Environmental Assessment - Where are we now
From Eco Issues
| In 2008, the ECO undertook an analysis of emerging challenges facing the Environmental Assessment Act. The following articles are included: | |
| |
The EAA was enacted 32 years ago, articulating an admirable vision: that more informed, more transparent planning processes can lead to the betterment of the people of Ontario, and the protection, conservation and wise management of the environment. How far have we come towards realizing that vision? The EAA has, over time, suffered so many truncations and add-ons that it no longer bears much resemblance to its original, idealistic self. Many idealistic pieces of legislation be- come encrusted and their intent diluted with compromising amendments. But, by and large, trusty old statutes like the Environmental Protection Act or the [[Ontario Water Resources Act]] can still be relied upon to deliver their core mandates and protect the environment. Unfortunately, that cannot be said so unequivocally for the EAA. There are simply too many critical and persistent points of failure. The latest overhauls do not resolve a number of fundamental and intertangled flaws:
- important, over-arching decisions on policies and programs are not being made under the EAA;
- “No” is rarely an option, because projects are almost never rejected under the EA process;
- decisions are being made in a piece-meal fashion;
- proponents are being allowed to apply for and obtain other approvals prior to EA approval;
- the need for projects and undertakings are often shielded from scrutiny;
- important back-end technical details are also shielded from scrutiny;
- the quality of EA studies is “uneven”;
- the statutory principle of “betterment” is being neglected;
- there is poor integration between EA and the land use planning process;
- consultation processes have been discredited; and
- the monitoring, compliance and enforcement of EA terms and conditions has been weak.
Each of these concerns is discussed in some further detail, below.
Overarching decisions on policies, programs are not being made under EAA
Many of Ontario’s most important decisions – decisions that will have a significant impact on the environment and the public good – are not subject to integrated evaluation under the EAA. As one legal commentator has noted, “In Ontario, while there is a requirement for EA to apply not only to public sector projects, but also to policies and programs, in practice this has been honoured more in the breach than in its observance.” In some cases, the province is actively making important policy decisions, but is shrouding them from EA scrutiny.
One of the most notable recent examples was described in the ECO’s 2006-2007 Annual Report (pages 81- 86). Ontario’s Integrated Power System Plan was exempted from the EAA by regulation in June 2006, even though this plan will require some of the most substantial capital investments in the province’s history (on the order of $60 billion) and will have environmental implications for generations to come. As a result, Ontario’s future electricity plan is being evaluated by the Ontario Energy Board with a narrow focus on rates, costs and fairness. Certainly there will be some attention to environmental matters: the Ontario Power Authority is considering factors such as air emissions, water use and land use. As well, most site-specific projects will undergo proponent-driven environmental screenings under O. Reg. 116/01 (Electricity Projects) or, possibly, through individual EAs. Nevertheless, we have lost the singular opportunity to subject the plan, as a whole, to a rigorous integrated evaluation that would have considered broader environmental and social factors under the EAA.
Another recent example is MNR’s plan to superimpose the old forestry rules designed for Ontario’s traditional forestry regions to the province’s far northern boreal zone, and to do this without submitting those rules to real scrutiny through the EAA. The ecology of the northern boreal zone is different from more southerly forests; our northern boreal forest is still largely intact, represents an enormous store of sequestered carbon, and is affected by a harsher climate and shorter growing season.
Thus the ECO recommended in its 2002-2003 Annual Report that MNR “carry out a thorough assessment of forest management approaches that are ecologically suited to the northern boreal forest and make the research results available to the public.” Instead, MNR is requesting that MOE issue a Declaration Order, exempting MNR from the need to carry out an environmental assessment. MNR believes that a Declaration Order is adequate in this case, arguing that the ministry has a comprehensive knowledge of the Whitefeather Forest environment, which is largely similar to the environment of adjacent boreal forest areas. (see MNR comments; p.215).
The activities and decisions of the Ministry of Northern Development and Mines (MNDM) are also shielded from EA scrutiny through an “interim” Declaration Order. MOE initially granted the Declaration Order in 2003 for a one-year period, recognizing that MNDM needed to establish a Class EA process for the issuance of mining licences. The ECO has noted with concern that this blanket exemption has since been extended several times, and will likely require another extension before MNDM’s Class EA process is established (see 2006 Review of Need for Regulatory Reform Related to Mining Projects).
