By Marla Orenstein
Published in the Globe and Mail

May 3, 2019

On Wednesday, Ottawa released its list of “designated projects” for the new impact assessment process proposed under Bill C-69.

Predictably, there are winners and losers. But the real story is that the new list signals the government’s intent to use the new impact assessment legislation as a tool to manage greenhouse gas (GHG) emissions, and to manage the energy industry. In both cases, this is a poor choice – because these are policy issues that can’t be resolved on a project-by-project basis in a regulatory setting.

Bill C-69, introduced last year and almost at the finish line, proposes to replace the current system of environmental assessment with a new process hosted under a new regulator – the Impact Assessment Agency. The designated project list identifies which projects must undergo a federal assessment. The list specifies certain categories of project – oil and gas, pipelines, renewable energy, mining, rail transportation, nuclear projects and a few more – and specifies thresholds for how large a project needs to be for it to require assessment through the agency.

On the surface, the list has a lot of small wins and compromises. Pipelines will only be included if they are either international or interprovincial, and if they have more than 75 kilometres in new right-of-way. In-situ oil sands projects are included for the first time, but are exempted if they fall within a legislated hard cap on GHG emissions.

There is also hypocrisy built into the list. Chemical, aluminum, fertilizer, and cement manufacturing, agricultural operations and even waste treatment and disposal facilities often produce GHGs at levels that are the same or higher than many mining, power generation and fossil fuel operations. But they aren’t on the list. If the goal is to regulate an issue of federal concern – greenhouse gases – then why target only certain industries rather than any project that has the potential to be among the highest GHG producers? Not only is this approach procedurally unfair, it reinforces the view that the fight over GHG emissions is really a fight about the energy industry.

However, in a larger sense, none of this matters. Thresholds are used to rule certain projects in; but they won’t be useful in helping project proponents identify when they are exempt from federal assessment. This is because the legislation – both Bill C-69 and its predecessor, CEAA 2012 – allow the Minister of the Environment to “designate” a project – that is, to require an assessment even if that project type isn’t on the list.

This could initially be considered a good thing. After all, as described in the project list document, this discretion enables the minister to respond to special circumstances such as the proposed project being located in an environmentally sensitive area, or a new type of activity that hadn’t been tried before.

But the primary reason that the minister would designate a project that isn’t otherwise on the list is “public concern.”

These days, what isn’t the subject of public concern? Of course we want the process to be flexible and responsive. But this is set against the fact that it has become increasingly difficult to get things built in Canada. The Globe and Mail editorial board wrote last year that our society has become “too fussy, risk-averse, fractured, bureaucratic and litigious” to be able to build the type of infrastructure that originally made Canada great, and that we are falling behind globally as a result. Ministerial discretion that responds to public pressure is likely to worsen – not improve – this problem.

So what do we actually need?

We have choices to make as a country about GHG emissions and the future of our energy industry. Many Canadians – myself included – want a strong climate policy. But policy decisions should be made in a policy environment. Hosting debates on climate change should not be the work of the regulator. The policy tools that should be applied are those that – like the clean fuel standard or the carbon tax – apply to all industrial activities. These policy decisions should not be funneled into whether the minister approves or rejects a single project.

The impact assessment process will only work well if it is fit for purpose. It is not the solution to all our woes about climate and energy. Projects should be included based on whether a federal impact assessment is valuable – and not to make a public stand about climate change.

Marla Orenstein is the director of the Natural Resources Centre at the Canada West Foundation and co-author of Bill C-69: We lose the jurisprudence, we start back at square one