This piece originally appeared on Policy Options.

Windows of opportunity for transformative change are rare and can close suddenly.

The saga of Bill C-69 is a case in point.

The Trudeau government swept into power with a broad mandate to fix the environmental assessment (EA) policy train wreck. Public cynicism about how we assessed and approved major resource projects was at an all-time high. In part, this was due to Harper-era reforms aimed at appeasing industry interests at the expense of scientific rigour, public participation and due process. But it was also due to a broad sense that these processes, in place long before the Harper era, were profoundly out of touch with public expectations about how such decisions should be made.

The Paris Agreement on climate change and the Trudeau government’s commitment to implement the UN Declaration on the Rights of Indigenous Peoples ratcheted public expectations up even higher. Many speculated that a once-in-a-generation opportunity to transform environmental assessment had arrived.

Last summer’s impressive report by the expert panel on environmental assessment processes, charged with advising government on ways to restore public trust in our federal environmental assessment and decision-making processes, reinforced a sense that transformational change remained a real possibility.

A more sombre mood has now descended. Bill C-69, the major overhaul announced on February 8, offers little for those hoping for a bold and creative next-generation assessment regime. While it was engineered to reinforce the theme of change and renewal — by deservedly retiring the National Energy Board and establishing a new, better-resourced federal assessment agency — on closer inspection it becomes abundantly clear that the architects of Bill C-69 have no transformative aspirations.

The weight of evidence in support of this conclusion is overwhelming.

Exhibit 1: Independent science.

Deficiencies and gaps in the scientific evidence marshalled in recent pipeline reviews has fuelled calls from the scientific community and beyond for greater scientific rigour and independence in the assessment process. A key concern, underscored by the EA expert panel, was the extraordinary weight these federal assessments typically place on proponent-controlled science. Yet, on this key issue, Bill C-69 is virtually silent. The Bill scarcely mentions the word “science” and does nothing to ensure that the science put forward by project proponents is subjected to rigorous and independent peer review.

Exhibit 2: The need for a sustainability-based decision test.

The legal test that conventional environmental assessments apply is whether a project under assessment is likely to cause “significant adverse environmental effects.” This test has been roundly criticized by leading EA practitioners as entrenching an assessment model that, at best, operates to make “bad projects a little less bad.” In the run-up to Bill C-69, there was broad support for requiring projects to meet a new legal test. Under this test, a proponent would need to show that its project makes a net contribution to sustainability, a potentially game-changing metric that the EA expert panel endorsed.

Here again Bill C-69 disappoints — and potentially makes things worse. It jettisons, for most projects, the current “significance test.” Future assessments will not need to determine whether a project’s adverse effects are “significant”; instead, they will be required only to “set out” whether the effects of a project are “adverse.” In doing so, assessments must consider a long laundry list of factors, including whether a project “contributes to sustainability.” To secure approval, however, the only legal test a project will need to satisfy is that it is in the “public interest.” The result, perhaps intended, will be to make such assessments more immune than ever from public and judicial accountability.

“On closer inspection it becomes abundantly clear that the architects of Bill C-69 have no transformative aspirations.” https://t.co/l7IliaiE3H

— DeSmog Canada (@DeSmogCanada) February 14, 2018

Exhibit 3: Our international climate commitments.

Our current federal assessment law is entirely silent on this topic. After the Paris Agreement, many argued that this blind spot urgently needed to be remedied by requiring future assessments to ensure that project decisions did not thwart our ability to meet our Paris commitments. The EA expert panel agreed and offered a host of sensible recommendations as to how a new law could be drafted to do exactly this. Alas, on this front too, Bill C-69 disappoints. The lengthy bill barely alludes to the relationship between our climate commitments and project assessments.

Where it does, it simply exhorts assessors and decision-makers to “consider” such commitments but provides no guidance, let alone binding rules, as to how these commitments should be weighed against a raft of other factors.

At the press conference to introduce the new legislation, Catherine McKenna, Minister of Environment and Climate Change, opined that if Bill C-69 had been in force during the assessment of the Kinder Morgan pipeline review, the result would have been the same: her government would still have approved the project.

This remarkable observation is telling. Given the glaring deficiencies in the National Energy Board’s assessment of the Kinder Morgan project, enabled by a broken federal assessment regime that her government came to power by promising to fix, only one conclusion can be drawn from her counterfactual claim: Bill C-69 changes little and will be rightly judged as a lost opportunity.

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By Chris Tollefson, Executive Director Pacific Centre for Environmental Law and Litigation.

