Part 2 in a series of guest blog posts by Ecojustice.
We’ve said it before, and we’ll say it again, Canada’s environmental assessment (EA) processes are broken and in need of re-envisioning. There must be a shift from simply mitigating a project’s adverse impacts to a process that focuses on long-term sustainable policies, plans and projects that promote the strongest possible contributions to lasting wellbeing.
As you might remember, in late October, Ecojustice lawyer Melissa Gorrie gave you the rundown on her presentation to the Expert Panel tasked with reviewing federal environmental assessment process. Her topic touched on the importance of follow-up programs and the need for better accountability through compliance and enforcement.
This week, I’ll be speaking to the Panel in Ottawa to discuss the importance of clarity in EA. Next-generation sustainability assessment needs to include legally binding standards and a full review of all the relevant evidence.
What’s the issue?
One of the big problems with the current Canadian Environmental Assessment Act, 2012 is it gives the body that prepares a project’s EA report nearly unlimited discretion to determine what constitutes “significant adverse environmental impacts”. This might not seem like a big deal but without clear and binding standards, assessments can be incomplete and inconsistent: Reports might not give proper consideration to important issues or designate appropriate weight to relevant evidence. Instead they’re allowed to overlook environmental impacts that they deem unimportant.
Evaluators should be required to consider all potential environmental impacts, according to pre-determined standards and with reference to a clear evidentiary threshold. Assessments can and should do more than avoid serious harm — they can evaluate the extent to which a project contributes to or detracts from broader sustainability goals.
What needs to change?
In order for an assessment to effectively foster lasting wellbeing while avoiding adverse effects, it needs to ask clear questions and answer them using all of the relevant evidence — instead of being allowed to pick and choose.
Clear, precautionary rules are equally important in situations of scientific uncertainty. Assessments should not rely excessively on adaptive management — a process for continuously improving environmental managing practices by learning about their outcomes. While this can be a useful process in the early stages, it is not a substitute to using the precautionary principle when evaluating a project’s potential impacts.
Real life example: Darlington nuclear project
The problems that arise when clarity is missing from EA law are illustrated in Ontario Power Generation Inc v Greenpeace Canada (AG). In this case, the Darlington nuclear project was found to have no significant adverse environmental effects even though the Panel that reviewed the report did not take into account potentially serious environmental harms — like the effects from radioactive waste, hazardous emissions and the potential of a Fukushima-type accident.
Here’s an overview of what happened in this case:
Ontario Power Generation (OPG) applied to the Canadian Nuclear Safety Commission for a site preparation license for several new reactors at its Darlington nuclear plant. An environmental assessment was triggered, and the project was referred to a joint review panel (JRP).
Along with counsel from the Canadian Environmental Law Association (CELA), we went to court on behalf of Greenpeace Canada, Lake Ontario Waterkeeper, Northwatch, and CELA to challenge the environmental assessment of the new build project, and won.
But that wasn’t enough. The Federal Court of Appeal overturned the ruling, and determined that since the Panel had given “some consideration” to environmental effects it had done its job.
What we want to see happen
We know that having legally binding and measurable standards in EAs are important. That’s why we’re recommending the following changes be made:
- Binding standards for meeting the sustainability threshold;
- A requirement to substantively consider all evidence relevant to the sustainability analysis; and
- Rules for addressing any ongoing uncertainty about potential adverse effects of a project.
By Joshua Ginsberg, Ecojustice Lawyer
Stay tuned for more
Next up: Toronto.
Ecojustice lawyer Kaitlyn Mitchell will cover scoping and screening in her presentation to the Panel.
The independent panel appointed to review Canada’s environmental assessment processes wants to hear from you. Please submit your comments online and tell the federal government what you think matters most in strengthening environmental assessments – such as meaningful public participation, a climate test and nation-to-nation dialogue with Indigenous peoples.