In some cases, the most significant decisions are simply not being made by the provincial government or its agencies, and thus public debate and scrutiny is never possible, either through an EA or through any other formal mechanism. For example, Ontario lacks an over-arching provincial policy for waste management that would set out capacity needs, technology preferences, goals, targets and timelines. Both the ECO and the EA Advisory Panel’s Waste Group have called for such a policy (see 60% Waste Diversion by 2008 – Pipe Dream or Reality?. MOE does have a target and an approach on waste diversion, but it has become outdated. If there is no over-arching policy drafted and proposed by the province, there is no opportunity to review its merits and consider alternative options through the EAA. This policy vacuum means that the large issues cannot be debated and resolved at the provincial level, and instead are fought over again and again in the local context. (See also Screening Process for Waste Projects under the Environmental Assessment Act). MOE has heard this concern, and has taken initial steps towards this approach with recent draft statements of provincial priority on waste and transit policy (see Registry #010-0420 and #010-3128).
“No” is rarely an option
The EA process seems to lead inexorably towards the approval of projects. A tally based on MOE’s website for EA activities suggests that only two individual EAs have been refused by the ministry and three withdrawn since 1996, while 64 projects have been approved. Ministry staff qualify these statistics by noting that some poor proposals are screened out at early stages, and do not show up in the numbers. Nevertheless, it is most unusual to see a ‘No’ delivered under the EA process. The rare high-profile exceptions merely prove the rule, such as a February 2006 decision by the Minister of the Environment to prevent highly contentious road construction through Boyd Park in Vaughan by amending an EA workplan.
Several entrenched barriers stand in the way of ‘getting to No’. Principally, these barriers include: the piece-mealing of large projects (a characteristic of Class EA approvals); the troubling practice of allowing zoning changes and financing decisions to precede EA approvals; and the explicit scoping of EA terms of reference to exclude core questions of need.
Piece-meal decision-making
The Class EA approach has the effect of breaking up major regional infrastructure initiatives for water, wastewater or transportation into multiple small projects, each proceeding on its own approval track. This makes it very difficult to consider – and for the public to provide meaningful input on – broader regional implications and cumulative effects. Piece-mealing is officially frowned upon in EA; for example, a warning that “projects must not be piece-mealed with component parts or phases being addressed separately” has been written into the Municipal Class Environmental Assessment rulebook for municipal roads, water and sewers. As well, municipalities and other planning authorities are encouraged to carry out Master Planning exercises, which are “long range plans which integrate infrastructure requirements for existing and future land use with EA planning principles.” Municipalities are expected to consult with the public on Master Plans, but Master Plans do not require approval under the EAA – only specific projects within a Master Plan are subject to EA. Thus, in spite of the warning against piece-mealing and the encouragement to think long-range, the approach tends to lead to fragmented decision-making.
For example, The York Durham Sewer System expansion was assessed as 14 different Class EA projects, despite broad regional implications; the construction phase alone has required a massive dewatering effort, removing vast amounts of water from aquifers in York Region.
Under the Class EA process, public concerns abound. A “no” decision is not a possible outcome. The ministry can only elevate the status of the project to an individual EA or impose conditions. Frustrated members of the public invoke the available appeal mechanism (a request for a “bump-up” to an individual EA, also known as a “Part II Order”) about 60 to 70 times in a typical year, but to the ECO’s knowledge, the ministry has not granted one such request. The minister does, in some cases, respond to bump-up requests by imposing conditions on proponents. But the conditions are often soft measures, such as additional consultation through liaison committees, rather than what is most sorely needed: stronger mitigation requirements.
Allowing other approvals to precede EA approval
The drafters of the original EAA of 1976 had evidently worried about the prospect of the EA process deteriorating into a rubberstamp approval, to be collected by the proponent at the tail-end of other approvals. To that end, the original Act had prohibited the proponent from taking any steps towards implementation of the project before EAA approval was granted, including purchasing land for the project.
As well, municipal and provincial government agencies faced strong restrictions, generally prohibiting them from issuing licences, approvals, loans, grants or subsidies until approval was issued to the undertaking under the EAA. These requirements were intended to prevent prior commitments distorting the process of selecting the undertaking and site/route. But the 1996 amendments reversed that approach, by expressly permitting property to be acquired before the approval of an undertaking, and even before the commencement of an EA study. This contributed to a weakening of a core tenet of the original EA vision – that environmental assessment should occur before decisions are made about the project.
