Environment Committee on Nov. 1st, 2011
Evidence of meeting #8 for Environment and Sustainable Development in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was environmental.
A recording is available from Parliament.
On the agenda
- John Bennett Executive Director, Sierra Club of Canada
- Jennifer Jackson Executive Director, Canadian Water and Wastewater Association
- Sandra Schwartz Vice-President, Policy Advocacy, Canadian Electricity Association
- Terry Toner Representative, Canadian Electricity Association, and Director, Environmental Services, Nova Scotia Power Inc.
The Chair Mark Warawa
We will call the meeting to order. Welcome, everyone. Thank you to the witnesses for being here today.
We have three different groups that will be presenting, and each group has up to 10 minutes for presenting. We'll be following up with questions.
Thank you again for making yourselves available.
I'll start with Mr. Bennett.
Welcome. You have 10 minutes.
Dr. John Bennett Executive Director, Sierra Club of Canada
Thank you, Mr. Chairman.
I'd like to start by thanking the committee for providing the Sierra Club with an opportunity to put some of our views on the Environmental Assessment Act on the table. I had hoped to present with our volunteer president, Paula Boutis, who is an environmental lawyer, but she's in court today. She sends her apologies.
I'd like to address basically three issues today with respect to the act. They are the campaign to marginalize and silence voices of the environment in Canada—
The Chair Mark Warawa
Ms. Rempel has a point of order.
November 1st, 2011 / 11 a.m.
Michelle Rempel Calgary Centre-North, AB
The scope of our review pertains to the Canadian Environmental Assessment Act, and that particular point was rhetoric-driven.
The Chair Mark Warawa
Are there any other comments on that point of order?
Megan Leslie Halifax, NS
Thank you, Mr. Chair.
While I agree in some ways with what the parliamentary secretary is saying, I know that the Sierra Club intends to show the link between the two, and we have had questions to the agency about, for example, how cuts to the agency would affect their ability to do environmental assessments. I'd be interested in hearing what the Sierra Club has to say on it.
The Chair Mark Warawa
Are there any other comments?
Michelle Rempel Calgary Centre-North, AB
We're interested in hearing fact-based testimony today, and we'd encourage the witness to do so as well.
The Chair Mark Warawa
Joyce Murray Vancouver Quadra, BC
I think it's important to do our guests and visitors the courtesy of hearing what they have to say. They know what the subject of these committee hearings is.
The Chair Mark Warawa
Hearing no more comments, I would encourage Mr. Bennett to make sure your comments are germane. The topic is CEAA and the legislative review of CEAA. Maybe it would be more appropriate to speak on marginalization and silencing voices on environment on another day. Let your focus be on CEAA, please.
Executive Director, Sierra Club of Canada
As I said, I'm going to speak on three issues today. The other two are the decision to give responsibility for environmental assessment of energy projects to the National Energy Board and the Canadian Nuclear Safety Commission, and finally I'd like to talk about the perceived bias in the system.
Sierra Club Canada believes these issues are linked and that forces are afoot trying to lay waste to Canada’s natural resources without thought or consideration for future generations. Today’s profit is the only consideration, and our only protection against it is a strong, independent environmental assessment process. I fear we are headed in precisely the wrong direction. I hope this committee will be allowed to make appropriate changes to the act to remove the mistakes of the last few years.
Government and industry have no fear of good, sound environmental policy and assessment. Doing things right creates jobs just as well as doing things wrong, and it doesn't give us the same environmental, health, and social impacts as doing things in haste and badly.
Just to provide a short bit on the Sierra Club, Sierra Club Canada is part of the Sierra Club, which is the largest and oldest conservation organization in North America. We have been involved in conservation issues in Canada since 1963. A major part of that involvement has been participating in environmental assessment processes across the country, including participating in hearings on oil sands, pipelines, mega-dams, and nuclear power plants, as well as smaller, local issues, and we've done it with federal and provincial assessments.
In 2009 Sierra Club Canada challenged the legality of changing CEAA through a regulatory process. In 2010 the government apparently agreed with our interpretation and used the budget bill to redo the changes. In 2011 the government paid our costs. This is an example of haste making waste. Please don’t make any more hasty decisions concerning environmental assessment.
