There are over 16,000 kilometres of highway overseen by the Ministry of Transportation, including the 400-series highways, arterial and collector roads, and any other roads not administered by municipalities. Each year, MTO’s projects to repair, overhaul or expand these provincial highways use an average of 10-12 million tonnes of aggregate. This would be enough gravel, sand and crushed rock to create almost 300 kilometres of a new four-lane provincial highway each year. Of course, much of this work involves the repair and widening of existing roadways, as opposed to the creation of entirely new roads. Nevertheless, the ministry’s projects involve the movement of vast quantities of earth and aggregates, using heavy machinery, and have great potential to cause localized environmental damage. Among other things, they can affect stream drainage patterns; cause sediment deposition to surface waters; damage wetlands, wildlife and fish habitat; block wildlife migration corridors; and fragment ecosystems.

Contents 1 What are Class EAs? 2 Projects covered by MTO’s Class EA 2.1 Evaluating preferred alternatives 2.2 Key elements of MTO’s Class EA 2.3 Public consultation rights vary with scale of project 2.4 Principles laid out in the Class EA 2.5 No intent to replace other legislation 2.6 How is the effectiveness of the Class EA monitored?

What are Class EAs?

Ontario’s Environmental Assessment Act (EAA) applies to projects undertaken by government, including highway projects, and sets out a decision-making process intended to promote the protection, conservation and wise management of Ontario’s environment. Major projects subject to the EAA must undergo an individual environmental assessment (EA), but the EAA also allows streamlined approval processes, called Class Environmental Assessments (Class EAs), which are especially designed for certain groups of projects with shared, predictable characteristics. A Class Environmental Assessment document is a template of rules that can be applied to any activity caught in that class, and is often called a “parent Class EA” because it sets rules governing hundreds and possibly thousands of site-specific projects. Despite the importance of Class EAs, ministries have taken the position that Class Environmental Assessment documents are not subject to regular posting on the Environmental Registry as proposals under the Environmental Bill of Rights. Projects approved under a Class Environmental Assessment are typically managed by the proponent, and involve only limited monitoring by the Ministry of the Environment.

Projects covered by MTO’s Class EA

MTO has been using a Class process to manage approvals for its projects for over 25 years, and since 1999, has been using the latest revised Class Environmental Assessment for Provincial Transportation Facilities as the basic approval process for planning, designing and building new highways, as well as expansions or alterations of existing provincial roadways.

Evaluating preferred alternatives

MTO’s Class EA contains advice to planners on how to evaluate preferred alternatives for a site-specific project during the needs assessment stage. This advice is strongly biased toward roads and highways, and gives short shrift to other options such as rail, transit or demand management (strategies for more efficient use of transportation resources). For example, the advice regarding demand management is frankly dismissive: “Since this is a much broader public policy issue, it is typically not a reasonable project-specific ’alternative to’ for addressing transportation problems/opportunities.” This perspective filters down to site-specific projects. Citizen groups have raised concerns that a bias against traffic operations improvements, demand management, or high occupancy vehicle lanes also colours environmental study reports done for site-specific projects under the Class EA.

Key elements of MTO’s Class EA

MTO’s Class EA document is over 120 pages long, and while its language and structure may be suitable for professional transportation planners, it can be quite confusing and overwhelming for the general public. Those wishing to comment do need to navigate their way through this document, if only to decipher the rules governing the 30-day comment opportunities, since no fact sheet or guide booklet exists to ease this task. When members of the public ask the Ministry of the Environment for advice on how the MTO Class EA works, MOE refers them back to MTO.

Public consultation rights vary with scale of project

MTO’s Class EA classifies projects into four different groups based on their scale and scope. On one end of the scale are the largest and most complex Group A projects (such as new highways and freeways), which receive the most extensive public consultation. On the other end of the scale are Group D projects (such as routine operation, maintenance and emergency response activities), which get no public consultation. The proponent has an option on whether or not to consult the public on Group C projects (such as minor increases in traffic capacity, minor widening of roadbeds, replacement of storm sewers or stormwater management facilities, and many other activities).

Under the Class EA process, there is no mechanism for formal hearings that might allow individuals or groups to challenge the proponent’s information or project directions. However, at least for the larger Group A and B projects, members of the public do have certain 30-day windows during which to request that a given project be “bumped-up” to an individual environmental assessment. If a given project were to be bumped-up, it would be subject to a more formal review and approval process, including the possibility of a formal public hearing. But in practice, the Minister of the Environment has not granted any such bump-up request in the last five years, even though members of the public have requested bump-ups on about 25 per cent of eligible projects.

