On March 23, 2017, the Québec National Assembly adopted Bill 102 entitled “An Act to amend the Environment Quality Act to modernize the environmental authorization scheme and to amend other legislative provisions, in particular to reform the governance of the Green Fund” (“Bill 102”).
Bill 102 certainly represents the most significant overhaul of the Environment Quality Act (the “EQA”) since its adoption in 1972. Bill 102 introduces, among other things, a new environmental authorization scheme based on environmental risks that will substantially change the scheme currently in force.
Certain provisions of Bill 102 came into force when the act was passed, and the remaining provisions of Bill 102 will progressively come into force over the course of the next few months. Several amendments introduced by Bill 102 — including the majority of the provisions overhauling the authorization scheme — will only take effect 12 months after its passing, with a small number taking effect after 24 months.
The purpose of this bulletin is to provide an overview of the key amendments introduced by Bill 102.
The cornerstone of Bill 102 is the focus on environmental risks of the authorization scheme. It should be emphasized that the new environmental authorization scheme will only come into force in March 2018, except for some specific provisions. During this transition period, the provisions of the EQA which were in force prior to the adoption of Bill 102 continue to apply. It is difficult to precisely assess the impact of the amendments pertaining to the new authorization scheme because it rests on regulations which have yet to be amended or adopted.
Under the new authorization scheme, the projects or activities will be classified according to four risk levels requiring four different types of frameworks:
- High-risk activities: Environmental impact assessment procedure. The environmental impact assessment and review procedure is maintained for large-scale projects having important environmental impacts. Projects specifically designated by regulation will be subject to this procedure and will require governmental authorization. On an exceptional basis, the Government will also be enabled to subject undesignated projects to the environmental impact assessment and review procedure, namely when these projects involve the use of new technology, or would have a serious impact on climate change. Bill 102 also provides for the creation of a public environmental assessment register compiling all documents filed in the course of this procedure and introduces additional ways for public participation before the Bureau d’audiences publiques sur l’environnement.
- Moderate-risk activities: Ministerial authorization. Moderate-risk activities refer mainly to the activities indicated in the amended version of section 22 of the EQA or those that are likely to result in the release of contaminants into the environment or affect the quality of the environment and which are not considered low-risk or negligible risk activities. Such activities will be subject to ministerial authorization. This new ministerial authorization will encompass the vast majority of ministerial authorizations that were provided for in the EQA, including authorizations under sections 32 and 48.
The authorization process will take the fight against climate change into account. When assessing a project’s impact on the quality of the environment, the Minister may, in cases provided for by regulation, consider the greenhouse gas emissions attributable to the project and assess any climate change impact mitigation and adaptation measures a project may entail.
The Minister may also, in the exercise of his discretionary power, when he believes it is necessary for the adequate protection of the environment, human health or other living species, prescribe in an authorization any standards, restrictions or prohibitions that may differ from those prescribed by regulation.
In addition, it will be possible to transfer an authorization without prior ministerial approval. However, the transferor must first notify the Minister of the transfer. The Minister has 30 days to notify the parties of his intention to oppose the transfer. If the Minister has not notified the parties of such opposition within 30 days, the transfer will be deemed to have been completed.
- Low-risk activities: Declaration of compliance. Instead of a ministerial authorization, only a declaration of compliance will be required for low-risk activities designated by regulation. The declaration of compliance mechanism will require the applicant to file a declaration of compliance 30 days prior to the beginning of the activities.
Three types of activities are already subject to this new mechanism including certain water and sewer system extensions, certain rehabilitation work for contaminated land and the establishment and subsequent operation of an asphalt concrete plant under certain conditions.
- Negligible-risk activities: Exemption. Negligible-risk activities will be designated by regulation and will be exempted from the obligation to obtain an authorization or submit a prior declaration of compliance.
The Ministry expects that the modulation based on environmental risks will eliminate about 1,500 ministerial authorizations out of an average of 5,000 per year which will reduce the amount of time involved in the authorization process.
In addition, Bill 102 introduces several measures broadening the public’s access to information. More specifically, authorizations as well as all the information, documents, studies and analyses that are an integral part thereof will eventually be posted in the public environmental registers kept by the Ministry, except information that constitutes industrial or trade secrets. Until the creation of such registers, these documents are available on request.
Furthermore, Bill 102 introduces other amendments to the EQA, including amendments to certain provisions pertaining to the land protection and rehabilitation of contaminated sites, sets up a legal framework for strategic environmental assessments and reforms the governance of the Green Fund.
As the numerous regulations that will complete the amended EQA are adopted, Miller Thomson will continue to review them and highlight the material changes.