Missed opportunity on Environmental Assessment reforms?
Contents |
The pressure for reforms
Most public sector infrastructure projects and other undertakings in Ontario are subject to some level of environmental scrutiny under the Environmental Assessment Act (EAA), the vast majority through a streamlined approval process utilizing Class Environmental Assessments (Class EAs). Certain private sector projects, particularly waste management and energy projects, are also subject to the EAA.
Virtually since its enactment in 1975, the EAA has been a source of tension and debate. On the one hand, proponents have complained that complex, prolonged and expensive approval processes delay needed infrastructure proposals for roads, energy servicing, waste management, water treatment and sewers. On the other hand, environmental advocates and citizen groups have felt thwarted by inadequate consultation and transparency. The latter have also been frustrated that the process leads inexorably towards approval, while the need for most projects is virtually never open to question. This essential tension persists, despite periodic reforms of the process. One expert observer noted in 2001 that Ontario’s EA process has fallen behind other jurisdictions, and has deteriorated “from a progressive, open and environmentally enlightened planning and decision-making process to a narrow approach, one that focuses solely on identifying and mitigating the adverse biophysical effects of individual projects.”
MOE is once again working to reform Ontario’s EA process, after receiving input from its expert Advisory Panel on Improvements to Ontario’s EA Process, which submitted the final recommendations of its executive group in March 2005. In June 2006, the ministry announced an action plan for EA improvements, promising “a more effective and efficient EA process” that would “mean a faster yes or a faster no for applicants while completely protecting the environment.” The ministry says that its action plan will:
- “streamline the approvals process for transit projects;
- develop a new waste regulation that standardizes the process, based on type, size and impact of project;
- integrate the EA process with planning processes under other provincial legislation to reduce duplication, especially for energy, transit and waste initiatives;
- ensure projects receive a level of review appropriate to their potential environmental impact; and
- improve education and guidance to eliminate confusion and false starts”
MOE reform plans for the EA process are extensive; it is likely that the ministry is going to take a number of years to formulate and implement all of them. Among other things, the ministry wants to update the Class EA process, develop training and education programs for EA practitioners, improve the EA website, and ensure that proponents adhere to EA conditions. Several parent Class EA documents are also under review, and a number of administrative amendments such as delegation of decision-making authority are underway.
With regard to improving its EA website, MOE has advised that in the future it will provide on-line access to more documents, such as ministry reviews, and Notices of Commencement and Completion. Proponents will also be advised to develop their own dedicated project websites, providing access to EA documents. The ECO hopes this will help address the many difficulties faced by the public in trying to access relevant environmental assessment approval documents – a frequent complaint heard by our office.
Progress so far, and next steps
So far, MOE has consulted on and finalized two packages of regulatory amendments affecting waste management projects. Because these amendments are complex and were finalized on March 23, 2007, just days before the end of ECO’s annual review cycle, the ECO plans to review them in detail in our 2007/2008 Annual Report. Briefly, the changes are as follows:
Regulatory Amendments to Facilitate Waste Recycling, Use of Alternative Fuels and New and Emerging Waste Management Technologies (Registry #RA06E0008) – These amendments are intended: to encourage the use of waste biomass to produce ethanol and biodiesel; to encourage the use of woodwaste as a fuel; and to streamline approvals for pilot projects for new waste management technologies, including energy-from-waste. MOE received 47 comments on this initiative.
EA Process Requirements for Certain Waste Management Sites (Registry #RA06E0018) – These amendments create a three-track system for approving waste disposal sites: sites meeting certain criteria will be subject to only environmental screening; a second group of sites will be completely exempt from the EA process; and the remaining sites will continue to need full EAs. This package received 26 comments through the Registry, as well as some negative media coverage for its provisions that would allow “fast-tracking” proposals for incinerators.
MOE has also released three proposed Codes of Practice to guide proponents (and to a lesser extent, the public) through the EA process (Registry #PA06E0009). The ministry provided a 90-day comment period on these guides, and as of mid-May 2007, no decision has been posted on the Registry. The guides explain how to:
- prepare and review terms of reference;
- consult with the public; and
- use mediation.
