The shining promise of two innovative clauses in the new Impact Assessment Act is lost in the weeds, with guidance too weak to be useful.
In politics as in angling, the big ones are often deep in the weeds. The political ones include pressures, policies and decision-making practices of many kinds that operate beneath the easily scrutinized surface, exercising major but murky influence over the course of events.
A case in point is the policy-based implementation guidance that is growing beneath two sunlit clauses of Canada’s new Impact Assessment Act.
Clauses 63(a) and 63(e) require decision-makers (the cabinet, in important cases) to consider the extent to which an assessed project would
- contribute to sustainability, and
- hinder or contribute to meeting Canada’s environmental obligations and climate change commitments.
Both set standards far higher than those in past federal assessment law.
The old Canadian Environmental Assessment Act mentioned sustainable development. But the operative goal was only to mitigate significant adverse effects on the biophysical environment, and projects could still be approved if their anticipated significant adverse effects were judged to be “justified in the circumstances.”
Considering “contributions to sustainability” is quite different. It entails attention to all factors affecting lasting well-being, requires a multigenerational perspective and aims to enhance future prospects rather than merely mitigate serious damage. Moreover, practical application demands long overdue clarification of what’s required in Canada to move from unsustainable practices to more viable and attractive ones, and how to do that smoothly and fairly.
Tying assessments to Canada’s environmental and climate change commitments is similarly more demanding. The old law did not mention commitments or climate. As a result, serious attention to climate responsibility was evaded, even in assessments of major projects that would lock in decades of new emissions.
Focusing assessments on implications for sustainability, environmental obligations and climate commitments should enhance prospects for decision-making in the long-term public interest. The catch is that effective implementation depends on detailed and authoritative guidance as well as public scrutiny.
The Impact Assessment Act’s sustainability and environment/climate commitment clauses are bare-bones provisions. They merely establish the mandatory considerations. For practical application, they need substantial elaboration in regulations and/or policy guidance to clarify expectations and to establish suitable criteria and methods for evaluation.
Without quite detailed elaboration of what analyses will be done and how the results will be evaluated, proponents will not be able to plan with confidence. Authorities will have no base for consistent and defensible decision-making, and citizens will have more difficulty holding them accountable.
Clear and authoritative direction is especially crucial for the two innovative clauses because sustainability and environment/climate responsibility are intergenerational public interest imperatives. In a world mostly ruled by short-term economic and political imperatives, the absence of clear and consistently applied long-term guidance is likely to favour near-term economic and political priorities.
Producing such guidance entails new work. There is no handy set of established federal policies on how to do sustainability-based evaluation and decision-making. Canada’s numerous environmental obligations seem not to have been consolidated anywhere, much less translated into implications for project assessments. And, nearly four years after signing the Paris Agreement, Canada has still not upgraded its pre-Paris mitigation targets to meet the higher Paris expectations or set out what compliance with Paris would entail.
The shining promise of the Impact Assessment Act’s clauses 63(a) and 63(e) therefore depends heavily on the strength and clarity of new guidance issued under the Act. Unfortunately, the guidance produced so far in support of the sustainability and environment/climate clauses is weak or silent on the key issues.
On sustainability, the current information on applying the Act’s “contribution to sustainability” requirements is limited to setting out and explaining four sensible but very broad sustainability principles (concerning human-ecological systems, present and future well-being, maximizing net benefits and respecting uncertainties).
The guidance provides no useful indication of how the extent of a project’s “contribution to sustainability” will be evaluated by assessors and decision-makers. It does not expand the broad sustainability principles into more detailed sustainability-based criteria for assessments. It does not require, much less explain, how proponents or assessors should specify sustainability criteria for particular projects and contexts, or how they should identify and evaluate the unavoidable sustainability trade-offs. In the current sustainability guidance material, the words “criteria” and trade-off” do not appear.
On meeting Canada’s environmental obligations, there is no guidance whatsoever, not even a list of the most important current obligations. Instead, proponents preparing impact statements under the new Act are told that the Impact Assessment Agency will identify relevant obligations case by case — too late to inform proponent deliberations on what projects to favour for investment and bring forth for assessment and approval.
On climate, the new list of projects subject to assessment requirements ignores or excludes many that will be substantial greenhouse gas (GHG) emission sources. For projects that are assessed, the available climate guidance includes nothing about how the federal decision-makers will determine “the extent to which the designated project will hinder or contribute to” meeting Canada’s climate change commitments. That makes the guidance document essentially useless as a tool for encouraging better planning or decision-making about climate-significant projects.
Instead of telling proponents, reviewers and other assessment participants what standards must be met, the climate guidance is devoted almost entirely to how to calculate and report project-related GHG emissions. And the reporting requirements are plainly skewed to allow proponents to ignore or excuse substantial new emissions. For example, no project-related additions to downstream emissions are to be considered, but proponents are encouraged to report any expected downstream emissions reductions and offsets.
To support the Impact Assessment Act’s climate provisions, the needed guidance would have to cover all project-relevant net emissions, set out reasonably well-defined criteria, analyses and tests for determining a project’s implications for meeting our climate commitments and explain how they would be used. The tests could involve a package of mutually complementary tools for climate-responsible testing in assessments based on allocating a defensible national carbon budget, identifying viable pathways to net-zero GHGs, determining the social cost of carbon and the rate of carbon price increases that would move us to net-zero GHGs quickly enough, and so on. Elaboration of these options would also support applications beyond assessment.
For sustainability, environmental protection and climate change mitigation, meeting our commitments and preserving a viable legacy for future generations demand present-day actions that are consistent with a far-sighted agenda, clear expectations and effective tools for accountability.
The two best clauses in the new federal Impact Assessment Act enable such an approach. But down in the weeds of implementation guidance, the light has not penetrated far. Vision and visibility are lacking, and the key decisions are kept in the shadows of unstated criteria and influences that favour immediate expediency over intergenerational commitment.
Improvements are possible. These are early days for the new law, and much of the current guidance is labelled “interim” or “draft.” Depending on the results of the October 21 election, positive revisions may be considered. But the record so far provides no grounds for confidence that the current processes and players will deliver what is needed.
All of the guidance documents discussed here are the products of government deliberations that included formal opportunities for public comment. Evidently, lasting public interests need more powerful advocacy and influence. How to win that is beyond the discussion here. However, any useful approaches will need to address the specifics of implementation guidance, and that will involve pulling on hip waders and getting deep into the weeds.
Do you have something to say about the article you just read? Be part of the Policy Options discussion, and send in your own submission. Here is a link on how to do it. | Souhaitez-vous réagir à cet article ? Joignez-vous aux débats d’Options politiques et soumettez-nous votre texte en suivant ces directives.