The BC Government is seeking public input until October 7, 2019, on its recent proposals to reform what projects are subject to a provincial environmental assessment (“EA”). This is part of BC’s commitment to revitalize EA in the province in order to “ensure the legal rights of First Nations are respected, and the public’s expectation of a strong, transparent process is met.”
We believe that BC has the right idea with a proposal to introduce additional thresholds for when EAs are required that would be based on impacts such as how much land is proposed to be cleared or how many greenhouse gases would be emitted. However, BC’s proposed new thresholds are unlikely to make much difference on the ground because they are set too high and they would only apply to certain categories of activities.
West Coast has produced a backgrounder with multiple case studies demonstrating that BC’s proposed reforms would not really alter the status quo, and recommending ways to strengthen BC’s approach in order to require more assessments where they are needed. This blog gives a summary.
The context for BC’s reform proposals
BC passed a new Environmental Assessment Act in November 2018, and plans to bring the new Act into force by the end of 2019, once it has developed a number of important regulations that determine how the Act will work in practice. One of the most crucial elements of the entire EA regime is the Reviewable Projects Regulation (the “RPR”), which determines the projects that are subject to assessment under the Act. West Coast has outlined elsewhere why the EA regime – including the RPR – needs reform, and we and many others have argued that more assessments are needed to better protect the environment and enhance public confidence.
The BC Government has now released a discussion paper outlining its proposed approach to reforming the RPR, and BC is seeking public input until October 7, 2019. (BC is also seeking input during the same time frame on how to improve public engagement in EAs).
What is BC proposing to change?
The Coles notes version of BC’s current RPR is that it lists categories of projects that are subject to EA, and then sets out thresholds to determine when an assessment is required for each type of project. The current thresholds are usually based on quantifiable project features like production capacity (for example, a proposed mineral mine’s production capacity in tonnes of ore per year). BC is proposing to keep this general approach, with some modifications, and also add impact-based thresholds that would require assessment of a project in a listed category if it proposes to cause one of four quantifiable impacts: (i) clearing more than 600 hectares of land; (ii) clearing corridors of land more than 60 kilometres in length; (iii) directly emitting more than 382,000 tonnes of greenhouse gases per year (i.e. more than 1% of BC’s 2030 climate target); or (iv) overlap with a prescribed protected area.
BC has also proposed thresholds for a new (and welcome) provision in the Act for “notifications,” whereby proponents of certain “non-reviewable” projects must nonetheless notify BC about their proposed project, so that it can be considered for special designation by the Minister to undergo assessment. While we address the notification thresholds in more detail in our backgrounder, including some ways they could be improved, generally speaking we believe BC is on the right track with notifications. Therefore the rest of this blog focuses on the thresholds for when EAs are required, where we believe there is a greater need for improvement.
Are BC’s proposed reforms any good?
The simplest way we can summarize our view of BC’s proposal for the new RPR thresholds is: “right idea, wrong execution.” In other words, adding effects-based thresholds to the existing production thresholds is a good idea that goes to the heart of the EA regime by basing requirements about what projects undergo assessment on the impacts the project will have. However, BC’s proposed effects thresholds appear unlikely to make much difference in the real world because they are set so high, and would not apply to any new categories of activities besides those already listed as a prescribed project in the RPR.
West Coast’s backgrounder goes through seven case studies of activities:
- Banks Island Yellow Giant Gold Mine
- Davie Bay Limestone Quarry
- Holmes Hydro
- Komie North Frac Sand Pit
- North Tsea Lake Water Withdrawal
- Upstream Oil and Gas Activites
- Placer Mining
These activities, from mines to hydroelectric plants to oil and gas activities, have been in the public eye either because they appeared to “game the system” to artificially avoid an assessment, or they have caused impacts yet plainly did not require assessment according to current law. In all seven case studies, BC’s proposed new changes to the RPR still would not require assessment of those activities.
How could BC do better in reforming what projects undergo EA?
West Coast’s backgrounder sets out a series of more detailed recommendations to improve BC’s proposals for what projects undergo EA, but here are some highlights:
- The impact-based thresholds are a good idea in principle, but in order to make a difference in practice they must be significantly strengthened. In particular:
- Lower the proposed greenhouse gas emission threshold – West Coast recommends a threshold of 50,000 tonnes of GHGs per year – and apply it to any project that crosses the GHG threshold, not just those projects that are already listed in the RPR. BC’s proposed threshold of 382,000 tonnes of GHGs per year is way too high and will only catch a small handful of the very largest GHG-emitting projects (as one example, the Woodfibre LNG plant would have failed to surpass BC’s proposed GHG threshold by a long shot). A much stronger GHG threshold is needed, and should apply to any project that causes such GHG emissions, not just those already listed in the RPR. There is a clear benefit to requiring consistent assessment of all large-emitting projects, in terms of taking a strong and coordinated approach to ensuring that BC gets on track to meet its legislated climate targets.
- Lower the land disturbance threshold for prescribed projects – West Coast recommends a threshold of newly disturbing 75 hectares. In the case studies addressed in the backgrounder, BC’s proposed threshold of causing 600 hectares of new disturbance is generally so high that it does not come close to capturing any of the projects discussed. A 75-hectare threshold would be low enough to capture some of the prescribed projects in the case studies.
- Lower the proposed greenhouse gas emission threshold – West Coast recommends a threshold of 50,000 tonnes of GHGs per year – and apply it to any project that crosses the GHG threshold, not just those projects that are already listed in the RPR. BC’s proposed threshold of 382,000 tonnes of GHGs per year is way too high and will only catch a small handful of the very largest GHG-emitting projects (as one example, the Woodfibre LNG plant would have failed to surpass BC’s proposed GHG threshold by a long shot). A much stronger GHG threshold is needed, and should apply to any project that causes such GHG emissions, not just those already listed in the RPR. There is a clear benefit to requiring consistent assessment of all large-emitting projects, in terms of taking a strong and coordinated approach to ensuring that BC gets on track to meet its legislated climate targets.
- Do more to stop companies from “project splitting” or “project phasing” to avoid assessment thresholds. In particular:
- Define a “new project” in the RPR to include multiple proposals or applications by the same proponent for activities that are functionally interconnected. This would help stop “project splitting.”
- Require assessment for any expansion of a project that would cause it to exceed the threshold for a new project in that category, if the expansion is proposed within ten years of the date that construction starts on the original project. This would help stop “project phasing.”
- Define a “new project” in the RPR to include multiple proposals or applications by the same proponent for activities that are functionally interconnected. This would help stop “project splitting.”
- Restore the “original” thresholds (i.e. those enacted in 1995 under the first Environmental Assessment Act) for mineral mines and coal mines, namely 25,000 tonnes/year of mineral ore for mineral mines and 100,000 tonnes/year production of coal. These two thresholds were weakened in 2002, when they were raised to 75,000 tonnes/year of mineral ore and 250,000 tonnes/year of coal. The original, stronger thresholds should be reinstated.
- Make upstream oil and gas extraction a listed category of project under the RPR, for which the thresholds are the (strengthened) impact thresholds. In other words, apply the impact-based thresholds for land disturbance, GHG emissions and so on to upstream oil and gas activities.
For further recommendations, see our backgrounder.
While BC’s new Environmental Assessment Act is an improvement over its predecessor, its strength will depend in part on what activities actually require an assessment. Have your say by October 7, 2019, on how BC should strengthen its approach to when provincial environmental assessments are required.