The Environmental Assessment Act under Section 32 of the EBR
Contents |
Introduction
The Environmental Bill of Rights is founded on the premise that the public should have the right to comment when government agencies make environmentally significant decisions. This also includes the explicit right to have those comments considered as part of the decision-making, and to learn how public comments affected the decision. The EBR also creates certain rights for members of the public to request appeals of “instruments” – permits, licences and approvals – that are posted on the Environmental Registry.
The EBR requires ministries to post certain instruments on the Registry, along with some background information, to allow for informed public comment. But under Section 32 (s.32) of the EBR, ministries are excused from posting if the instrument is part of a project either approved or exempted under the Environmental Assessment Act (EAA). The EAA applies for the most part to projects undertaken by the public sector, including provincial agencies and municipalities. Section 32 was initially intended to avoid duplicating public consultation processes, since the EAA, at least in theory, has similar public consultation requirements. However, in our 2001/2002 annual report, the ECO evaluated public participation rights under several environmental assessment processes and concluded that they are deficient in many respects compared to the EBR process for instrument approvals.
These deficiencies mean that the existing broad application of s. 32 is depriving the public of rights to comment on and request appeals of instruments – rights that the EBR is intended to safeguard. The ECO continues to observe instances where members of the public have significant environmental concerns, but are frustrated by the limited opportunities under the EAA to comment on specific environmental permits. As a consequence of s. 32, some environmentally significant decisions are receiving no public notification, and indeed, no public scrutiny at all. Public scrutiny is a key driver for improving environmental decisions and practices. The ECO believes that shrouding decisions from all public scrutiny through s. 32 is not consistent with the goals and spirit of the EBR.
How widespread is the use of s.32?
The ECO is not able to estimate how many environmentally significant instruments are exempted each year from Registry posting because of s. 32, since there is no requirement that ministries or proponents keep records on these approvals. One area where s. 32 applies very extensively is in the matter of Class Environmental Assessments. These are streamlined planning processes, designed under the EAA, that apply a template of common rules to groups of similar public sector projects like municipal water and sewer upgrades, or provincial highways. Although the Ministry of the Environment, which is responsible for administering the EAA, has begun to require proponent government agencies to submit annual reports on activities covered under Class Environmental Assessments, these reports do not provide estimates of how many instruments are issued to implement the planned projects. As well, these annual reports are silent about large categories of “pre-approved” projects, which are exempted from any public consultation under Class EA processes. However, based on the following observations, it is likely that s.32 exempts many thousands of instruments from the EBR’s public notice and comment requirements each year.
- The Ministry of Natural Resources has submitted an annual report to MOE on how the ministry applied its Class EA for MNR Resource Stewardship and Facility Development Projects in 2003. This Class EA ranks projects into Categories A, B or C, depending on their predicted environmental significance, with Category A projects considered least significant. MNR’s annual report noted that the ministry carried out a total of 126 Category B and Category C projects in 2003. MNR does provide a useful list briefly describing each project, but does not include a description of the types of environmental permits or approvals issued. Such approvals would include permits under the Public Lands Act and licences under the Aggregate Resources Act. The projects can include land sales, construction of cottage roads, snowmobile trails and bridges, as well as shoreline management activities. Category A projects, which are pre-approved and get no public consultation, are not quantified or listed in this report, but include sewage works and severances of surplus lands. MNR is hoping to expand the range of Category A projects, in which case even more activities will get no public consultation.
- The annual report for the Municipal Class EA (compiled by the Municipal Engineers Association) estimates that up to 95 per cent of municipal sewer, water and road projects are considered Schedule A, which means they are considered pre-approved, and require no public consultation. The annual report notes that Ontario municipalities submitted notices of completion for 97 Schedule B and C projects in 2002. The annual report includes a list of projects, but does not indicate what environmental permits or approvals were issued by MOE and other ministries. As important, it shows that only a small fraction (about 12 per cent) of Ontario municipalities submitted notices of completion for the more significant Schedule B and C projects in 2002. Comments collected for this annual report suggest that many municipalities still need training on what projects are subject to the Class EA.
- The Ministry of Transportation reports that for 2001/2002, a total of 114 projects were subject to requirements under the MTO Class EA. But the ministry does not provide a list of those projects nor indicate what kinds of environmental permits or approvals would be associated with each project.
- MOE has informed the ECO that it has updated almost 5,000 Certificates of Approval (Cs of A) of various types since 2000, including Cs of A for sewage treatment and drinking water plants. The ECO has not yet received a breakdown of how many of these updated Cs of A were posted on the Registry, and how many were exempted by s.32. Even though there is considerable public interest in municipal drinking water and sewage treatment projects, approvals and permits related to such projects are not normally posted on the Registry, since they are carried out under the Municipal Class EA, and thus exempted by s. 32.
