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"Changing Environment Procedures"

By Gerald Graham*

Financial Post, Tuesday, April 24, 1990, p. 16

Buried in Environment Minister Lucien Bouchard's framework

environmental discussion paper released with much hoopla recently in
Montreal, there was a brief reference to the federal Environmental
Assessment Review Process (EARP). This is the process the government
employs to evaluate the impact its own activities have on the
environment. Later this spring the government intends to table
legislation “to strengthen application of the EARP process.” There was
no discussion of what the government intends to do in this regard.
The EARP guidelines, introduced in the mid-1970s and last revised
in 1984, have been implemented with varying degrees of enthusiasm
by government departments and agencies. Some see them as a
nuisance, while others have taken them to heart and produce their own
stringent internal guidelines. For over a decade the Federal
Environmental Assessment Review Office (FEARO) has been attempting
to accord EARP the force of law, instead of leaving it to the discretion of
departments and agencies to apply the guidelines. This has been
vigorously resisted by various elements of the bureaucracy.
Then along came Bud Cullen, Judge of the Federal Court of
Canada, pronouncing in the historic Rafferty-Alameda dam decision in
April, 1989, that the 1984 guidelines have been mandatory all along.
This put FEARO officials in a rather prickly position, for while they had
always intended to make the process mandatory, they would have
preferred to limit it to projects the government had direct involvement
in or responsibility for. The 1984 guidelines could be interpreted as
going well beyond this to encompass almost anything the government
was involved in by way of a subsidy, grant or decision.
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One might have thought FEARO would be ecstatic that an

environmental group had managed to get a judge to agree that the
1984 guidelines are law. However, FEARO officials tend to be anything
but environmentalists; they see themselves as merely administering a
process, and do not take kindly to anyone telling them how to
administer that process. To make matters worse, a second judge late
last year said in effect the jerry-built review put together to comply
with Cullen's Rafferty decision was inadequate and had to be redone.
Civil servants are therefore worried that Rafferty will create a
landslide of projects to review. Investment Canada, for instance, is
concerned it will have to screen foreign investment proposals for their
environmental impact. The Canadian International Development
Agency is worried that the dams it finances abroad will have to be
publicly reviewed. The Defence Department is nervous that activities on
its bases in Europe will be subject to the same treatment.
This curious turn of events signals a new era in Canadian public
policy making. The old, consensual approach to problem-solving in
Canadian public administration has given way to a more American style.
Until Rafferty, the environmental assessment review procedure
essentially operated under the honour system. Departments screened
their own activities and where necessary conducted initial
environmental evaluations of projects. If it was determined that a
project warranted it, FEARO was asked by the initiating department to
conduct a full public review.
Self-assessment is essentially a good idea because it induces the
notion of environmental responsibility and incorporates environmental
factors into decision-making. The problem is that you need someone to
make sure the evaluations are being done, that they are being done
right, and that if formal public review is required it will be done early in
the planning process and not just prior to startup.
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Giving FEARO or its successor body such powers will probably

represent the single most important improvement to the EARP process.
And it may not even lead to a whole slew of public review panels, since
departments will have plenty of incentive to do their homework well,
and to consult the public informally at an early stage.
A further step toward improving EARP's effectiveness would be to
keep it at arm's length from Environment Canada. FEARO likes to
maintain the fiction that it is independent of Environment Canada, but
in practice the administrator of FEARO answers to the deputy minister.
All the support services come from Environment Canada, whose annual
report usually includes a section on FEARO.
Because Environment Canada has an environmental advocacy
role, one might reasonably ask why FEARO should not be an integral
part of it. The official fuel line is that whereas Environment Canada
must from time to time take a stand on projects, FEARO must maintain
a neutral position vis-a-vis the projects that reviews, merely ensuring
that the process is faithfully applied.
There is some merit to this argument, although one would like to
see FEARO put more emphasis on having environmental values
respected instead of going to great lengths to be fair to all the parties
involved. Sometimes panels are merely going through the motions,
since the outcome of a review can be a foregone conclusion if the
Environment minister has not negotiated strong panel terms of
reference with his colleagues.
This is what happened in the case of the NATO Low-level Flying
panel, where the terms of reference are very restrictive. Land claims,
for instance, are outside the panel's mandate even though this is one of
the biggest issues of all. The panel is also precluded from
recommending that low-level flights cease or even stay at their present
level. And to add insult to injury, the Defence minister was signing
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memoranda of understanding with NATO partners to extend the flights

just as the panel was looking to see what the negative effects were.
Another reason for keeping FEARO separate from Environment
Canada is that, because Environment Canada is often the initiator of
projects FEARO has to review, there is sometimes a conflict of interest.
The clearest example of this was Rafferty-Alameda, where Environment
Canada was responsible for issuing certain permits, but the minister
allegedly did not want a public review because he had struck a deal
with the Saskatchewan government.
The new Federal Environmental Review Agency (FERA), as it may
be called, obviously will need more clout. It should have as its head an
Order-in-Council appointee of deputy minister stature of or above.
FERA should report to Parliament on an annual basis, much the way the
Auditor General or the human rights commissioner does. It should also
have an environmental auditing role in respect of government
departments, which themselves should be required to report to FERA
on how they are implementing EARP.
In the meantime, the public review panels should also be made
more independent of government. FEARO defends the normal practice
of appointing its regional directors as panel chairpersons on the
grounds they are professionals who know how to apply the EARP
procedures, and they provide consistency between panels. There is
some truth to this, but this same result could be achieved by another
means- namely, through the executive secretary to the panel.
It is too much to expect a middle-rung bureaucrat to come out
against a megaproject the Prime Minister, the government and perhaps
even his own department are on the public record as supporting, and
perhaps even subsidising. Panel chairman should be able to resign their
posts on matters of principle without having to worry about ruining
their civil service careers.
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These are just some of the changes which could be introduced to

the EARP process. Others, such as extending the concept of EARP to
assessments of government policies, programs and legislative
initiatives, have been bandied about, but it is a pity none of them made
it into Bouchard's think piece. In short, there are plenty of things to
discuss, but a golden opportunity has been lost to do so, presumably
because the government would now prefer to introduce the long-
awaited EARP changes quietly.

*At the time of writing Gerald Graham was an Ottawa-based Consultant

in marine, environmental and polar affairs.

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