Recommendations For Amendments To Bill 32 Environmental Assessment Act *Ann Hillyer Barrister & Solicitor* *WEST COAST ENVIRONMENTAL LAW ASSOCIATION* *July 5, 1993* INTRODUCTION The West Coast Environmental Law Association provides legal services to members of the public who are concerned about threats to the environment. Since its founding in 1974, WCELA lawyers have provided advice and acted as counsel for citizens participating in numerous provincial, federal and joint federal/provincial environmental assessment hearings. We participated in the province-wide consultations headed by Mr. Dale Lovick regarding the development of provincial environmental assessment legislation. WCELA lawyers have also been actively involved in the development of the federal environmental assessment legislation and regulations. For many years, WCELA has strongly supported the concept of legislating a comprehensive provincial environmental assessment process. We continue to be of the view that Bill 32, the /Environmental Assessment Act/ (the Act), is a mixed blessing in that regard. On the one hand, it integrates existing provincial environmental assessment processes into one legislated regime. On the other hand, it fails to implement several key reforms that are needed to improve environmental assessment in British Columbia. We have reviewed Bill 32 and submitted detailed comments in a brief dated June 14, 1993. We also have reviewed the proposed amendments to Bill 32 that were placed on the Legislature's Orders of the Day on June 30, 1993. Further amendments are needed to ensure British Columbia has a strong, comprehensive environmental assessment process. Our recommendations below focus on the key areas that require change in the Act. We urge the government to introduce additional amendments to strengthen the legislation prior to enactment. APPLICATION OF ACT TO ACTIVITIES The definition of reviewable projects in the Act restricts them to physical works, as opposed to activities. The Act should apply to all works and activities that may have significant adverse environmental effects. Many activities, such as new water transportation routes or low level flight paths, have the potential to cause significant environmental impact. Not including activities will result in unnecessary gaps in the application of the Act. To remedy this deficiency, we recommend that the definition of reviewable projects be broadened to include physical activities that are defined by regulation, as well as activities referred to the board under section 51(1)(c). The approach of including activities that are defined in a regulation has been taken in the Canadian Environmental Assessment Act (CEAA). Adopting this approach will set up the framework whereby appropriate activities can be defined in regulations, in addition to those specifically referred to the board under section 51(1)(c). RECOMMENDATIONS We recommend that the definition of "reviewable projects" in section 1 of the Act be amended by adding at the end of the definition "or an activity prescribed pursuant to regulations made under section 90(2)(k)." We recommend that section 4 of the Act be amended by adding "or activity" after "designate a project" and again after "satisfied that the project". We recommend that section 90(2) of the Act be amended to add a new section 90(2)(k) as follows: "90(2)(k) prescribing activities that are reviewable projects." EARLIER PUBLIC INVOLVEMENT The project committee has considerable power under the Act. To ensure the assessment process operates on an unbiased basis and enjoys full community support, the Act should empower the executive director to invite experts or members of the public to serve on a project committee. There also should be provision for the project committee to receive public input from the time of its formation. In addition, the Act should require that the project committee be set up before the start of the public comment period, so the project committee can receive and consider comments as they are received from the public. The project committee should be responsible for overseeing the collection of data about the environmental impact and potential effects of the reviewable project, after receiving initial input regarding the application. Therefore, we recommend that the applicant not be required to submit this information with its application. Rather, the project committee should review the application and define the terms of reference for all necessary studies, after receiving public input. The cost of this work should be borne by the applicant. RECOMMENDATIONS We recommend that section 8 of the Act be amended by deleting subsections (f) and (g). We recommend that section 17 of the Act be amended by adding new subsections 17(2)(f) and (g) as follows: "17(2)(f) scientific and technical experts with expertise relevant to the reviewable project; and (g) any other interested persons. We recommend that section 18 of the Act be amended as follows: (1) by adding a new subsection (a.1): "(a.1) define the terms of reference for all necessary studies, with public input, and commission appropriate studies to identify the potential effects of the reviewable project and to describe the measures that the applicant must take in order to prevent or mitigate adverse effects, and". MANDATORY REVIEW BY BOARD OF PRESCRIBED PROJECTS The Act should provide for automatic review by the Environmental Assessment Board of projects that, because of their potential impact or size, obviously will require full review with public hearings. Therefore, the Act should contain the authority to define -- in regulations -- reviewable projects that must be subject to full assessment by the Environmental Assessment Board. This will ensure greater certainty for all parties regarding the operation of the Act and will allow applicants to plan in advance in relation to those projects that will be required to go through the full review process. Although paragraph 3(2)(b) permits regulations to be developed to provide differently for different categories of projects, the balance of the Act does not contemplate that certain categories of projects will require mandatory review by the Environmental Assessment Board with public hearings. Instead the minister and the responsible minister must decide in each case whether or not to send a reviewable project to the Environmental Assessment Board. This will result in uncertainty and will make the ministers the focus of much lobbying that would be better directed toward participation in the assessment process. RECOMMENDATIONS We recommend that section 3 of the Act be amended by adding a new subsection 3((2)(c) as follows: "3(2)(c) prescribe a category of reviewable projects that require review by the board and must be referred by the minister and the responsible minister to the board pursuant to section 39(3)." We recommend that section 39 of the Act be amended by adding a new section 39(3) as follows: "39(3) The minister and the responsible minister must refer the application to the Environmental Assessment Board pursuant to subsection (1)(c) where the reviewable project is prescribed by regulation under section 90(l)." We recommend that section 90 of the Act be amended by adding a new section 90(l) as follows: "90(l) prescribing a category of reviewable projects that require review by the board and must be referred by the minister and the responsible minister to the board pursuant to section 39(3)." CRITERIA FOR REQUIRING FULL ASSESSMENT BY BOARD Section 39 provides no criteria governing when the minister and the responsible minister must refer an application