Environment Committee on Oct. 27th, 2011

[Yves Leboeuf]

That's correct. In our case, the direct costs incurred by the agency will be recovered from the proponent.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

What happens if there is an element to the project, and just for example, a pipeline project carrying bitumen rather than crude, and there's not as much history and evidence about the impact of a potential spill of bitumen into an estuary or a river? Who does the raw science to identify impacts and the time the material will endure and the kinds of effects it will have?

[Yves Leboeuf]

At the start of the process--and most panels would work the same way--the panel or the minister, depending on which jurisdictions we work with, because there are some differences there, will issue environmental impact statement guidelines to the proponent. So the proponent is primarily responsible to provide information requested by the minister to the panel, and that forms the core of the information made available as part of the review. All participants in the review may provide their own analyses as well that will be taken into account, and panels typically have their own discretionary authority to request additional studies if they feel it's important to do so.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

So the constraint in some cases may be about time as much as budget. If you have a budget cut but you have some complex science in a new area, if your panel's timeframe is deemed by scientists to constrain or constrict the ability to collect the data, what happens then? Do you still try to adhere to the restricted time scope, or do you get an extension?

[Yves Leboeuf]

The panels have the statutory obligation that was made clear by court cases to fulfill all the requirements of CEAA, and it's for them to be satisfied in each case that they have all the information they need to report back to the minister.

[Joyce Murray, Liberal, Vancouver Quadra, BC]

Okay, so if--

[The Chair, Conservative, Mark Warawa]

Time expired four minutes ago.

Thank you again to the witnesses for coming here, and we apologize for the short amount of time we had.

Mr. Hyer.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

Thanks, Mr. Chair.

Given the interruption today and the short timeframe, could we keep open the option to recall these witnesses at a future date?

[The Chair, Conservative, Mark Warawa]

It's up to the committee if they want to call them back again, and that could be handled by the steering committee.

[Bruce Hyer, NDP, Thunder Bay—Superior North, ON]

We hope we will be able to do that.

[The Chair, Conservative, Mark Warawa]

Thank you for that.

Again, we want to thank you for coming.

We're going to suspend for five minutes so we can get the next group of witnesses ready, and then we will reconvene.

[The Chair, Conservative, Mark Warawa]

We'll call the meeting back to order.

We have Brenda Kenny, representing the Canadian Energy Pipeline Association, and Mr. Richard Lindgren for the Canadian Environmental Law Association.

Ms. Kenny, we'll start with you, and you have up to ten minutes.

[Brenda Kenny, President and Chief Executive Officer, Canadian Energy Pipeline Association]

Thank you for the opportunity to appear here today. I know that you've had a busy morning already, and we hope this will be an interesting session.

I should preface this by letting you know that I have spent my entire career as a regulator, as an academic, and now as an industry representative, and all of that time has been focusing on Canada as a world leader in regulation and environmental assessment, with a robust outcomes-based regulatory framework. I very much appreciate the opportunity to present to the committee today and offer my perspective and views on the Canadian Environmental Assessment Act review.

I have some brief context to frame my remarks, and that is that the group I represent currently, the Canadian Energy Pipeline Association, represents the companies that transport about 97% of all of the oil and natural gas produced and used in Canada. Our members operate about 100,000 kilometres of pipelines. We are by far the safest and really only feasible means to transport large volumes of energy over land. Our companies are major job creators, with significant investments on nationally significant projects. These energy highways are how we get around, how we heat our homes, manufacture goods, harvest crops, and get those products to market, so we take our role very seriously.

Now turning to the issue at hand, the Canadian Environmental Assessment Act, if I leave you with just one thought today, let it be this: CEPA and its members are fully supportive of the federal government's need for full and comprehensive environmental assessment of large-scale projects. We believe these assessments should be conducted by and related decisions must be made by a best-placed regulator.