This committee will be hearing from a number of lawyers, including my predecessor at the Sierra Club, who is an expert in the act. Therefore, my comments will be more on the philosophical and experiential nature of my own and the Sierra Club's experience with participating in environmental assessments and what kinds of things we think could make them better.
I’m sure you will hear from industry that the process of environmental assessment is a great burden and needs streamlining. In my 30-plus years of experience in this work, “streamlining” is a code word for weakening. The act should be strengthened and the scope of assessment broadened. Canada has signed binding treaties to reduce greenhouse gas emissions and protect biodiversity. Environmental assessment is critical to living up to our international commitments as well as the passing on of heritage to our children and our grandchildren.
Sierra Club Canada sees the announced intention to cut red tape and other changes buried in the budget bills as a plan to fundamentally alter the way environmental assessment is conducted. This is part of a wider anti-democratic campaign to marginalize and eventually silence the voices of the environment in Canada. This is one voice that won’t be silenced.
The built-in review of CEAA—the purpose of this session—is the democratic way to revise the act. There was no documented need to alter the act prior to the review. The only reasonable explanation for using the budget bills to change environmental protection in Canada is fear of public scrutiny.
Previous reviews included consultation with stakeholders by Environment Canada.
This is where I'll make it relevant.
For 29 years the federal government worked with the Canadian Environmental Network, a body formed solely to assist the federal government in gathering advice and insight from 600 environmental organizations across Canada. Most are small groups of volunteers working to preserve our natural environment. These are the real-life, local volunteers who participate in environmental assessments, and they have far more to contribute here than I have to offer. The CEN did a tremendous job and made a huge contribution to ensuring that we had good environmental assessment legislation in Canada.
There has not been consultation with the stakeholders this time. The decision to stop consulting environmental organizations and withdraw support for the CEN at precisely the time CEAA is being reviewed clearly is no coincidence. It sends a clear signal.
The federal government has a complex environmental mandate and a relatively limited ability to gather input from all stakeholders. It does not make any sense to cut off a vital source of advice.
The decision to give authority for energy projects to the National Energy Board and the Canadian Nuclear Safety Commission was wrong. The fox has no business in the hen house. These bodies, along with the offshore oil boards, are too close to industry to provide the government with sound, unbiased advice. There is an inherent conflict of interest.
I have a document here. When I first saw it, I thought it was Bruce Power's annual report, but in fact it's the Canadian Nuclear Safety Commission's annual report, and it says clearly on the front, “Fact: Nuclear in Canada is Safe”. I'm not going to dispute that here today, but that is quite questionable. If it had said, “Canadian Nuclear Safety Commission: Regulating to Make Nuclear Safe,” it would be acceptable, but this is propaganda for the industry on behalf of the regulator. Isn't it the business of the industry to promote itself, not its regulator? On seeing this, isn't it reasonable to conclude that the Canadian Nuclear Safety Commission is biased? They have now been given authority to determine whether or not we're going to build nuclear power plants in Canada.
The primary function of both of the NEB and the Canadian Nuclear Safety Commission of was to set standards for everything from pipeline valves to radiation that a member of the public can be exposed to. In order to accomplish this kind of regulation, the agencies must work closely with the industry and expertise becomes mobile. It's not unusual for individuals and consultants employed by these agencies to have spent much of their careers in the industry, which they look forward to returning to. This is particularly true of the Canadian Nuclear Safety Commission.
The role of the environmental assessment is much larger, requiring greater scope and enough separation from project proponents to be unbiased adjudicators. Panels require a wider expertise than understanding the technical issues surrounding proposed projects. The environmental impacts go beyond the project’s fence. Economic and social impacts for local communities, and whether or not there is a better alternative to a project, all have equal weight in the process.
Often during hearings the conclusions of the regulator are called into question by public submissions, and it is the regulator who is making the ruling. This is clearly an inherent conflict of interest and creates an impression of bias. For example, last year the Canadian Nuclear Safety Commission granted permission to Bruce Power to export 1,600 tonnes of nuclear waste to Sweden for recycling. This consisted of 16 steam generators. Only after a vocal campaign by the Sierra Club, dozens of municipalities, and aboriginal organizations did the CNSC even decide to allow public submissions.
