Environmental Assessment: A Vision Lost
Environmental assessment (EA) is one of those grey, blurry areas of modern bureaucratic practice: often misunderstood, sometimes misused, but mostly ignored by the average citizen. Yet environmental assessment has a crucial role to play in our lives; it should be society’s pre-eminent tool to carry out farsighted planning for public infrastructure in the name of the public good. Unfortunately, Ontario has been long burdened with an EA system where the hard questions are not being asked, and the most important decisions aren’t being made – or at least are not being made in a transparent, integrated way. The province has increasingly stepped away from some key EA decision-making responsibilities, and the Ministry of the Environment (MOE) is not adequately meeting its vital procedural oversight role. As a result, the EA process retains little credibility with those members of the public who have had to tangle with its complexities.
The ECO is contacted regularly by individuals and groups frustrated by their EA misadventures. It would not be too forceful to say that Ontario’s EA process is broken. This ought to concern not only academics and environmentalists, but also the business community, the development-oriented ministries and everyday Ontarians hoping to see their province move forward on a sustainable path. We have lost the old vision for EA; a new vision is urgently needed.
- 1 What the EAA was intended to do
- 2 Evolution of the EAA since 1976
- 3 What actually happened under the EAA?
- 4 Major reforms in 1996
- 5 Continuing calls for reform
- 6 MOE’s response in 2006
- 7 Where are we now?
- 7.1 Overarching decisions on policies, programs are not being made under EAA
- 7.2 “No” is rarely an option
- 7.3 Piece-meal decision-making
- 7.4 Allowing other approvals to precede EA approval
- 7.5 The need for projects often shielded from scrutiny
- 7.6 Important back-end technical details are shielded from scrutiny
- 7.7 Uneven quality of EA studies
- 7.8 The neglected principle of “betterment”
- 7.9 Discredited consultation processes
- 7.10 Weak monitoring, compliance and enforcement
- 8 Casting a new vision for Ontario's EAA
- 9 The need for a better EA
What the EAA was intended to do
Ontario’s Environmental Assessment Act (EAA) was first introduced in the early 1970s, on the crest of the first great wave of environmental concern then sweeping North America. The Act featured a bold purpose statement, typical of this period of heady societal reform: it aimed for “the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” In turn , “environment” was defined very broadly in the Act, to include not only air, land, water, plant and animal life, but also human life and the social, economic and cultural conditions influencing humans.
Turning its back on a long government tradition of autocratic back-room decision- making, the EAA of 1976 tried to establish an enabling framework for thoughtful, transparent planning in the public sector. The intention was clearly to nudge proponents into a new mindset and encourage strategic refection about public sector initiatives with potentially significant and long-lasting impacts on the public good. Such undertakings would, in future, be subject to careful, up-front evaluation and scrutiny, including an examination of the “rationale” or need for the undertaking, and the alternatives to it. As well, members of the public were to have new, formal opportunities to provide their input and comment.
The legislation applied to projects of provincial or municipal governments, such as roads, power generation and transmission lines, as well as water, wastewater and forestry activities. And very importantly, the Act applied not only to site-specific projects, but also to province-wide plans and programs. For example, the province’s high-level and long-term plans for energy supply or forest management are caught under the EAA, at least in theory. Certain private sector projects with strong implications for the public good (especially landfills and energy-from-waste projects) were also made subject to the Act in the 1980s.
Under the Act, proponents had to undertake a planning process to identify and assess the potential environmental impacts of the proposed undertaking, and submit the EA document to MOE. The ministry’s job was to coordinate a technical review, utilizing the expertise of both its own staff and other government agencies. The EA and the government review were then made available for public inspection. Following such inspection, MOE recommended to the minister whether to accept the EA or to order the proponent to undertake further studies. The fate of the project could then be decided by the minister (i.e., to approve the undertaking, approve it with conditions or reject it), or be referred to a hearing before the Environmental Assessment Board – an independent, quasi-judicial body – or, in other cases, before a joint Board comprised of members of the EA Board and the Ontario Municipal Board.
The EA Board, in its decisions, emphasized that environmental assessments should be rational, consistent, traceable, reproducible and fair. (The role of the Board was transitioned to the Environmental Review Tribunal during the period 1998 to 2000.)
Evolution of the EAA since 1976
The EAA was proclaimed in force in 1976 with a very broad theoretical mandate, but the government moved immediately to limit the application of the new law and to exempt whole categories of activities from its requirements. As well, MOE and proponents immediately felt a need to streamline many approvals through an approach that was termed a “Class environmental assessment” or Class EA. Class EAs apply a template of common planning rules to groups of similar public sector projects (new projects, as well as upgrades), such as provincial highways, or municipal water and sewer infrastructure. Planning and consultation activities are very much proponent-driven under this approach, with reduced MOE oversight – in contrast to MOE’s more active involvement in an “individual” or “full” EA under Part II of the EAA. The Class EA approach was introduced informally within the first few years of the new legislation, and was gradually expanded to become the dominant form of environmental assessment in the province. By 1993, 90 per cent of the undertakings subject to the EAA had obtained streamlined approvals through the Class EA process. Class EA approaches were intended for projects that occur frequently, with generally predictable ranges of effects and relatively minor environmental impacts.