For federally regulated pipelines, the best-placed regulator is the National Energy Board, in fulfilment with its mandate under the National Energy Board Act. For provincially regulated pipelines, the applicable provincial process for assessment should be accepted on the basis of equivalency with the federal process under CEAA, expressly limited to those aspects of the project requiring federal decision-making.

We see precedents for this already in Canada north of 60. The federal government has already acknowledged that CEAA is not the only piece of federal legislation that's capable of delivering comprehensive and robust EA in Canada. In fact, in the Yukon we have legislation that has displaced CEAA for the most part, and that model has various legislative platforms that we believe could be applied south of 60.

Why do I turn to the National Energy Board Act as the reasonable outcome for that proposal? It is that under its public interest mandate, the National Energy Board has the jurisdiction, and in fact has required an assessment that exceeds the scope of that required under the CEAA. Specifically, the NEB looks at a project through a wider public interest lens and incorporates environmental impacts, as well as social and environmental issues on a project. The NEB is fully staffed with technical staff who understand the role of pipelines, their impacts, and address on a full life-cycle basis what actually happens in the field, returning that into the project planning and future projects. It is overseen by a quasi-judicial board whose decisions are grounded on fact-based evidence, and it provides a fully public transparent process and provides funding for public participation where required.

The mandate of the NEB is fully consistent with and can facilitate the achievement of the EA for projects consistent with the protection of the environment and capable of delivering important decisions. In other words, by looking at projects through a holistic and wide lens through its public interest test, the NEB is the federal authority best placed to deliver decisions that are consistent with Canada's commitment to sustainable development, and this is in keeping with longstanding global principles on sustainable development, including those created in Rio almost 20 years ago.

I would like to say a word about self-assessment, because that is, at core, a fundamental premise of the Canadian Environmental Assessment Act as it sits today. Quite simply, self-assessment requires decisions about projects that impact each and every federal decision-maker. Typically, a federal pipeline will trigger the need for assessment decisions under CEAA but also in fisheries, transport, NEB, migratory birds, and SARA. There are various mechanisms at the policy and administrative level to try to avoid any avoidable duplication in the preparation of the assessment. Frankly, attempts to coordinate have been very ineffective. We still face a high level of redundancy, which dilutes the ability to focus on environmental outcomes that matter most and is certainly wasteful of precious government resources and those of companies.

Why would the government continue to work within a system that was intentionally built around redundancies instead of simply finding more effective ways of delivering good outcomes on the environment and in the national interest? CEPA strongly advocates for one process and one decision-maker comprising regulators that have accountability for the full life cycle of a project. They would understand the impacts from the planning stage through construction, operation, and eventual retirement of that asset.

As an industry association representing the companies that operate and build critical energy infrastructure in Canada, these are our recommendations to you: continue to advance regulatory reforms that will allow for timely decisions; enhance the investment climate and build the economy; but absolutely retain the appropriate federal capacity to implement permitting requirements to ensure that the environment is well protected. You can achieve all this by allowing the delivery of assessment by the best-placed regulator.

I thank you for the opportunity to discuss this with you, and I look forward to your questions.

[The Chair, Conservative, Mark Warawa]

Thank you, Ms. Kenny.

For up to ten minutes, we'll have Mr. Lindgren.

[Richard Lindgren, Counsel, Canadian Environmental Law Association]

Thank you, Mr. Chair.

Good afternoon, members of the committee.

On behalf of the Canadian Environmental Law Association, or CELA, I would like to thank the committee for this opportunity to speak to the Canadian Environmental Assessment Act. We believe that the committee's review offers a very important opportunity to make sure that CEAA is strengthened and its implementation is improved across Canada.

As you know, the Canadian Environmental Law Association is a public interest law group that was established in 1970. Our mandate is to use and improve environmental law to protect the environment and to protect human health and safety. We generally represent concerned citizens, low-income communities, and environmental groups in the courts and before tribunals on a wide variety of environmental matters.

