Challengesand Opportunities of Environmental Assessment under CEAA (2012)
Background to the Topic 4
Significance of the Study 6
Research Questions 6
Literature Review 7
Evolution of CEAA (2012) from CEAA (1995) to Date 9
Overview of Literature Review 15
The Sable Offshore Energy Project (SOEP): A Case Study 16
Overview of the Project 16
Environmental Assessments, Compliance and Enforcement 17
Results and Discussion 18
Appendix 1: A Comparison of CEAA 2012 and CEAA 1995 for the SOEP Project 24
Environmentalassessment plays a critical role in environmental protection andconservation and ultimately in enhancing sustainable economicdevelopment. It is this fact that seems to have informed thepersistent amendment of the original version of the CanadianEnvironmental Assessment Act, [CEAA 1995], to its modern version CEAA(2012). The significance of this Act is that it provides a legalframework that can be used as an operating element in environmentalassessment in Canada. The Act provides the legal mechanisms thatfacilitate the environmental evaluation prior to the undertaking ofany major economic activity therefore, serves to ensure thateconomic growth and development takes place in a sustainable manner.According to Usher (2000), environmental assessment using legalinstruments is intended to facilitate sustainable development andenvironmental conservation. Through the CEAA (2012), the preservationof biodiversity and critical habitats has been made possible sincethe process of environmental assessment has been made possible and byextension, management of human-related environmental hazards. It isimportant to note at this point that since the CEAA works to protectthe environment, amendments to the Act seek to strengthen it as alegally defined process of assessing the environment. The recentclamor for changes in the CEAA may have had two implications forenvironmental science pundits. First, it could have been anindication of the acts incapacity to facilitate environmentalassessment in light of globalization and changes in technology.Secondly, it could have been due to structural and functional flawsin the provisions of the Act that made it incompetent as anoperational element in environmental assessment in Canada.Nonetheless, this paper seeks to examine how the changes made to theCEAA to its modern version, CEAA (2012), has influenced the processof environmental assessment in Canada and by extension, environmentalprotection and sustainable development. Moreover, the paper willexamine how CEAA (2012) is effective as a legislation devised tofacilitate sustainability in economic growth and development(Agrawalaet al., 2012).
Backgroundto the Topic
Yearsof developmental research had long established that the environmentis the base on which economic growth and development is anchored. Forthis reason, it has been very important for any nation to protect theenvironment as a way of facilitating economic growth and development.The fact that environmental sustainability has become a deliberatestrategy for sustainable development makes it important to examinehow the government facilitates environmental conservation throughlegislation. The essence of the research question of this paper is tothe effect that environmental conservation ought to be a proactiverather than a reactive process and this is where the assessmentdimension of environmental conservation comes in. According to Gibson(2002), environmental consciousness in Canada can aptly be tracedback to 1970 when Federal environmental assessment was institutedfollowing suit to similar actions by the United States that hadadopted a robust National Environmental Policy. The increasedrecognition of the environment as a base for economic growth anddevelopment was evident in the improvements made on the FederalEnvironmental and Review Process (FEARP) in the late 70’s. Eventhough there was a legally defined procedure for environmentassessment then, most scholars observed that the procedures outlinedin the Act were not always adhered to as required. The mostsignificant attempt to structure a functional legal structure forenvironmental assessment was made in 1990 when deliberations began todraft what came to be known as the Canadian Environmental AssessmentAct (CEAA), an initiative that was spearheaded by the civil societygroups in Canada. It was not until 1995 when the CEAA was enactedthough its provisions went through structural progressions that endedin the late 90’s (Stinchcombe& GIBSON, 2001).
