Where a resource extraction approval faces stubborn opposition, cue the laments for the rule of law. The project faced and bested a phalanx of legal hurdles, say proponents. It has navigated byzantine regulatory requirements and survived court challenges. Why can’t opponents accept the lawful results? After all, that’s why we have laws: to settle controversies with logic and evidence rather than messy political fracases.

You don’t have to be a lawyer to sense the naiveté: every Canadian paying passing attention to the recent battle over the Kinder Morgan pipeline expansion sees that raw politics is driving the debate. As lawyers, we should ask why Canada’s environmental assessment (EA) processes have failed to lower the temperature of debate and whether the proposed impact assessment (IA) processes, part of Bill C-69 currently before the environment committee of the House of Commons, will provide certainty to conservationists, industry and the Canadian body politic.

The existing Environmental Assessment Act (CEAA) is hardly a wellspring for the rule of law, if that phrase implies outcomes based on clear, publicized and stable rules. The current CEAA does little more than provide a vehicle for political decisions on a small number of large projects in federal jurisdiction. If that outcome is the total effect of environmental assessment, one might ask why we need it at all. That is the challenge and the promise of EA: it must be a forum for inevitable political debates surrounding resource development and a trustworthy and stable legal tool. Does the Impact Assessment Act (IAA) achieve that goal? Not yet. But it can, with some work.

Current EA law does not provide legal stability because it is political by design. Aimed only at evaluating acute harm (“significant adverse effects,” in the statutory jargon), the assessments leave maximum discretion in the hands of both assessors to skirt issues and government to justify whatever effects accord with its version of the public interest.

As the Federal Court of Appeal found in its review of another hotly contested pipeline approval, the current CEAA allows cabinet to make a discretionary decision “based on the widest considerations of policy and public interest assessed on the basis of polycentric, subjective or indistinct criteria and shaped by its view of economics, cultural considerations, environmental considerations, and the broader public interest.” The environmental assessment report is merely one input in a sea of (political) considerations.

What is more, the court found that the current statute imposes no legal constraints on the content of the assessment report: it is only as good or as useful as the executive considers it to be. According to some jurisprudence, it is doubtful whether the report is even required to contain substantive consideration of environmental effects, even serious ones like the release of liquid effluent from a nuclear reactor into Lake Ontario. The prevailing standard is “some consideration,” no matter how cursory or disinterested in relevant evidence.

To its credit, the proposed IAA tries to do more than avoid acute harm. It requires politicians to consider the extent to which a project contributes to sustainability, including environmental, economic, health and social factors. It also incorporates consideration of Canada’s climate commitments and Indigenous interests and mandates reasons for environmental approvals.

However, the bill does not recognize that, in Canada, low-income populations, Indigenous communities and socially marginalized groups are disproportionately exposed to environmental hazards while also disproportionately lacking access to environmental benefits. In other words, environmental approvals often lack environmental justice. Decisions should consider the extent to which the distribution of environmental hazards and benefits is equitable.

The law should do more than require that factors be “considered,” since judicial history shows that mere consideration provides no enforceable standard. It must include bottom lines that place an outside boundary on ministerial or cabinet discretion, so that all participants in IA understand the minimum expectations.

For example, the law should prevent the minister from deciding that adverse effects indicated in an assessment report are in the public interest if the evidence suggests otherwise. Ministers should be obliged to consider whether adverse effects offset a more severe effect, or whether they will result in the crossing of a dangerous ecological threshold. And ministers must consider Canada’s ability to meet its international or national environmental, climate change or biodiversity obligations. Such considerations should not be optional.

The bill contains a number of other discretionary loopholes that may lead to uncertainty:

  • The IA agency and the minister can decide that a project slated for assessment should not be assessed after all, based on any criteria they deem relevant. Under a precautionary approach, a designated project should always trigger an impact assessment unless it is absolutely clear that it does not implicate federal jurisdiction.
  • While the IAA helpfully introduces an early planning phase for assessments, the outcome of that process is not clear. Significantly, the “scope” of the assessment is still left entirely to discretion. To make the early engagement process meaningful, the IA agency should issue an assessment plan based on public input, including the scope of the assessment. The outcome of an early political discussion should inform the assessment itself, lending it legitimacy.

Regional and strategic assessments are vital conduits for the policy debates that plague current project assessments (such as the beleaguered pipelines) but are woefully underused. The IAA does nothing to promote them, instead leaving them to ministerial discretion. To ensure these assessments do not languish due to a lack of political will, the law should include a schedule of regional and strategic assessments to be completed, recommended by the impartial advisory body already created in the act.

Finally, the IAA should confirm that the courts are the proper arbiters of when an assessment report is legally compliant and whether the decision conforms to the evidence before the decision-maker. Those with a genuine interest in the assessment should be able to both review the report under the Federal Courts Act for legal compliance and appeal a final decision — with due deference accorded to a cabinet decision.

The IAA is a rare opportunity to create clear standards for behaviour in environmental law, resulting in decisions that reflect more than short-term economic and political thinking. Let’s get it right.

This article was originally published by The Lawyer’s Daily, part of LexisNexis Canada Inc.