Since our inception, CELA has long advocated federal environmental assessment legislation that is effective, efficient, and equitable.

I recall, about 20 years ago, I appeared before a parliamentary committee to speak to CEAA when it was first being introduced. I didn't wear glasses then and my hair was longer, but some things never change.

We also participated in the first parliamentary review of CEAA that occurred from 2000 to 2003, and last year we appeared before a couple of parliamentary committees to speak to the amendments to CEAA that were contained in Bill C-9.

I should also mention that over the years CELA has been representing clients in various environmental assessment proceedings under CEAA. We've participated in screenings, we've participated in panel reviews, and we've participated in comprehensive studies. We've also intervened in the Supreme Court of Canada in matters that involve the federal environmental assessment program. For example, I was the lawyer who represented the environmental groups who intervened in the MiningWatch decision that was rendered by the Supreme Court of Canada last year. And we've also been engaged in other litigation in the Federal Court in cases involving the interpretation or application of CEAA.

Mr. Chairman, members of the committee, based on our experience and our public interest perspective, we'd like to address two general topics before the committee today.

The first topic is the scope of the review and the principles that should be driving the review. In our submission, the committee should carefully consider the findings and recommendations made in the committee’s 2003 report on CEAA, which, as you know, attempted to set the stage for this current review. This means, in our submission, that this review should be thorough and comprehensive in nature and it should include not only the act itself, but also the relevant regulations and other administrative matters such policies and guidelines. Furthermore, in our submission, the review should be guided by two fundamental principles: the first is that any proposed amendments to the act or to the regulations must be developed in an open and accessible manner that provides for meaningful opportunities for input by members of Parliament, public officials, interested stakeholders, and the public at large.

In short, we don't want to see CEAA amendments buried in any more budget bills. That's not the right way to do business; secondly, any proposed amendments to the act or to the regulations must be clearly consistent with the purposes and duties set out in section 4 of CEAA, and those amendments must enhance, not erode or roll back, existing public participation rights under CEAA.

The second general topic I'd like to address briefly today is the substantive content of the review. In our submission, while there may be various CEAA matters that warrant the committee’s consideration, it's our view that there are five high-profile, high-priority matters that deserve careful examination and reporting by this committee. In summary, these five issues are as follows: one, the need for environmental assessments under CEAA to evaluate whether or to what extent a project is making or will likely make a positive net contribution to ecological and socio-economic sustainability; two, the need to reconsider self assessment under CEAA and to ensure greater rigour in the identification and analysis of cumulative environmental effects at both the local and regional scale; three, the need to establish a robust legislative framework for a strategic level environmental assessment of governmental plans and policies and programs; four, the need to ensure meaningful public participation in all stages of project planning, particularly during the critical upfront determination of the purpose of the project and the consideration of alternatives to the project; and finally, five, the need to establish and enforce environmental assessment permits with binding terms and conditions under CEAA.

Now, Mr. Chairman, members of the committee, in order to assist you in evaluating those issues and other related issues, it's our intention to provide the committee with a more detailed written brief in the coming weeks, where we can flesh out some of these issues and provide perhaps an approach or some suggested legislative wording that might assist in addressing these issues.

In closing, Mr. Chair, I'd like to thank the committee for this important opportunity to provide our initial recommendations to the committee on CEAA reform and CEAA review, and we look forward to further participation in this process.

I look forward to the committee's questions.

[The Chair, Conservative, Mark Warawa]

Thank you, Mr. Lindgren.

Before we begin our speaking order here in the first round, which will be seven minutes, beginning with Ms. Rempel, if somebody in the committee feels a point of order should be raised, you would speak out, “point of order”, as opposed to raising your hand. If we have somebody speaking, one of you is asking questions; if I see a hand raised, I will not recognize that hand, because that person has the floor and is asking questions. So if you want to raise a point of order, you'd have to verbally say that, and that will stop the proceedings and then you would present your point of order. Okay?

A point of order should be used only rarely, if you think something is not happening properly based on our policy.

