On September 2, 2020, the Government of Quebec published
several regulations relating to its environmental authorization
framework. Notably, it published the Regulation respecting the
regulatory scheme applying to activities on the basis of their
environmental impact (Regulation), which gives effect to the
provisions of the Environment Quality Act (EQA) that came
into force in March 2018. The publication of these regulations
is the final stage in a process that was launched over five years
ago to modernize the EQA and its environmental authorization
scheme.
For more information on the modernization of the EQA and its
various stages, please see our May 2017 Blakes Bulletin: Quebec Adopts Bill 102,
Overhauls Its Environmental Approval
Regime.
In this bulletin, we summarize the most significant changes brought
about by the adoption of the Regulation, which, for the most part,
will come into force on December 31, 2020. It should be
noted that in addition to the adoption of the Regulation, 30 other
regulations have either been adopted, amended or repealed as a
result of this process.
OVERVIEW OF THE AMENDMENTS
Admissibility of Applications for Authorization – Going forward, Quebec's Ministry of the Environment and Fight Against Climate Change (Ministry) will only begin analyzing an application for a ministerial authorization when it deems the application to be admissible. Project proponents must ensure that their applications include all general information prescribed in the Regulation for all types of applications for authorization, as well as any specific information required based on the type of activity. Applications deemed incomplete by the Ministry will not be reviewed and the file will be closed. As a result, there is an increased burden on applicants to ensure that their applications for authorization are completed by meeting the information requirements of the Regulation so that they are processed in a timely manner. Conversely, Quebec's Minister of the Environment and Fight Against Climate Change (Minister) has proposed that the Ministry hold pre-filing meetings with applicants to guide them in process of preparing applications so that they meet the requirements of the Regulation.
Modulating the Authorization Scheme Based on
Risk – One of the key objectives of the EQA reform
was to allow for the modulation of the environmental authorization
scheme based on risk, so as to allow the Ministry to allocate
greater resources to activities with greater environmental impacts.
The Regulation sets out applicable requirements according to the
three categories of risk covered by the Regulation: (i)
moderate-risk activities requiring an authorization; (ii) low-risk
activities for which a declaration of compliance can be filed; or
(iii) activities where risks are determined to be negligeable
and which are exempt from the requirement to obtain an
authorization. High-risk activities, which constitute the fourth
category of risk under the environmental authorization scheme, are
covered by the Regulation respecting the environmental impact
assessment and review of certain projects, in force since
March 23, 2018.
Declaration of Compliance – Declarations of
compliance were introduced in 2018. At that time, certain
activities were made eligible for a declaration under transitional
provisions. The Regulation now provides that approximately 50 types
of activities may proceed by filing a declaration of compliance,
instead of obtaining an authorization. The activities that fall
into this category must meet all the requirements set out in the
Regulation and comply with any other applicable requirements. Work
related to an activity that is subject to a declaration of
compliance may begin 30 days after filing a declaration with
the Ministry. While this provides for a streamlined process for
low-risk activities, it remains to be seen whether this will be the
case in practice as the filing requirements are numerous and
detailed.
Exempt Activities – The Regulation lists
over 100 activities that are exempt and may proceed without the
need for any administrative filing with the Ministry. To benefit
from the exemption, all the conditions set out in the Regulation
and other applicable industry regulations must be met. Should an
exempted activity not meet a condition set out in the Regulation,
it will then be categorized as a moderate risk-level activity and
require a ministerial authorization.
Electronic Filing – Applications for
authorization and declarations of compliance must now be filed
electronically.
