BC Supreme Court Upholds Yet Another Decision Of The BC Environmental Assessment Office

In a recent case where a decision of the BC Environmental Assessment Office ("EAO") was challenged, the BC Supreme Court has found in favour of the EAO and granted it considerable discretion in carrying out its functions under the BC Environmental Assessment Act (the "Act") and regulations. In David Suzuki Foundation v British Columbia (Ministry of Environment), 2013 BCSC 874, the BC Supreme Court dismissed the judicial review petition of two environmental groups, which sought, among other things, a declaration that an environmental assessment was required for a number of hydroelectric projects.

This case involved a proposal to construct 10 run-of-river hydroelectric power plants on tributary creeks to the Holmes River over an approximately 40 km distance. Each plant would have a generating capacity of less than 15 megawatts and would thus fall well below the 50 megawatt threshold at which an environmental assessment is required for hydroelectric projects under the Reviewable Projects Regulation (the "Regulation"). The EAO confirmed in a letter to the proponent that assessments were not necessary for each plant.

The David Suzuki Foundation and the Watershed Watch Salmon Society (the "Petitioners") argued that the plants had been treated as a single project by the proponent, and the EAO's decision to treat them separately amounted to "project splitting" – a tactic that has been criticized by the Supreme Court of Canada in Mining Watch Canada v Canada (Fisheries and Oceans), 2010 SCC 2. However, the Court found that the proposed plants were not comparable to the facts or relevant legislation in the Mining Watch decision, which dealt with the federal environmental assessment agency's decision to reduce the scope of an assessment.

The Petitioners also argued that the EAO's confirmation that no assessment was needed was unreasonable because it failed to properly place the proposed individual plants within the context of the Act and Regulation, asserting that each of the plants must be considered a facility making up parts of a larger and reviewable project. This argument was based on the definitions of "project", "facility" and "hydroelectric power plant" in the Act and Regulation, and on the fact that the threshold criteria for hydroelectric power plants in the Regulation refers to a "new facility"; this interpretation, the Petitioners argued, is in line with the broad purposes of the Act. To this end, the proponent argued that although there...