To what activities does the environmental assessment process apply?

Overview of Environmental
Assessment
Environmental assessment, in the opinion of the Supreme Court of
Canada, is “a planning tool that is now generally regarded as an integral component of sound decision-making.”1
It is important, again in
the words of the court, because, “the growth of modern societies has
shown the serious problems that can result from anarchic development
and use of land, in particular those problems concerning public health
and the environment.”2
The basic idea is that certain proposed activities should be scrutinized in advance from the perspective of their possible environmental
consequences. However, challenging design and operational questions
may arise in the process of implementing this idea, and there has been
considerable divergence of opinion about the legal status and weight
to be given to assessment processes. At one extreme of the spectrum
of opinion are those who think that assessment—not a bad idea in
principle—is something that should be dispensed with in the interests
of getting on with the real job of economic development. At the other
end are those who view the satisfactory completion of a rigorous and
1 Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1
SCR 3 at 71 [Oldman River].
2 R v Al Klippert Ltd, [1998] 1 SCR 737 at para 16.
Benidickson, Jamie. Environmental Law, 4th Edition, Irwin Law, 2000. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/ottawa/detail.action?docID=3288406.
Created from ottawa on 2019-01-11 17:04:36. Copyright © 2000. Irwin Law. All rights reserved.
Environmental Assessment 255
comprehensive environmental assessment as an essential precondition
of proceeding with any proposal. Yet, even among those who accept
the importance of environmental assessment, there are significant divergences of opinion concerning the scope and implications of such
proceedings.
The components of a generic environmental assessment regime
raise questions such as the following:
1) To what activities does the environmental assessment process
apply? To large or small operations; public or private operations;
projects only, or also plans, programs, and even policies that are
less directly associated with immediate physical impacts?3
2) By whom should the assessment be carried out? By the initiator of
the proposal, professional consultants or an independent body?4
3) What is the standard and scope of assessment, including the meaning of environment?5
Does environment include social, cultural,
and economic factors? Will the assessment deal only with “direct”
and “significant” impact, or will “indirect” and “cumulative” impact also be addressed?6
4) Is environmental assessment primarily concerned with the technical dimensions of specific proposed activity, or should it extend
to consideration of the very purpose and utility of the proposal, or
to other means of accomplishing the same goals?
5) Will the assessment documents be subject to some further process
of review and scrutiny? By departments of government; by the pub3 2004 October Report of the Commissioner of the Environment and Sustainable
Development (Ottawa: Office of the Auditor General, 2004) c 4, “Assessing the
Environmental Impact of Policies, Plans, and Programs.”
4 H Benevides, “Real Reform Deferred: Analysis of Recent Amendments to the
Canadian Environmental Assessment Act” (2004) 13 J Envtl L & Prac 195.
5 Projects under assessment contribute, through greenhouse gas emissions, to
climate change at the global level with extraordinary environmental impacts
outside the vicinity or locale of the project itself, and well beyond the jurisdiction in which the proposed activity would be undertaken. How to incorporate
these environmental impacts into the assessment process has been challenging.
See, for example, 2003 October Report of the Commissioner of the Environment
and Sustainable Development (Ottawa: Office of the Auditor General, 2003) c 2,
“Road Transportation in Urban Areas: Accountability for Reducing Greenhouse
Gases”; and T Kruger, “The Canadian Environmental Assessment Act and Global
Climate Change: Rethinking Significance” (2009-2010) 47 Alta L Rev 161.
6 C Tollefson & K Wipond, “Cumulative Environmental Impacts and Aboriginal
Rights” (1998) 18 Environmental Impact Assessment Review 371; 2011 October
Report of the Commissioner of the Environment and Sustainable Development, (Ottawa: Office of the Auditor General, 2011) c 2, “Assessing Cumulative Environmental Effects of Oil Sands Projects.”
Benidickson, Jamie. Environmental Law, 4th Edition, Irwin Law, 2000. ProQuest Ebook Central,
http://ebookcentral.proquest.com/lib/ottawa/detail.action?docID=3288406.
Created from ottawa on 2019-01-11 17:04:36. Copyright © 2000. Irwin Law. All rights reserved.
256 Environmental Law
lic; or through an administrative tribunal process? And are such
reviews mandatory or discretionary?
6) What should a review body be authorized to decide or recommend?
7) What are the consequences of not completing, or not “passing,” an
environmental assessment? Can the proposed initiative be delayed
or terminated?
8) Are follow-up measures available to provide for monitoring and to
ensure compliance with an assessment decision?