The latest news from Erin & Stapleton Environmental Consulting Inc.
The new Canadian Energy Regulator Act (CER Act) forms part of Bill C-69, which had its first reading in the House of Commons on February 8, 2018. The Act, among other things, provides for the regulation of renewable energy projects and power lines in Canada’s offshore. The Canadian Energy Regulator (CER) will be the regulatory body responsible for offshore wind development. I've highlighted some key elements of the CER Act as it pertains to offshore wind development:
Section 2, Definitions
offshore renewable energy project means any of the following that are carried on in the offshore area:
(a) any research or assessment conducted in relation to the exploitation or potential exploitation of a renewable resource to produce energy;
(b) any exploitation of a renewable resource to produce energy;
(c) any storage of energy produced from a renewable resource; or
(d) any transmission of such energy, other than the transmission of electricity to a province or a place outside Canada.
Section 57, Involvement of Indigenous peoples of Canada
The Regulator may establish committees or programs for the purpose of enhancing the involvement of the Indigenous peoples of Canada and Indigenous organizations in respect of pipelines, power lines and offshore renewable energy projects as well as abandoned pipelines.
Part 5: Offshore Renewable Energy Projects and Offshore Power Lines:
Section 298 (2) Contents of application
An application must include any information that may be required by the Regulator, or prescribed by regulation, with respect to the proposed work or activity and to the offshore renewable energy project or offshore power line, including information with respect to any facility, equipment, system or vessel related to the project or power line.
Section 298 (3) Factors to consider
In determining whether to issue an authorization, the Commission must take into account — in light of, among other things, any traditional knowledge of the Indigenous peoples of Canada that has been provided to the Commission and scientific information and data — all considerations that appear to it to be relevant and directly related to the offshore renewable energy project or offshore power line, including
(a) the environmental effects, including any cumulative environmental effects;
(b) the safety and security of persons and the protection of property and the environment;
(c) the health, social and economic effects, including with respect to the intersection of sex and gender with other identity factors;
(d) the interests and concerns of the Indigenous peoples of Canada, including with respect to their current use of lands and resources for traditional purposes;
(e) the effects on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982;
(f) environmental agreements entered into by the Government of Canada; and
(g) any relevant assessment referred to in section 92, 93 or 95 of the Impact Assessment Act.
A note on impact assessment: New energy projects requiring an impact assessment would undergo a single, integrated process, carried out jointly by the new Impact Assessment Agency of Canada and the new CER. In other words, “One project, one assessment.” See my previous post on some highlights from the new Impact Assessment Act, including timelines, substitution, and Indigenous engagement.
Section 298 (4) Shorter timelines
For projects that are not subject to the new Impact Assessment Act, legislated timelines would be reduced from 450 days to 300 days.
The Government of Canada has compiled The New Canadian Energy Regulator Handbook to assist Canadians in understanding the role of the new regulator.
Final thought: While the legislation enables offshore wind development, regulations and policies have to be developed (federally and provincially) before we have a complete framework for offshore wind development in Canada.
The new Impact Assessment Act forms part of Bill C-69, which had its first reading in the House of Commons yesterday (February 8, 2018). While not an extensive review, I've summarized some initial observations.
Factors to be considered. Note: Indigenous knowledge, sustainability and climate change, Section 22
g) traditional knowledge of the Indigenous peoples of Canada provided with respect to the designated project;
(h) the extent to which the designated project contributes to sustainability;
(i) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change;
(j) any change to the designated project that may be caused by the environment;
(k) the requirements of the follow-up program in respect of the designated project;
(l) considerations related to Indigenous cultures raised with respect to the designated project;
(m) community knowledge provided with respect to the designated project.
Time limits somewhat shorter, Sections 28 and 37
Agency reviews are 300 days, review panels have 600 days. As before, timelines can be extended at minister’s discretion.
Substitution, Section 33
Substitution is possible at Minister’s discretion, but must satisfy several conditions including:
d) the process to be substituted will include consultations with any Indigenous group that may be affected by the carrying out of the designated project;
(e) the public will be given an opportunity to participate in the assessment and to provide comments on a draft report;
(f) the public will have access to records in relation to the assessment to enable its meaningful participation;
(g) at the end of the assessment, a report will be submitted to the Minister;
(h) the report will be made available to the public
What constitutes “public interest”, Section 63
(a) the extent to which the designated project contributes to sustainability;
(d) the impact that the designated project may have on any Indigenous group and any adverse impact that the designated project may have on the rights of the Indigenous peoples of Canada recognized and affirmed by section 35 of the Constitution Act, 1982; and
(e) the extent to which the effects of the designated project hinder or contribute to the Government of Canada’s ability to meet its environmental obligations and its commitments in respect of climate change.
