On June 11, 2015, the Minister of Sustainable Development, the Environment and the Fight Against Climate Change, David Heurtel (the "Minister") made public the Green Paper on the modernization of the Environment Quality Act ("EQA") before the National Assembly. Now 43 years old, the EQA was long overdue for an in-depth revision, which is why the Minister has made it his duty to give Québec an environmental authorization regime that is clearer, more predictable and more efficient. Much is expected of this modernization, which should have an effect on all stages of the process leading to the issuance of an authorization, either by the government or the Minister. All authorizations issued under the EQA are targeted, especially those stemming from the environmental impact assessment and review procedure ("EIARP").
Following in the footsteps of the Ontario reform, the Minister proposes to adopt an approach based on environmental risk, improved service performance and shorter delays, to name but a few examples of the proposed improvements. The modernization promoted by the Minister is built on seven main guidelines.
Adjusting the Authorization Regime to Reflect the Environmental Risk
The environmental authorization regime under the EQA provides for two distinct procedures applicable to anyone who wants to undertake a project that might have an impact on the environment. These procedures are either the issuance of a governmental authorization pursuant to the EIARP or the issuance of a ministerial authorization. Governmental authorizations apply to specific types of projects presenting a greater environmental risk, while ministerial authorizations target other types of projects.
In his Green Paper, the Minister proposes to revise the authorization regime as it currently exists under the EQA, in order to modulate the regime to reflect the environmental risks posed by a project. Projects that are subject to the EQA would therefore be divided into the following four types of activities:
- High-risk activities: These are projects which are deemed to pose high environmental risks. Such projects would remain subject to the issuance of a governmental authorization;
- Moderate-risk activities: These projects present variable levels of environmental risks and require the implementation of mitigating measures. These projects would be subject to the issuance of a ministerial authorization;
- Low-risk activities: These projects have only minor environmental impacts, which also require mitigating measures. Such projects would be subject to the issuance of an attestation of environmental conformity;
- Negligible-risk activities: These projects pose negligible environmental risks and would not be subject to any prior formality.
The Minister also proposes to grant the government with the power to issue Orders in council in order to subject projects to the EIARP, even if those projects would not usually be subject to such a procedure under the EQA.
Reviewing the Responsibilities of Project Proponents and the Ministry of Sustainable Development, Environment and the Fight Against Climate Change ("MSDEFCC")
In his Green Paper, the Minister notes that the average time to obtain an authorization has increased considerably over the years, and that these delays are partly due to the fact that the files transmitted by project proponents are often incomplete. In an effort to increase efficiency and to palliate the inherent shortcomings in the context of the processing of project proponents' authorization applications, the Minister proposes to revise the normative framework that applies to the processing of such applications. Essentially, the proposed amendments seek to clarify the requirements specific to each types of projects and to grant the Minister new powers with respect to such applications.
Consequently, in cases where project proponents fail to meet any of these requirements, the Minister proposes to implement measures that would allow him to refuse and consider invalid any incomplete application. The Minister could also decide to refuse issuing an authorization if the project proponent is in a situation of non-compliance with any of its other authorizations, regardless of what project the authorization was issued for.
The Minister also proposes to implement measures that will require authorization holders to comply with certain specific standards when they cease the activities for which an authorization was issued.
Simplifying Authorizations and Analysis Process
While reorganizing the ministerial powers and the processing of authorization applications, the Minister proposes a series of measures to simplify the environmental authorization regime in Québec.
The Minister proposes to implement, among other things, a single authorization which would group together all authorizations currently required pursuant to the EQA for a project. This single authorization would be adaptable, since it could be amended along the way to reflect any changes in a previously‑authorized activity. Furthermore, such an authorization could be transferred on notice to the Minister by the transferor and the transferee.
Regarding ministerial powers with respect to the issuance of environmental authorizations, the Minister proposes to grant himself the power to authorize the execution of certain emergency work. That power, however, would be limited to disasters or cases where public safety is a concern. The Minister also proposes to grant himself the power to, under certain conditions, authorize experimental projects, the environmental impacts of which are poorly documented. The goal of these circumscribed authorizations would be to better document the environmental impacts of such projects before a complete and final authorization application is filed.
Increasing Public Participation and the Amount of Information Available
The Green Paper provides for a certain number of measures that will enhance the information to which the public has access, both in the case of governmental and ministerial authorizations.
One such measure proposed by the Minister is to create a public registry specifically for projects subject to the EIARP. This registry would contain all of the information and documents pertaining to these projects. The Minister also proposes to begin hearing procedures as soon as the impact assessment study is deemed to be complete, in the event where a consultation procedure is likely to be required or if the Minister believes it is necessary to hold one.
Finally, the Minister proposes to publish the content of ministerial authorizations directly on the MSDEFCC's website, subject to certain confidential information. For information purposes, currently, the content of authorizations can only be accessed by means of an access to information request filed pursuant to the Act respecting access to documents held by public bodies and the protection of personal information.
Integrating the Fight Against Climate Change into the Authorization Process
According to the Minister, the EQA, does not allow him to explicitly require that projects be designed in such a manner as to take into consideration or perhaps even reduce greenhouse gas emissions ("GHGs"). Furthermore, the impacts on climate change of some projects are not adequately and sufficiently taken into account. Given the context, it is proposed that some activities presenting significant climate change issues be subjected to the EIARP. It is also proposed that the Minister be vested with greater powers to impose conditions to certain proponents in order to limit their project's GHGs emissions. In order to do so, the Minister could require to be informed of a project's GHG emission rate when an authorization application is being processed.
Internalizing More of the Costs of Environmental Authorizations and Resulting Activities
The MSDEFCC already has a fee schedule for its interventions with respect to authorization applications. By means of a ministerial order, the MSDEFCC can require the payment of fees in order to finance these activities. The modernization that the Minister is proposing includes a review of the fee schedule that will reflect the new features of the requested authorizations. One change brought by the review would be a higher self-financing ratio for some services, such as the audit to determine whether an activity complies with the authorizations that was issued.
Better Integration of the 16 Principles of the Sustainable Development Act
The Sustainable Development Act lists the 16 principles that the public administration must integrate in its areas of intervention in order to optimize its pursuit of sustainable development. The application of this Act, however, is limited to the government, the governmental departments and governmental agencies provided in the Auditor General Act. The Minister proposes to embed these 16 principles directly in the EQA in order to extend its application to all. Additionally, a legislative framework is proposed for strategic environmental assessments ("SEAs"). SEAs would be conducted by the agency or department responsible for the strategy, plan or program that it intends to implement in a given sector or region. The Bureau d'audience publique sur l'environnement ("BAPE") and the MSDEFCC could play a supporting role.
The modernization also proposes to adapt the EIARP and ministerial authorizations to projects resulting from a SEA a strategy. Such projects could benefit from a quicker and simpler procedure, seeing as some questions would already have been dealt with in the SEA.
This Green Paper is the first proposal to modernize the environmental authorization regime since the EQA came into force in 1972. While some of the Minister's proposals hew closely to the existing regime, others announce major changes that will definitely affect many businesses in Québec. Much ink will undoubtedly flow over this Green Paper in the next few months.
This is why the Minister intends to hold a series of specific consultations among the various stakeholders before a bill is tabled before the National Assembly this fall. Between now and then, it will be interesting to see how the various proposals of the Green Paper will evolve.