- A large (but unquantified) group of instruments have blanket exemptions under the EAA, for a variety of historical reasons. For example, undertakings by certain ministries as defined under Regulation 334 RRO1990 are exempt. This means they get no public consultation under the EAA, and because of s. 32, they also do not get any public consultation under the EBR. The ECO becomes aware of such instruments only by accident. For example in 2002, an air approval for a set of fume hoods at North York General Hospital in Toronto was posted to the Registry by MOE. The ministry later noted that this notice was posted in error, since MOE interprets the exemption to mean instruments issued to the hospital are exempt from the EBR. Although local residents might find the emissions from a public hospital to be just as relevant as emissions from a private laboratory, s.32 means that they have no right to know about or comment on such approvals.
Information notices – only a partial solution
It seems that MOE has recently begun to recognize the public consultation shortcomings created by s.32. This is suggested by a few scattered examples where MOE has made efforts to solicit public comments through the Registry on certain contentious instruments issued under EA processes. In these cases, MOE has posted information or exception notices on the Registry and has provided comment periods of varying lengths.
For example, MOE has voluntarily posted several information notices with comment periods for permits to take water (PTTW) relating to a highly contentious sewer construction project in York Region, which was approved under a Class EA. MOE has also voluntarily posted an information notice with a comment period on a permit to take water from the pit of the proposed Adams Mine waste disposal site near Kirkland Lake. In this latter case, the proposed waste disposal site had been approved under an individual EA, so again, this PTTW was not subject to a regular proposal notice on the Registry, despite intense public interest. MOE’s information notice triggered more than 23,000 comments regarding the proposed PTTW for the Adams Mine Site.
It is important to emphasize that even though the ministry took some half-measures to consult in the above examples, the public was still deprived of several key rights that would have existed for an instrument prescribed for a regular notice on the Registry; the ministry was not obligated to post a decision notice, or explain the effects of public comments on the decision in such a notice. The public also did not have the right to request an appeal of these instruments. Moreover, in cases where there are no Registry decision notices, the ECO does not undertake independent decision reviews for publication in the ECO annual report, nor examine the effects of public comment.
In 2002, MNR promised to consider posting information notices for certain projects that could generate province-wide public interest, but are receiving only local public notice under the Class EA for Resource Stewardship. However, as of May 2004, MNR has yet to post a single notice related to projects it has approved under this Class EA. MNR does post information notices on its Forest Management Plans.
Broader concerns within EA processes
Many concerns about EA processes are brought to our attention through requests for EBR reviews or investigations related to the EAA. So far we have focused on the absence of public consultation rights for instruments issued under the broad umbrella of the EAA. But we have also observed that EA processes can suffer from more general weaknesses in transparency and public consultation, as well as inadequate regard for environmental protection. These weaknesses are relevant to our discussion because they directly affect the ability of the public to negotiate the complex procedural terrain created by the EAA. Aside from the fact that specific instruments are not submitted to public consultation or appeals, the ECO has also observed the following problems:
- In some cases, members of the public have trouble accessing detailed EA approval documents and background environmental studies, even though they form the basis for government decision-making on a particular project. In some cases, people are forced by proponent ministries and agencies to use Freedom of Information legislation, which can be frustrating, time-consuming and expensive. Members of the public should have easy access to such information, since they often have special knowledge of site-specific environmental issues and can provide valuable input to improve projects.
- Some Class EA documents are not readily available, even though these documents are vital to understanding the public consultation opportunities and other rules governing many types of projects. While MNR has made its Class EA available on the ministry’s internet site, and MTO’s Class EA is available for free on the Web site of the Ronen House publishing company (www.ronenhouse.com), the Municipal Class EA must be ordered for $75.00 from the Ontario Good Roads Association. This obstacle will deter many members of the public (and even some municipal staff) from trying to understand the approval process governing municipal water, sewer and road projects.
- MOE staff have observed that some proponents under the Municipal Class EA submit inadequate environmental studies, and have incomplete or missing project files at key review stages of projects. For example, information on water quality, water quantity, contingency plans and baseline data has been lacking. Tight timelines prohibiting proper technical reviews are also cited as concerns.
- In some cases, EA processes governing provincial highway projects fail to achieve the intended levels of environmental protection. See pages 145-150 for a case study where environmental commitments made under an individual EA approval issued to MTO were not carried out. MNR staff have similarly raised concerns that the MTO Class EA for highway construction has been unable to achieve environmental protection in instances involving provincially significant wetlands and threatened species habitat. There is also no requirement to prevent a continual net loss of natural heritage features.
- Under Class EAs, the public does have certain time-limited opportunities to request more detailed environmental studies (termed “Part II Orders” or, previously, “bump-up requests”). But in practice, there is a very low likelihood that such requests will be granted by MOE. For example, MOE reviewed 11 such requests under the Municipal Class EA in 2002, and all were denied. Similarly, MOE reviewed six such requests under MTO’s Class EA in 2001/2002, and all were denied. Under MNR’s Class EA for Timber Management, over 80 bump-up requests were made from 1994 to 2001, and all were denied.
