Performance of Environmental Assessment

EA Purpose, Guiding Principles and Review

Overview of BC Law

BC’s current EA law lacks a clearly defined purpose provision and decision-making criteria. This was not always the case: BC’s former EA Act contained an explicit purpose provision that included:²⁴⁴

• promotion of sustainability by protecting the environment and fostering a sound economy and social well-being;
• provision of an open, accountable and neutrally administered process; and
• participation of the public, First Nations and various other agencies.

The importance of the purpose provision was highlighted in a judicial review of a provincial government decision approving the reopening of the Tulsequah Chief Mine in 1998. In that decision, the BC Supreme Court held that the EA review did not adequately consider the sustainability of the Tlingit First Nation’s land-based way of life, and therefore ran contrary to the promotion of sustainability required by the purpose of the EA law.²⁴⁵

Issue

Without an explicit purpose clause or principles to guide the exercise of discretion, BC’s EA Act provides inadequate guidance to government decision-makers reviewing EAs.²⁴⁶

Recommended Solutions

Enact enforceable purpose provisions in EA legislation

[Tags: EA; Purpose; Guiding Principle; Decision-making]

Without knowing what is being attempted it becomes difficult to properly judge the result. This is why, especially, the purposes of environmental assessment need to be explicitly identified the legislation.

– First Nations Energy and Mining Council (2009)²⁴⁷

Unlike BC, many jurisdictions recognize the value and importance of clearly defined purpose provisions in EA legislation. Examples of strong guiding purposes adopted by other jurisdictions include the following:

• CEAA, and CEAA 2012’s, stated purposes include to:²⁴⁸
  • consider projects in a precautionary manner;
  • encourage actions that promote sustainable development;
  • promote communication and cooperation between government bodies and First Nations; and
  • ensure opportunities for meaningful public participation.
  • Yukon’s Environmental and Socio-economic Assessment Act’s stated purposes include to:²⁴⁹
    • protect and promote the well-being of Yukon Indian persons and their societies;
    • undertake projects without undermining the ecological and social systems on which communities and their residents, and societies in general, depend;
    • recognize and, to the extent practicable, enhance the traditional economy of Yukon Indian persons and their special relationship with the wilderness environment; and
    • guarantee opportunities for the participation of Yukon Indian persons — and to make use of their knowledge and experience — in the assessment process.
    • Alberta’s Environmental Protection and Enhancement Act’s stated purposes include:²⁵⁰
      • goals of sustainable development;
      • prediction and mitigation of environmental, social, economic and cultural consequences of a proposed activity; and
      • involvement of the public in the review of proposed activities.
      • In Japan, “the purposes of [the Environmental Impact Assessment Law] are to ensure that proper consideration is given to environmental protection issues relating to such a project and, ultimately, to ensure that present and future generations of this nation’s people enjoy healthy and culturally rewarding lives”.²⁵¹
      • The stated purpose of China’s EA law is the sustainable and coordinated development of the economy, society and the environment.²⁵²

Enact clearly defined and substantive decision-making criteria and guiding principles

[Tags: EA; Discretion]

Other jurisdictions have specified principles or decision-making criteria in their EA laws to guide the government’s decision-making process. For example, under the Mackenzie Valley Resource Management Act, decision-making must be carried out in a timely and expeditious manner having regard to: the protection of the environment; the protection of social, cultural and economic well-being of residents and communities in the Mackenzie Valley; and the importance of conserving the well-being and way of life of Indigenous peoples in the Mackenzie Valley.²⁵³ Other jurisdictions that have clearly specified EA review decision-making criteria in the law include the Yukon,²⁵⁴ and the European Union.²⁵⁵

Examples of some specific criterion from other jurisdictions include:

• In the United States, the government must ensure that the nation may “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations”.²⁵⁶
• Under federal Canadian law, all persons and government must “exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.”²⁵⁷
• Under Yukon law, projects must conform to existing land use plans.The regulatory authority must consider whether or not a proposed project is in conformity with existing land-use plans, and, if not, must attach any terms and conditions necessary to bring it into conformity with the land-use plan.²⁵⁸
• Manitoba law requires that the government must consider: “the amount of greenhouse gases to be generated by the proposed development and the energy efficiency of the proposed development.”²⁵⁹
• In Sweden, the type of after-treatment planned must have a strong bearing on the assessment of the permissibility of an activity.²⁶⁰
• In California, if “feasible” alternatives to the project exist, the regulatory authority should not approve the project.²⁶¹

