Environmental Assessment

• Author: Jamie Benidickson
• Profession: Faculty of Law University of Ottawa
• Pages: 211-232

211

CHAPTER 12

ENVIRONMENTAL

ASSESSMENT

1Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1

S.C.R. 3 at 71 [Oldman River].

A. OVERVIEW OF ENVIRONMENTAL

ASSESSMENT

Environmental assessment, in the opinion of the Supreme Court of

Canada, has become “a planning tool that is now generally regarded as

an integral component of sound decision-making.”1The basic idea is

simple enough: certain proposed activities should be scrutinized in

advance from the perspective of their possible environmental conse-

quences. However, challenging operational questions may arise and

there has been considerable divergence of opinion about the legal sta-

tus and weight to be given to assessment processes. At one extreme of

the spectrum of opinion are those who think that assessment — not a

bad idea in principle — is something that should be dispensed with in

the interests of getting on with the real job of economic development.

At the other end are those who view the completion of a satisfactory

environmental assessment as an essential precondition of proceeding

with any proposal. Yet, even among those who accept the importance

of environmental assessment, there are significant divergences of opin-

ion concerning the scope and implications of such proceedings.

212 ENVIRONMENTAL LAW

2 R.B. Gibson & B. Savan, Environmental Assessment in Ontario (Toronto:

Canadian Environmental Law Research Foundation, 1986).

The components of a generic environmental assessment regime

raise questions such as the following:

1. To what activities does the environmental assessment process

apply? large or small operations; public or private operations; proj-

ects only, or also plans, programs, and even policies that are less

immediately associated with physical impacts?

2. By whom should the assessment be carried out? the initiator of the

proposal, professional consultants or an independent body?

3. What is the standard and scope of assessment, including the mean-

ing of environment? Does environment include social, cultural,

and economic factors? Will the assessment deal only with “direct”

and “significant” impact, or will “indirect” and “cumulative”

impact also be addressed?

4. Is environmental assessment primarily concerned with the techni-

cal dimensions of specific proposed activity, or should it extend to

consideration of the very utility of the proposal and to other means

of accomplishing the same goals?

5. Will the assessment documents be subject to some further process

of review and scrutiny? By departments of government; by the pub-

lic; or through an administrative tribunal process? And are such

reviews mandatory or discretionary?

6. What should a review body be authorized to decide or recom-

mend?

7. What are the consequences of not completing, or not “passing,” an

environmental assessment? Can the proposed initiative be delayed

or terminated?

8. Are follow-up measures available to ensure compliance with an

assessment decision?

Following their introduction in the 1970s, the first generation of

environmental assessment procedures was under almost continuous

scrutiny on the part of those who wished to strengthen the process and

on the part of those who believed that existing requirements were

already too burdensome. Environmental groups actively promoted

improvements through policy reform and used the courts to test envi-

ronmental assessment standards.2

Costs and delays associated with compliance were frequently the

subject of criticism from proponents. In fact, however, extended analy-

ses of proposals by industry and other parties have been rare. One use-