Environmental Assessment Act 1996-2006
| In 2008, the ECO undertook an analysis of emerging challenges facing the Environmental Assessment Act. The following articles are included: | |
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Contents |
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.
Scoping
| 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.
| 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. 33-35.