To make matters worse, MOE filed an amending regulation under the EAA in 2007, which, as the deputy minister (MOE) explained, “helps to streamline development in Ontario by permitting a proponent to seek land use approval for a project pursuant to a Minister’s Zoning Order in advance of the approval of an EA.” This strong bias towards streamlining at the expense of an evaluative approach stands in stark contrast to the original vision of the EAA. The fact that MOE failed to give the public the usual right to comment on this particular streamlining provision is of further concern.
A clear example of public unhappiness with a fait accompli style of EA is found in Section 6.1.4 of the Supplement to this Annual Report, dealing with expansions of Bradford’s sewage infrastructure. In this case, the Town of Bradford East Gwillimbury planned to enlarge its sewage treatment plant (STP) to accommodate a proposed, but contentious, expansion of a nearby hamlet from 500 to 4,400 people. A request for investigation application under the EBR alleged that the town took significant steps advancing this project (including signing an agreement to accept $5.4 million from a developer to pay for the STP expansion and approving a contract with a construction company), but failed to consult with the public through the Municipal Class EA process on this component, thus contravening the EAA. MOE denied this investigation request, stating that “While actions by the Town may suggest an expansion to the [STP] service area in the future, insufficient evidence was provided that the expansion of the service area had taken place.” MOE did state that further public consultation under the Class EA would be required if the town proceeds with the expansion. This case raises some larger questions. What is the point of a Class EA evaluation, if other approvals and decisions have already set the stage to proceed? And how could this process possibly lead to ‘No’ as a decision?
The need for projects often shielded from scrutiny
As described above, the 1996 amendments to the EAA mean that questions about the rationale for (or alternatives to) a project can be declared outside the scope of an EA study by setting narrow Terms of Reference. Once such questions are scoped out, the proponent need not consider them and they are not open to debate or challenge if the project were to go to a hearing. The scoping provision is used fairly often: from 1997 to 2007, 78 Terms of Reference have been submitted to the ministry, of which 24 involved some degree of scoping – most dealing with waste projects. The amendments allowing scoping remain highly contentious. In 2005, the EA Panel criticized MOE for lacking guidelines that “clearly articulate circumstances” when the Minister should or should not approve scoped ToRs. The Panel was of the view that this lack of direction “undermines clarity, predictability and accountability within the EA program.” The Panel also stated that the revised ToR guideline should “narrowly prescribe those circumstances where the Minister may limit or scope the consideration of “need” and “alternatives to” within a proponent’s EA process…” MOE has since finalized the ToR Code of Practice (see EA Codes of Practice), but in the view of the ECO, the new guidance on scoping remains ambiguous.
Ongoing public concern about the scoping issue was illustrated by an EBR application for review in 2007. The applicants asserted that the scoping mechanism introduced dangerously vague language into the EAA, which undermines the overall purpose of the legislation. MOE turned down this request, arguing that there is now adequate guidance via the newly finalized Code of Practice for Terms of Reference for EA. The ministry also invoked the Ontario Court of Appeal ruling on the Sutcliffe case. A full review of this application is found in 2007 Review of subsections of the Environmental Assessment Act.
Waste management projects also have a new streamlined EA process available to them which does not require that need or alternatives be considered; see Screening Process for Waste Projects under the Environmental Assessment Act.
Important back-end technical details are shielded from scrutiny
Under Ontario’s EA regime, the public is typically invited to comment on general plans and designs for a project, rather than technical details. Though often a source of intense public interest and concern, many technical decisions (such as scheduling of construction, air emission approvals, constraints on water taking or truck traffic, etc.) tend to be pushed beyond the back-end of the EA process, to be covered by permits and approvals under a variety of other legislation. And perversely, an exemption under the EBR allows proponents to obtain all permits and approvals arising from EA processes without being subject to public comment or appeal rights.
Both the ECO and the EA Advisory Panel have recommended that this notorious “section 32” exemption needs amendment, because it inappropriately shrouds environmentally significant decisions from public scrutiny. (For details, see the ECO’s 2003-2004 Annual Report, page 52.)