Early on in its remarkably candid treatise released today, the Expert Panel tasked with advising the Trudeau government on how to modernize the National Energy Board (NEB) observes that the issue it was asked to grapple with “is much larger than simply the performance of the NEB in and of itself”: read the panel report here.

Indeed.

Since the 2013 Northern Gateway pipeline hearings, our national energy regulator has been buffeted by one controversy after another.  The NEB must bear some of the blame for this.  Its work on the Northern Gateway, Kinder Morgan and Energy East files underscore that its expertise does not lie in the realm of environmental assessment.  But it is also a victim of history — an institution conceived and born in an era (almost 60 years ago) long before Indigenous rights, climate change and decarbonization had political, let alone legal, salience.

A key question confronted in this review was what role, if any, should be played by the NEB (or its potential progeny) going forward. Historically, the core role of the NEB was regulating the construction and operation of interprovincial and international energy infrastructure, particularly oil and natural gas pipelines.  

Yet, while the NEB has been legally responsible for reviewing proposed new infrastructure projects on a broad public interest-based test, it has been reluctant to grapple with broader, more policy-infused questions — including climate change, environmental impacts and Indigenous rights. 

The NEB’s reluctance and failure to grapple effectively with these questions has led to substantial delays, conflict and litigation.

In a breathtaking understatement, the Expert Panel observes: “The current process is frustrating for everyone.”

Will a Repackaged National Energy Board Be Able to Meet Canada’s 21st Century Challenges? https://t.co/mUOLZBeWMM @pcell_law #cdnpoli pic.twitter.com/jvpfOpB7vp

— DeSmog Canada (@DeSmogCanada) May 16, 2017

Ultimately, the Expert Panel concludes that the NEB should pass the torch to a newly created body: the Canadian Energy Transmission Commission (CETC). Though the NEB would cease to exist, the CETC would continue to carry on many of the NEB’s core technical and regulatory functions.  

A key challenge for the CETC will be to restore the trust of Canadians through a suite of recommended reforms aimed at “living the nation-to-nation relationship,” aligning energy infrastructure decision making with “national policy goals,” promoting public engagement, and improving regulatory efficacy.

Going forward, the Expert Panel recommends that new pipelines and other significant energy infrastructure should initially be assessed for their “alignment with the national interest.” This would be where climate impacts, cumulative effects, and Indigenous rights implications are considered. This process would conclude with a determination by Cabinet. 

If Cabinet gives its blessing, the CETC and the Canadian Environmental Assessment Agency would then jointly turn their minds to what the Report refers to as “licencing issues,” essentially ways to ensure that the various adverse impacts of the project under review are mitigated.

Stage one of the process would conclude within one year. Stage two, which could include public hearings and would culminate in a decision by the Joint CETC/CEAA panel, could take up to two years.  This bifurcation of the process, with an upfront ‘political’ decision by Cabinet followed by a technical review focussed on implementation issues, closely tracks what various business interests involved in the EA and NEB Modernization processes have been calling for.

Can a repackaged (yet not repurposed) NEB meet the array of 21st century challenges that await?  The approach recommended by the Expert Panel does not inspire confidence.

Nobody is arguing that the technical, safety and data collection functions currently vested in the NEB should be eliminated. These regulatory functions are important and need to be assigned to an appropriate government agency.

What the Expert Panel fails to address, however, is the need fundamentally to reform the assessment that major energy projects must undergo before we, as a society, allow them to proceed. These assessments must be capable of supporting informed, transparent and defensible social choices about future development.  This is quite different from regulatory processes that are principally aimed at mitigating anticipated harms.

For well over a generation, we have adopted an approach that allows projects, even quite ill-advised ones, to go ahead unless it can be shown that they will likely cause significant adverse effects, or if those effects can be justified on a vague “justified in the circumstances” rationale. 

One of the most noteworthy contributions of the Expert Panel report on reforming CEAA, 2012 was its recommendation that we move beyond this significance-based model, towards one that tethers project-level decisions to a rigorous assessment of whether the project will entail a net contribution to sustainability.

Pivoting from an approach that focusses on whether a project’s opponents can prove it will cause significant harms towards one that calls upon a project’s proponents to show it can be sustainable is an elegant reframing of what is often a dead-end debate. And a move that just might be a game changer.

Unfortunately, on this key point, the NEB Modernization Expert Panel report and the CEAA, 2012 Expert Panel report are like ships in the night. While regrettable, this failure to engage is not all that surprising.

The complexities of social choice have never been the NEB’s forté. The NEB Modernization Panel was assigned a triage mission whose overarching aim was to identify a set of core functions that can be properly assigned to Canada’s energy regulator.  In rolling back the NEB’s role to focus on regulatory issues, the Expert Panel’s report does precisely this.  