Regional and strategic assessments remain discretionary, Section 92-103.
Early planning (see: The proposed new system)
Prior to submission of the Impact Statement, there is an "early planning" phase that can take up to 180 days. This is engaging the public and Indigenous communities earlier in the process than was previously required under CEAA 2012.
Consultation is now underway on the impact assessment regulations. Open until April 15, 2018 at: https://www.impactassessmentregulations.ca/
Over the past months, the Government of Canada has been reviewing our federal environmental and regulatory processes. An expert panel was selected to review the environmental assessment process, and standing committees were appointed to review the National Energy Board Act, Navigation Protection Act and the Fisheries Act.
The input of all stakeholders, no matter if we agree or disagree, is important if this new approach is to be balanced and effective.
The Government has now released a discussion paper to outline a new approach to environmental assessments and regulatory reviews, and is asking for our feedback by August 28. The report largely focuses on a new project assessment system, and touches on considerations for modernizing the National Energy Board, restoring lost protections to the Navigation Protection Act, and the enhancing protection for fish and fish habitat under the Fisheries Act.
As I’ve said before, my opinion as an impact assessment practitioner is only one perspective. The input of all stakeholders, no matter if we agree or disagree, is important if this new approach is to be balanced and effective.
I’ve summarized the project assessment section below, and encourage you to review the entire discussion paper and submit your comments online by August 28.
I'm excited to be speaking at two Newfoundland and Labrador Environmental Industry Association (NEIA) events in St. John's in June.
On June 12, as part of the NEIA Speaker Series, I will be discussing supply chain capacity within Newfoundland and Labrador to support an offshore wind energy industry. NEIA and I collaborated on this study and this will be the first public presentation of our findings. For more information and to register, please visit the NEIA event page.
On June 16, at NEIA's Environmental Manager's Roundtable, I will be leading private sector environmental leads and managers in a discussion on recent federal reviews of the Fisheries Act, Navigation Protection Act and the Canadian Environmental Assessment Act. I have my own views, but I am interested in hearing what other practitioners have to say about the recommendations. For more information and to register, please visit the NEIA event page.
On April 5, 2017, the Honourable Catherine McKenna, Minister of Environment and Climate Change, held an armchair discussion with Johanne Gélinas, Chair of the Expert Panel reviewing federal environmental assessment processes. I was there in the audience with hundreds of fellow Impact Assessment (IA) practitioners - many of us have since read the panel’s report, Building Common Ground, have discussed it extensively with our colleagues, and are working on our submissions. We "IA nerds" are an enthusiastic bunch who are eager to share our thoughts, and I encourage others to do the same.
Industry representatives, social advocates, conservation organizations, academic institutions, Aboriginal communities, individuals, municipal agencies - we are all unique yet equal participants in this conversation.
I’ve summarized some of the panel’s recommendations below. I hope that one or several may catch your interest and encourage you to go online to review the report and submit your comments by May 5.
Select recommendations from the panel
- Moving away from determination of significance of adverse environmental effects and instead assessing a project based on sustainability criteria (i.e., evaluate net benefits and review trade-offs between environmental, social, economic, health and cultural impacts, both positive and negative).
- Creating a new federal authority, the Impact Assessment Commission (“the Commission”) to conduct IAs. The Commission would require the expertise and capacity to deliver on the following functions: Planning and Assessment; Science and Knowledge; Indigenous Relations; Public Participation; Proponent Liaison; Information Management; and Monitoring and Enforcement.
- Including Indigenous Peoples in decision-making at all stages of IA, in accordance with their own laws and customs, and increasing the Commission's and communities' capacity to meaningfully engage.
- Requiring that all information included in impact assessments (e.g., raw data from field studies) and information about post-construction monitoring and enforcement (e.g., effectiveness of mitigation measures) be publicly and permanently accessible through a central database.
- Increasing use of regional and strategic environmental assessments to help focus project-specific assessments and to better address cumulative effects.
- Establishing distinct phases of IA - Planning Phase, Study Phase, and Decision Phase. The planning phase would begin early in project development and conclude with a conduct of assessment agreement. All studies outlined in the assessment agreement would be completed during the study phase. During the decision phase, the Commission would seek Indigenous consent and issue a decision based on sustainability criteria. Multi-stakeholder, in-person engagement would occur throughout all phases of IA.
Common ground is built from meaningful dialogue - be a part of the conversation and provide your input on the panel's recommendations. Express yourself!
