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Bill 102: Heading Towards A Greater Involvement of the Public and the Government in the Environmental Impact Assessment and Review Procedure

Fasken
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Energy & Environmental Bulletin

Bill 102 (Bill 102) tabled on June 7, 2016 by the Minister of Sustainable Development, the Environment and the Fight Against Climate Change, Mr. David Heurtel (the Minister), will, if enacted as it currently reads, have a significant impact on the manner in which major projects in Québec are assessed from an environmental standpoint.

Indeed, it proposes various amendments to the provisions of the Environment Quality Act (EQA) governing the environmental impact assessment and review procedure (Environmental Assessment Procedure). These amendments are intended, among other objectives, to afford the government greater flexibility in subjecting projects to the Environmental Assessment Procedure and to provide the public with the opportunity to intervene in the process prior to the conduct of an environmental impact assessment.

Discretionary power to subject of projects to the Environmental Assessment Procedure

Under the current system, a project is subject to the Environmental Assessment Procedure only if it is listed under section 2 of the Regulation respecting environmental impact assessment and review. Although such list still appears to remain the most common way for the Minister to designate projects to be subject to the EAP, Bill 102 would nevertheless partially alter this manner of subjecting projects to the procedure by allowing the government to subject to the Environmental Assessment Procedure any project that is not covered by this list but which, in the opinion of the government, raises major environmental issues, in particular regarding climate change, or raises concerns from the public.

In this respect, we believe it is crucial to stress that the Minister would be entitled to a period of three months following the filing of a request for authorization, of any nature whatsoever, to notify the applicant of its intention to recommend to the government that its project be subjected not to a ministerial authorization, but to the Environmental Assessment Procedure. This 3-month period appears to be significantly long, in light of the substantial impact that such a decision would have on a project's schedule and potentially on its feasibility.

Participation of the public in the Environmental Assessment Procedure

The directive and the observations of the public prior to the environmental impact assessment

Bill 102 proposes to incorporate for the first time in the EQA an express reference to the directive governing the conduct of the environmental impact assessment of a project, which document is already part of the environmental assessment process in Québec. This document specifies the nature, scope and extent of the environmental impact assessment statement, which the proponent is required to prepare. However, along with this reference, other changes are made in this regards that will alter the manner in which the proponent will have to approach the application of the directive.

Indeed, Bill 102 provides that the directive may specify a time limit for sending the environmental impact assessment statement to the Minister. In addition, it is proposed that the directive be made public on an Environmental Assessment Register so that any person may make observations to the Minister regarding those issues that the environmental impact assessment ought to address. These observations would then be published in the Environmental Assessment Register and the Minister will then indicate to the proponent any additional environmental issues that it will be required to address in the environmental impact assessment. These observations from the public would be in addition to those items already provided for in the directive issued by the Minister.

Methods of public consultation with respect to the environmental impact assessment

Under the current system, a person may request that the Minister hold a public hearing with respect to a project subject to the Environmental Assessment Procedure. Bill 102 maintains this right, but specifies the nature of the involvement of the public in the process following the publication of the environmental impact assessment.

The Minister would have at its disposal three means of consulting the public, namely a public hearing, a targeted consultation and a mediation. The Bureau d'audiences publiques sur l'environnement (BAPE) would remain in charge of holding public consultations, regardless of the means chosen by the Minister. Furthermore, the Minister has the discretion to subject a project to a public hearing where, in his opinion, such a hearing appears unavoidable given the nature of the environmental issues raised. The BAPE remains responsible for reporting its findings to the Minister.

The Environmental Assessment Register

With a view to enhancing the opportunities for the public to intervene in the Environmental Assessment Procedure, Bill 102 proposes the creation of an Environmental Assessment Register. Several documents will be made available to the public on the Register, namely:

  • The notices of a proponent's intent to undertake a project subject to the Environmental Assessment Procedure;
  • The directives of the Minister and the observations of the public with respect to the environmental issues raised by the project and that are to be addressed in environmental impact assessment;
  • The environmental impact assessment and statements;
  • The authorizations issued or amended; and
  • Any monitoring reports required under the authorizations issued.

For more information with respect to the amendments set out in Bill 102 affecting the Environmental Assessment Procedure provided for in the EQA, we invite you to attend our seminar that will be held on September 28, 2016 at our offices. Further details in this respect will be forthcoming.

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