It is not new, but since the 1980s, that private promoters or public institutions, with the complicity of the Ministry of the Environment, thumb their noses at the spirit of the Act respecting the quality of the environment (LQE) by avoiding the thresholds that trigger the environmental assessment process, which requires a formal impact study and, if the citizens request it, a public assessment by a commission of inquiry of the BAPE.
It will thus be remembered that a company in Varennes had reduced its ethanol production by a few tonnes to avoid the standard of 100,000 tonnes per year which would have triggered the process. It will be remembered that Hydro-Québec built a large-scale transmission line in the Laurentians, equipped with pylons intended for high voltage, which nevertheless avoided the ax of the 750 KV trigger threshold because it passes through lower voltage. If one day Hydro-Quebec decides to raise the voltage to 750 KV on this line already ready, we will probably say that there will be no additional impacts since the line is already built…
On the other hand, on several occasions the Ministère des Transports has launched projects whose right-of-way was a few meters below the trigger threshold for the evaluation process. And during the BAPE investigation into the development of the pork industry in 2003, officials from the Ministry of the Environment admitted that no large-scale hog establishment project had been subjected to the environmental assessment process. in 20 years, all having avoided by a few heads the normative threshold of 600 animals.
These sleight-of-hand tricks intended to avoid the ax of regulatory standards multiplied until very recently, because the minister and the government could not, in the state of the law, subject projects that flirted with the normative thresholds without to go past. However, it is precisely because projects designed to avoid trigger thresholds can nevertheless have major impacts in their receiving environment and because these projects are very numerous that the National Assembly amended the EQA in 2017 to provide for it in section 31.1. 1 that the government will finally be able, on the recommendation of its Minister of the Environment, to submit to the environmental assessment process any project with heavy impacts that attempts to obtain authorization by brushing against a trigger threshold, but without crossing it. This power was entrusted to the Minister when he “is of the opinion that the environmental issues that the project may raise are major and that the concerns of the public justify it”.
The Saint-Adelphe case
However, these two criteria are clearly present in the case of the three megapigsties of 3,999 pigs which were recently authorized separately in Saint-Adelphe, in the Mauricie region, by Minister Benoît Charette, even if it is a real production of 12,000 pigs, except for a few heads, in a very limited territory (150 meters distance between each of the three piggeries).
No civil servant or minister can decently claim that this is not a diversion of the intention of the legislator, since the government itself has set at 4000 pigs the legal threshold which defines a project as having major impacts on its middle. How can we think that with one or four pigs, there will be no significant impact on the local ecosystem and the social environment with a project of this magnitude. A minister faithful to his oath of office had a moral duty not to limit the right of citizens to the protection of their environment, as defined in section 19 of the EQA, and he had to use the discretionary power of the government to launch the evaluation process by a commission of inquiry independent of the BAPE, as in all cases where the concerns of the population are serious, as in Saint-Adelphe.
The EQA certainly grants the Minister discretionary power in this matter. But he is not entitled to denial for all that in front of a project, not of 4,000 heads, but of 12,000 heads in the same place. Faced with the extent of the impacts of such production on its environment of insertion, in particular on neighboring waterways, the refusal to assume ministerial responsibility here is so great and so heavy with consequences that it borders on the a hitch to the letter of the law itself, since the legislator clearly wanted projects with heavy impacts not to be able to avoid the standard with impunity by simply brushing against it.
It is surprising that these new cases come less than five years after a major reform of the Act. The prediction then made by the jurists of the Center québécois du droit de l’environnement (CQDE) seems to have come true. In fact, they concluded in their 2016 brief that the reform of the EQA seemed primarily intended to facilitate the work of applicants for environmental authorizations and to reduce the ministry’s workload by 30%, much more than to meet the needs and requirements of the sole beneficiaries of the right to the environment, namely the citizens of Quebec.