With that, we'll begin our seven-minute round with Ms. Rempel.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Thank you to both witnesses for your presentations today.

My question is for Ms. Kenny. You spoke about the need to have appropriate environmental assessments and that your membership certainly feels strongly about that, as do we, but you also spoke a bit about the impacts that delays or inefficiencies in the process might have on business, etc. I was hoping that you could speak succinctly about perhaps some bullet-point sorts of items on how you—and perhaps some of the member companies that you represent—feel CEAA could be made more efficient and more predictable without sacrificing environmental protection.

[Brenda Kenny]

First of all, I would point to the fact that environmental assessment is really an important early planning tool, and it in no way can duplicate details to follow. So I think you've got to focus on a timely decision about whether or not a project should proceed, given strategic information and the possibility of significant effects and appropriate conditions that guide the later details. So that's one important point. It has to be timely, and you need to be able to get to those public interest determinations in a way that does not rush through significance but is effective.

Secondly, in our view, that should be combined with other public interest considerations, not at all to usurp environment, but to be able to make sure that you're fully addressing environment within the context of how you would do your construction--the details of your plans. That is part of the early planning that we believe is already well within the mandate of the National Energy Board, and has been represented in their section 52 for years. In fact, they have a broader, deeper, and bigger scope for environmental work than the actual current CEAA does.

Those are two key points. Move the CEAA accountability into the NEB, make sure that it's strategic, and make sure there's good follow-up after a public interest determination has been made.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Would you say it's accurate to say that environmental considerations are worked into your planning process for your member companies at every stage of their planning processes?

[Brenda Kenny]

Absolutely. In fact, there's no proponent who would put a multi-billion project at risk by trying to cut corners on that. The engagement is key. In fact, we've done studies within our own association across real projects involving proponents, government agencies, and NGOs, and have discovered that the modern approach to a large project actually mimics very well the intention of EA, embeds it, and when done well can result in a public hearing that's actually quite brief because the major issues have been dealt with and people acknowledge that it's fine. So I think that's a critical component and something we take very seriously.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Would you also say it would be accurate that the planning process, the environmental review process, we see in Canada is perhaps one of the world-leading standards with regard to this area?

[Brenda Kenny]

As far as project development, I would think, yes.

These are very sophisticated; a lot of advanced science is applied, well-known procedures that are improved over time and have been demonstrated through follow-up to be quite effective.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

You also spoke about the impact your association has with regard to economic development. Again, in the context of understanding that environmental protection is foremost, but also recognizing that your association—through its member companies—does create a large amount of economic impact for this company, could you give specific examples where unpredictable or inefficient environmental assessments have harmed investment in projects?

[Brenda Kenny]

For one thing, any time there's a significant delay, you're adding economic risk, which will heighten the cost of capital, and that has an immediate impact, which can be fairly significant, to say the least. If you also have construction delays and you've got crews on standby because perhaps you're waiting for a late permit, even though it's been ruled to be in the public interest, that can clock into hundreds of thousands of dollars a day without having any impact whatsoever on the environmental effect.

You also see at the largest scale projects such as the Mackenzie Valley project, for instance, for which Canada may have lost its economic window, and for a whole generation the folks in the north who wanted to see that project go ahead and gain that revenue from their own resources have been scuttled.

We need to be very clear about how timeliness does matter, windows of opportunity for Canada matter, and the costs mount considerably when there are undue delays.

That does not mean we should rush if there are things that need to be looked at, but it does mean we need to be focused on the results that matter and very strategic in how we manage the way in which we use cumbersome processes that don't improve environmental outcome.

[Michelle Rempel, Conservative, Calgary Centre-North, AB]

Amendments made in July under the Jobs and Economic Growth Act partially consolidated the authority for environmental assessment by making CEAA responsible for most comprehensive studies.

Have you had any feedback whether it's made it easier for members of your association to navigate environmental assessments?