Regulatory changes in Newfoundland and Labrador
It’s been an active few weeks in Newfoundland and Labrador as the provincial government strives to rectify the fiscal situation, fulfill climate change commitments, and promote economic growth. Three changes (two enacted, one to come) will affect the provincial environmental regulatory framework: reorganization of governmental departments, new emissions reporting requirements, and review of environmental assessment (EA) and permitting processes.
1. Realigned government departments
On February 22, 2017, the Government of Newfoundland and Labrador announced a realigned government structure as part of the effort to restore fiscal balance . Two new departments of importance to those overseeing environmental aspects of projects are:
- Department of Municipal Affairs and Environment: the former Department of Environment and Climate Change has been dissolved, with Environment joining Municipal Affairs, and the Office of Climate Change being placed within the Executive Council.
- Department of Fisheries and Land Resources: replaces the former Department of Fisheries, Forestry and Agrifoods, with the following additions from other departments:
- Lands Branch (formerly under Department of Municipal Affairs)
- Wildlife Division (formerly under Department of Environment and Climate Change)
- Fish and Wildlife Enforcement Division (formerly under the Department of Justice and Public Safety)
The restructuring of these and other departments resulted in the elimination of 287 management positions, of which 90 positions were vacant . The main concerns I’ve heard are knowing who to contact for various planning and permitting needs, and how these changes will affect the Environment minister’s decision timeline on applications (already often taking longer than the 45-day period indicated in the Environmental Assessment Regulations). As positions and responsibilities are re-shuffled, and with the announcement of a review of our provincial EA process (which I discuss further below), it may be some time before we have clear direction.
2. New emissions reporting
The Government of Newfoundland and Labrador passed the Management of Greenhouse Gas Act in 2016. On March 7, 2017, the emission measurement and reporting requirements of the Act, as well as the attendant Management of Greenhouse Gas Reporting Regulations, came into effect. The Act focuses on emitters of at least 15,000 tonnes/year of CO2 (equivalent) from manufacturing and processing, mining and oil and gas extraction (excluding offshore oil and gas production), and electricity generation (excluding the Holyrood Generating Station) . The Regulations include how to quantify CO2 (equivalent), required contents for emissions reports, and how submitted results will be verified .
Remaining aspects of the Act are yet to be enacted (no indication yet of when that will be), but will include limits for those emitting at least 25,000 tonnes of CO2/year, establishment of a Greenhouse Gas and Reduction Fund and credit system, and creation of a compliance system (including inspection, punishable offences and fines) .
3. Review of environmental assessment and permitting processes
The Government of Newfoundland and Labrador launched Phase 2 of their Way Forward strategy on March 27, 2017. Among the many initiatives aimed at overcoming the province’s fiscal, social and economic challenges, the document lists three actions of interest to those engaged in EA in the province. The government says the timeline for completion of these actions is “in 2017-2018” .
- Review of the EA process – The government will review Part X (Environmental Assessment) of the Environmental Protection Act and the attendant Environmental Assessment Regulations. The review “will begin with a jurisdictional scan of relevant legislation, business processes and best practices in Canada” . The last review of the provincial EA process was carried out in 2002.
- Review of municipal and environmental permitting processes – The government will review several “key existing regulatory and legislative permitting and licensing processes.” The review process “will support more timely approvals for clients and stakeholders”.
- Establish requirements for Women’s Employment Plans  – Under the current EA process, proponents are asked to describe “how employment equity will be addressed relative to age and gender” , though there are no specific requirements in the Act or Regulations. It appears that the government will issue more specific expectations and reporting requirements on gender equitable employment.
Federal regulatory review
Along with these changes at the provincial level, there are also potential changes arising from the federal review of environmental and regulatory processes:
- Review of the Canadian Environmental Assessment Act - the Expert Panel's report will be submitted to the Minister of Environment and Climate Change by March 31, 2017 .
- Review of the Fisheries Act – the Standing Committee on Fisheries and Oceans presented their findings to the House of Commons on February 24, 2017 .
- Review of the Navigation Protection Act – the Standing Committee on Transport, Infrastructure and Communities presented their findings to the House of Commons on March 23, 2017 .
- Review of the National Energy Board’s (NEB) structure, role and mandate under the National Energy Board Act – the Expert Panel’s report will be submitted to the Minister of Environment and Climate Change by May 15, 2017 .
It can be challenging when there are new or potential changes to a single regulation, let alone to several regulations at provincial and federal levels! Look to your environmental staff and consultants to keep you appraised of regulatory changes and to help you understand how your project may be affected.