Theyear 2003 was another turning point for environmental legislation inCanada as the CEAA (1995) was amended as part of the stipulated5-year reassessment of the Act took place. However, in 2010,environmental conservation efforts in Canada took a turn for theworst when the Act was amended giving more power that isdiscretionary to the minister and reducing the level of publicparticipation in legitimate environmental assessment processes. Inthe same year, the Omnibus Budget Bill was passed, a move that sawCEAA receive a 40% budget cut. The substantial changes made to theAct that triggered a lot of controversy from certain pressure groupsculminating in a complete overhaul of the Act in 2012. According toWarawa (2012), the Canadian opposition at the time played a key rolein shaping the course of environmental regulation in Canada when theyreacted negatively to the amendments positing that it was necessaryto conduct a wide consultation before massive changes were made tothe Act. Gibson (2002) noted that partly due to the negotiationsnecessitated by the opposition, the country enacted the CanadianEnvironmental Assessment Act in April 2012, providing the much neededlegal instrument to conduct an environmental assessment prior to anysignificant developmental activity. The enactment of the CEAA (2012)showed a firm commitment in that the Act would ensure that economicdevelopment of the country happens in a sustainable manner (Canada,2012). According to Noble (2010), environmental assessment isimportant because it is a procedure that takes into account theenvironment in order to structure economic development. Thesystematic evolution of the environmental assessment acts in Canadashows the significance attached to legislation as a support mechanismfor facilitating environmental conservation. Moreover, the fact thatthe CEAA went through several amendments only serves to show thecomplexity that underlies the process of formulating legislation forthe purposes of ensuring sustainability (sustainable economicdevelopment).
Significanceof the Study
Therole of environmental conservation in facilitating sustainabledevelopment cannot be overestimated. Studying the challenges andopportunities of environmental assessment is an endeavor that willyield invaluable insights into the processes of using legislation asan operational element in environmental assessment. Moreover, giventhat the CEAA (2012) had undergone several amendments, the outcomesof this study are expected to provide comprehensive knowledge thatwill facilitate holistic legislation on environmental assessment infuture. There has been a shift in attitude and economic thinking fromthat in the past in which macroeconomic crises and environmentaldegradation were perceived as distinct problems that requiredseparate remedies (Reid, 2011, p. 4). It is important to study thechallenges in environmental assessment as a critical dimension ofsustainable development because sustainable development isessentially a strategy of development that entails management ofnatural resources, physical resources as well as assets and financialresources of a country to increase long-term wealth and welfare ofindividuals (Pearceet al., 2013, p. 4).Therefore, a study dedicated to the study of challenges andopportunities abound environmental assessment using legal tools willbe critical in providing information that can be used to make theenvironment legislation more effective while reducing the associatedcosts therein. Moreover, the paper will be more preoccupied inexamining how the Canadian Government, through policy andlegislation, can influence environmental conservation and protectionas critical elements that structure sustainable economic development.
Thepaper is expected to address the following research questions.
What are the impacts of the amendments in the Canadian Environmental Assessment Act?
What are the challenges of implementing the CEAA in Canada?
What are the mechanisms through which environmental assessment using CEAA affects environmental sustainability?
What are the possible improvements to the CEAA?
Thissection of the report provides a review of the empirical literatureconcerning the environment sustainable development nexus. Moreover,legislation and case laws on environmental assessment will bereviewed with an overriding objective of evaluating the challengesand opportunities abound the use of the CEAA in undertaking theenvironmental assessment. Studies have pointed out the need to takeinto account the environmental concerns into account in strategizingthe economic growth and development. The greatest challenge, however,is the incorporation of the all the fundamental tenets of economicgrowth and sustainable development (social, environmental andeconomic) into a single development agenda (UNEP, 2013, p. 4). Noble(2010) noted that in such an endeavor, environmental assessment isthe most widely used tool worldwide that enables an apt combinationof economic development and environmental sustainability because itaims at identifying the consequences of human actions on theenvironment therefore, facilitate prevention and mitigation. Wood &Dejeddour (1992) posited that the process of environmental assessmentshould be undertaken prior to the planning of any form of developmentsuch that the outcomes of the assessment will inform the planneddevelopment. Using the CEAA (2012) in environmental assessment hasbeen found to be having certain inherent problems. According to Paciet al. (2002), the Act does not fully incorporate the aboriginal andcommunity knowledge that would facilitate a smooth environmentalassessment process since it would impart the aspect of ownership ofthe process from the respective communities. The form of communityownership alluded to by Paci et al. (2002) would prevent the viewthat using legislation in environmental assessment is a governmentrather than a community initiative therefore, provide the requiredsocial and political support for the process. However, some studieshave questioned the significance of the community knowledge ofecology in the process of environmental assessment even as outlinedin the CEAA (2012). According to Halloran (2013), the role played bythe traditional ecological knowledge in environmental assessmentusing the Canadian Environmental Assessment Act (2012) is not cleargiven the provisions of the Act (p. 14).
