Fearing the Impact Assessment Act could unravel if the federal government lost a court challenge, Ottawa on Tuesday unveiled amendments to the legislation that critics say mark a retreat from its responsibility to fight climate change.
He proposed changes They are part of the federal government’s Budget 2024 implementation bill and will first need to be passed in Parliament to come into effect, allowing time for further amendments. The amendments released Tuesday include repealing some sections of the law, such as certain transboundary effects such as greenhouse gas emissions, and reworking other sections to make clear that the legislation applies only to areas of federal jurisdiction.
Those jurisdictional concerns were highlighted in October when the Supreme Court of Canada determined that the language of the Impact Assessment Act was too broad, giving way to Ottawa to unconstitutionally regulate areas of provincial jurisdiction. That set off a political firestorm, with Premiers Danielle Smith, Doug Ford and Scott Moe citing the decision as evidence of federal overreach, while Environment and Climate Change Minister Steven Guilbeault said only “surgical” amendments would be necessary. for the law to come into force. in line with the decision of the Supreme Court.
The amendments proposed Tuesday are designed to insulate Ottawa from potential court challenges over its authority to regulate major projects in provincial jurisdiction.
Enacted in 2019, the Ottawa Impact Assessment Act created the Impact Assessment Agency and tasked it with evaluating major projects, such as the proposed Highway 413 in Ontario, Ring of Fire mining projects, liquefied natural gas export terminals, expansions of tar sands and more. The federal review of Highway 413 was canceled in March due to unresolved constitutional authority issues.
Since October, behind-the-scenes discussions about what to do have centered on one question: To what extent does the federal government want to test what the Supreme Court said?
“Some people say, I think it’s okay to do a little bit of testing, and other people say you probably don’t want to do that. And I’m torn because part of me obviously wants to be as ambitious as possible, and another part of me feels, ‘Oh my God, what if we lose another court case?'” Guilbeault said. Canadian National Observer in an interview before the amendments were tabled. “Our Impact Assessment Law would collapse and then we would have nothing.”
Since Prime Minister Justin Trudeau’s government passed the Impact Assessment Act, Ottawa has introduced electric vehicle mandates, clean fuel standards, a carbon price and is working to pass clean electricity regulations and a cap on carbon emissions. oil and gas sector, Guilbeault said.
“We have strengthened our climate legislation and regulations so much that it may not be the end of the world if [greenhouse gas emissions are] not in the impact evaluation as a criterion for stopping projects,” he added.
“The Supreme Court said the federal government has to stay within its jurisdiction… but that doesn’t mean the federal government has to run away from the jurisdiction it has under the Constitution.” #cdnpoli
Attorney and Ecojustice director Josh Ginsberg says Guilbeault’s reasoning that there are other tools available to address climate change falls flat. Ginsberg says those other policies, while important, do not address major sources of cross-border greenhouse gas emissions, such as new tar sands projects, which would have a huge impact on Canada’s ability to meet internationally binding commitments. If not an impact assessment, what federal tool can regulate areas of national concern, such as greenhouse gas emissions that know no borders and otherwise fall under provincial jurisdiction? he asked.
“I’d like to hear the answer to that question because I say the answer is none,” he said.
“The Supreme Court said the federal government has to stay within its jurisdiction… but that doesn’t mean the federal government has to run away from the jurisdiction it has under the Constitution,” Ginsberg added.
Groups like Ecojustice lobbied the federal government to amend the legislation to include “greenhouse gas emissions of national significance” as a trigger for federal assessment. That language was an attempt to establish a threshold consistent with federal responsibility. That language is not in the proposed amendments, but the phrase “non-negligible adverse change” in certain areas of federal jurisdiction allows for federal review of the projects.
It is not yet clear whether this will satisfy the concerns of environmentalists.
Stephen Hazell, a retired environmental lawyer, former regulatory director of the Canadian Environmental Assessment Agency (forerunner of the Impact Assessment Agency) and founder of the consulting firm Ecovision, said Canadian National Observer There could be “potentially catastrophic impacts” to the federal government’s ability to protect the environment if Ottawa gives up its ability to regulate transboundary impacts.
“The bill repeals transboundary effects except in relation to marine pollution and interprovincial and border waters. “Transboundary air pollution (GHG, toxics, etc.) are no longer effects within federal jurisdiction,” he stated. “Overall, the bill is a complete federal abdication to address proposed high-carbon projects, such as in the place oil mines.
A better option, Hazell says, would have been to amend the legislation to include “significant” cross-border effects as a trigger for federal review of the projects.
Because some provinces claimed Ottawa was using greenhouse gas jurisdiction to regulate areas of exclusive provincial jurisdiction, setting a threshold for a project’s emissions impact to trigger a federal review is one way to strike a balance between competing jurisdictions, Hazell said.
‘Err on the side of stupidity’
Because Ottawa handles the impact assessment, it has also long been a point of tension for provincial governments who believe the federal agency was encroaching on areas of provincial jurisdiction. With Justin Trudeau’s government struggling in the polls ahead of the next election, there are certainly cabinet members who want political issues like provinces fighting over major projects to go away, Hazell said.
Green Party leader Elizabeth May offered a harsh rebuke of the changes, saying Canadian National Observer In a recent interview, the federal government is “erring on the side of stupidity.”
In May’s view, the constitutional problems with the Impact Assessment Act date back to 2012, when then-Prime Minister Stephen Harper recovered environmental protections in legislation. That legislation replaced an assessment process from the 1990s, and May says that when the Trudeau government revised Harper’s version, it maintained many of the flaws.
“I hope we can restore the environmental assessment to what it once was in this unique opportunity we have thanks to the Supreme Court landmark case,” May said. “Go back to what we had… instead of trying to tinker and keep trying to make Harper’s approach work.”
No chance, says Guilbeault.
He says that while May is probably one of the most knowledgeable people in the country about impact assessments, there is a difference between proposing changes when you are in opposition or as a non-governmental organization versus being in government and having to bear the consequences.
“There is no way we are going to get a version of C-69 adopted in this Parliament with the time we have,” he said. “And Elizabeth, who is an experienced MP, should understand that more than anyone, so I don’t know why she is pushing for this.
“I love her with all my heart, but I deeply disagree with her. It’s impossible,” she said.
Hazell says they’re both right. He agrees with May that environmental assessments were much stronger before Harper, and that he, May and others “were quite explicit” that Harper’s approach carried “very significant constitutional risks.”
If it were possible to return to pre-Harper environmental assessments, it would be much better than what the country has today, but there are trade-offs, Hazell said.
“We agree it’s a better law, but we just don’t see how we can achieve it and have proper consultation before the next election,” he said. “And then, after the next election, [Conservative Party of Canada Leader Pierre Poilievre] “He has said that he is basically going to repeal the Impact Assessment Law and get rid of the Impact Assessment Agency, so it is difficult to see how things would improve under a Poilievre government.”