Set clear legal standards for significance determination of adverse effects

[Tags: EA; Adverse Effects; Significance; Cumulative Effects]

[S]ignificance determination approaches need to be clearer, more broadly defined,                               less biased and distorted, more fully substantiated, more open, inclusive and collaborative, and more effectively linked to decision-making and [EA] practice.

– David Lawrence (2007)²⁶²

Under BC law, the process for determining whether an adverse effect is significant is not specified. The regulatory authority thus lacks legal guidance for making judgments on what is desirable, acceptable, or important, and for differentiating degrees of importance.²⁶³ This has resulted in a haphazard and subjective application of the concept of “significance” in the EA process in BC.²⁶⁴ In other jurisdictions, legal provisions set clear standards to guide the significance determination. For example:

• In the US, “significance” must be determined by context (i.e., analyzing the significance in several contexts such as society as a whole, the affected region, the affected interests, and the locality) and intensity (i.e., severity of the impact) of short- and long-term effects.²⁶⁵
• In China, two criteria must be used to assess whether a proposed project would lead to significant environmental impacts: pollution discharge (i.e. emission volume, types and complexity of pollutants, and possibilities of abatement) and sensitive areas (based on the importance of ecological, archaeological and cultural value, and numbers and sensitivity of the humans affected).²⁶⁶
• In California, “significant effect on the environment” is legally defined as a “substantial, or potentially substantial, adverse change in the environment.”²⁶⁷ A project will have a “significant effect on the environment” if one or more of the following conditions exist:²⁶⁸
  • a proposed project has the potential to degrade the quality of the environment, curtail the range of the environment, or to achieve short-term, to the disadvantage of long-term, environmental goals;
  • the possible effects of a project are individually limited but cumulatively considerable meaning that the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects; and
  • the environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly
  • In Hong Kong, the law provides a regulatory framework for assessing environmental impacts of designated projects and specific direction on impact significance and significance determination.²⁶⁹
  • In Australia, a “significant impact” is defined by the Commonwealth government as one that is important, notable, or of consequence, having regard to its context or intensity. Whether or not an action is likely to have a significant impact depends on the sensitivity, value, and quality of the environment which is impacted, and on the intensity, duration, magnitude and geographic extent of the impacts. ²⁷⁰

Define clear levels of EA review and their application

[Tags: EA; Level of Review; Discretion]

Under BC law, there are four alternative methods for reviewing the EA of a proposed project:

• review by the EAO;²⁷¹
• review by a commission of one or more people, appointed by the minister;²⁷²
• review by a hearing panel of one or more persons, appointed by the minister;²⁷³ or
• any other method or procedure mandated by the minister.²⁷⁴

No additional guidance is provided for when or how these different levels of EA review are applied under BC law.²⁷⁵

In contrast, many jurisdictions have enacted specific criteria to ensure that projects are subject to the appropriate level of review. For example, Western Australia law specifies two levels of EAs requiring different levels of review:²⁷⁶

• assessment on proponent information (must satisfy a range of criteria including that the proposal raises a limited number of key environmental factors that can be readily managed; the proposal is consistent with established environmental policies, guidelines and standards; the proponent can demonstrate that it has conducted appropriate and effective stakeholder consultation; and there is limited or local concern only about the effect of the proposal, if implemented, on the environment);
• public environmental review (where the proposal is of regional and/or State-wide significance; or the proposal has several key environmental factors/issues, some of which are complex or of strategic concern; or substantial and detailed assessment of the proposal is required to determine if or how environmental issues could be managed; or the level of public concern about the likely effect of the proposal, if implemented, on the environment warrants a public review).

Different levels of EA review are also specified in other jurisdictions including the Northwest Territories²⁷⁷ and China.²⁷⁸