Streamlined Environmental Assessments for Transit Projects
In June 2008, the Ministry of the Environment (MOE) filed Reg. 231/08, the Transit Projects and Greater Toronto Transportation Authority Undertakings Regulation, under the Environmental Assessment Act (EAA). O. Reg. 231/08 establishes a new, streamlined assessment process for proponents of public transit to follow in order to expedite the development of transit projects in Ontario. MOE published a guidance document entitled Ontario’s Transit Project Assessment Process which explains the step-by-step assessment process.
The rapid development of public transit is a key priority of the provincial government due to current and future perceived needs. In 2008, the government projected that Ontario’s population would grow by 27.8 per cent, or 3.56 million people between 2007 and 2031, with a significant amount of growth occurring in major urban centres. Along with population, traffic volumes are predicted to increase substantially. Further congestion will serve to exacerbate current problems, such as increased travel times, delayed delivery of goods and services, reduced air quality and higher greenhouse gas emissions.
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Description
Prior to O. Reg. 231/08, transit projects were subject to either Part II of the EAA and assessed on an individual basis, or followed the approved class environmental assessment process in the Municipal Class Environmental Assessment. O. Reg. 231/08 establishes a third process. The Transit Project Assessment Process (TPAP) narrows the range of issues that may be raised in opposition to a project, places a firm time limit on public consultation and limits MOE’s ability to delay a project. The TPAP is designed such that the assessment of potential environmental effects and decision-making can be completed within six months.
Once a proponent has selected a particular transit project, the proponent must notify the public that the proponent is starting the assessment process. The proponent then has 120 days to conduct public consultations and to complete an Environmental Project Report (EPR). Upon completion of both, the proponent must publish in a local newspaper and on their website a Notice of Completion. The public then has 30 days to review the EPR and submit written objections to the minister. The minister then has 35 days to either allow the project to proceed in accordance with the EPR, to require further consideration of the project, or to allow the project to proceed subject to certain conditions. The minister does not, however, have the power to terminate the process at this stage and the minister’s powers to act are limited.
The minister may only require further consideration of the project or impose conditions if he or she believes that:
- the project may have a negative impact on a matter of provincial importance that relates to the natural environment or has cultural heritage value or interest; or
- the project may have a negative impact on a constitutionally protected Aboriginal or treaty right.
If the minister requires further consideration of the project, the proponent must prepare and publish a revised EPR. Within 30 days of receiving this report, the minister may allow the project to proceed in line with the revised EPR. Alternatively, if the minister determines that further consideration did not adequately address the negative impacts, the minister may issue a notice terminating the process and require the proponent to proceed either under Part II of the EAA or under a Class EA.
Once the minister has given notice to proceed based either on the original EPR, the original EPR with conditions or the revised EPR, the proponent may submit and publish a Statement of Completion (SoC). As well, a SoC may be submitted by the proponent if no notice to proceed has been given by the minister within the 65-day review period for the original EPR, or within the 30-day review period for the revised EPR. Once a SoC has been submitted, the proponent can begin constructing the transit project.
Implications of the Decision
All Sizes of Public Transit Projects are Treated Similarly
Once a proponent determines that the project in question meets the definition of a “transit project” and falls within the class of projects identified in Schedule 1 of O. Reg. 231/08, the proponent may choose to follow the TPAP regardless of whether the proposed project is large or small, complex or straightforward. As indicated above, only in very limited circumstances can the minister require a proponent to carry out a Class EA or a full EA under the EAA.
The TPAP Should Provide a Faster, Easier and Less Expensive Alternative
O. Reg. 231/08 is intended to provide a more streamlined process for transit projects. MOE has stated that the regulation will “ease the regulatory burden on proponents of public transit projects by creating a time-limited, clearly articulated process resulting in more certainty for proponents undertaking public transit projects.” Accordingly, the TPAP should help address some of the criticisms of the EA process as they relate to transit projects (i.e., that they are often lengthy and subject to governmental delay). Once a project has been selected, O. Reg. 231/08 dictates strict timelines, and thus should facilitate the development of public transit in the province.
Assumes that Pre-planning Processes are Sufficient and Comprehensive
The TPAP is premised on an assumption that municipal planning processes, particularly in the area of public consultation, are both sufficient and comprehensive. While not dictating what must be done prior to beginning the process, the guidance document advises proponents to be “well prepared” and suggests that they “should consider involving or consulting with a broad range of potentially interested persons in pre-planning and decision-making leading up to the selection of a transit project.” Whether or not such prior consultation is as thorough or transparent as a regular EA process is an open question.
ECO Comment
The ECO views increased public transit as a highly desirable goal. There are, however, two concerns that the ECO has with O. Reg. 231/08. One is that various components of traditional environmental assessments are removed by O. Reg. 231/08. The EAA broadly defines the “environment” to include “the social, economic and cultural conditions that influence the life of humans or a community.” Within typical EA processes, therefore, these are legitimate grounds to be raised by the public in commenting on proposed projects. However, O. Reg. 231/08 explicitly limits the grounds upon which public concerns will trigger government intervention. This is of significant concern to the ECO, as social and economic considerations are often key issues that local citizens raise in opposition to proposed transit projects. It is likely that citizens will find alternative means, such as legal challenges or requests for judicial review, to express their concerns over issues such as these.
The second concern is that O. Reg. 231/08 adopts a “one size fits all” approach. Accordingly, large projects such as the Georgetown South Expansion and Union-Pearson Rail Link are subject to the same assessment process as much smaller projects with fewer potential impacts. Unlike the streamlined environmental assessment processes that MOE introduced for electricity in 2001 and waste projects in 2007, no “classification” or categorization scheme is included within O. Reg. 231/08 based on the type or size of the project or the scale of potential environmental impacts. Given that there are various levels of scrutiny associated with each of the categories for waste and electricity projects, the public has the option of requesting that a particular project be elevated.
Transit projects can be an extremely wise investment in the future. Through careful integration with smart land use planning, such projects can help curb urban sprawl, reduce greenhouse gas emissions, lower aggregate vehicle emissions, and help make cities much more liveable and sustainable. Not every proposed transit project is going to be a good one, however, and each project will have its own unique impacts and benefits. As well, individual transit projects must be viewed within the larger context of an enhanced transportation framework. Fundamentally, the goal should not be an increase in transit projects, but a substantial increase in transit usage which is accomplished through effective overall transit planning.
Accordingly, while O. Reg. 231/08 has removed some key requirements of the EA process, such as the requirement to consider both the “need” for and the potential “alternatives” to a particular project, the ECO hopes that the planning processes used by all proponents will still include these considerations. While the ECO agrees that the requirement to determine “need” is much less relevant given the benefits of increased public transit, a requirement to consider “alternatives” is still in the public interest, particularly when various transit options have differing impacts socially, economically and environmentally. A careful weighing of alternatives, with public scrutiny, can lead to better overall outcomes and a wiser use of scarce public resources.
For a more detailed review of this decision please see Section 4.7 of the Supplement to this Annual Report.
| This is an article from the 2008/09 Annual Report to the Legislature from the Environmental Commissioner of Ontario. |
Citing This Article:
Environmental Commissioner of Ontario. 2009. "Transit Assessments: Is Faster Always Better?." Building Resilience, ECO Annual Report, 2008-09. Toronto, ON : Environmental Commissioner of Ontario. 78-81.