But critics have long argued that too many large and environmentally significant projects have been inappropriately slipped into the Class EA approvals fast track. Waste management projects – especially municipal landfill sites – have represented a large proportion of the undertakings receiving individual EAs under Ontario’s EAA. These EA planning processes gradually developed a reputation for being interminable, unpredictable and costly. One legal commentator colourfully noted that they “seemed to evolve like the carnivorous plant in Little Shop of Horrors – getting hungrier after each hearing decision.” A relatively small number of process train wrecks may have tarnished the whole EA program. Nevertheless, available data suggest that the process has always been churning out decisions, and usually without recourse to Board hearings; for example, between 1983 and 1995, the EA process produced 20 decisions on landfill projects, of which only three were denied, and 14 of which received approval by a minister without a Board hearing. Similarly, from 1997 to 2003, the process produced over 50 decisions, mainly dealing with smaller rural landfills, with only two referrals to hearings and one deficiency statement issued. One EA was refused on January 22, 2001.
What actually happened under the EAA?
While it is true that the EAA has never lived up to its full promise, the EAA has, in many instances, catalyzed a public airing of issues and a more inclusive debate than was possible through other available fora. For example, the approval of the Timber Management Class EA in 1994 was a landmark decision after four years of hearings, thousands of hours of testimony and much painful turmoil for the Ministry of Natural Resources (MNR). But the process resulted in a major rethinking of how Ontario was to manage its Crown land forests, with the need for long-term sustainability rising to new prominence. MNR notes that several key progressive initiatives have since flowed out of that wrenching examination under the EAA, including the Crown Forest Sustainability Act, Ontario’s Living Legacy framework and the Forest Accord.
As the following examples illustrate, there have been a number of site-specific EA where scrutiny and input from stakeholders have spurred modifications to reduce potential environmental impacts:
Oakville Transmission Line
- In 1994, Ontario Hydro and Oakville Hydro commenced a Class EA process for an undertaking to replace a deteriorating 115 kilovolt (kV) transmission line. The preferred solution was a 230 kV line on a corridor that generated considerable public opposition, particularly near a section of the Parkway Belt in the east part of Oakville. Although this corridor had been intended for electricity transmission, there was no existing line and a new community had been built adjacent to the proposed route. Residents were concerned about visual impact and electro-magnetic fields (EMF).
- The proponents held a workshop with the agencies and concerned parties and decided to re-open the Class EA process. Ultimately, it was determined that the need could be met by a smaller scale 115 kV line on a different corridor through Oakville and Burlington that cost less and generated fewer impacts than the original proposal. The line would be constructed with steel pole towers to further reduce visual impact. The Class EA process was completed without any request for a “bump-up” to an individual EA, and the transmission line is now in place.
- In February 1989, a decision of the Joint Board constituted under the Consolidated Hearings Act
gave EAA and other approvals to Halton Region for a proposed new landfill site in the Town of Milton. The decision followed a protracted process to identify new landfill capacity in Halton – the hearing itself lasted a total of 19 months. This was the first hearing on a landfill site under the EAA, and the decision established a range of principles that were adopted by other proponents, and reflected in later Board decisions on waste management EAs. These included: a requirement for rigorous consideration of waste diversion in establishing the need for a landfill and the required landfill capacity; a consistent and traceable approach to site selection with the application of standard siting criteria; and a set of principles for establishing the hydrogeological suitability of a landfill site.
- The wide ranging Conditions of Approval included a requirement to conduct further
studies if a waste diversion rate of 50 per cent was not achieved within eight years (a later Minister’s Declaration Order noted that this target was achieved), as well as further conditions related to hazardous waste diversion, a Citizens’ Advisory Committee of local residents, and the establishment of a Special Policy Area to avoid the introduction of conflicting uses around the landfill.
Although the EAA was conceived to address province-wide plans and programs, as well as site-specific projects, only one province-wide plan has ever been taken to the EA hearing stage. This was Ontario Hydro’s Demand Supply Plan EA – a comprehensive plan which forecast Ontario’s long-term electrical power needs and projected a major supply shortfall by the mid 1990s, to be filled with several new nuclear and coal-fired facilities, as well as hydro-electric, other forms of generation and demand management. This plan went to a board hearing stage in 1990, where it faced strong criticism, but Ontario Hydro withdrew it in 1993 in the face of an economic recession that reduced demand. The forecast power shortfall did not occur; however, a few of the proposed facilities were built under separate EAs.
