I. Introduction
The Government of Quebec presented, during the parliamentary session of September 23, 2020, new Bill 66 – An Act respecting the acceleration of certain infrastructure projects (“Bill 66”) which provides for various acceleration measures applicable to certain planned or ongoing infrastructure projects in the province.
Bill 66 is a concerted effort by the Government to foster economic recovery following the COVID-19 pandemic by speeding up the start of 180 infrastructure projects (the “Infrastructure Projects”) listed in Schedule I of the bill. The measures provided for in Bill 66 aim to streamline procedures in order to accelerate the beginning of construction work on major infrastructure projects, including schools, retirement homes, hospitals, as well as, road and public transport infrastructure.
Bill 66 was officially adopted on December 10, 2021, following nearly fifty amendments. An Act respecting the acceleration of certain infrastructure projects (the “Act”) was sanctioned and came into force on December 11, 2021.
II. Impact of the Act – Environmental acceleration measures
The Act provides four categories of acceleration measures applicable to the Infrastructure Projects, in matters of the environment, expropriation, occupation of State domain, and planning and development. These measures apply to the benefit of the public bodies conducting them. The concept of “public body” is not specifically defined in the Act but refers to definitions provided by various other legislative texts[1] and includes school boards, universities, public health institutions and other bodies of Government (“Public Body”).
In September 2020, the Government of Quebec adopted 30 new regulations intended to implement the recent substantial amendments made to the Environment Quality Act[2] (“EQA”) to introduce new ministerial authorization standards[3] aimed at simplifying the complex environmental authorization process that had been in place for many years. These regulations came into force, in most part, on December 31, 2021. Even before this date, the Act had already come into force, further lightening the burden on Public Bodies when it is necessary to obtain environmental authorizations for the realization of Infrastructure Projects.
The process introduced by the EQA, the Règlement sur l’encadrement d’activités en fonction de leur impact sur l’environnement[4] and the Regulation respecting the environmental impact assessment and review of certain projects[5] notably limits the number of projects subject to the complicated assessment and review of environmental impacts procedure, reduces the number of projects subject to obtaining a ministerial authorization, and increases the number of projects only requiring a fast-tracked declaration of conformity.
The Act further accelerates the environmental authorization process for Infrastructure Projects by providing that:
a. to carry out an Infrastructure Project, a Public Body is no longer required to obtain a ministerial authorization within the meaning of articles 22 or 30 of the EQA, as long as the conditions provided for in articles 25 to 32 of the Act are complied with.[6] These conditions include the Public Body being required to consult with the Minister responsible for the environment (the “Minister”) in order to identify, within the context of the Infrastructure Project, activities that could prove to be dangerous for the environment.[7] They also include the Public Body having to provide the Minister with a “project declaration,” essentially equivalent to a declaration of conformity[8] and performing restoration/reclamation work once the project is completed, when needed.[9] Exceptionally, certain activities still require a ministerial authorization if, for instance, the work or construction is carried out within wetlands or bodies of water and the Infrastructure Project does not provide for restoration/reclamation at or after completion.
b. land protection and rehabilitation measures and the rehabilitation plan can be communicated to the Minister gradually[10] for approval, as opposed to having to provide them in their entirety prior to the rehabilitation work. Furthermore, the information and documents that the Public Body is required to submit to the Minister are more limited than under regular rules.
c. the Public Body that must, exceptionally, obtain an environmental authorization from the Minister prior to carrying out an Infrastructure Project, also benefits from an acceleration measure which limits the scope of the characterization study it is required to submit to the Minister as well as the information that must be provided in application of article 46.0.3, par. 2 of the EQA, to demonstrate that the Infrastructure Project cannot be carried out elsewhere.[11]
d. for Infrastructure Projects subject to the environmental impact assessment and review process due to the high risk they pose for the environment,[12] the Act lightens the process by reducing delays, limiting the information that must be provided to the Minister and by exempting certain projects from public consultation or a public hearing pertaining to the scope and impact of the environmental risks of the project. The Government may subject this type of Infrastructure Project to any other environmental acceleration measures mentioned above.[13]
III. Conclusion
The Act remains an extraordinary measure applicable only to the Infrastructure Projects listed in its Schedule I. It will be interesting to see if this type of legislative tool will be more commonly used in the future.
[1] Act, art. 2, par. 2; Act respecting the Autorité des marchés publics, CQLR c A-33.2.1, art. 20, par. 1, sub-par. 2; Act respecting contracting by public bodies, CQLR c C-65.1, art. 4 and 7.
[2] CQLR c Q-2.
[3] Recent amendments to the EQA came into force on March 23, 2018.
[4] Décret 871-2020, 19 août 2020, Gazette Officielle du Québec, Partie 2, 152ème année, no. 36A, 2 septembre 2020, p. 3627A. CQLR c. Q-2. This Regulation has not yet been officially translated from French. An unofficial translation is Regulation respecting the management of activities according to their impact on the environment.
[5] CQLR c Q-2, r. 23.1.
[6] Act, art. 23.
[7] Idem., art. 23.1.
[8] Idem., art. 26.
[9] Idem., art. 26, 29 and 30.
[10] Idem., art. 36.
[11] Idem., art. 33.
[12] Large-scale projects (e.g., airports, highways, pipelines, dams, etc.)
[13] Supra 6, art. 42.