TheCanadian Government, through the CEAA (2012), acknowledges thesignificance of sustainable development to facilitate a healthy andsustained economic growth. As a legislation designed to facilitatesustainable economic development, some of the challenges that haveimpinged on the process of environmental assessment using this Acthave revolved around the legal, social or lexical definition of theword “sustainable”. According to Giddings et al. (2002), thisterm as applies to the CEAA (2012) has been widely criticized due toits non-specificity and its lack of provision of metrics used toevaluate the level of progress. If such arguments are to go by, thenthe inclusion of the term sustainable in the CEAA (2012) lacks asubstantial and functional meaning. According to Giddings et al.(2002), the term sustainability as used in the CEAA can be perceivedas implying an interaction between the environment, economy and thesociety. Halloran (2013) noted that to take care of the functionalconcerns raised concerning the functionality of the CEAA (2012)regarding the term sustainability would entail actions such asAboriginal consultation, public involvement, setting timelines andtriggering (p. 14). The CEAA (2012) has also been found to be grosslylacking in the environmental assessments involving projects withcumulative environmental effects. According to the CanadianEnvironmental Assessment Agency (2015), the fact that the CEAA (2012)prescribes that environmental assessment be carried out based onvalued components (VCs) and considers mitigation measures is not anadequate provision to facilitate environmental assessment concerningprojects with potential cumulative environmental effects. The agencyfurther observed that environmental assessments under the CEAA (2012)would need to emphasize on the follow-up procedures to ensure thatthe project-specific environmental effects and cumulativeenvironmental effects are addressed (Alcantara,Cameron & Kennedy, 2012).
Anotheraspect of environmental assessment that is critical and has beeninvestigated by empirical literature regarding environmentalassessment using CEAA (2012) is the concept of StrategicEnvironmental Assessment (SEA). According to Wood & Dejeddour(1992), strategic environmental assessment (SEA) is important becauseit undertakes to examine all the possible effects of developmentalactivities on the environment that might result from the plan, policyor the programs for the intended physical development. Moreover, SEAis usually conducted prior to a development project by assessing theplan or prototype of the project for ecological friendliness(Acharibasam& Noble, 2014, p. 177).It is important to note at this point that the SEA is intended toinfluence decision-making on the planned project so thatenvironmental measures are taken proactively rather than reactivelyconcerning the identified environment concerns of the project.
Evolutionof CEAA (2012) from CEAA (1995) to Date
Inorder to facilitate the review of studies on the challenges andopportunities for environmental assessment in Canada using CEAA(2012), it is important to consider the fundamental changes that havebeen made to the CEAA since its adoption in 1995. This section of thereport undertakes a systematic approach to identifying thefundamental changes made to the environmental assessment Act with aprimary objective of identifying the current strengths and weaknessesof the Act and by extension, the challenges and opportunities ofenvironmental assessment using the CEAA (2012), an updated version ofthe original CEAA (1995). The table below shows some of the mostfundamental changes made to the CEAA (1995).