- In some cases, members of the public are frustrated when proponents operating under Class EAs change their projects in a significant way after most of the public consultation opportunities are over. The ECO has observed that concerned residents have very few options of redress in such situations.
- Under Class EAs, public comments and concerns are submitted to the proponent, rather than to an independent arbiter. The proponent can decide how (or whether) to respond to the concerns. MOE also tends to bounce commenters’ procedural concerns about a project back to the proponent.
- Most new Class EAs are “evergreen”: they have no expiry date. Although proponents have to review their implementation periodically, there is no guaranteed mechanism for public input into such a review. Nor is there a trigger for MOE to review the effectiveness of Class EAs on a regular basis.
Progress on tracking and monitoring EA processes
The ECO’s 2001/2002 annual report raised a number of concerns about MOE’s ability as regulator to oversee compliance trends in the various Class EAs. MOE promised a number of improvements to compliance and monitoring of Class EAs, including a requirement that annual reports eventually be prepared by all proponent agencies. But MOE conducted only cursory reviews of annual reports submitted for 2002, and carried out little follow-up.
In March 2003, MOE launched its “EA Compliance Monitoring Program.” MOE provided the ECO with an update on this project in the spring of 2004, committing to reviewing all annual reports, and to carrying out more detailed audits if shortcomings are found. MOE said it would send letters requiring action, and pursue enforcement if proponents do not remedy deficiencies. MOE says it has similar procedures for reviewing individual EA annual reports.
Of nine existing Class EAs, only three proponent agencies submitted annual reports in 2003, but the ECO expects this will improve slowly as reporting begins on new and revised Class EAs. MOE reviewed the three annual reports submitted in 2003 as promised. One MOE review identified many missing notices, environmental study reports and project plans. The deficiencies weren’t corrected after MOE’s first letter and MOE will wait until its review of the next annual report to see if a second letter is needed. MOE says if that isn’t effective, the ministry will simply document the issue in the five-year review.
The ECO has commented in the past on MOE’s failure to monitor compliance with the Ontario Realty Corporation (ORC) Class EA and MNR’s Timber Management Class EA. In 2001 MOE committed to reviewing MNR’s annual reports in consultation with independent third party reviewers. MOE admitted in its April 2004 update for the ECO that it did not carry out these reviews. ORC and MNR’s last annual reports under these Class EAs date from 2000/2001, despite previous firm commitments to the ECO and MOE to file reports more quickly. MOE undertook informal reviews of these reports when they came in, but did not document its analysis or take any action. Both Class EAs have recently been renewed. The new ORC Class EA and others include due dates for annual reports and much more detailed monitoring requirements. The new Forest Management Class EA does not.
MOE has taken several important steps to implement a compliance monitoring program. But the ministry should be more active to ensure that proponents are complying with the terms and conditions of their Class EAs. Above and beyond a desk review of annual reports that provide only a general overview, MOE needs to audit some project files in order to judge whether proponents have properly classified projects and provided required public consultation opportunities. In 2002, MOE reviewed a number of Municipal Class EA planning processes and found examples where the proper process was not used and required documentation was incomplete. MOE staff noted at the time that proponents should give more attention to compliance with EA commitments, and should carry those commitments through into project-specific environmental permits.
Based on our review of a number of Class EA annual reports covering several years, MOE’s audit work should evaluate whether the listing of projects is complete, and whether in some cases proponents are carrying out undertakings without using the Class EA or simply not reporting. MOE also needs to respond promptly to complaints and EBR investigation requests relating to Class EAs, because the six-month statute of limitations allows only a narrow window for action if enforcement is found to be necessary.
Conclusions
The framers of the EBR created s.32 because they wanted to avoid duplication in public consultation. But in practice this provision has become a veil that obscures many kinds of environmentally significant activities from public scrutiny. S.32 covers instruments relating to a large and diverse range of activities, including provincial highways, municipal wells, sewers and roads, sales of public lands, and forest and shoreline management. Because information on permits and approvals relating to all these activities is hidden, the public cannot provide meaningful comment on site-specific projects. The public is also prevented from evaluating the cumulative environmental effects of all these activities.
In establishing the EBR 10 years ago, the Ontario Legislature enshrined certain minimum public consultation rights on environmental matters, including the right to know, the right to comment and the right to have one’s comments considered. To be true to the spirit of the EBR, ministries need to ensure that public consultation under the EAA has regard for those rights, and becomes truly transparent.
| Recommendation 5:
The ECO recommends that MOE ensure that public consultation practices under the Environmental Assessment Act are consistent with the minimum rights enshrined in the Environmental Bill of Rights, particularly with regard to permits, licenses and approvals. |
| This is an article from the 2003/04 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article
Environmental Commissioner of Ontario. 2004. "EBR Rights Lost: Behind the Veil of Section 32." Choosing our Legacy, ECO Annual Report, 2003-04. Toronto, ON : Environmental Commissioner of Ontario. 52-59.
