The Timing of Major Energy Project Reviews

Courtesy of Stikeman Elliott. View original post here.

In recent years the timeline to complete Canadian regulatory reviews of proposed major projects – and particularly environmental assessments which are the key part of the project review process – has become a major political issue. Over the last decade or so, project proponents have consistently raised concerns about the speed and unpredictability of the results of project review processes –principally at the federal level.¹

Complaints have also been made, and lawsuits have been commenced, by opponents of those projects including environmental groups, First Nations bands, and other interested parties alleging procedural and other flaws in the project review process – again principally but not exclusively at the federal level.

In response to these concerns and complaints, and given the significant impact of these projects on the economy, the Canadian federal government, in June 2016, directed the Minister of the Environment and Climate Change to “immediately review Canada’s environmental assessment processes to regain public trust and help get resources to market”.

Motivated by many of the same concerns, we undertook a survey of the timelines to review major energy projects – those with estimated CAPEX of $1 billion or more (the “Project Survey”) for a presentation to the Canadian Energy Law Foundation in 2016.²

The Project Survey covered the timelines for major energy project reviews at the federal and/or provincial levels which were completed from and after January 1, 2010 or which were substantially underway as of the effective date of the Project Survey, in June 2016. The Project Survey measured the time between the filing of a project description or equivalent and the issuance of a final decision to authorize a project – usually an environmental assessment certificate or equivalent approval. Our detailed results, together with applicable qualifications and disclaimers, are set out in the Project Survey.

We would note at the outset that our Project Survey necessarily involved a relatively small number of projects; that there are judgement calls about which projects should be included and how to measure both the starting and end points, as well as the effective duration, of specific project reviews. The Project Survey provides a set of useful data points to help analyze the timelines for conducting reviews of major energy projects – but at the end of the day it is suggestive and illustrative, not definitive.

Project reviews are complex undertakings and their timing reflects different values and political imperatives in the affected jurisdictions. While there is no clear and incontrovertible standard by which to judge or evaluate how long the review of a major project should take, our preliminary analysis showed some evidence that various Canadian provincial and US federal project review processes could reasonably be expected to conclude within a 24 (+/-6) month range – so a range of between 18 to 30 months – after the filing of a project description.³  Canadian federal project reviews have tended to take longer: some analysis has suggested between 24 to 36 months⁴ and at one point the Canadian federal government suggested their project review process generally lasted about four years.⁵

Our Project Survey did indeed support the view that there were distinct differences between the timelines for project reviews at the Canadian federal level and those at the provincial level.

Federal timelines for major energy project reviews were as follows:

Provincial timelines for major energy project reviews were as follows:

The differences between federal and provincial timelines were thrown into even sharper contrast when we looked at the longest review processes, as shown below:

While we would be cautious about reaching firm conclusions from a relatively limited sample size, nonetheless the data from the Project Survey was at least consistent with the following:

1. Federal timelines for major energy project reviews have generally been longer than 36 months and many have been substantially longer.
2. The mandatory timelines introduced in the Canadian Environmental Assessment Act, 2012 have not yet materially reduced federal timelines for major energy project reviews, at least not consistently down to a 24 (+/-6) month range – though the sample size for these types of project reviews is so far extremely limited.
3. Provincial timelines for major energy project reviews appear both materially shorter and more predictable than federal timelines and fall generally within a 24 (+/-6) month range.

While caution should be exercised to avoid over-interpreting results from a limited number of case studies, the differences in timelines and predictability between the federal and provincial processes are pronounced enough to at least merit further review and consideration as the Canadian federal government weighs the future shape of its project review process.

¹ See RIAS Inc. and Gartner Lee Limited; Comparative Analysis of Impacts on Competitiveness of Environmental Assessment Regulations; Ottawa; Canadian Environmental Assessment Agency, 2000); National Resources Canada, Evaluation of the Major Projects Management Office Initiative (Ottawa; NRC, 2012); and House of Commons, Standing Committee on Environment and Sustainable Development; Statutory Review of the Canadian Environmental Assessment Act: Protecting the Environment, Managing our Resources (March 2012).See RIAS Inc. and Gartner Lee Limited; Comparative Analysis of Impacts on Competitiveness of Environmental Assessment Regulations; Ottawa; Canadian Environmental Assessment Agency, 2000); National Resources Canada, Evaluation of the Major Projects Management Office Initiative (Ottawa; NRC, 2012); and House of Commons, Standing Committee on Environment and Sustainable Development; Statutory Review of the Canadian Environmental Assessment Act: Protecting the Environment, Managing our Resources (March 2012).

² Kurtis Reed, Bradley Grant, Cameron Anderson and Jonathan Drance; Timing of Canadian Project Approvals: A Survey of Major Projects; (2016) 54:2 Alberta Law Review 311.