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Sustainable Development Series: Policy and Legislation
The Federal and BC Provincial Environmental Impact Assessment Review Process:
a Benchmark Comparison
by Waterose
The environmental assessment (EA) review process evolves in response to shifts in values. The process should incorporate ecological, economic, and social values (Boydell, 1998). The most noticeable shift in the EA process is the trend to move towards a more transparent process with increased public participation and fairness to the proponent (Cotton, 1993). EA is a process that represents either a statutory (legal) or policy based examination of the possible effects of a proposed or existing development on the total environment (Boydell, 1998).
Ideally, there are certain criteria that can be used to evaluate the effectiveness of an EA process which may be described as "Benchmarking for Environmental Assessment." The benchmarking model analysis of a comparison of the current federal and BC provincial EA processes is completed in Appendix A. Furthermore, this model has been modified and each process has been numerically rated on an ascending scale of one to ten to represent the effectiveness of the process. The maximum attainable score is ninety; the federal process scored thirty four points or thirty eight per cent, and the provincial process scored seventy five points or eighty three per cent. Overall, the provincial process attained the highest score because it is more transparent, involves multiple stakeholders, is more flexible for the proponent, and has specific time lines for the administrative body to respond. Briefly, the highlights of the benchmark model analysis are discussed sequentially.
The administration should be objective and neutral. Both processes involve ministerial representation; however, the provincial process has provisions for the establishment of the project advisory committee. One shortcoming of the provincial process is that the Executive Director may initially exclude a project from review requirements, hence it is vulnerable to political persuasion. One such controversial project is the construction of the Light Rapid Transit System in the Greater Vancouver Region (Finkel, 1998).
The structure should be staged, sequential, and iterative. Both the federal and the provincial processes are staged and structural. Under the federal process, all projects are reviewable unless specifically exempted by means of one of the four list categories: inclusive, exclusive, statutory triggers, and comprehensive study list. The sequence is only two staged; initial stage of review, and optional stage of public inquiry. Conversely, under the provincial process, the inclusion or exclusion of a project is somewhat ambiguous until the application is reviewed. The provincial process is very sequential as defined in the legislation. Neither processes are easily iterative because it requires statutory amendments to change the process.
The decision making should be concensus based. The federal process is far removed from concensus based decisions whereas the provincial process is entrenched in concensus based decisions by means of involving the multiple levels of government and stakeholders in the process.
The review options should contain several options for issue resolution. The federal process does not have different resolution options whereas the provincial process is negotiable throughout the process. The Public Advisory Committee (PAC) may request that a proponent revise their technical analysis, proposed remediation or mitigation strategies during the process as in the case of the Canada Cement Lafarge Canada Limited plan for air emission strategies (Finkel, 1998).
The process must be fair and equitable. Ideally, it should include an approval in principle for the proponent because significant funds must be dedicated by the proponent to be involved in the process. Neither the federal nor the provincial processes reviewed included an approval in principle for the proponent. There is however, an opportunity to fast track an application to approval provided there are no adverse environmental impacts associated with the project.
The process should have timelines. This is critical for the participants because of the economic impacts of extended periods of time to achieve the desired goal. The federal process does not have specific timelines in the legislation; however, the timelines can be regulated (Wood, 1995). Conversely, the provincial process has very specific timelines in the legislation; however, there is some flexibility for the timing of respondent amendments.
The process should be open and transparent. Herein, is one of the most significant areas of change in the evolution of the EA process. The public must be involved from the initiation stage. The federal process is still significantly lacking in this regard with only discretionary provisions for public involvement. Conversely, the provincial process is very transparent and a very high priority is placed on public participation and public access to information through the project registry, Public Advisory Committees, and the terms of reference that define the distribution of information.
The process should be flexible and incorporate change management within the legislation and the process. The federal process does not incorporate flexible change management; it is difficult to effect change and exclude benign activities that are not economically viable for assessment. The provincial process incorporates flexibility within the process in that a proposed project may be fast tracked directly to the approval certificate stage. Furthermore, the proponent may revise their proposal pursuant to comments from the PAC.