The Crown Land Timber Management Class EA hearing (mentioned above) was for practical purposes also an EA of a provincial plan, in that it allowed a public examination of all facets of forest management on Crown land. This EA was referred to the EA Board in 1987, and resulted in a four-year hearing. The EA Board’s decision was issued in 1994, and totalled 550 pages, including 115 legally-binding terms and conditions.
The odyssey of the Ontario Waste Management Corporation (OWMC) through the EA process is often raised by EA critics as another illustration of what can go wrong. Others argue the process worked by delivering a ‘No’ to an unnecessary and overly expensive undertaking. The OWMC was created by the Ontario government in 1981 with a mandate to set up and manage a hazardous waste management treatment facility. A two-year EA hearing (and a process that cost millions) resulted in the Joint Board finding the EA deficient in the treatment of alternative waste management systems. The Joint Board rejected the EA and the undertaking in late 1994. The government dissolved the OWMC shortly thereafter. In the words of one commentator, “the system worked by putting the brakes on this half-billion dollar megaproject that would have remained as a white elephant for the next half-century.”
Despite the bold vision of the EAA and some notable achievements, it is not easy to find its track record applauded in print. One rare example was provided in 1993 by the Environment Minister at the time, who stated, “Since it began 17 years ago, Ontario’s environmental assessment (EA) program has been very effective in preventing environmental problems.” With this faint praise, the ministry launched one of a succession of reforms to make the process “clearer, more efficient and less costly.”
Major reforms in 1996
By 1989, concerns raised during a series of high-profile, complex EA cases had built up significant pressures both inside and outside of government for improving (and especially for streamlining) EA. A number of administrative reforms were proposed and undertaken in the early 1990s, such as efforts to make pre-hearing and hearing procedures more timely, effective and efficient. But these changes were modest compared with the legislative overhaul introduced in 1996, known as Bill 76, which fundamentally changed the complexion of EA in Ontario.
Among numerous other changes, Bill 76 gave the minister and the ministry important new powers and discretion, especially to scope what should be included in an EA and what can be referred to a hearing (see Scoping below). Proponents now prepare a workplan, called a Terms of Reference (ToR) document that outlines the proposed scope of the project and the EA (along with justification and screening criteria), and the minister decides whether to approve, amend or reject the ToR. In MOE’s words, the ToR “allows the focus of the EA to be the identification and management of potential environmental effects. In addition, it can save the proponent time and money.” Critics have observed that the big questions such as project need and alternatives to the project are being swept aside by narrowly scoped EAs. Bill 76 also introduced new timelines and deadlines for various stages of decision-making. As well, concepts which had always been informally incorporated into the process – such as Class EAs and the need for public consultation – became explicitly entrenched in law. Mediation was also introduced as a tool for some circumstances, but has been little used since 1997.
|The scope of a project can be broad or narrow: for example, a broadly scoped project might include the facility itself plus ancillary roads and transmission lines. The scope of an environmental assessment can also be broad or narrow; for example, a broadly scoped assessment would normally include factors such as the need for the project and alternatives to the project.|
The introduction of scoping and ToR in 1996 was intended to clarify and streamline EA, but it also led to a particularly complex and precedent-setting case that included a June 2003 Ontario Divisional Court Decision on the Richmond Landfill EA (also known as the Sutcliffe decision). While the case was fought through the courts from 2000 to 2005, it created uncertainty that put a number of EAs into limbo for a time. At issue was whether the revised language of the Environmental Assessment Act (EAA) meant that the minister could approve a ToR that reduces the scope of certain “generic elements,” such as alternatives to be examined. In an August 2004 decision, the Ontario Court of Appeal ruled that while “need” is an important component of EA planning, it is open to the Minister, on a case-by-case basis, to exclude EA planning issues (such as “need” or alternatives) from ToR approved under the EAA. This direction from the Court now guides scoping decisions by the minister, since the Supreme Court refused leave to appeal the matter in March 2005.
The legislative reforms of 1996/1997 coincided with further major shifts in the EA regime. For one thing, the government decided to let lapse an eight-year pilot project that had allowed intervenors in EA processes to apply for funding to cover the costs of technical and legal expertise. Some critics complained that intervenor funding had been used to employ too many lawyers who were gumming up the process. But its dismantling left the public with greatly reduced capacity to provide informed input into the technical aspects of EA proposals. The EA program also lost the voice of a competent watchdog when the Environmental Assessment Advisory Committee (EAAC) was dismantled in late 1995, after 12 years of valuable work.
Around the same time, hearings themselves became an endangered species: only two projects, both landfill sites, have been referred to EA hearings since 1996.