Wetlands and Bodies of Water – Since the EQA
amendments came into force in March 2018, all work,
construction or other interventions in wetlands and bodies of water
are subject to prior ministerial authorization. The Minister now
has the discretionary power to refuse the issuance of an
authorization, including: (i) when it has not been demonstrated to
the Minister's satisfaction that the project cannot avoid
damaging wetlands and bodies of water; (ii) if the Minister is of
the opinion that the proposed mitigation measures do not make it
possible to minimize the project's impacts on these
environments; or (iii) if the Minister is of the opinion that the
project would have adverse effects on the ecological functions and
biodiversity of these environments. Also, a financial contribution
must be paid as compensation in most situations where damage to
wetlands and bodies of water are unavoidable, subject to the
exceptions set out in the Regulation respecting compensation
for adverse effects on wetlands and bodies of water.
The Regulation provides that activities in wetlands and bodies of
water that are eligible for a declaration of compliance or, in
certain cases, that are exempt from the requirement to obtain an
authorization, are also exempt from the obligation to paying a
financial contribution.
The Regulation respecting activities in wetlands, bodies of
water and sensitive areas (formerly the Regulation
respecting motor vehicle traffic in certain fragile
environments) has been amended to provide guidance for
activities that are either exempt from the requirement to obtain an
authorization, or eligible for a declaration of compliance, so as
to ensure that the environmental risks related to these activities
remain low or negligible.
Research and Development Activities – The
Regulation provides some relief for research and experimental
work projects, under certain restrictive conditions. In addition,
research and experimental work is, in certain circumstances,
eligible for a declaration of compliance when such work is needed
to validate a product or process prior to the commercial release of
the product or the commercial operation of a plant, (e.g., when a
project is eligible for certain tax credits, or when the work is to
be carried out in accordance with an experimental protocol).
Research and experimental work carried out before the release of a
product or commercial operation of a plant are exempt from the
requirement to obtain an authorization if the project is eligible
for certain tax credits, is carried out in accordance with an
experimental protocol, does not require the withdrawal of 75,000 or
more litres of water per day, is not carried out in a wetland or
body of water, and does not involve discharging hazardous waste
into the environment.
Greenhouse Gas Emissions – Since March 2018,
the EQA provides that, in cases prescribed by regulation, the
analysis of an application for authorization for a project must
take into account greenhouse gas emissions attributable to that
project, as well as reduction measures that may result from the
project, which was not the case previously. Schedule I of the
Regulation lists the activities, equipment and processes that are
likely to emit, on an annual basis, over 10,000 metric tonnes in
CO2 equivalent and for which greenhouse gas emissions
must be taken into account. Applications for authorization for
these activities must provide, among other things: (i) an estimate
of the greenhouse gas emissions attributable to the project; (ii) a
description of the measures that the applicant plans to put in
place to reduce greenhouse gas emissions; and (iii) a demonstration
that the greenhouse gas emissions attributable to the project have
been taken into account and minimized.
It should be noted that industrial installations emitting 25,000
metric tonnes or more in carbon dioxide equivalent annually are
already subject to Quebec's cap-and-trade system for greenhouse
gas emission allowances. Therefore, as a practical matter, these
provisions of the Regulation duplicate the regulatory requirements
for such projects.
Coming into Force and Transitional Measures
The Regulation is set to come into force on December 31, 2020. However, the provisions pertaining to the admissibility of applications for authorizations and online filing of applications for authorizations have been deferred to December 31, 2021.
The Regulation replaces the Regulation respecting the
application of the Environment Quality Act, which will be
repealed once the Regulation comes into force .
An activity that commenced prior to December 31, 2020, for
which authorization or an amendment to an authorization under the
EQA was not required prior to that date, but now requires such
authorization or amendment, may continue with no further formality,
subject to certain provisions of the Regulation. In addition, a
project proponent that, on December 31, 2020, is awaiting the
issuance, amendment or renewal of an authorization for an activity
which becomes eligible for a declaration of compliance under the
Regulation, may simply file a declaration of compliance for that
activity with the Minister.
CONCLUSION
The Regulation will have some repercussions on the majority of activities carried out in Quebec that are likely to have environmental impacts The changes will have to be carefully considered when planning for project approvals required for such activities.
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