Reform of the Environmental Permitting Regime in a Context of Economic Reopening

As a gradual reopening of the economy begins, the Québec government is continuing its work to update the environmental permitting regime of the Environment Quality Act.

In a few months, Quebec companies should therefore expect new administrative rules to be introduced for projects likely to have an impact on the environment. Businesses still have two weeks to submit comments on the proposed updates to Quebec's environmental permitting regime.

A Environmental Permitting Regime to Update

It should be recalled that already in 2017, the National Assembly had changed the main parameters of the environmental permit regime. At that time, it had laid the groundwork for an update of this system, which had changed little since its implementation on December 21, 1972, when the Environment Quality Act came into force, except for the adoption of an environmental compliance certification system in 1982, which was never implemented for reasons that are still unknown today.

Temporary regulations known as "transitional" regulations were therefore adopted at the beginning of 2018 and amended the same year. A first series of new draft regulations was also published in early 2018 for consultation with stakeholders and the general public.

This consultation had revealed deep dissatisfaction among the clientele targeted by these draft regulations, which was reflected in more than 200 briefs submitted to the Ministère de l'Environnement et de la Lutte contre les changements climatiques ("MELCC").

Sticking to Businesses Realities

After consulting with senior "mandarin" officials who had extensive experience with Quebec's environmental control and monitoring regime, the government agreed to involve MELCC clients more closely in the design and development of an permitting regime that is more in line with the realities of regulated clients and that better reflects the government's desire for simplification, predictability and regulatory relief in updating Quebec's environmental permitting regime.

Interested stakeholders were therefore invited to participate in a "co-creation" exercise of the new implementing regulations under the Environment Quality Act that took place over several months in 2019. On February 19, 2020, the government published 28 draft regulations to implement the results of the "co-creation" exercise and to better reflect the above-mentioned objectives of simplification, predictability and regulatory relief that the government was pursuing.

Public consultation on the 28 draft regulations was originally scheduled to end on April 19, 2020. However, given the COVID-19 pandemic, the Government extended it to May 19, 2020 to allow stakeholders and other interested parties to submit comments, suggestions and criticisms of the proposed regulations. There are two weeks left to submit these comments. All businesses likely to be affected by these new regulations should not hesitate to submit their comments, suggestions and criticisms, whether they are brief or very elaborate. BCF's environmental law team can also advise and support such businesses in this process and advise them on the consequences of this reform on their projects and activities.

It may be relevant to recall that the new environmental permitting regime is modulated according to the environmental risk relating to each project under consideration. Thus, projects with significant environmental risk are subject to the environmental assessment procedure, those with moderate environmental risk are subject to authorization by the Minister, those with low risk are subject to a declaration of compliance, and projects with negligible risk benefit from an exemption from any administrative formality.

The draft regulations to implement this reform, which are currently undergoing public consultation, are as follows:

• Regulation respecting the supervision of activities with respect to their impact on the environment
• Stormwater Management System Design Code Eligible for a Declaration of Conformity
• Regulation respecting the recovery of residual materials
• Regulation respecting the burial and incineration of residual materials
• Motor Vehicle Traffic in Certain Sensitive Environments Regulations, which will be replaced by the Wetlands, Water and Sensitive Environments Activities Regulations.
• Snow Disposal Site Regulation, to be replaced by the Snow, Road Salt and Abrasives Management Regulation
• Regulation respecting the cleanliness of the atmosphere
• Regulation respecting certificates of sanitation in industrial environments
• Regulation respecting the framework for authorizing certain water transfer projects outside the St. Lawrence River Basin
• Quarries and Sandpits Regulation
• Biomedical Waste Regulations
• Petroleum Refinery Liquid Effluent Regulations
• Storage of Scrap Tires Regulation
• Farming Regulations
• Regulations for pulp and paper mills
• Hazardous Materials Regulations
• Water Taking and Protection Regulation
• Land Protection and Rehabilitation Regulation
• Regulation respecting the storage and transfer centres for contaminated soil
• Bituminous Concrete Plant Regulations
• By-law on Municipal Wastewater Works
• Pesticide Management Code
• Regulation respecting the burial of contaminated soil
• Shoreline, littoral and floodplain protection policy
• Regulation respecting the application of section 32 of the Environment Quality Act: it will be repealed.
• Regulation respecting the application of the Environment Quality Act: it will be repealed.
• Regulation respecting certain measures to facilitate the application of the Environment Quality Act and its regulations: it will be repealed.
• Regulations Respecting the Transmission of Information Relating to Certain Drilling and Fracturing of Oil or Gas Wells: it will also be repealed.

It appears from the published draft regulations that the MELCC intends to bring the full environmental permitting regime into force on December 31, 2020. This will come into force in an economy that is gradually recovering from the consequences of the pandemic.

For 25 years, BCF's mission has been to support Canadian businesses. We know the issues you face and our Environmental Law team is available to help you use the resources at your disposal. Do not hesitate to contact one of our members if you need advice or support.