Continuing calls for reform
The EA reforms of 1996/1997 outraged a number of environmental and citizen groups, who said the EAA had been gutted. Proponents also continued to find the reformed process frustrating (especially during the uncertainty caused by the Sutcliffe case, mentioned above), and MOE was forced to struggle further with this problematic tension. In 2004, the Minister of the Environment created an expert advisory panel (the “Panel”) to recommend ways to improve Ontario’s EA process, particularly with respect to waste, transportation and energy projects. The Panel reported in 2005 that while the underlying fundamentals of the EAA were sound, the government should implement a package of recommendations as an integrated whole, to help “revitalize, rebalance and refocus” the EA program. Generally, the Panel proposed an approach that screened projects based on their expected environmental impacts, as well as their benefits. The Panel’s recommendations also emphasized the need for:
- guiding EA principles;
- better guidance materials for proponents and the public;
- stronger integration of the EA process and other planning processes
- mechanisms to prioritize “green projects”;
- the introduction of EA application fees;
- improvements to involving First Nations;
- an independent provincial advisory body;
- improved use of alternative dispute resolution;
- a more informative EA website;
- new mechanisms for the Environmental Review Tribunal to rule on contentious Class EA matters; and
- strengthening EA monitoring, inspection and compliance.
MOE’s response in 2006
In June 2006, MOE embarked on a course of EA improvements. MOE promised to prioritize the energy, waste and transit/transportation sectors, with a stated goal of delivering a faster ‘Yes’ or ‘No’ for such projects, while still protecting the environment. For transit projects, the changes, so far, include a Class EA approach for surface transit, and a proposal to compress transit EAs into six months by waiving requirements to consider need, prepare terms of reference or assess alternatives to the project.
MOE’s action plan also featured several new Codes of Practice setting out the ministry’s expectations for practitioners. Four such Codes have since been finalized, and two more were released in draft form, as of June 2008 (see EA Codes of Practice). The ministry is also indicating a new willingness to use mediation and similar tools, and has dedicated one staff person to undertake selective audits of compliance with terms and conditions of individual EAs. Some initiatives are evidently still to come. As of June 2008, MOE had not yet detailed how it plans to better integrate EA with other provincial planning processes, such as the Planning Act, or how it will improve EA training, education, outreach, or its long-neglected EA website.
The extent to which MOE’s reforms follow the advice of the Panel is a matter of debate. MOE asserted in 2006 that it was responding to the majority of the Panel’s recommendations. But the ministry clearly stopped far short of embracing the Panel’s package as an integrated whole, influenced by comments from stakeholders who felt the Panel’s approach would make the EA process too prescriptive and time consuming. Readers may refer to the ECO website for a table comparing the numerous recommendations of the Panel and MOE’s actions to-date on each point.
The Panel placed great emphasis on the need for clear guiding principles on how to apply the purpose of the Act. In response, MOE has provided some (largely process-oriented) clarification in its Codes of Practice for preparing and reviewing EAs and Class EAs, which (as of June 2008) are not yet finalized. It is somewhat doubtful that these clarifications will reflect fully the intentions of the Panel. Significantly, MOE set aside the Panel’s proposed approach to screening projects based on their proposed impacts and benefits. Although Class environmental assessments and the new electricity and waste management regulations and guides do apply this screening model, at least roughly, there is no overarching set of screening criteria as recommended by the Panel.
Evidently, MOE also decided against a suite of other Panel recommendations – the ministry’s plans do not appear to include a renewed use of hearings, a provincial EA advisory body, a green project facilitator, a fee structure, new procedures to deal with bump-up requests or project elevation requests, or a mechanism that allows for public comments through the Registry on EA-related permits and approvals. There also appears to be little enthusiasm (and only one new compliance officer committed) to strengthening the effectiveness of monitoring and reporting, or to developing compliance programs and procedures.
Where are we now?
The EAA was enacted 32 years ago, articulating an admirable vision: that more informed, more transparent planning processes can lead to the betterment of the people of Ontario, and the protection, conservation and wise management of the environment. How far have we come towards realizing that vision? The EAA has, over time, suffered so many truncations and add-ons that it no longer bears much resemblance to its original, idealistic self. Many idealistic pieces of legislation be- come encrusted and their intent diluted with compromising amendments. But, by and large, trusty old statutes like the Environmental Protection Act or the [[Ontario Water Resources Act]] can still be relied upon to deliver their core mandates and protect the environment. Unfortunately, that cannot be said so unequivocally for the EAA. There are simply too many critical and persistent points of failure. The latest overhauls do not resolve a number of fundamental and intertangled flaws:
- important, over-arching decisions on policies and programs are not being made under the EAA;
- “No” is rarely an option, because projects are almost never rejected under the EA process;
- decisions are being made in a piece-meal fashion;
- proponents are being allowed to apply for and obtain other approvals prior to EA approval;
- the need for projects and undertakings are often shielded from scrutiny;
- important back-end technical details are also shielded from scrutiny;
- the quality of EA studies is “uneven”;
- the statutory principle of “betterment” is being neglected;
- there is poor integration between EA and the land use planning process;
- consultation processes have been discredited; and
- the monitoring, compliance and enforcement of EA terms and conditions has been weak.