However, where this Expert Panel has failed, and where the CEAA, 2012 Expert Report adds enduring value, is in confronting the legitimacy crisis that pervades decision making around fossil fuel infrastructure development. In determining what advice to follow, the Trudeau government should bear this in mind.

Image credit: Zack Embree

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By Chris Tollefson for IRPP.

The Trudeau government has recently announced a sweeping review process that could culminate in what has been described as “the most fundamental transformation of federal environmental law in a generation.” This review, among other things, will determine the fate of the controversial law that governs federal environmental assessments, known as the Canadian Environmental Assessment Act, 2012 (CEAA, 2012).

Ironically, CEAA, 2012, a statute that the Harper government radically revamped to be industry-friendly, nowadays has very few friends. Even key industry insiders admit that the legislation, aimed primarily at expediting the approval of major new resource development projects, has been a spectacular failure. Not only are many major environment assessments (EAs) that are underway under CEAA, 2012 stalled, mired in controversy, tied up in litigation (or all of the above), but more importantly, Canadians have lost trust in the way we assess and make decisions about these projects.

Can CEAA, 2012 be renovated, or is it a tear-down? There are at least ten good reasons to believe the latter.

1. Trust. During the last federal election, a key theme that resonated with many voters was Mr. Trudeau’s claim that the institutions and processes we have put in place to assess major new projects have lost the trust of Canadians. Once lost, trust is not something that is easily regained. Band-Aid solutions that seek to remedy the deep-seated flaws of processes by annexing new reviews (such as creating a new consultation panel after the NEB’s review of the Kinder Morgan Trans Mountain Expansion (TMX) project), have little or no chance of restoring trust let alone the social licence upon which such projects must ultimately depend.
2. The need for a new approach to EA. Our current EA system is primarily focused on identifying whether proposed projects will have “significant” adverse environmental effects. This approach is misguided. Large, controversial projects should not be able to secure approval simply because the proponent’s scientists manage to persuade federal regulators that the predicted adverse effects of a project fall below this ill-defined “significance” threshold. We need assessments to do more than generate predictions about the significance of a project’s adverse effects. Future assessments should instead ask, as Robert B. Gibson, Meinhard Doelle and A. John Sinclair advocate, will this project make a net contribution to our sustainability as a nation? This question becomes especially critical post-Paris. In Warren Buffett’s words: “Predicting rain doesn’t count. Building arks does.”
3. The National Energy Board. Under CEAA, 2012, the National Energy Board (NEB) was given exclusive jurisdiction over federal EAs involving pipelines and other major energy projects. This was a job the NEB neither wanted nor was suited to. Traditionally, its wheelhouse has been technical issues, such as pipeline thickness requirements, not the value-laden or science-driven questions that the Canadian Environmental Assessment Agency is more accustomed to dealing with. And while the NEB approves projects based on a “public interest” test, it has tended to regard the public interest as being largely synonymous with the interests of western Canadian energy producers. To secure the trust of Canadians, federal EAs need to be conducted by an agency that has the expertise and the independence from the interests it is charged with regulating.
4. Catastrophic but “unlikely” project effects. Increasingly, companies have been able to persuade the NEB to interpret CEAA, 2012 in ways that undermine its most basic purposes, including its obligation to assess projects in a manner consistent with the precautionary principle. For instance, in the Northern Gateway and TMX review processes, proponents of the projects argued that they should not be required to model the effects of a large catastrophic oil spill because the odds of such a spill were not “likely” (i.e., less than 50 percent probable). As BC Nature argued in its legal challenge against the Northern Gateway approval, such an interpretation of CEAA, 2012 which the NEB accepted, deprives the ultimate decision maker (a responsible minister or the cabinet) of key information about the potential catastrophic impacts of a project, simply because the disaster is not statistically likely to happen.
5. Federal leadership. For major projects, especially those with serious climate change implications, the federal government should not allow the provinces simply to take on responsibility, or substitute (“sub in”) for doing the required federal EA. The federal government gave itself the power to agree to substituted EA’s under CEAA, 2012, primarily at the urging of the province of British Columbia. Since then, B.C. has been given permission to sub in for the federal government on fourteen occasions; mainly on mines and liquid natural gas project assessments. These delegation arrangements raise serious public trust issues, particularly given the perception that provincial assessments are less rigorous and more prone to regulatory capture. A case in point is theTaseko mine review that swiftly secured EA approval from B.C., but was later twice turned down by federal EA assessors. A new generation EA system should encourage mutual cooperation and integration, and eschew delegation of key assessment duties.