Table1.0: Changes from CEAA (1995) to CEAA (2012)
Adoptedfrom Halloran (2013), p. 17
Gibson(2012) noted that the biggest diversion of CEAA (2012) from CEAA(1995) was in the provisions that facilitated the manner in whichprojects were triggered. He noted that under CEAA (1995),environmental assessment was prescribed for all federal-fundedprojects on federal land while in CEAA (2012), only certain listedprojects were required to undergo an environmental assessment. Otherthan the change in the inclusion/ exclusion criteria for projectsthat require environmental appraisal, another fundamental change isin the Responsible Authority (RA) over projects. Kamermans (2012)posited that contrary to the case in CEAA (1995), in the CEAA (2012),the Responsible Authority (RA) has been consolidated into threedepartments rather than forty government agencies, as was the case.More specifically, the Responsible Authority (RA) as provided for byCEAA (2012) can only be attributed to the Canadian Nuclear SafetyCommission, the Canadian Environmental Assessment Agency and theNational Energy Board (CEAA, 2012, s, 15). Doelle (2012) alsoobserved that the screening aspect of the CEAA (2012) also differedfundamentally from that provided for under the CEAA (1995). In CEAA(2012), the screenings in CEAA (1995) do not feature as any form ofassessment but cluster under a subject referred to as theregistration of the project (CEAA, 2012, s. 8). Doelle (2012) notedthat this new classification is a hindrance in applying the CEAA(2012) in environmental assessment because it excludes from theprocess of environmental assessment the projects that were initiallylisted as screenings, therefore, providing a loophole in theenvironmental assessment processes. Since the CEAA (2012) provides alegally defined procedure of assessing the environment therefore,facilitating sustainable economic growth and development, somescrupulous property developers can find a legitimate way ofproceeding with projects that were initially listed under screeningseven if there were environmental concerns to be addressed. This,therefore, is a major challenge of using the Canadian EnvironmentalAssessment Act (2012) as a legal mechanism for environmentalassessment (Noble,2003).
TheCEAA (2012) also differs significantly from CEAA (1995) in the extentto which the federal government can participate in the process ofenvironmental assessment as espoused in CEAA 2012 [s. 4]. Gibson(2002) observed that the scope of the CEAA had been reduced to focuson the components of the environment that fall under the jurisdictionof the federal government. A fundamental diversion of the CEAA (2012)from CEAA (1995) is in the definition of environmental effect, whichin the latest version of CEAA is denoted by few specific groups(CEAA, 2012, s. 5). In the CEAA, environmental effect referred to thebiophysical and socio-economic effects that were examined in-depth.Doelle (2012) posited that available process options had also beenbroadened to four in the CEAA (2012) yet CEAA (1995) had only two:environmental assessment reviews and review panels. Halloran (2013)examined the impacts of limiting the scope of project assessments inthe CEAA as a challenge to using the CEAA (2012) in environmentalassessment and found out that it indeed was an impediment inenvironmental assessment since it limited the scope of publicparticipation in projects of federal concern and prescribing rigidtimelines (p. 19). By prescribing measures seen to be limiting publicinvolvement in environmental assessment, the CEAA (2012) contributionof societal and individual insight into the process is curtailed.More aptly, using the CEAA (2012) as an instrument of environmentalassessment becomes difficult since the ultimate goal of environmentalassessment is to facilitate sustainable economic development, aprocess that requires the incorporation of social, environmental andeconomic concerns. Therefore, using CEAA (2012) as it is will makethe process of environmental assessment and sustainable developmentto lack in the dimensions of social and political constructs whichpresents challenges for the broad objectives of environmentalassessment. Intuitively, the reduced participation of the public andother stakeholders in the legal process of environmental assessmentas manifest in the timelines introduced in the CEAA (2012) is both aprocedural and substantial challenge especially considering theultimate objective of environmental assessment.
However,as much as there is an array of challenges in using the CEAA (2012)as an instrument for environmental assessment, the Act presentsinvaluable opportunities to structure sustainable development throughthe legal procedure of environmental assessment. According to theCanadian Environmental Assessment (2015), the conditions under whichthe environment can be assessed have been made possible through theCEAA (2012). More specifically, the provisions of the CEAA (2012)enable the Minister and the review panel to make decisions onprojects under review, and such decisions are enforceable by lawunder the provisions of the act. According to Halloran (2013), thefact that decisions arrived at by the panel review can be enforcedlegally is an opportunity in the disguise of a flexible and objectiveinstrument of environmental protection (p. 21). Doelle (2012) madeanother observation in the dimensions along which the CEAA (2012)presents opportunities for environmental assessment as a legalprocess by noting that the Act provides a legal structure thatfacilitate both equivalency and harmonization as opposed to CEAA(1995) that made provisions for harmonization alone. Moreover,Halloran (2013) observed that the main reason behind the CEAA (2012)provisions of both options (equivalency and harmonization) was tominimize inefficiencies and redundancies that had characterized theprocess of environmental assessment under the previous legal regimes(p. 21). Equivalency is an important (additional) component of theAct since it makes it possible to exempt certain projects fromenvironmental assessment by the federal government if the provincialauthority considers the appraisal of the project as satisfactory. TheCEAA (2012) therefore makes it possible to undertake a comprehensivebut flexible assessment of programs in a manner that ensures rigorand avoids unnecessary bureaucracy. The provision for equivalency,for instance, works to reinforce the authority of the provincialreview panel and facilitates a faster process of environmentalassessment in such a way that legal procedures of assessing theenvironment do not Act as a challenge to the processes of economicgrowth and development but a catalyst for faster and sustainabledevelopment.
