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be noted that in addition to the adoption of the Regulation, 30 other regulations have either been adopted, amended or repealed as a result of this process.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.