The outcomes must be both legally binding and enforceable. Both processes are legally binding. Furthermore, there are specific provisions for penalties and even possible imprisonment under the provincial legislation for non-compliance.
One limitation of this modified benchmark model is that the criteria are not weighted. The weight of one element over another element may vary from case to case and cannot be summarised in this generic model.
There are several additional elements to consider in this comparative analysis that are excluded from the benchmark model. These include burden of cost, public intervenor funding, and effectiveness to evaluate the total potential impact on the environment.
The burden of cost is primarily the responsibility of the proponent for the detailed project assessment. In the event that there are broader issues of concern to the region then the government may bear the cost of a broad assessment. Furthermore, there must be a provision for public intervenor funding because without it, the process demeans itself to a public relations exercise rather than a consultation (Peacock, 1994). The federal and the provincial process do have limited provisions for intervenor funding.
The most important factor to consider in the EA process is the impact on the environment. The federal process is more rigorous than the provincial process and incorporates a cumulative effects approach (Finkel, 1998). There is a trend to harmonise the two processes where jurisdictional issues overlap.
There are strengths and weaknesses inherent in both the federal and the provincial EA process. Ideally, the continual trend in evolution and harmonisation of the processes will create a process that is open, fair, administratively realistic, and beneficial to the environment. Christopher Woods’ comparative analysis of EA on a global scale, describes the Canadian process as high profile (Wood, 1995). Furthermore, he praises the Canadian process because its application is one of the most visible manifestations of the government’s commitment to the environment and because it provides the best available opportunity for public participation in environmental decision making.
References:
British Columbia Environmental Law Statutes 1997. Ed. by M. Doherty. Carswell Thompson Publishing. Scarborough, Ontario. Pp 534.
Cotton, R. and McKinnon, K.M. 1993. "An Overview of Environmental Law in Canada." in Environmental Law and Business in Canada. Ed. by Thompson, G. Canada Law Books. Aurora, Ontario. Pp. 3-30.
Finkel, P. July 21, 1998. Seminar. "B.C.E.A.A. In Practice." ES415 Lecture Series: Environmental Impact Assessment. Royal Roads University, Victoria, B.C.
Peacock, A. 1994. "Setting and Enforcing Pollution Standards." in Perspectives on the Environment: Creating a Sustainable Society. Part 2. Compiled by V. Schaefer, Douglas College, Vancouver, B.C. with the BC Ministry of Environment, Lands and Parks, and, with the BC Ministry of Skills, Training and Labour. Vancouver, B.C. Pp 55-117.
Wood, C. 1995. "Legal Basis of EIA Systems." & "EIA in The Netherlands, Canada, the Commonwealth of Australia and New Zealand." in Environmental Impact Assessment: A Comparative Review. Longman Scientific & Technical with J. Wiley & Sons. Malaysia. Pp 55-86.
Appendix A: Benchmark Model Comparison of the Federal and BC Provincial Environmental Assessment Review Process Comparison
The benchmark model is a set of criteria that represents the evolution of thought around environmental assessment and what the process ideally should be. The model has been modified and each process has been assigned a score between one to ten, based on an ascending scale, to analyse the effectiveness of the process for each of the criteria.
Table 1. Benchmark Model Comparison of the Federal and B.C. Provincial Environmental Assessment Review Processes.
| Criteria | Federal Process Canadian Environmental Assessment Act, S.C.1992, c. 37. Amend. 1994 | Score | Provincial Process Environmental Assessment Act, S.B.C. 1994, c.35, as amended by S.B.C. 1994, c. 41, ss. 424, 242.1 | Score |
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Administration should be:
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Structure should be:
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Decision-making should be:
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Review Options should be:
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Fairness should be:
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Timeliness should be:
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Openness should be:
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Flexibility should:
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Enforceability of Outcomes should be:
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| Total Scores | Total Score /90 | Total Score /90 | ||
| Normalise to Per Cent Scores | Total Score /100 | Total Score /100 |
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