Halloran(2013) observed that the challenges of using the CEAA (2012) as anoperating element in the process of environmental assessment inCanada by far outweigh the perceived benefits (opportunities) of theAct since it emphasizes on expediting the process of economicdevelopment without due regard to the aspects of sustainability (p.22). According to Gibson (2012), CEAA (2012) offers little prospectsfor sustainable development in Canada since it was designed to propelrapid economic development rather than sustainable development.Moreover, he observes that CEAA (2012) is an indication of aweakening environmental legislation in Canada that will structure ashaky environment. Kirchhoff et al. (2013) made similar observationsespousing that the CEAA (2012) can be perceived as an outcome ofimmense pressure from special interest groups as it essentially is anAct that streamlines the federal environment assessment regime.Moreover, the study noted that the CEAA (2012) is more preoccupiedwith ensuring timely decisions and environmental assessmentprocedures the Act significantly reduces the number of projectssubjected to environmental assessments thereby presenting challengesin ensuring comprehensive sustainable development (p. 5). Therefore,Kirchhoff et al. (2013), just like the previously reviewed studies,identifies the key challenges of using the CEAA (2012) inenvironmental assessment as deriving from its very provisions thatseek to fasten the process of environmental assessment.
Overviewof Literature Review
Inessence, a review of most literatures investigating the challengesand opportunities of environmental assessment in Canada including thearticles published by the Canadian Environmental Assessment Agencyand other phenomenal studies such as Kirchhoff et al (2013), Halloran(2013), Doelle (2012), Kamermans (2012) and Gibson (2012) presentclear outcomes. All the opportunities of CEAA (2012) identified bythese empirical studies are based on its provisions that facilitatefaster and more efficient environmental assessment of projects. Moststudies see the CEAA (2012) as presenting the opportunity to developfaster at a more sustainable level as compared to the previousenvironmental assessment regimes in the country. Specifically, thefact that the Act has well-defined timelines and provisions forequivalency has made many researchers to view it as a catalyzingrather than inhibiting the process of economic growth anddevelopment. Similarly, the studies identify the challenges pertinentto the Act as a mechanism for environmental assessment as originatingfrom the same provisions that work to expedite the assessment ofprojects (Doelle,2012).To this end, most researchers argue that the CEAA (2012) isinherently flawed as a legal instrument used in environmentalassessment in Canada in the sense that the clamor for its mostambitious provisions compromised the rigor of environmentalassessment, therefore, presenting the possibility of building a shakyeconomy without due regard to the core aspects of environmentalsustainability. More specifically, researchers have been concernedwith the manner in which the provisions of the CEAA (2012) haveomitted most projects from screening both expressly and by inference.Moreover, the setting of rigid timelines and provisions that limitsthe scope of public participation in environmental assessment ofprojects for which the federal government has an interest and hasbeen espoused as retrogressive and presenting challenges inenvironmental assessment using CEAA (2012).
Thissection of the study outlines the approach that will be used toassess the challenges and opportunities abound the CEAA (2012) as thekey environmental legislation in Canada. Given that the Act is anoperational element in the environmental assessment process of keyprojects in Canada, this paper undertakes to use a case study of amega project in Canada that was started prior to its implementationto evaluate the strengths and weaknesses of the Act in light of theproject. An in-depth discussion of the processes of the project andthe input of the CEAA (2012) will enable the study to achieve itsobjectives as outlined in the first part of this report. The selectedcase study for this report will be the Sable Offshore Energy Project(SEOP).
