Canada vs. USA Environmental Regulation (Why Canadians are better known for hockey) Georgia Basin-Puget Sound International Airshed Strategy Meeting September 23, 2009 Stephen O’Kane Levelton 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 USA Who do you know? Early and lengthy engagement Moving targets Personal engagement Canada What do you know? Restrictive schedule Fixed criteria for review Conduct 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