to the Environmental Assessment Board for a public hearing. This is a major gap. The result will be needless uncertainty for applicants and the public about which reviewable projects will be subject to full review by the board. Therefore, the Act should provide that reviewable projects that will likely have significant adverse environmental effects, that require major capital expenditures or that generate significant public concern must be referred by the ministers to the Environmental Assessment Board, which then would be responsible for full public review of the reviewable project. A similar approach has been adopted in CEAA, which provides for mandatory referral to a mediator or a review panel by the Minister of the Environment where (i) it is uncertain whether the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects, (ii) the project, taking into account the implementation of any mitigation measures that the responsible authority considers appropriate, is likely to cause significant adverse environmental effects and paragraph (b) does not apply, or (iii) public concerns warrant a reference to a mediator or a review panel,..." We recommend the Act include a threshold test for when reviewable projects must be referred to the Environmental Assessment Board. RECOMMENDATION We recommend that section 39 of the Act be amended by adding a new section 39(4) as follows: "39(4) The minister and the responsible minister must refer the application to the Environmental Assessment Board pursuant to subsection (1)(c) where the reviewable project is likely to cause significant adverse environmental effects or where there is significant public concern." MANDATORY REQUIREMENTS FOR PROJECT REPORT Section 26 contains a good list of items that should be addressed in a project report. However, including these items in a project report should be mandatory, not discretionary. Also, the list should be expanded to include the need for the project, as well as the rationale or justification for the project. The proponent also should be required to demonstrate that the project will not cause significant adverse environmental effects. Finally, the proponent should be required to demonstrate how energy and resource conservation has been applied to the design of the project and quantify the expected results of the energy and resource conservation. RECOMMENDATIONS We recommend that section 26 of the Act be amended as follows: (1) by replacing "the project report specifications may identify" with "the project report specifications shall identify". (2) by adding in subsection 26(a) "and need" after "the rationale". (3) by adding a new subsection after 26(d): "26(d.1) alternatives to the reviewable project, including the alternative of not proceeding with the proposed reviewable project;" (4) by adding a new subsection after 26(h): "26(h.1) information to show how energy and resource conservation has been applied to the design and data to assess the expected results of the energy and resource conservation measures;" EXISTING ENVIRONMENTAL STANDARDS Section 43(3) confers on the Lieutenant Governor in Council the authority to make an order that would override anything in the /Waste Management Act/ or the /Water Act/. It is unacceptable to allow Cabinet to make an order under this Act that could rewrite environmental standards contained in statutes or regulations made pursuant to environmental statutes, such as the pulp mill effluent regulations.. Therefore, this section should be amended to clarify that this authority is limited to the procedural aspects of those Acts. Further, the Act should make it clear that it is not possible for a project approval certificate to contain environmental standards that are less stringent than standards under those Acts. RECOMMENDATION We recommend that section 43(3) of the Act be amended by deleting "despite anything" and substituting "despite any appeal provisions". PUBLIC CONSULTATION The proposed amendments to Bill 32 that were placed on the Legislature's Orders of the Day on June 30 contain improvements to sections 16 and 36 of the Act, the provisions dealing with public information and consultation. The original sections 16 and 36 appeared to place responsibility for the conduct of public consultation in the hands of the applicant, rather than the Environmental Assessment Office or the Environmental Assessment Board. However, while the proposed amendments offer improvement, further changes are necessary to make it abundantly clear to the public and the applicant that the Environmental Assessment Office and the Environmental Assessment Board have the overall responsibility for implementing a public information plan and conducting public consultation. RECOMMENDATIONS We recommend that section 16 of the Act be amended as follows: (1) by adding the following new subsection 16(1): "16(1) Before a decision may be made under section 23, the project committee must prepare a public participation plan and conduct a program of public consultation that provides for adequate involvement and consultation with persons concerned about the reviewable project and satisfies any criteria for public participation and consultation prescribed by regulation." (2) by replacing in subsection (b) "conduct a program of public consultation" with "participate in a program of public consultation conducted under subsection (1)". We recommend that section 36 of the Act be amended as follows: (1) by adding the following new subsection 36(1): "36(1) Before a decision may be made under section 39, the project committee must implement a public participation plan and conduct a program of public consultation that provides for adequate involvement and consultation with persons concerned about the reviewable project and satisfies any criteria for public participation and consultation prescribed by regulation." (2) by replacing in subsection (b) "conduct a program of public information and public consultation" with "participate in a program of public information and public consultation conducted under subsection (1)". PURPOSES OF THE ACT The proposed amendments to Bill 32 that were placed on the Legislature's Orders of the Day on June 30 contain improvements to section 2, setting out the purposes of the Act. We support the reference to a positive environmental purpose. To further strengthen this section, we recommend that the purposes include the overarching goal of promoting sustainability by protecting the environment and fostering a sound economy and social well-being. RECOMMENDATIONS We recommend that section 2 of the Act be amended by adding a new subsection 2(a) as follows: "(a) to promote sustainability by protecting the environment and fostering a sound economy and social well-being;". NOTICE AND COMMENT PERIOD The Act continues to contain short, rigid time deadlines applying only to the public and not to government agencies or the applicant. This is an unfair approach. Consistent, fair time deadlines applying equally to all parties should be set out in regulations, with provision for extensions where warranted. All references to specific time deadlines in the Act should be deleted and replaced with the authority to set time deadlines in regulations. In addition, in no case should the failure to meet a deadline result in deemed acceptance or approval under the Act. ------------------------------------------------------------------------ End of Recommendations For Amendments To Bill 32 Environmental Assessment Act ------------------------------------------------------------------------ Jump to top of document <#7486_top> WCEL Home <../default.cfm>