TheSable Offshore Energy Project (SOEP): A Case StudyOverviewof the Project
TheSable Offshore Energy Project (SOEP) is a mega project undertaken bythe Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) andessentially entails the development of five natural gas fields nearSable Island in Nova Scotia. It is estimated that the five fieldscontain about 85 billion cubic meters of gas reserves (CNSOPB,2015).The production on the project began in 1999, and the project isflexible in that the production rates can be increased depending onthe market demand. The production process in the project fieldsinvolves gross environmental risks associated with leakages and otherforms of spillage. For instance, the major production activities inthe fields involve isolating unprocessed gas and further dehydratingthe Thebaund platform. Consequently, the isolated gas, condensatesand hydrocarbon liquids are combined and transported throughpipelines to onshore gas processing plants (CNSOPB, 2015 Gibson,2012).
EnvironmentalAssessments, Compliance and Enforcement
Theenvironmental assessment and compliance of the SOEP to the setindustry standards and regulations is facilitated by the Canada-NovaScotia Offshore Petroleum Board (CNSOPB), which has a structure forevaluation and monitoring for each project to ensure conformity tothe ideals of environmental conservation and sustainable development.As part of its responsibilities for ensuring that environmentalassessments are conducted for its exploration projects (like theSEOP) and all other projects for which environmental assessment isnecessary pursuant to CEAA 2012 (CNSOPB, 2015). Essentially, theAccord Act environmental assessments are the provisions of the CEAA(2012) that specify the environmental assessments to which the natureof the CNSOPB projects are to be subjected. Prior to theestablishment of the project, the SOEP underwent a Joint PublicReview Panel in 1997 together with other mega projects such as theNortheast Pipeline Project and The Maritimes. The Review Panels, aswas prescribed under the CEAA 1995 completed the environmentalassessments for the projects followed by decision-making. Otherimportant legislations and regulatory authorities that facilitatedthe environmental assessment process of the SOEP included the NovaScotia Environment Act, the Canadian Offshore Petroleum BoardRegulations and the National Energy Board. The process ofenvironmental assessment for the SOEP was a systematic and sequentialprocess that was undertaken under the frameworks provided by the CEAA1995. The process began with the triggeringstage followed by the screening(Glasson,Therivel & Chadwick, 2013).
Itis important to note at this point that the Responsibleauthority forthe project, as was prescribed by the legislative regime (CEAA 1995)included several bodies including the Environment Canada (EC),Industry Canada, Canada-Nova Scotia, CNSOPB, Fisheries and OceansCanada and the National Energy Board. Today, however, under the CEAA(2012), the Responsible Authority for the new phases of the projectdeveloped after May 2012 is only one authority, the National EnergyBoard (NEB). During the implementation of the early phases of theproject under the CEAA (1995), the scoping stage of environmentalassessment entailed factoring in the socioeconomic and environmentaleffects while today, under the CEAA (2012), the operating element is“federal interest” (Halloran, 2013, p. 40). Another fundamentalchange manifest in the environmental assessment of the project underthe two legislative regimes is in the scope of public participation.Between 1997 and 1999 just before the project began its productionprocess in the commercial phase, the CEAA 1995 facilitated extensiveconsultations that included a public hearing for about four months,an activity that was funded by the federal government. Moreover, theprocedure involved aboriginal as well as expert consultationsoutcomes of which informed the implementation process shaping thecourse of the project through the completion of the first and thesecond tier. However, the implementation of the fourth tier wasundertaken after the adoption of the CEAA 2012 that prescribes rigidtime frames (20 days) and the participants (“interested parties”)are determined by the National Energy Board (The RA) or the PanelReviews. Another significant difference between the two forms oflegislation lies in the enforceability of decisions of the PanelReviews in which CEAA 2012 offers provisions that make such decisionsenforceable yet CEAA 1995 did not guarantee the reliability ofenforcing such decisions (See Appendix 1 for illustration). Thefollowing section of this paper is dedicating to presenting theoutcomes of using the two environmental assessment regimes on thebroader objective of sustainable development.
