Environmental Regulation and the COVID-19 Pandemic: A Review of Regulator Response in Canada

Abstract

When the COVID-19 pandemic hit, many countries reacted by relaxing environmental rules and Canada was no exception. Environmental regulators across Canada changed rules in unprecedented efforts to balance public health, economic wellbeing and protection of the environment. This briefing paper takes stock of and discusses these actions.

We find that Ottawa and all the provinces and territories except Manitoba and the Northwest Territories invoked some changes to environmental rules. Regulators used one of two approaches: enforcement discretion or preemptive rule adjustment. Twenty-four provincial and four federal agencies adjusted 143 environmental rules between them, with the majority being specific to natural resource sectors such as oil, gas, coal, mining, water and fisheries. Industry, government and public stakeholders all benefited from relaxed rules. Alterations included suspension of operating activity requirements (53), extensions to reporting deadlines (21), payment relief (18), extensions to activity deadlines (18), operating licence extensions (16), suspension of government obligations (10) and suspension of reporting requirements (7).

Only 41 of the 61 government notices included a specific COVID-related rationale for the rule changes and the explanations lacked detail. Reasons included accommodating regulated entities’ need to observe public health requirements (88), financial relief for industry (38), responding to government capacity constraints (14) and accommodating public observance of health restrictions (3). More than a third of the changes were indefinite, with no set end date. In these cases especially it is critical that government agencies be held accountable for reinstating lost protections in a timely manner.

Overall, environmental regulators across Canada responded in similar ways to the pandemic. Some agencies, however, took extraordinary actions. Alberta, for example, was the only jurisdiction to completely suspend reporting requirements and did so across multiple sectors. In Ontario, the provincial government indefinitely suspended parts of the province’s Environmental Bill of Rights, allowing other regulations to be approved with reduced oversight and public consultation. Newfoundland and Labrador was alone in permanently amending environmental assessment timelines. British Columbia, on the other hand, was the sole jurisdiction to change a rule to address constraints faced by the public, suspending public appeal filing deadlines to support public participation in project decisions.

As the virus is brought under control, government should move swiftly to restore suspended environmental protections. Agencies must now be held to account for ensuring, at minimum, a timely return to the status quo. Where regulators are practicing enforcement discretion, fair and transparent enforcement decision-making is critical. Further, agencies have the opportunity to learn and adapt as a result of this experience, leading to smarter, more resilient environmental regulation in Canada. An important question warranting further inquiry, especially, is whether regulator actions were justifiable, ex post. What were the environmental, social and economic costs and benefits of these rule changes? The comprehensive database of rule changes presented in this paper could aid such future research.