Mark Carney wades into the deep waters of environmental regulation

Perhaps the to the highest degree attention-grabbing unfavorable judgment of the Carney government's proposed changes to environmental regulations and permitting has come not from across the aisle, but from within the Liberal caucus — and is being framed as a comparison with the last Conservative prime minister.

"This goes beyond what [Stephen] Harper proposed when he was in power," Steven Guilbeault, the former environment minister, told the Toronto Star last week, agreeing with another environmentalist's assessment.

Such a comparison might have hit harder when Justin Trudeau was prime minister — Trudeau was, after all, more or less elected to be different than Stephen Harper. Mark Carney, on the other hand, was elected, at least in part, on the understanding that he wasn't Justin Trudeau. 

But Guilbeault's reference to Harper is also a reminder that the Carney government is now the third consecutive government to attempt significant environmental regulatory changes — and neither of the two previous attempts ended to everyone's satisfaction.

The focus of concern during the Harper era was a pair of omnibus budget bills in 2012 that made sweeping changes to existing environmental laws. The latter of those bills inspired the Idle No More movement, a nationwide series of protests over concerns about Indigenous rights.

Trudeau's government came to office promising to better address environmental and Indigenous concerns, arguing in part that a credible regulatory process was necessary to actually get things built. The resulting legislation, the Impact Assessment Act, was tabled in 2018 and touted as an attempt to "restore public trust in how the federal government makes decisions about major projects."

Jason Kenney, the premier of Alberta at the time, quickly dubbed it the "No More Pipelines Act," and his government then launched a legal challenge that ultimately succeeded at striking down parts of the law. Pierre Poilievre's federal Conservatives campaigned last year on fully repealing the legislation.

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Guilbeault said "many" of the initiatives proposed in the government's discussion paper are things that he tried to start putting in place when he was environment minister. But the former minister pointed to three significant disagreements.

His first concern is that the review of many projects will now be delegated to provincial agencies, and that, Guilbeault fears, could lead to inconsistent standards across the country. 

"We've seen a number of provinces lower the bar in terms of their assessment of projects," he said. "I'm certainly not opposed to this idea of one project, one assessment … but we need to make sure that we adhere to a certain national standard."

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Guilbeault's second concern is a proposal to create new "federal economic zones" that would be pre-approved for certain developments, and his third concern is the suggestion that the federal cabinet could be given limited powers to exempt projects from the "jeopardy test" for species at risk.

"That's one of the fundamental elements of our Species at Risk Act and species at risk protection. If a project jeopardizes the survival of a species, we don't go ahead with that.… Now we're giving the capacity to the cabinet to subtract a project or projects from that test, and we're saying we'll use a high bar in terms of criteria, [but] we have no idea what those criteria are."

Guilbeault also suggests that moves to further empower federal ministers may not survive a court challenge.

David Wright, a professor of environmental and resource law at the University of Calgary, shares some of Guilbeault's concerns and adds others, including the federal government's ability to properly consult with Indigenous communities and review projects under a tighter timeline.

But he also doesn't think the government's discussion paper does enough to substantiate that there is a problem of over-regulation that needs to be fixed, or that the proposed changes will likely lead to new economic development.

"The economic case may exist, but it's not being transparently shared," Wright said.

The debate about whether it is too hard to build things is probably in some danger of being based more on vibes than on careful examination. But the Carney government's decision to launch its reform efforts with a discussion paper holds out at least the possibility that it is interested in an actual discussion. 

If nothing else, the government should now be well aware of the potential criticisms and complaints before it tables legislation — and perhaps better prepared to either make its case or build a consensus.

Broadly speaking, the Carney government can tell itself that its push to streamline the regulatory process is in line with the mood of the Canadian public. A poll released by the Angus Reid Institute this week found that a majority of Canadians would now prioritize economic growth over environmental protection when designing national energy policy.

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The policy context for Carney is also arguably different than it was for Harper: It was just six weeks ago, for instance, that Carney committed to a new national nature strategy.

But no politician has unlimited room to manoeuvre. And while the Angus Reid Institute's poll might suggest Canadians writ large are amenable to what the Carney government is proposing, it's also worth noting that 55 per cent of Liberal voters said they would still prioritize environmental protection.

Ultimately, any regulatory changes are unlikely to endure without broad consensus — and without consensus, any progress toward actually building things might prove limited.

"People need to have confidence in our processes in a society like ours," Guilbeault said this week. "And if people don't have trust in our processes, what's going to happen is exactly what happened under prime minister Harper.... Local communities, Indigenous organizations, environmental groups are going to turn to the tribunals because they won't trust the process and we will end up in the same situation where those projects … will be bogged down in litigations, in local opposition and in some instances maybe national opposition, and we won't be able to achieve the goals that we've set for ourselves."

Senior writer

Aaron Wherry has covered Parliament Hill since 2007 and has written for Maclean's, the National Post and the Globe and Mail. He is the author of Promise & Peril, a book about Justin Trudeau's years in power.

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