As a result of the COVID-19 pandemic, reduced or modified operations at government offices and regulatory tribunals, physical distancing requirements and changes to certain business activities have impacted environmental permitting and enforcement activities in many Canadian jurisdictions. While some agencies appear to be following a business-as-usual approach, many have modified their permitting processes and/or compliance approach (or indicated a willingness to consider exceptions to strict compliance). This April 17, 2020 Update provides a cross-country overview of Canadian government pronouncements or guidance in respect of environmental permitting and compliance obligations during the pandemic.
Proposed Amendments to the Output-Based Pricing System (OBPS) Regulations
On April 8, 2020, the federal government published a notice announcing that the Minister of Environment and Climate Change intends to develop regulations amending the OBPS Regulations made under the Greenhouse Gas Pollution Pricing Act in response to the pandemic. If approved by the federal cabinet, these amending regulations may take effect retroactively (as early as April 8, 2020) and would extend the deadline for submitting annual reports under the OBPS Regulations from June 1 to October 1, 2020. The amending regulations would also extend the deadlines for providing compensation for greenhouse gas emissions emitted in excess of a covered facility’s emissions limit for the 2019 compliance period, from December 15, 2020 to April 15, 2021 (regular rate compensation) and from February 15 to June 15, 2021 (increased-rate compensation).
Fisheries and Species at Risk
Authorizations under the Fisheries Act will continue to be processed but may be delayed depending on the nature of the requests. Similarly, permits under the Species at Risk Act will continue to be processed in accordance with the same 90-day service standard, and applicants will be notified of any delays.
General Environmental Compliance
According to the Ministry of Environment and Climate Change Strategy, authorizations under the Environmental Management Act remain in effect and all reasonable measures should be taken to comply. Authorization holders who are unable to meet the authorization requirements due to orders, directives, or guidance provided by the Province are told to provide notice to the Ministry by stating their compliance issues, how the compliance issues are related to COVID-19, and what mitigative measures are being taken.
On April 1, 2020, the government of British Columbia announced that they will not be going ahead with the scheduled increase to their provincial carbon tax. At this time, the carbon tax rate will remain at $40.00 per tCO2 until further notice. The deadline for making provincial carbon tax payments has also been extended to September 30, 2020.
Environmental Assessment Office (EAO)
The British Columbia EAO advises that there may be delays in advancing projects and responding to issues.
Oil and Gas Commission (OGC)
The British Columbia OGC has closed their offices due to COVID-19 but has released detailed guidance to stakeholders, indicating the following:
- Field Inspections and Enforcement: Inspections of oil and gas sites continue, and the OGC will follow their regular processes when communicating inspection results to permit holders (via the online KERMIT system). The OGC has also stated that they will continue to employ enforcement tools as appropriate.
- Permit Applications: Applications to the OGC continue to be actively reviewed. The OGC does not anticipate much change to processing timelines, although flexibility “may be a consideration” for applications that require consultation and engagement with other parties. Such adjustments will be determined on a case-by-case basis.
- Emergency Response Plans: The OGC has stopped physically attending Emergency Response Plan review meetings and the annual exercises of permit holders. Options to allow permit holders to conduct their exercises via video conference are currently being tested; however, the OGC has advised some companies that it is prepared to reschedule their annual exercises to later in the year. Permit holders are still expected to maintain their capacity to respond to incidents.
Environmental Appeal Tribunals
On March 27, 2020, the Environmental Appeal Board, the Forest Appeals Commission and the Oil and Gas Commission (the Tribunals) issued a statement that given COVID-19 and the disruptions it presents, the Tribunals may need to place their focus on critical matters. Key points include:
- Communication: The Tribunals advised that email is the most reliable method of contact.
- Timelines: The Minister of Public Safety has suspended all mandatory timeframes for the filing of appeals. As well, appeal bodies have been granted the ability to waive, suspend, or extend timeframes until the current state of emergency related to COVID-19 is over. Any mandatory timeframes for filing appeals by March 18, 2020 are suspended for all Tribunals without the need to extend statutory timeframes. Further, any appeal that would have been due on March 25, 2020 will now be due 7 days after the suspension is lifted, whenever that may be.
- Pressing Matters: All parties, participants, intervenors and representatives should identify pressing and time-sensitive issues so they may be prioritized. Tribunal staff will review matters raised on a priority basis.