Uneven quality of EA studies
During the years when EA hearings still took place, the Environmental Assessment Board was often critical of the poor quality EA studies placed before it. Since EA studies form the substantive ‘guts’ of the evaluation, the Board expected to see assessments that were rational, consistent, traceable, reproducible and fair. But the Board often saw deficiencies, and described them in sometimes tart language:
- ... it is painful to see sincere and laborious efforts leading to such lamentable results... The proponent’s process defies replicability. (1989)
- ...the elimination of alternatives appeared arbitrary, subjective and poorly documented. (1995)
With the virtual elimination of hearings since 1996, the important role of reviewing the sufficiency of EA studies by the Board was lost. The responsibility for quality control for EA studies has come to rest overwhelmingly with MOE, but MOE’s reviews of EA studies submitted by proponents often seem to rely on a checklist approach, with little guidance or critical oversight. As a result, EA studies remain prone to weak methodology, and are a source of frustration to stakeholders. Typical examples include:
- weaknesses in the comparison and weighting of alternatives;
- weaknesses in the use of science;
- weaknesses in the choice of what constitutes a baseline or ‘do nothing’ alternative; and
- weaknesses in the adequacy and timing/seasonality of field work to update older surveys.
Class EA processes have also been marred by inadequate environmental studies (as described in the ECO’s 2003-2004 Annual Report, pages 56-57). As part of its EA improvement package, MOE has proposed a new Code of Practice on Preparing and Reviewing Environmental Assessments in Ontario (Registry # 010-1259), which remained at the proposal stage as of June 2008. The ECO will review this guidance document once it is finalized.
The neglected principle of “betterment”
The EAA’s purpose remains “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.” But observers may be forgiven for asking how much “betterment” the EA process really provides, over and above what can be routinely provided through approvals under other legislation, such as the Environmental Protection Act. The problem is that MOE has been very hesitant to support EA approval conditions that venture beyond the minimum status quo standards set out in other environmental legislation.
One vivid illustration is provided by the Class EA for the expansion of the Duffin Creek sewage treatment plant (STP) being planned by the Regions of York and Durham. The expansion will service up to 1.3 million additional sewer users connected to the “Big Pipe.” The town of Ajax is situated nearby and raised a number of concerns with the existing STP, including odour problems and deteriorating water quality conditions. Although the town was not opposed to the expansion of the STP, it asked that higher environmental standards be applied, since the plant will operate for many years. While MOE staff shared the town’s concerns, they were reluctant to intervene in the EA process. The Regions, for their part, refused to adopt, voluntarily, higher environmental standards, fearing repercussions from developers who would be stuck with the costs. Only after the town requested a bump-up to an individual EA, in late 2006, did the minister impose a number of conditions, including an odour management plan and an odour complaints log.
Discredited consultation processes
The ECO regularly hears from members of the public who fnd EA consultation processes unduly complex and opaque. They fnd the system weighted in favour of proponents, and are frustrated by MOE’s evident inability or unwillingness to insist on fairness in consultation and in process. A frequent concern is the public’s inability to access key documents and technical studies in a timely manner. MOE has also provided very little in the way of user guides or fact sheets to help EA ‘novices’ get up to speed quickly on the jargon and the many nuanced rules of EA consultation.
MOE promised in June 2006 that its improved EA website would stress much greater transparency, but improvements are not in evidence as of June 2008. Public unhappiness with weak consultation is often exacerbated by related failings, such as flawed EA studies, and blocked public input on front-end questions of need or back-end technical details in permits and approvals.
Weak monitoring, compliance and enforcement
Much consultation and negotiation effort typically goes into the development of the detailed terms and conditions that are attached to approvals of individual EAs. For local citizens, these conditions are often the only tangible evidence of the “betterment” alluded to in the purpose of the EAA. Despite this, MOE has tradition- ally done little or no monitoring to check if these conditions are being adhered to and, instead, has relied on complaints from vigilant observers. MOE has now committed to supporting a single compliance officer, based in the EA branch, to audit selected individual EA projects for compliance with approval conditions.
Whether this nod towards compliance will be adequate to deal with the large number of approved individual EAs is open to question. It will certainly not ad- dress the need for monitoring of thousands of projects proceeding province-wide through various Class EA approvals.
| 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: The Queen's Printer for Ontario. 37-46.