Bruce Power’s plan to refurbish the Bruce generating station had undergone an environmental assessment in 2005. At the time, Bruce Power specifically stated that the 16 steam generators were to be kept at the Ontario Power Generation waste facility. It's the view of the Sierra Club and several others that the fundamental changes from an approved project should trigger a revisiting of the environmental assessment, and that this decision should be made by a body independent of the regulator. When I raised this issue at the CNSC, the president responded by asking me if I was anti-nuclear, and then asked his staff if they were wrong not to recommend a revisiting of the environmental assessment. You can imagine what they said.
The CNSC focused only on issues surrounding the transport of waste, and rightly so, as a regulator. But it ignored the wider issues that would have been the concern of an environmental assessment—things like how this project fits into Canada’s long-standing policy of storing waste at reactor sites and not allowing contaminated materials to circulate in the environment. Effectively, the CNSC allowed Bruce Power, a private company, to change Canada’s nuclear policy and ducked its responsibility to properly assess all the issues. This would not have happened if the roles of regulator and assessor were separate, as they should be.
I would also like to raise the issue of bias in the choice of panel members for hearings. Who is qualified and how should a panellist be chosen? There's no public input. A panel is announced and a few months later a list of individuals is released. There is no consultation, no nominating of panellists, yet the decisions they make can have implications for Canadian law and society no less significant than judges.
I don’t wish to impugn the reputations of members of any panel; I’m sure all the people who have participated have been admirable individuals. However, I just want to give you my experience of the last time I appeared at an environmental assessment. It was—
The Chair Mark Warawa
I'm sorry, Mr. Bennett, your time is up. I look forward to hearing more from you during questioning.
The next is Ms. Jackson, and you have up to 10 minutes. Thank you.
Jennifer Jackson Executive Director, Canadian Water and Wastewater Association
Hi. Thank you very much for this opportunity.
I am Jennifer Jackson, executive director of the Canadian Water and Wastewater Association.
The Canadian Water and Wastewater Association, or CWWA, as we are more colloquially known, would like to present our views on the statutory or seven-year review of the Canadian Environmental Assessment Act.
This is the first time CWWA has presented before the standing committee on this subject. However, we have been regularly consulted by staff of the Canadian Environmental Assessment Agency on proposed changes that may affect our sector.
The CWWA is a unique industrial trade association. We were founded on the recommendation of Health Canada and Environment Canada staff with the assistance of the Federation of Canadian Municipalities. This occurred 25 years ago; this year we are celebrating our 25th anniversary. CWWA has evolved into the national voice of Canada's water industry.
We are comprised of utility members from small, medium, and large municipalities all across Canada and utility commissions, equipment suppliers, and environmental consulting and engineering companies that provide services to our members. We also represent Canada's water industry both nationally and internationally.
Our members provide drinking water, waste water, and storm water services to Canadians through the provision of critical infrastructure. We have members in all the provinces and territories of Canada. The water and waste water industry in Canada has been estimated at $10 billion nationwide, with our members being responsible for almost $7 billion annually.
Most of our members operate on limited municipal budgets in a not-for-profit context. We are the voice of the professional management charged with providing what is largely acknowledged as invisible infrastructure in Canada. Due to the diversity of size and geographic location, each of our utility members faces different challenges in balancing environmental protection and public health goals.
Concerning the CEAA review, CWWA municipal and utility members are in a unique position of both conducting, and benefiting from, effective environmental assessments. If others, usually upstream of facilities, conduct an environmental assessment and the resulting projects negatively affect water quality, the services of our members' drinking water or waste water operations may also be impacted. However, most of my comments today will be concerning the EA process. This is because our members routinely conduct environmental assessments that may be carried out under provincial, territorial, or federal EA legislation.
Canadian municipal water and waste water projects may be captured under the jurisdictional purview of CEAA. Applicable triggers include federal fish habitat permits under the Fisheries Act. Water projects also may affect species protected under the Species at Risk Act and the Migratory Birds Convention Act. Often, water projects may impact federal lands or CEAA is triggered by municipalities receiving federal government infrastructure funding. The construction of new plants or major expansions of existing water or waste water treatment plants will also generally trigger provincial EA, municipal class environmental assessment, or equivalent permitting processes.