Each of these concerns is discussed in some further detail, below.
Overarching decisions on policies, programs are not being made under EAA
Many of Ontario’s most important decisions – decisions that will have a significant impact on the environment and the public good – are not subject to integrated evaluation under the EAA. As one legal commentator has noted, “In Ontario, while there is a requirement for EA to apply not only to public sector projects, but also to policies and programs, in practice this has been honoured more in the breach than in its observance.” In some cases, the province is actively making important policy decisions, but is shrouding them from EA scrutiny.
One of the most notable recent examples was described in the ECO’s 2006-2007 Annual Report (pages 81- 86). Ontario’s Integrated Power System Plan was exempted from the EAA by regulation in June 2006, even though this plan will require some of the most substantial capital investments in the province’s history (on the order of $60 billion) and will have environmental implications for generations to come. As a result, Ontario’s future electricity plan is being evaluated by the Ontario Energy Board with a narrow focus on rates, costs and fairness. Certainly there will be some attention to environmental matters: the Ontario Power Authority is considering factors such as air emissions, water use and land use. As well, most site-specific projects will undergo proponent-driven environmental screenings under O. Reg. 116/01 (Electricity Projects) or, possibly, through individual EAs. Nevertheless, we have lost the singular opportunity to subject the plan, as a whole, to a rigorous integrated evaluation that would have considered broader environmental and social factors under the EAA.
Another recent example is MNR’s plan to superimpose the old forestry rules designed for Ontario’s traditional forestry regions to the province’s far northern boreal zone, and to do this without submitting those rules to real scrutiny through the EAA. The ecology of the northern boreal zone is different from more southerly forests; our northern boreal forest is still largely intact, represents an enormous store of sequestered carbon, and is affected by a harsher climate and shorter growing season.
Thus the ECO recommended in its 2002-2003 Annual Report that MNR “carry out a thorough assessment of forest management approaches that are ecologically suited to the northern boreal forest and make the research results available to the public.” Instead, MNR is requesting that MOE issue a Declaration Order, exempting MNR from the need to carry out an environmental assessment. MNR believes that a Declaration Order is adequate in this case, arguing that the ministry has a comprehensive knowledge of the Whitefeather Forest environment, which is largely similar to the environment of adjacent boreal forest areas. (see MNR comments; p.215).
The activities and decisions of the Ministry of Northern Development and Mines (MNDM) are also shielded from EA scrutiny through an “interim” Declaration Order. MOE initially granted the Declaration Order in 2003 for a one-year period, recognizing that MNDM needed to establish a Class EA process for the issuance of mining licences. The ECO has noted with concern that this blanket exemption has since been extended several times, and will likely require another extension before MNDM’s Class EA process is established.
In some cases, the most significant decisions are simply not being made by the provincial government or its agencies, and thus public debate and scrutiny is never possible, either through an EA or through any other formal mechanism. For example, Ontario lacks an over-arching provincial policy for waste management that would set out capacity needs, technology preferences, goals, targets and timelines. Both the ECO and the EA Advisory Panel’s Waste Group have called for such a policy (see 60% Waste Diversion by 2008 – Pipe Dream or Reality?. MOE does have a target and an approach on waste diversion, but it has become outdated. If there is no over-arching policy drafted and proposed by the province, there is no opportunity to review its merits and consider alternative options through the EAA. This policy vacuum means that the large issues cannot be debated and resolved at the provincial level, and instead are fought over again and again in the local context. (See also Screening Process for Waste Projects under the Environmental Assessment Act). MOE has heard this concern, and has taken initial steps towards this approach with recent draft statements of provincial priority on waste and transit policy (see Registry #010-0420 and #010-3128).
“No” is rarely an option
The EA process seems to lead inexorably towards the approval of projects. A tally based on MOE’s website for EA activities suggests that only two individual EAs have been refused by the ministry and three withdrawn since 1996, while 64 projects have been approved. Ministry staff qualify these statistics by noting that some poor proposals are screened out at early stages, and do not show up in the numbers. Nevertheless, it is most unusual to see a ‘No’ delivered under the EA process. The rare high-profile exceptions merely prove the rule, such as a February 2006 decision by the Minister of the Environment to prevent highly contentious road construction through Boyd Park in Vaughan by amending an EA workplan.
Several entrenched barriers stand in the way of ‘getting to No’. Principally, these barriers include: the piece-mealing of large projects (a characteristic of Class EA approvals); the troubling practice of allowing zoning changes and financing decisions to precede EA approvals; and the explicit scoping of EA terms of reference to exclude core questions of need.
