Canada vs. USAEnvironmental Regulation

(Why Canadians are better known for hockey)

Georgia Basin-Puget Sound International Airshed Strategy MeetingSeptember 23, 2009

Stephen O’KaneLevelton Consultants Ltd.

Overview

• Fundamental Differences in Regulatory Process

• Notification/Consultation Requirements• Preparing for a Permit/Assessment

Review

Must take into consideration:

• Money• Resources• Maturity of process and systems• Scale of economy

Canada and USA Approach the Regulatory Approval Process in Fundamentally Different Ways

USA

• Prescriptive approval processes• Careful legal and scientific interpretation• Removes discretionary and political

authority by design• Considers capacity of receiving environment

and requires continuous improvement• Successful in improving environment with

continued development • Involvement of private enterprise and public

(true consultation, more active electorate)

Canada

• Big on policy, lacking in detailed regulation• Allows for discretionary decision making• Endless processes with few boundaries• Final authority rests with elected officials• Relies heavily on other jurisdictions (USA)• Lacking mandatory statutes for addressing and

continuously improving state of environment• Consultation efforts lacking (reg. development)

or poorly defined (applications)

Design of Regulatory System Leads to Differences in Practice and Behaviour

• Litigious US system results in:– Effective consultation process– Lengthy process for new regulations– Limited, even fear of, alternative compliance

mechanisms• Centralized control and lack of specificity in

Canada leads to:– Poor consultation efforts– Quick implementation of policy– Creative environmental solutions– Lengthy approval processes

Major Permit Approval or Modification

USA• PSD or NSR• Major source or modification defined in absolute terms• Prescriptive method of analysis• Sets the minimum for baseline data• Study boundaries defined• Objective decisions• Administrator holds authority

Canada• No federal equivalent• Major modification defined in relative terms*• Every project different• Allows or requires dubious baseline data• Moving target for study boundaries• Subjective decisions, not always bound by standards• Minister holds authority

Canada vs. USA

• Emissions test vs Director’s request• BACT analysis• Modelling• Assessment of Impacts• Cumulative analysis?• Demonstration of compliance• Decision

Environmental Assessment

USA •State Environmental Quality Agency• US EPA, NEPA and General Conformity• Regulatory process begins at submission of EIA• Review period set by regulation• Decision lies with Administrator

Canada •Provincial Ministry of Environment• CEAA (Federal Decision or Money)• Regulatory process begins before EIA is prepared• Regulatory time period not set by regulation• Decision lies with Minister

Environmental Assessment Regulatory Process

USA• Standard set of terms of assessment• Review focuses on validity of science• Stakeholders vs Public• Administrator’s decision bound by objective standards

Canada• New set of terms for each project• Review focuses on accommodation of interests• No definition of stakeholder• Minister not bound by recommendation

Consultation (Reg. Development)

USA• All regulations are subject to public consultation• Use the process to help define the regulation• Actively seeks public and industry input

Canada• Public consultation not required by law• Public information sessions and not consultation• Not viewed as a tool for preparing regulation

Consultation/Notification (Approvals Process)

USA• Public Notification required by regulation• Stakeholders/Interveners are defined• Federal, State and APCD regulators make decisions• Rule of Law in defining adequate notification

Canada• Public Notification required by regulation• First Nations Consultation• Undefined Stakeholders/Interveners• First Nations have a quasi-regulatory role• Precedent and demonstration of potential impact used to define adequate consultation/notification

How to Prepare for a Review

USAWho do you know?Early and lengthy engagementMoving targetsPersonal engagement

CanadaWhat do you know?Restrictive scheduleFixed criteria for reviewConduct analyses

What can be done now?

• Protocol for engagement– Criteria for review– Delegation of authority– Communication protocol

• Education– Formal courses/seminars– Observers

• Development of review criteria

Thank You