Environmental regulation and the Covid-19 pandemic in Canada, report

Agencies must be held to account for, at minimum, ensuring a timely return to the status quo.

Environmental regulation and the covid-19 pandemic: a review of regulator response in Canada

Victoria Goodday

https://policyschool.ca/

March 2021

When the COVID-19 pandemic hit, many countries reacted by relaxing environmental rules and Canada was no exception. Environmental regulators across Canada changed rules in unprecedented efforts to balance public health, economic wellbeing and protection of the environment. This briefing paper takes stock of and discusses these actions.

We find that Ottawa and all the provinces and territories except Manitoba and the Northwest Territories invoked some changes to environmental rules. Regulators used one of two approaches: enforcement discretion or pre- emptive rule adjustment. Twenty-four provincial and four federal agencies adjusted 143 environmental rules between them, with the majority being specific to natural resource sectors such as oil, gas, coal, mining, water and fisheries. Industry, government and public stakeholders all benefited from relaxed rules. Alterations included suspension of operating activity requirements (53), extensions to reporting deadlines (21), payment relief (18), extensions to activity deadlines (18), operating licence extensions (16), suspension of government obligations (10) and suspension of reporting requirements (7).

Only 41 of the 61 government notices included a specific COVID-related rationale for the rule changes and the explanations lacked detail. Reasons included accommodating regulated entities’ need to observe public health requirements (88), financial relief for industry (38), responding to government capacity constraints (14) and accommodating public observance of health restrictions (3). More than a third of the changes were indefinite, with no set end date. In these cases especially it is critical that government agencies be held accountable for reinstating lost protections in a timely manner.

Overall, environmental regulators across Canada responded in similar ways to the pandemic. Some agencies, however, took extraordinary actions. Alberta, for example, was the only jurisdiction to completely suspend reporting requirements and did so across multiple sectors. In Ontario, the provincial government indefinitely suspended parts of the province’s Environmental Bill of Rights, allowing other regulations to be approved with reduced oversight and public consultation. Newfoundland and Labrador was alone in permanently amending environmental assessment timelines. British Columbia, on the other hand, was the sole jurisdiction to change a rule to address constraints faced by the public, suspending public appeal filing deadlines to support public participation in project decisions.

As the virus is brought under control, government should move swiftly to restore suspended environmental protections. Agencies must now be held to account for ensuring, at minimum, a timely return to the status quo. Where regulators are practicing enforcement discretion, fair and transparent enforcement decision-making is critical. Further, agencies have the opportunity to learn and adapt as a result of this experience, leading to smarter, more resilient environmental regulation in Canada.

An important question warranting further inquiry, especially, is whether regulator actions were justifiable, ex post. What were the environmental, social and economic costs and benefits of these rule changes? The comprehensive database of rule changes presented in this paper could aid such future research.

Governments worldwide weakened environmental protection in response to the COVID-19 pandemic, drawing criticism from watchdogs (OHCHR 2020). Rules were relaxed to accommodate public health measures, provide economic relief and, in many cases, in response to the pandemic broadly, with no specific reason given. Canada was no exception, with the federal government and most provinces adjusting environmental rules because of the pandemic. Indeed, the public interest mandate of environmental regulators across Canada is threefold: to protect the environment as well as human health and, to a greater or lesser extent depending on the agency, the economy. The COVID-19 pandemic presented an unprecedented challenge to regulators in the exercise of this balance of interests; analysis of their response from all angles is warranted.

In this report, I review the actions taken by Canadian environmental regulators in immediate response to the pandemic with the goal to inform study, development and application of environmental law and policy moving forward. I compare regulator approach and, where specific rules were changed, the types of rules, types of changes made and rationale. Results show that Canadian regulators took one of two approaches in immediate response to the pandemic: enforcement discretion or pre-emptive rule adjustment. Industry, government and the general public all benefited from relaxed rules. Most of the rules relaxed, however, were specific to certain industrial sectors: the oil, gas and coal; mining; fisheries and water sectors. The main reason for adjusting environmental rules was to address capacity constraints faced by regulated entities as a result of observing public health orders, with limited detail provided to justify the changes in most cases. Over a third of the changes were indefinite with no set end date, highlighting the need for ongoing review to ensure protections are re-instated within a reasonable timeframe. I conclude with a discussion of the potential implications of these actions.

For this study, I developed a comprehensive database of environmental rules changed in immediate response to the COVID-19 pandemic, defined as federal or provincial government policy, regulation or law related to the environment or natural resources changed during the first six months of the emergency period. To do this, I scanned the relevant government websites — news and publications web pages of ministries and agencies responsible for regulation of environmental impacts, energy development and natural resources development weekly and monitored daily from March 15 to September 15, 2020, to find notices of environmental rule changes made during this time. I qualitatively analyzed the notices to identify and code the individual rule changes announced in each notice, categorizing changes based on key characteristics including type of rule, type of change, sector regulated, rationale, time period during which the change is in force and area of potential environmental impact.

I found 143 environmental rules that were adjusted in direct response to the COVID-19 pandemic. These changes were made by 24 provincial agencies and four federal agencies; Manitoba was the only provincial government to not change environmental rules, and the federal government changed rules in all jurisdictions under its control except the Northwest Territories. Types of changes include: suspension of operating activity requirements (53 of the total 143), extensions to reporting deadlines (21), payment relief (18), extensions to activity deadlines (18), operating licence extensions (16), suspension of government obligations (10) and suspension of reporting requirements (7). The suspension of operating activities, in addition to being the most common type of change, is also the most high risk in terms of potential for immediate impact to the environment and human health. In these cases, regulated entities are no longer obligated to perform certain operations normally required to limit impact.