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Jon Rossall, Partner
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McLennan Ross
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Narrow approach to federal environmental assessment upheld |
| 24-Jul-06 |
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An Energy, Environmental & Regulatory Law Update
The Supreme Court of Canada has refused to hear an appeal of the Federal Court of Appeal's decision in Prairie Acid Rain Coalition v. Canada (Minister of Fisheries and Oceans) (2006 FCA 129). This case concerned federal environmental assessment of TrueNorth Energy Corporation's proposed Fort Hills Oil Sands Project near Fort McMurray, Alberta.
In Prairie Acid Rain, a coalition of environmental groups challenged a decision of the federal Department of Fisheries and Oceans (DFO) to scope the Fort Hills Oil Sands Project as a "creek destruction project" for the purposes of the Canadian Environmental Assessment Act (CEAA). The environmental coalition argued that, for the purposes of assessment under CEAA, the project should be scoped to include the entire oil sands mine and related facilities.
Environmental assessment under CEAA had been triggered by TrueNorth's plan to destroy Fort Creek as part of the Fort Hills Project, which required authorization under the federal Fisheries Act. Once CEAA was triggered, DFO was required to scope the project and carry out the environmental assessment.
In late January of 2006, the Federal Court of Appeal ruled that DFO has a broad discretion to limit its environmental assessments to impacts flowing from harm to fish habitat. The Court refused to interfere with DFO's narrow scoping decision and stressed that CEAA's application should be limited to an examination of effects flowing from federal aspects of a project. Unless the federal government is providing land or funding for a project, this will normally mean effects flowing from a specific, federally authorized activity.
TrueNorth is the latest in a growing line of cases granting broad discretion to federal authorities that scope projects. The implications for proponents of major projects are significant, as project scoping determines the level of scrutiny to which the proposed project is subjected. A narrowly scoped project may require only a screening, rather than the comprehensive study or panel review that CEAA requires for most major, broadly scoped projects.
This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Ron Kruhlak in Edmonton at rkruhlak@mross.com, Gavin Fitch in Calgary at gfitch@mross.com, or any member of our Energy, Environmental & Regulatory Practice Group for legal advice on this or any other energy, environmental and regulatory law topic. |
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