Principles laid out in the Class EA

MTO’s Class EA contains several lengthy lists of “principles” relating to transportation engineering, environmental protection, public consultation and other issues. The document states that these principles “must be applied during the study process for Group A, B and C projects as stipulated.” The 10 “environmental protection principles” are, in fact, mainly a mixture of process steps and qualifying advice offering MTO planners a great deal of discretion on how to “balance” environmental protection against engineering issues. Moreover, the principles convey a very strong sense that in any given case, the transportation project deserves first consideration over other factors such as the environment.

No intent to replace other legislation

Although MTO’s 2004 summary document, “Environmental Protection Requirements” (EPR summary), suggests that the EA process has primacy over other laws (see page 108), MTO’s Class EA contains clear and strong language to refute this interpretation. Indeed, the Class EA document emphasizes in its introductory pages that its …

…process is part of a mechanism by which compliance with other environmental

legislation may be achieved. However, the Class EA process does not replace

or exempt the formal processes of other applicable federal, provincial and

municipal legislation and municipal bylaws, such as permits/approvals and

the specific public/agency consultation that they may require.

Thus, it appears that MTO is providing contradictory direction to ministry staff, contractors and the public. On the one hand, the recently finalized EPR summary infers that the EA approval process can supersede other environmental legislation on a case-by-case basis. On the other hand, MTO’s Class EA clearly refutes this view.

How is the effectiveness of the Class EA monitored?

MTO’s Class EA has no expiry date, so there is no trigger for the Ministry of the Environment (or any other regulatory agency) to undertake a formal periodic review of how well the environment is being protected under this process. However, MTO must submit a Monitoring Report to MOE annually, summarizing feedback from regulatory agencies on how the process has been working. So far, MTO has submitted three such reports, and they show that regulatory agencies do have substantive concerns. For example, Ministry of Natural Resources staff pointed out two years running that under MTO’s Class EA process, “wetlands and important wildlife habitat are not being adequately protected.”

Although provincially significant wetlands are of provincial interest, [MNR is]

not aware of any legislation in place to protect them other than the PPS.

However, the PPS provides for an exception to infrastructure. . . . As such, it

appears that the MNR would have no grounds to require MTO to protect a

provincially significant feature such as a wetland and as such a vital component

of environmental protection is overlooked.

Outside of [MTO’s Class EA] principles, in many instances it is stated that MTO

will take all reasonable steps to avoid natural heritage features, however this

never seems to be the case. MTO usually states that there are no alternatives

available outside the natural heritage area, and as a result environmental

protection does not occur.

MOE staff have similarly described their frustrated efforts to have adequate weight assigned to environmental considerations and have noted weaknesses in public consultation. Conservation Ontario (representing Conservation Authorities) raised similar concerns about the timing and value of public comment opportunities.

It is unclear how or even whether MTO or MOE are following up on these clearly stated concerns of experienced field staff, voiced repeatedly in three successive monitoring reports. Unfortunately, it appears that MOE directs its staff merely to read the monitoring reports and then place them on the public record. MOE, as the regulating agency, could be taking a much more active role, and could insist on improvements to the MTO Class EA process to better protect key environmental values. Indeed, the Class EA includes an amendment clause that can be invoked by MOE at any time, as well as a mechanism (thus far unused) for any third party to request amendments, subject to MOE’s approval.

Among other things, MOE could insist that MTO’s Class EA incorporate language more clearly supportive of transportation alternatives such as transit, rail and demand management. As well, the environmental protection principles espoused in the Class EA could be greatly strengthened to clarify that significant natural heritage features must be protected, and that MTO projects should be consistent with the spirit of the Provincial Policy Statement. MOE could also require amendments to ensure that concerns and mitigation recommendations submitted by commenting agencies on site-specific projects are given adequate weight and are resolved early in the planning process. Any amendment of the Class EA should take care to retain the existing clear requirements for compliance with federal and provincial environmental legislation, and for meeting the intent of government policies and protocols.

Beyond amendments to the Class EA document, MOE could examine and modify its own process of reviewing bump-up requests in order to provide requesters with some realistic probability of having a bump-up granted. At a minimum, MOE could collaborate with MTO on drafting a “user’s guide” to help Ontarians understand their rights under the Class EA process.

Recommendation 9: The ECO recommends that MTO establish training programs for highway construction staff on how to prevent and minimize environmental damage during road construction, and also establish training standards for environmental inspectors.

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This is an article from the 2004/05 Annual Report to the Legislature from the Environmental Commissioner of Ontario. Table of Contents Information on the official document and its release.

Citing This Article:
Environmental Commissioner of Ontario. 2005. "The Class EA for Provincial Transportation Facilities." Planning our Landscape, ECO Annual Report, 2004-05. Toronto, ON : Environmental Commissioner of Ontario. 112-116.