Major industrial resource projects under provincial jurisdiction that spew massive amounts of carbon emissions will no longer trigger federal environmental assessments — a move that’s angering environmental groups.
The Liberal government walked back the requirement in amendments to its controversial 2019 Impact Assessment Act, parts of which the Supreme Court deemed unconstitutional in the fall.
Environmental groups are raising the alarm and expressing their “disappointment” in a recent letter about the amendments introduced in Parliament on Tuesday.
“We are concerned that the government is not fully living up to its responsibility to protect Canadians and the environment from the climate impacts of major projects across Canada,” says the letter, which was signed by various environmental groups, including the environmental law group Ecojustice.
“We urge you to act immediately to retain these important aspects of federal decision-making within the scope of the act.”
Major industrial projects, such as oilsands mines, tend to fall under provincial regulatory authority. Under changes introduced to the Impact Assessment Act, oilsands projects will no longer be subject to federal environmental reviews of the amount of emissions they would add to the atmosphere.
They can still be assessed by the federal government for their impacts on fish, aquatic species and migratory birds.
Under the original law, a major project could fall within Ottawa’s regulatory jurisdiction if it resulted in “a change to the environment … in another province.” The recent amendments dropped this part of the law, which would have allowed the federal government to withhold approval of industrial projects if their emissions could worsen the impact of climate change in other provinces and territories.
“Certainly, cross-border GHGs (greenhouse gas) emissions have a national impact,” said Ecojustice staff lawyer Josh Ginsberg.
“Canadians lose the protection of assessments that consider, in a precautionary way, really significant air pollution and really significant GHG emissions.”
Canadians are already seeing the impacts of climate change in the rising frequency of severe weather events, the disappearance of freshwater resources, more frequent and intense forest fires, shrinking Arctic ice and the acceleration of glacial melting.
In 2023, Canada experienced its hottest summer ever, the largest wildfires in its history, drought in the Prairies and floods in British Columbia and Nova Scotia, according to Environment and Climate Change Canada.
Assessment reports from the Intergovernmental Panel on Climate Change conclude unequivocally that human activities have caused the planet to warm.
Guilbeault disagrees with environmental groups
The proposed changes to the law are almost certain to pass. The NDP has said it will support the bill because it contains other measures New Democrats support.
Federal Environment Minister Steven Guilbeault is backing the changes. He said Ottawa is regulating greenhouse gas emissions through strengthened methane regulations, an electric vehicle sales mandate and a proposed cap on oil and gas sector emissions.
Guilbeault said those measures were not in place when the Impact Assessment Act was updated through Bill C-69.
“All of these things have been developed since the Impact Assessment Act was adopted in 2019, so we have an arsenal of measures now to tackle climate change pollution,” he said.
“I respectfully disagree with my ex-colleagues of the environmental movement on that. The Supreme Court was very clear that, in its previous form, the Impact Assessment Act went too far in terms of imposing federal oversight over provincial projects.”
Environmental groups wrote to the federal cabinet Wednesday calling for it to rethink amendments to the Impact Assessment Act. Environment Minister Steven Guilbeault said Thursday that Canada has an ‘arsenal of measures now to tackle climate change pollution’ that weren’t in place when the Impact Assessment Act was originally adopted.
On Oct. 13, the Supreme Court ruled that sections of the Impact Assessment Act were unconstitutional. Some parts of the law were found to fall within federal jurisdiction, but the court said other sections were too broad.
The Impact Assessment Act (IAA), previously known as Bill C-69, came into force in 2019. It allowed federal regulators to consider the potential environmental and social impacts of various resource and infrastructure projects.
Writing for the majority in a 5-2 decision, Chief Justice of the Supreme Court Richard Wagner said the processes set forth in Sections 81 to 91 of the IAA were constitutional and could be separated out.
Stewart Elgie, a law professor at the University of Ottawa, said the top court did not forbid the federal government from assessing greenhouse gas emissions.
“I was surprised to see the government retreat further than they need to to address the Supreme Court’s decision and abandon important areas of federal authority over climate change and air pollution,” Elgie said.
“I wouldn’t be surprised to see them try and fix this problem before the bill is passed into law.”
Martin Olszynski, a lawyer who intervened in the case, said Ottawa is probably taking a strategic approach, opting for changes to the Impact Assessment Act which would survive another constitutional challenge.
Olszynski said he would have preferred to see the government tweak the legislation to satisfy the Supreme Court while still maintaining the federal government’s role in regulating the approval of projects with high greenhouse gas emissions.
“There is a threshold at which the individual emission of projects … start to matter when we’re thinking about net zero,” said Olszynski, who is also an associate professor at the University of Calgary faculty of law. “Every little bit matters.”
The Canadian Association of Petroleum Producers said it is reviewing the government’s amendments. The Ontario and Alberta governments, which opposed the act, did not immediately provide CBC with comments on the amendments.