On the first anniversary of its untimely demise on July 6, 2012, the Canadian Environmental Assessment Act, 1992 (CEAA 1992) is being remembered by environmentalists as an important attempt to impose legally binding environmental assessment (EA) obligations upon federal decision-makers across Canada.
During its 20 years of existence, CEAA 1992 espoused an overall objective of sustainable development. To achieve this public interest goal, CEAA 1992 required federal agencies, tribunals and commissions to take a hard long look at the ecological and socio-economic impacts of projects before deciding whether federal funds, lands, or permits should be provided to enable such projects to proceed.
Information-gathering and decision-making under CEAA 1992 was intended to occur in an efficient, robust and public manner, although it sometimes became necessary for environmental groups to go to court to ensure governmental compliance with these legal requirements.
Given the implementation track record under CEAA 1992, most observers agreed that there was room for improvement in the statute, particularly in relation to public participation mechanisms, the enforceability of EA decisions, and the need for “strategic EA” of governmental policies and programs.
Unfortunately, the federal government’s omnibus budget legislation (Bill C-38) sealed the fate of CEAA 1992 by wholly repealing the statute instead of reforming it. At the same time, Bill C-38 also created a new – and far less rigorous – EA law at the federal level.
This successor to CEAA 1992 – known as CEAA 2012 – was essentially stillborn upon arrival. CEAA 2012 has been widely condemned by environmental groups (including CELA) because the new law:
- unduly constrains the scope of federal EA by focusing only upon certain impacts (i.e. fisheries, migratory birds, etc.), rather than examining the full range of adverse environmental effects of projects (as had been required under CEAA 1992);
- restricts the application of these diluted EA obligations to a relatively small handful of projects prescribed by a new regulatory list, which inexplicably omits many environmentally significant activities (i.e. metal smelters, pulp and paper mills, certain mining operations, etc.) which were potentially caught by the statutory EA triggers under CEAA 1992; and
- provides federal officials with unprecedented (and highly objectionable) discretion to dispense with federal EA requirements, or to permit projects to be solely assessed under provincial EA laws (which vary considerably across Canada in terms of procedural rights and substantive requirements).
In light of these and other fundamental shortcomings that plague CEAA 2012, environmentalists continue to lament the unjustifiable loss of CEAA 1992, and fervently hope that a new and improved federal EA regime will soon be resurrected from the ashes.
R.I.P., CEAA 1992.