I am here today to talk about two main sector concerns: the EA process and harmonization.
In regard to the process, the federal EA approval is just one step in a series of required permitting approvals for complex municipal projects. The federal regulating departments will not entertain applications and will not issue regulatory permits until after the federal EA approval is obtained.
Our members were clear that there are frustrations and an increased amount of time in dealing with projects that involve both the federal and provincial EA processes. They report that involvement of the federal EA process in their projects tends to add considerable time and of course considerable costs. In the case of the Halifax Harbour Solutions Project, which involved the creation of three new sewage treatment plants, it took four years to obtain the federal approval in 2003. We are told that accounted for between $1 million and $2 million in additional costs, including the required follow-up monitoring programs.
Regulatory certainty is a theme that is dear to the hearts of our members. In 2010, we supported the establishment of timelines in the comprehensive study regulations, which have now been implemented. However, when we asked our members about imposing timelines during federal screenings, which is the classification that affects the vast majority of water and waste water projects, the reaction was mixed.
Within the screening stage, environmental impacts can vary from project to project due to differing locations and the sensitivity of the environment. In most cases, the identified mitigation measures tend to mean that best management practices are implemented. However, the advantages of a screening process are that in almost every project, it does help the proponent identify site-specific mitigation and adaptation practices that can and will and should be implemented. The required work varies depending on the locale and the type of proposal.
As a result, we conclude that more work may be needed to see whether or not legislative timeframes can be inserted and effectively implemented in the screening process. CWWA is willing to work with the CEA Agency and the Minister of the Environment to see if there is a way to insert legislative timeframes into the process in a way that balances the needs of our members in managing projects and those of the CEA Act.
In regard to harmonization, as CEAA has evolved over the years there has been recognition of significant overlap between the federal and provincial EA processes. Both promote meaningful public participation and evaluation of a project's potential negative adverse impacts on the environment.
In 1998, the federal government and all provinces, except Quebec, signed the Canada-wide accord on environmental harmonization. As of today, all of the provinces and territories have entered into the subagreement on environmental assessment, with the exception of Quebec.
In theory, then, EA processes at both levels should be planning processes used by the proponents, whether that proponent is the federal government, a municipality, or a private sector individual or organization.
In its purest sense, harmonization should lead to one project assessment, negotiated schedules between the parties, one consultation process, and, if necessary, one public hearing process.
In consultation with practitioners in the field, CWWA has been told that harmonization has had mixed results and it has not had the desired impact. The reasons for this are varied, and in our view they are as follows.
The provincial EA processes tend to be a planning process. They tend to be a forward-looking analysis incorporating the needs and alternatives to the problem that's trying to be addressed. The federal EA process does not specifically incorporate this at the application stage, and as such the federal EA process is usually started and applied for later by the project proponent.
The EA process itself has to be distinguished from the regulatory decisions that follow the EA process. However, in practice, these two items get quite mixed up. Determination of the federal permitting triggers in the federal EA process are sometimes more suited to the stage of detailed design engineering. At that point the decision has already been made and a preferred alternative or option has been selected. Thus, many managers and practitioners in the field describe federal environmental assessment as a back-end process that requires more detailed work up front, making the harmonization between federal and provincial processes challenging.
The federal EA process, the CEAA agency, and the relatively recent Red Chris mining decision by the Supreme Court of Canada have provided much more guidance to proponents on the need and requirement to perform cumulative impact analysis. Until recently, this has not been emphasized as much in the provincial process.
I'll skip our recommendations and end by saying that municipalities are partners in the achievement of environmental goals in Canada. We look forward to a positive and collaborative relationship with you on this review of the act and any future work tasked to the Minister of the Environment and the Canadian Environmental Assessment Agency.
The Chair Mark Warawa
Thank you, Ms. Jackson.
The next witness is the Canadian Electricity Association, and we have Ms. Schwartz and Mr. Toner.
Who will be presenting?
Ms. Schwartz, you have up to 10 minutes.