The Class EA approach has the effect of breaking up major regional infrastructure initiatives for water, wastewater or transportation into multiple small projects, each proceeding on its own approval track. This makes it very difficult to consider – and for the public to provide meaningful input on – broader regional implications and cumulative effects. Piece-mealing is officially frowned upon in EA; for example, a warning that “projects must not be piece-mealed with component parts or phases being addressed separately” has been written into the Municipal Class Environmental Assessment rulebook for municipal roads, water and sewers. As well, municipalities and other planning authorities are encouraged to carry out Master Planning exercises, which are “long range plans which integrate infrastructure requirements for existing and future land use with EA planning principles.” Municipalities are expected to consult with the public on Master Plans, but Master Plans do not require approval under the EAA – only specific projects within a Master Plan are subject to EA. Thus, in spite of the warning against piece-mealing and the encouragement to think long-range, the approach tends to lead to fragmented decision-making.
For example, The York Durham Sewer System expansion was assessed as 14 different Class EA projects, despite broad regional implications; the construction phase alone has required a massive dewatering effort, removing vast amounts of water from aquifers in York Region.
Under the Class EA process, public concerns abound. A “no” decision is not a possible outcome. The ministry can only elevate the status of the project to an individual EA or impose conditions. Frustrated members of the public invoke the available appeal mechanism (a request for a “bump-up” to an individual EA, also known as a “Part II Order”) about 60 to 70 times in a typical year, but to the ECO’s knowledge, the ministry has not granted one such request. The minister does, in some cases, respond to bump-up requests by imposing conditions on proponents. But the conditions are often soft measures, such as additional consultation through liaison committees, rather than what is most sorely needed: stronger mitigation requirements.
Allowing other approvals to precede EA approval
The drafters of the original EAA of 1976 had evidently worried about the prospect of the EA process deteriorating into a rubberstamp approval, to be collected by the proponent at the tail-end of other approvals. To that end, the original Act had prohibited the proponent from taking any steps towards implementation of the project before EAA approval was granted, including purchasing land for the project.
As well, municipal and provincial government agencies faced strong restrictions, generally prohibiting them from issuing licences, approvals, loans, grants or subsidies until approval was issued to the undertaking under the EAA. These requirements were intended to prevent prior commitments distorting the process of selecting the undertaking and site/route. But the 1996 amendments reversed that approach, by expressly permitting property to be acquired before the approval of an undertaking, and even before the commencement of an EA study. This contributed to a weakening of a core tenet of the original EA vision – that environmental assessment should occur before decisions are made about the project.
To make matters worse, MOE filed an amending regulation under the EAA in 2007, which, as the deputy minister (MOE) explained, “helps to streamline development in Ontario by permitting a proponent to seek land use approval for a project pursuant to a Minister’s Zoning Order in advance of the approval of an EA.” This strong bias towards streamlining at the expense of an evaluative approach stands in stark contrast to the original vision of the EAA. The fact that MOE failed to give the public the usual right to comment on this particular streamlining provision is of further concern.
A clear example of public unhappiness with a fait accompli style of EA is found in Section 6.1.4 of the Supplement to this Annual Report, dealing with expansions of Bradford’s sewage infrastructure. In this case, the Town of Bradford East Gwillimbury planned to enlarge its sewage treatment plant (STP) to accommodate a proposed, but contentious, expansion of a nearby hamlet from 500 to 4,400 people. A request for investigation application under the EBR alleged that the town took significant steps advancing this project (including signing an agreement to accept $5.4 million from a developer to pay for the STP expansion and approving a contract with a construction company), but failed to consult with the public through the Municipal Class EA process on this component, thus contravening the EAA. MOE denied this investigation request, stating that “While actions by the Town may suggest an expansion to the [STP] service area in the future, insufficient evidence was provided that the expansion of the service area had taken place.” MOE did state that further public consultation under the Class EA would be required if the town proceeds with the expansion. This case raises some larger questions. What is the point of a Class EA evaluation, if other approvals and decisions have already set the stage to proceed? And how could this process possibly lead to ‘No’ as a decision?
The need for projects often shielded from scrutiny
As described above, the 1996 amendments to the EAA mean that questions about the rationale for (or alternatives to) a project can be declared outside the scope of an EA study by setting narrow Terms of Reference. Once such questions are scoped out, the proponent need not consider them and they are not open to debate or challenge if the project were to go to a hearing. The scoping provision is used fairly often: from 1997 to 2007, 78 Terms of Reference have been submitted to the ministry, of which 24 involved some degree of scoping – most dealing with waste projects. The amendments allowing scoping remain highly contentious. In 2005, the EA Panel criticized MOE for lacking guidelines that “clearly articulate circumstances” when the Minister should or should not approve scoped ToRs. The Panel was of the view that this lack of direction “undermines clarity, predictability and accountability within the EA program.” The Panel also stated that the revised ToR guideline should “narrowly prescribe those circumstances where the Minister may limit or scope the consideration of “need” and “alternatives to” within a proponent’s EA process…” MOE has since finalized the ToR Code of Practice (see EA Codes of Practice), but in the view of the ECO, the new guidance on scoping remains ambiguous.