6. Provincial leadership. For similar reasons, the provinces should not hand off the ball to federal agencies to do EAs that profoundly affect provincial interests. Effective EA require both levels of government to show leadership. At around the same time that the B.C. government was gearing up to lobby Ottawa for the right to sub in for the federal government under CEAA, 2012, it also inked an agreement with the NEB that delegated to the feds the province’s power to assess and render an EA decision on all future major energy projects (including Northern Gateway and TMX). In a powerfully worded decision, the B.C. Supreme Court recently called this agreement an “abdication” of provincial responsibility. B.C. now finds itself in the unenviable and difficult position of conducting its own assessment of the Northern Gateway and TMX applications, after the fact.
7. Cumulative effects. CEAA, 2012 fails almost completely to grapple with one of the most pervasive and vexing issues in environmental assessment: the phenomenon of cumulative effects—predicted changes to the environment from a proposed project in conjunction with past, present, and future projects or other activities in the same region. For those who work in EA, the pressing need to be more rigorous and systematic about how we account for cumulative effects is beyond dispute. In Northern Gateway, one of the few cases where a federal agency found that there were likely to be significant adverse cumulative effects on an endangered species (the iconic Woodland Caribou), that same agency recommended that the effects were “justified in the circumstances” without offering reasons other than the project was in the public interest. We need to fundamentally rethink the way we assess and make decisions about cumulative effects. And because the nature of those effects can often implicate national interests, it is essential that the federal government take leadership.
8. Aboriginal rights and title. Some of the loudest voices in the chorus of those calling for the complete repeal ofCEAA, 2012 are Indigenous Peoples. And understandably so. There is complete and utter confusion over the role of EA authorities, as opposed to other processes and venues, in discharging the Crown’s constitutional duty to consult. This is a key issue that the Federal Court of Appeal addressed in its recent decision in the Northern Gateway case. Now that Canada has finally adopted the United Nations Declaration on the Rights of Indigenous Peoples, it is time for it to turn its mind to how to redesign federal EA in a manner that complies with its legal duties and responsibilities under domestic constitutional and international law.
9. Independent science. CEAA, 2012 depends heavily on the science put forward by industrial proponents and their hired consultants. It is then largely left to the community organizations, conservation groups and First Nations to bring forward scientific evidence that casts doubt on the proponent’s science. This model assumes that such groups have the capacity and opportunity to present competing science; it also assumes that the process will assess and weigh these competing scientific perspectives in a sound, fair and balanced way. The recently concluded NEB assessment in TMX underscores just how misplaced these assumptions are. At a minimum, contrary to the approach adopted by the NEB in TMX, where there is conflicting scientific evidence on key issues before the reviewing agency, federal law should require that the reviewing agency order cross examination to help ensure that the applicable federal decision-maker has a proper evidentiary record upon which to make a decision about the fate of the project. Moreover, agencies should be required to render reasons in project assessments that take into account relevant independent science.
10. Paris. Perhaps the biggest single reason why CEAA, 2012 is now completely outmoded and must be re-engineered from the ground up is Canada’s new international commitments under the Paris climate agreement. This agreement obliges Canada to do its best to help keep average global temperature increases below 1.5 degrees C. This commitment means that we have now embarked on the path of decarbonizing our economy. The implications of this are only now sinking in. Going forward, the federal government, as of January 2016, now requires all new major energy projects to be assessed for their direct and upstream GHG emission effects. For projects currently being assessed under CEAA, 2012, this new climate test is being conducted as an add-on to the EA done by the originally assigned agency. The quality of these add-on climate assessments is mixed. While some have been quite sophisticated (Woodfibre and Petronas) others (including TMX and Enbridge Line 3) have been more superficial, particularly in their treatment of upstream GHG impacts. If we are to chart a realistic path towards complying with our Paris commitments, these analyses must become a central feature of a new generation federal EA law, and be carried out by credible and independent scientists.

There are many more reasons why it is necessary to re-engineer our federal environmental assessment law from the ground up. Among them is the need to make room for new ideas, perspectives and processes that can bring Canadians together. CEAA, 2012 did just the opposite. Paradoxically, however, the discontent and appetite for change that the CEAA, 2012 reforms have generated may well have created precisely the right conditions for the once-in-a-generation law-making opportunity that lies ahead.

10 Reasons #Ottawa Should Rebuild Our #Environmental #Assessment Law from Scratch https://t.co/qhToexSlQ9 … #cdnpoli pic.twitter.com/r6yAeswgEx

— DeSmog Canada (@DeSmogCanada) July 18, 2016

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