Evolution of the Environmental Assessment Act since 1976
| In 2008, the ECO undertook an analysis of emerging challenges facing the Environmental Assessment Act. The following articles are included: | |
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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
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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). |
Halton Landfill
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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. |
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.”
| 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. 29-33.