Ongoing public concern about the scoping issue was illustrated by an EBR application for review in 2007. The applicants asserted that the scoping mechanism introduced dangerously vague language into the EAA, which undermines the overall purpose of the legislation. MOE turned down this request, arguing that there is now adequate guidance via the newly finalized Code of Practice for Terms of Reference for EA. The ministry also invoked the Ontario Court of Appeal ruling on the Sutcliffe case. A full review of this application is found in the Supplement to this Report.
Waste management projects also have a new streamlined EA process available to them which does not require that need or alternatives be considered; see Screening Process for Waste Projects under the Environmental Assessment Act.
Important back-end technical details are shielded from scrutiny
Under Ontario’s EA regime, the public is typically invited to comment on general plans and designs for a project, rather than technical details. Though often a source of intense public interest and concern, many technical decisions (such as scheduling of construction, air emission approvals, constraints on water taking or truck traffic, etc.) tend to be pushed beyond the back-end of the EA process, to be covered by permits and approvals under a variety of other legislation. And perversely, an exemption under the EBR allows proponents to obtain all permits and approvals arising from EA processes without being subject to public comment or appeal rights.
Both the ECO and the EA Advisory Panel have recommended that this notorious “section 32” exemption needs amendment, because it inappropriately shrouds environmentally significant decisions from public scrutiny. (For details, see the ECO’s 2003-2004 Annual Report, page 52.)
Uneven quality of EA studies
During the years when EA hearings still took place, the Environmental Assessment Board was often critical of the poor quality EA studies placed before it. Since EA studies form the substantive ‘guts’ of the evaluation, the Board expected to see assessments that were rational, consistent, traceable, reproducible and fair. But the Board often saw deficiencies, and described them in sometimes tart language:
- ... it is painful to see sincere and laborious efforts leading to such lamentable results... The proponent’s process defies replicability. (1989)
- ...the elimination of alternatives appeared arbitrary, subjective and poorly documented. (1995)
With the virtual elimination of hearings since 1996, the important role of reviewing the sufficiency of EA studies by the Board was lost. The responsibility for quality control for EA studies has come to rest overwhelmingly with MOE, but MOE’s reviews of EA studies submitted by proponents often seem to rely on a checklist approach, with little guidance or critical oversight. As a result, EA studies remain prone to weak methodology, and are a source of frustration to stakeholders. Typical examples include:
- weaknesses in the comparison and weighting of alternatives;
- weaknesses in the use of science;
- weaknesses in the choice of what constitutes a baseline or ‘do nothing’ alternative; and
- weaknesses in the adequacy and timing/seasonality of field work to update older surveys.
Class EA processes have also been marred by inadequate environmental studies (as described in the ECO’s 2003-2004 Annual Report, pages 56-57). As part of its EA improvement package, MOE has proposed a new Code of Practice on Preparing and Reviewing Environmental Assessments in Ontario (Registry # 010-1259), which remained at the proposal stage as of June 2008. The ECO will review this guidance document once it is finalized.
The neglected principle of “betterment”
The EAA’s purpose remains “the betterment of the people of the whole or any part of Ontario by providing for the protection, conservation and wise management in Ontario of the environment.” But observers may be forgiven for asking how much “betterment” the EA process really provides, over and above what can be routinely provided through approvals under other legislation, such as the Environmental Protection Act. The problem is that MOE has been very hesitant to support EA approval conditions that venture beyond the minimum status quo standards set out in other environmental legislation.
One vivid illustration is provided by the Class EA for the expansion of the Duffin Creek sewage treatment plant (STP) being planned by the Regions of York and Durham. The expansion will service up to 1.3 million additional sewer users connected to the “Big Pipe.” The town of Ajax is situated nearby and raised a number of concerns with the existing STP, including odour problems and deteriorating water quality conditions. Although the town was not opposed to the expansion of the STP, it asked that higher environmental standards be applied, since the plant will operate for many years. While MOE staff shared the town’s concerns, they were reluctant to intervene in the EA process. The Regions, for their part, refused to adopt, voluntarily, higher environmental standards, fearing repercussions from developers who would be stuck with the costs. Only after the town requested a bump-up to an individual EA, in late 2006, did the minister impose a number of conditions, including an odour management plan and an odour complaints log.
Discredited consultation processes
The ECO regularly hears from members of the public who fnd EA consultation processes unduly complex and opaque. They fnd the system weighted in favour of proponents, and are frustrated by MOE’s evident inability or unwillingness to insist on fairness in consultation and in process. A frequent concern is the public’s inability to access key documents and technical studies in a timely manner. MOE has also provided very little in the way of user guides or fact sheets to help EA ‘novices’ get up to speed quickly on the jargon and the many nuanced rules of EA consultation.