ECO comment on reforms to date
For years, the ECO has pointed out that an effective EA process – a process with both integrity and teeth – is essential to protect Ontario’s environment. The EA Advisory Panel similarly recommended that the ministry develop guiding EA principles that embrace, among other things, the precautionary principle and the concept of “avoidance first”. MOE’s own language promises “a faster yes or a faster no for applicants while completely protecting the environment.” The changes unveiled thus far seem weighted towards delivering the “faster yes”. But the ability of the system to deliver a “faster no” – or indeed any “no” at all – remains unclear so far.
Unfortunately, it does not appear that MOE’s reform initiatives will address a number of the on-going weaknesses described in recent ECO annual reports, including inadequate transparency and public consultation provided under the Class EA process, and the need for better enforcement of the EAA. These concerns, also raised by the EA Advisory Panel, are summarized below.
Weak consultation under Class EA
The ECO’s 2003/2004 Annual Report raised concerns about inadequate transparency and public consultation under Class EA processes, especially for site-specific environmental permits, licenses and approvals flowing out of such processes. The ECO recommended that public consultation practices under the EAA become consistent with the minimum rights enshrined in the EBR, particularly with regard to permits, licenses and approvals. The EA Advisory Panel made essentially the same recommendation. In October 2006, MOE released a proposed Code of Practice for public consultation during the EA process (see Registry # PA06E0009). Unfortunately this document, if finalized, would simply confirm the inadequate status quo public consultation rules with regard to Class Environmental Assessments.
Related to this issue, in July 2005, MOE advised that it was “developing a ‘user’s guide’ to help interested stakeholders and members of the public better understand their rights under the Class EA process.” MOE’s March 2007 update noted that a draft Class EA Code of Practice had been developed, with a public comment opportunity anticipated for the spring of 2007. However, based on MOE’s brief description, it appears that this particular Code of Practice will provide, primarily, advice to proponents, and likely will not help the concerned public better navigate the complex world of the Class EA process.
Need for better enforcement of the EAA
The ECO noted in 2003/2004 that “many applications for investigation under the EBR have involved alleged violations of Class EAs and concerns that proponents were not adequately monitored by MOE.” The alleged violations often came to light long after the six-month limitation period for prosecutions had expired. Therefore, the ECO recommended (as did the EA Advisory Panel) that MOE consider setting a longer (two-year) statute of limitations for prosecutions under the EAA.
In a March 2007 update, MOE did not clarify whether the limitation period for prosecutions under the EAA might be lengthened; however, the ministry implied that the issue would be irrelevant, because prosecutions will probably not be occurring under the EAA in future. MOE advised that “the new Environmental Assessment Compliance Strategy will be used to determine the most appropriate abatement and/or enforcement tool for incidents of non-compliance.” MOE stated that the EA Compliance Strategy is an internal document, but revealed that “incidents of administrative non-compliance” will be dealt with by education and outreach, while cases involving adverse effects on the environment can be covered under the Ontario Water Resources Act. The alarming implication is that the EAA will not be directly enforced in future.
Members of the public devote significant time and energy to participating in EA consultation processes, on the assumption that their input will result in stronger environmental provisions for the projects in question. Undermining enforcement of the EAA would represent a significant weakening of the integrity and credibility of the EA process – a weakening that would not be in anyone’s long-term interest. Consequences could include more difficult resolution of disputes, and lowered public acceptance of decisions. It would also run directly contrary to a recommendation of the EA Advisory Panel to strengthen inspection and enforcement provisions of the EAA.
A weakening of enforcement activity would also erode the public’s rights to request investigations under the EBR. One prominent EBR investigation alleged that the proponent contravened the EAA by failing to consult with key stakeholders, such as First Nations (see Who Enforces the Class EA? The ORC Case. It is unclear how such investigation requests would be handled, if there were no realistic likelihood of enforcement of the EAA. The ECO concurs with the EA Advisory Panel that the new EA Compliance Strategy should be a public document, and should be subject to public consultation.
The ECO will review the continued roll-out of the EA reforms in our 2007/2008 Annual Report.
| This is an article from the 2006/07 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2007. "Missed Opportunity on Environmental Assessment Reforms?." Reconciling our Priorities, ECO Annual Report, 2006-07. Toronto, ON : Environmental Commissioner of Ontario. 92-97.
