The Quebec Government introduces its Bill to Modernize the Environmental Authorization Scheme
On June 7, 2016, the Quebec Minister of Sustainable Development, Environment and the Fight against Climate Change, Mr. David Heurtel (the "Minister"), introduced Bill 102 at the Quebec National Assembly, which aims at modernizing the environmental authorization scheme established by the Environment Quality Act. If adopted in its current form, this bill could have important repercussions on the environmental assessment procedure and on the authorization scheme of industrial projects carried out in Québec.
The New Environmental Authorization Scheme
The bill proposes to substantially modify the requirements of environmental authorization. In this regard, the Government proposes to further modulate permits requirements according to the level of environmental risk of each project:
- Activities of negligible risk will not need a ministerial authorization to be carried out. These activities will be identified by regulation or according to an assessment methodology that will be prescribed by regulation;
- Activities of low risk, the list of which will also be established by regulation, may be carried out without an authorization thirty (30) days after the filing of a declaration of compliance to the Minister.
- Activities of moderate risk will be subject to the obligation of obtaining a ministerial authorization. This category targets any activity that does not fall under the other categories of activities;
- High-risk activities, identified by regulation, will require an authorization issued by the Quebec Government following the environmental impact assessment and review procedure (EIA). The Government may exceptionally subject any project to the EIA if, in its opinion: (i) the project may raise major environmental issues and public concern warrants it; (ii) the project involves a new technology or new type of activity in Quebec whose apprehended impacts on the environment are major; or (iii) the project involves major climate change issues.
The bill provides other measures streamlining the environmental authorization process including:
- The carrying out of an industrial project will only be subject to the obtaining of one ministerial authorization, rather than multiple authorizations as it is currently the case;
- The Minister may mandate the BAPE to hold a public hearing on a project subject to the EIA without any prior information period, when the holding of such a hearing seems inevitable due to the nature of the issues raised, thus avoiding delays inherent to this information period;
- The bill will remove the requirement to obtain a certificate of compliance with municipal by-laws when filing an application for ministerial authorization;
- The Minister may issue, on certain conditions, an authorization for research and experimental purposes to facilitate pilot projects, thus allowing to derogate from some regulatory requirements for a limited period;
- The prior authorization of the Minister will no longer be required to transfer an authorization. However, the transferor must first send the Minister a notice of transfer; the Minister will then have 30 days to oppose the transfer.
To the contrary, the bill contains several measures that will tighten the framework of projects subject to an environmental authorization. Indeed:
- The Minister may, in the cases provided for by government regulation, take into account the greenhouse gas emissions attributable to the project and assess any impact mitigation a project may entail;
- The governmental authorizations may include diverse conditions, restrictions or prohibitions for protecting the quality of the environment, including site restoration measures and post-closure management on cessation of activities and measures to reduce the greenhouse gas emissions attributable to the activity, in particular the selection of a specific technology, process or energy source;
- Any change to a residual materials elimination facility or a hazardous materials management activity will require a ministerial approval;
- An authorization to operate an industrial establishment will now be issued for a period of five years and will need to be renewed within the time and in the manner and form prescribed by regulation. An authorization will remain valid until the Minister makes a decision with regard to its renewal.
Registers and Public Participation
The bill provides the possibility for the Minister to require that the carrying out of a project be subject to the forming of a watchdog committee, even in the case of projects that are not subject to the EIA.
In the case of a project subject to the EIA, the bill proposes to allow the public to submit observations to the Minister as to the issues that should be addressed by the project proponent in an environmental impact assessment.
Following their issuance, the environmental authorizations will be made public on the Ministry website, with several documents and studies considered an integral part of it, including (i) the description of the contaminants, their source and the points of release into the environment, (ii) the specific conditions, restrictions, prohibitions and standards applicable to the activity, and (iii) the applicable monitoring, supervision and control measures.
Moreover, the studies and the other analyses submitted by the applicant and on which the authorization issued by the Minister is based, will also be considered public.
The Green Fund and the Fund for the Protection of the Environment and the Waters in the Domain of the State
The bill also establishes a new mode of governance for the Green Fund and creates the Conseil de gestion du Fonds vert to insure its management. A Fund for the protection of the environment and the waters in the domain of the state will also be established, for the financing of any measure the Minister may carry out within the scope of his or her functions that is not related to a matter covered by the Green Fund.
The bill was submitted to the members of the National Assembly for analysis on June 7, 2016 and will shortly be subject to consultations in parliamentary committee. Considering the importance of the proposed reform, the bill could be subject to various amendments until its adoption.
McCarthy Tétrault’s environmental law group will closely monitor the bill’s evolution, which could have a significant impact on the carrying out of industrial projects in Quebec.
 Bill 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.
Québec Environment Quality Act