referred to a review panel under CEAA 2012 is continued under CEAA 2012. Notwithstanding the foregoing, the proponent can request that the Minister terminate the EA so that it can opt-in to the IAA process (subject to certain rules as set out in the Act).
  9. A decision statement made under CEAA 2012 is deemed to be a decision statement under the IAA, except for the purposes of s. 70 of the IAA.[1]
  10. An environmental assessment approved for substitution by the Minister under CEAA 2012 is continued as a substitution under CEAA 2012.

If a project is a designated project for the purposes of both CEAA 2012 and the IAA, the IAA will not apply to the designated project if the Agency previously determined that no environmental assessment was required under CEAA 2012. In addition, the IAA will not apply to a designated project for which the proponent began carrying out the project before the date the IAA came into force, or for which a federal approval has already been issued under another statute which permits the project to be carried out.

Given the number of new policy concepts and regulatory requirements that are being introduced, it will be interesting for stakeholders to see how the new IAA regime unfolds as the legislation comes into force.

[1] Section 70(1) of the IAA provides that the Minister must, after considering any views provided by the proponent on the matter, establish the period within which the proponent must substantially begin to carry out the designated project.

Courtesy of McCarthy Tetrault. View original article here.