MOE promised in June 2006 that its improved EA website would stress much greater transparency, but improvements are not in evidence as of June 2008. Public unhappiness with weak consultation is often exacerbated by related failings, such as flawed EA studies, and blocked public input on front-end questions of need or back-end technical details in permits and approvals.
Weak monitoring, compliance and enforcement
Much consultation and negotiation effort typically goes into the development of the detailed terms and conditions that are attached to approvals of individual EAs. For local citizens, these conditions are often the only tangible evidence of the “betterment” alluded to in the purpose of the EAA. Despite this, MOE has tradition- ally done little or no monitoring to check if these conditions are being adhered to and, instead, has relied on complaints from vigilant observers. MOE has now committed to supporting a single compliance officer, based in the EA branch, to audit selected individual EA projects for compliance with approval conditions.
Whether this nod towards compliance will be adequate to deal with the large number of approved individual EAs is open to question. It will certainly not ad- dress the need for monitoring of thousands of projects proceeding province-wide through various Class EA approvals.
Casting a new vision for Ontario's EAA
The envisioning of what a stronger EA process ought to look like should not be the sole purview of academics and bureaucrats. It deserves much wider discussion and it is important that we work collaboratively on getting it right. Environmental assessment has evolved considerably over the past 30 years, both as a concept and a practice. Under the United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”), for example, which has been ratified by 40 (mainly European) countries, there is an acknowledgment that environmental rights and human rights are linked, and that we owe an obligation to future generations. The Aarhus Convention, which was adopted in 1989 and entered into force in 2001, has been described as a new benchmark in environmental democracy. It establishes rights for the public to receive environmental information; to participate in environmental decision-making; and to access justice if the first two rights are denied.
A growing number of jurisdictions are also beginning to experiment with “sustainability assessments” as an evolutionary step beyond traditional environmental assessment. “Assessment as if sustainability mattered” is how one EA expert has described this concept. The idea builds on EA, but aims to be comprehensive, emphasizing long-term as well as short-term interdependencies. Among other characteristics, sustainability assessment: emphasizes precaution; addresses cumulative and indirect effects, as well as direct effects; recognizes natural limits; and above all, aims for greater community and ecological sustainability.
Ontario’s EA program clearly has a lot of catching up to do. The ECO proposes some essential benchmarks to aim for in the next round of reforms:
- an effective decision-maker at the provincial level, willing to engage in and lead on big picture planning;
- a renewed emphasis on grappling with front-end questions of need and alternatives, and questioning assumptions;
- a process capable of delivering a ‘No’ when appropriate;
- an effective engagement of the broader public in all aspects, but including big and medium picture planning, as well as post-approval technical issues;
- an emphasis on transparency and credibility in public consultation;
- an ability to balance the broader public interest with local concerns;
- a commitment to the precautionary approach;
- an emphasis on achieving not just mitigation, but positive contributions to sustainability (the “betterment” principle of the EAA); and
- an effective regulator, with compliance and enforcement capacity, to protect the quality and integrity of EA processes
As to tools and mechanisms, there are a host of options available for discussion. Some significant changes would include a judicious use of strategic or plan-level EAs and thoughtfully defined public hearings. There is also work needed to better integrate EA processes with land use planning and other planning processes. (MOE has indicated that an inter-ministerial working group is examining this.) Amending section 32 of the Environmental Bill of Rights to allow public input on EA-related approvals and permits would help resolve a number of transparency concerns.
Some of EA’s lingering malaise has been connected to MOE’s strained capacity. It is hard to lead on long-term, big picture planning via a ministry weakened by many years of eroded funding and haemorrhaged expertise. Increased resources and staffing are the missing ingredients needed to fix the weaknesses in EA monitoring and compliance and to impose some quality control on proponents’ use of EA studies and consultation. To make enforcement a realistic prospect, MOE will also need to lengthen the current six-month statute of limitations on prosecutions under the EAA.
The need for a better EA
No private sector corporation can be successful for long without strategic business-case planning or without intelligent due diligence evaluations of new projects. This should hold doubly true for the public sector, where the planning horizons are usually much longer, the issues more complex, the burden of public trust heavier, and the implications of failure often enormous. Other than the EAA, Ontario has no other planning process that begins, at least theoretically, with fundamental questions about rationale or need. We do have a public inquiries process that can take a retrospective look, usually after policy decisions have gone disastrously wrong.
But if we want to avert poor decisions, we should recall the original purpose of the EAA – “the betterment of the people of the whole or any part of Ontario” – and we should share a desire to get the EA process right.
The ECO recommends that MOE’s ongoing reforms of the environmental assessment process give renewed weight to up-front questions of “need” and “alternatives” for projects.
|This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Environmental Assessment: a vision lost." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 28.