Anassessment of the use of different legislation regimes to facilitateenvironmental assessment of the SOEP reveals gross differences in theenvironmental assessment process, which in effect provides someinsights into the possible challenges and opportunities of using theCEAA 2012 in undertaking environmental assessment for mega projectsin Canada. As espoused in the environmental assessment projects ofthe SOEP, the changes in environmental assessment legislation indeedinfluence the sustainable growth objective that is the primarypreoccupation of environmental assessment regulations. According toNoble (2010), the overriding objective of environmental assessment isto examine the socioeconomic and biophysical impacts of proposeddevelopment projects on the environment by ensuring that plans areadjusted and mitigation is undertaken. In the case of SOEP, the JointPublic Review Panel Report released in 1997 showed that the publicraised concerns about the impacts of the project on aquaculture andon the sensitive ecosystem in the Gully, which enabled the projectplanning to take into account the concerns. The implication of thispremise for the current study is that given the limited scope ofpublic participation provided in the CEAA2012, the later projectsimplemented after 2012 are not likely to consider these concerns.There may not be any substantial impacts resulting from the failureto consider biophysical and socioeconomic concerns by the projecttoday but over time, such flaws are bound to be much clearer.Concisely, a major challenge in using CEAA in environmentalassessment lies in its limiting the scope of public participation inthe process of environmental assessment. Since SOEP is a project thatwas to be implemented to its conclusion in a period of 25 yearsbeginning 1997, only a small fraction of the project was implementedbefore the CEAA 2012 was adopted. The fact that the “new” Actscraps some of the screening processes implies that a larger part ofthe SOEP will undergo “incomplete” screening. However, moreopportunities for the project in environmental assessment lie in thewell single defined regulatory authority (NEB) and the fact that CEAA2012 can be relied upon to enforce the decision of the review panel.
Thispaper sought to evaluate the challenges and opportunities ofenvironmental assessment in Canada using the CEAA 2012. To achievethis objective, the paper undertook an examination of the majoramendments made to this Act as a legal instrument of environmentalassessment, a task that involved comparison of the Act to its oldversion (CEAA 1995). This paper has ascertained that the most notablechallenges in using the CEAA 2012 include its rigid timelines limitthe scope of public participation, its reduction of screeningprocedures and more provisions for the discretionary power of theminister in the process of environmental assessment especially onprojects of “federal interest.” The opportunities of the CEAA2012 are manifest in its expedition of projects by scrapping off“unnecessary” stages and its provisions that guarantee theenforceability of Panel Review decisions. The study, through a casestudy of SOEP, however, observed that the changes in the ResponsiveAuthority (RA) have an insignificant impact on environmentalassessment since impact assessment is a wider portfolio of decisiontools rather than a management process (Bond et al., 2014, p. 46).From the outcomes of the study, the Act can be made better of as alegislative instrument for environmental assessment if the followingfew recommendations are implemented.
A statutory provision ought to be crafted that facilitates the transition to new environmental assessment legislation to facilitate completing of projects started under a preceding regime. This will be necessary to avoid duplication and double standards in environmental assessment of same (similar) development projects.
The time limits for public participation should be increased since the restriction of participation to the “interested parties” is a narrow test since public interest is the operating element in environmental assessments (Salomons & Hoberg, 2014, p. 69-75).
More provisions should be included to increase the screening stages
Provisions should be added to provide the legislative mechanisms of enforcing Panel Review decisions to avoid procedural and substantive ultravires.
The Act should adopt a concise definition of the “person responsible” as is in the Nova Scotia Environment Act [1994-1195, c. 1, ak (i)].
The Canadian Environmental Assessment Act (2012) should include provisions for a more integrative approach in environmental assessment that takes into account the Aboriginal and expert views in a similar structure as shown in the diagram below.
Figure1.0:Parties Involved in Federal Environmental Assessment
Source:Canadian Environmental Assessment Authority (2014)
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Appendix1: A Comparison of CEAA 2012 and CEAA 1995 for the SOEP Project
Adoptedfrom Halloran (2013), p.40<https://www.google.com/search?q=Opportunities+and+Challenges+of+Environmental+Assessment+under+CEAA+2012&ie=utf-8&oe=utf-8>