EA and NEB: The Trudeau government got it right!
In another round of consultations, the Trudeau Government released on June 29, 2017 a discussion paper on environmental and regulatory reviews, responding to a series of consultations held in recent months on the environmental assessment process and the National Energy Board. Canadians have until August 28, 2017 to provide their feedback on the paper. Like a great compilation of songs from several albums (I am thinking here of Jimi Hendrix’ “Smash Hits”), the government took the best points in the reports of the Expert Panels on Environmental Assessments and NEB Modernization and produced a coherent, reasonable, balanced and progressive plan of action to take the review of energy infrastructure projects to the next level of excellence. It also rejected highly questionable recommendations such as moving parts of a renamed NEB to Ottawa.
Canada is already blessed by a number of internationally respected public institutions such as the Canadian Environmental Assessment Agency and the NEB. At the same time, continual improvement is always available and this discussion paper achieves this goal with flying colours.
In a politically courageous statement, the government has made it clear that not all is broken in our EA and regulatory processes:
“Our government recognizes that some elements of the current system are working and should continue to form part of improved environmental assessment and regulatory processes, including decisions with enforceable conditions, legislated timelines, tools for federal-provincial cooperation and a strong role for expert regulators in energy transmission, nuclear and offshore oil and gas.”
You read it right. We have in the NEB an expert regulator worth keeping. No need to rename it. No need to move part of it anywhere. Under the improved process, strategic and regional assessments of cumulative impacts would be produced, followed by an improved early engagement phase of project reviews led by project proponents but with a more active role played by governments with due allowance for meaningful and well-resourced engagement of Indigenous peoples. Then, an assessment of all relevant impacts (environmental, economic, social and health) would be made jointly by a beefed-up CEA Agency and the expert regulators – in the case of pipelines, the NEB. We would in effect return to pre-2012 legislative provisions, albeit in an improved version. For major pipeline projects – the Northern Gateway Pipeline Project being the last major example – a Joint Review Panel would conduct the EA and the regulatory review with hearing commissioners cross-appointed under both the Canadian Environmental Assessment Act and the National Energy Board Act.
Based on a plain reading of the discussion paper, news reports suggesting that the NEB would be left out of project reviews are inaccurate.
The discussion paper also suggests that the new regime would still have time limits, but would eliminate the “standing” test (directly affected persons, or persons with valued expertise) currently used by the National Energy Board in keeping with the wishes of Parliament to identify those who would be allowed to participate in the hearing. This takes us again back to pre-2012 when the NEB had broad discretion in how to choose those who would have standing in their hearings. The new joint process will have the same flexibility.
All in all, a remarkable policy achievement. To quote Bob Dylan in All Along the Watchtower, “There must be some way out of here”. Yes, and the Trudeau team found it!