ONTARIO ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013.

ONTARIO ENVIRONMENTAL ASSESSMENT LAW

NOVEMBER 11, 2013

Overview: Environmental Assessment Act (Ontario)

• Application of EAA• Preparation of Terms of Reference

and Environmental Assessment• EA Hearing Process• Class Environmental Assessments• Ontario Hydro DSM EA)• Public participation (Intervenor Act)

Application of Environmental Assessment Act (Ontario)

• Enacted in 1975, substantially amended in 1996

• Aka “Environmental Exemptions Act”• Purpose: “the betterment” of the

people of Ontario by providing for the “protection, conservation and wise management” of the environment s. 2

Application of Environmental Assessment Act (Ontario)

• Requires proponents to• Consider range of reasonable alternatives• Assess environmental effects of alternatives• Demonstrate that preferred alternative is

environmentally superior and necessary

• Minister of Environment has overall authority (EA and Approvals Branch)

• Broad definition of “environment” (biophysical, socio-economic, cultural and their interrelationships) s.1.(1)

Application of Environmental Assessment Act (Ontario)

• Distinguishes between public and private sector proponents

• Applies to public sector undertakings unless exempt by order/regulation s.3.(c)

• Doesn’t apply to private sector undertakings unless designated by regulation, voluntarily included s. 3.0.1

• Minister authorized to dispense with statutory requirements to harmonize with other jurisdiction s. 3.(1)

General Regulatory Exemptions

• Renewable energy projects• Municipal undertakings less than $3.5

million• Drainage works• Some waste disposal sites (pilot projects,

mobile PCB destruction facilities)• Subdivision agreements• Undertakings by conservation authorities• Financial assistance programs• Research undertakings

Other Regulatory Exemptions

• Project-specific Exemptions• Other municipal and provincial

undertakings• Long-term Electricity Supply Plan

• Sectoral Exemptions• Electricity Projects Regulation • Waste Management Projects Regulation• Transportation Authority Undertakings

Regulation

Class Environmental Assessments

• 11 categories of Class EAs (municipal

roads, forest management activities, commuter rail stations)

• Represent 90% of undertakings subject to EAA

• Provides for pre-approval of undertaking, self-regulation

• Authority to “bump up” Class EA undertaking to individual EA rarely exercised

Process for Individual Environmental Assessments

• Intended for “large-scale, complex undertakings with the potential for significant environmental effects and major public interest” (Ministry of Environment website)

Process for Individual Environmental Assessments

• Proponent submits terms of reference for

public consultation, Ministerial approval• Proponent submits environmental

assessment• Ministry coordinates public, Aboriginal,

community, government comments• Ministry prepares Ministry review• Public inspection of Ministry Review• Minister’s decision (or referral for hearings) • Proponent implements projects and

monitors for compliance

Public Hearings

• EAA empowers Minister to refer an

application to Environmental Review Tribunal for public hearing/decision

• Public hearings held for high-profile undertakings: landfills, incinerators, highways, timber management, provincial energy demand-supply plan

• Only 2 hearings since 1996

Ontario Energy Demand-Supply Hearings

• Ontario Hydro 25-year Demand

/Supply Plan (DSP) Report released in 1989

• DSP projected a supply/demand gap opening up in mid-1990s, reaching 9,700 MW by 2005

• DSP proposed several additional nuclear, coal-fired generation plants

Ontario Energy Demand-Supply Hearings

• DSP referred to EAA hearings by

Environmental Assessment Board• Persuasive evidence at hearings that

energy demand growth overestimated (total demand in 2009 same as 1989)

• DSP revised in 1992 then abandoned• Hearings lasted several years—

longest in Ontario history

Ontario Energy Demand-Supply Hearings

• No additional generating facilities built saving Ontario taxpayers billions

• Yet DSP hearings considered a failure due to their length and cost

Ottawa River Bridge and Highway Corridor Project

• National Capital Commission proposed

new bridge across Ottawa River, 6-lane highway corridor linking Highway 417 in Ottawa and Autoroute 50 in Gatineau

• Estimated cost (2008) of $500-600m • Corridor options:

– Kettle Island (8.5 km)– Lower Duck Island (12 km)– Gatineau Airport/McLaurin Bay (12 km)

Ottawa River Bridge and Highway Corridor Project

Ottawa River Bridge and Highway Corridor Project

• Stated purpose to divert some heavy

truck traffic from King Edward corridor• No transportation study completed to

assess level of diversion • Second purpose to provide more

access to Ottawa for Gatineau auto commuters

Ottawa River Bridge and Highway Corridor Project

• Environmental threats worse for Kettle

Island due to higher population density in quiet, well-established neighbourhood– Truck noise and pollution– Increase in automobile traffic in Ottawa

from Gatineau– Increased burning of fossil fuels, increased

greenhouse gas and other air emissions– Urban sprawl in Gatineau

Ottawa River Bridge and Highway Corridor Project

• NCC commenced screening under

CEAA, which was terminated when CEAA 2012 came into force

• CEAA 2012 would not apply • NCC planned to conduct ad hoc EA • EA hearings required in Quebec by

Bureau d’audiences publiques sur l’environnement (BAPE)

Ottawa River Bridge and Highway Corridor Project

• Ontario: EAA didn’t apply although

declaration for non-application procedure not been employed

• Agreed that all three options for bridge and highway corridor undertakings under EAA, no regulatory exemption

• EAA would not apply as Ontario is not a "proponent" but only "partner“

• “Undertaking” not “proponent” triggers EAA

Ottawa River Bridge and Highway Corridor Project

• Possible application for judicial review

against Ontario?• Judicial confirmation needed that

Ontario must apply EAA to undertakings proposed by public sector proponents unless exempted

• Moot because City of Ottawa and Ontario abandoned project in 2013 on account of expense

Why the rush to evade Ontario Environmental Assessment?

• Costs of EA?• Does carrying out analysis of

alternatives make EA work in Ontario more onerous than CEAA 2012 EAs or those of other provinces?

• Other statutory schemes such as Planning Act duplicate EAs?

• Other provinces rushing for the EA exits as well

Why the rush to evade Ontario Environmental Assessment?

• What about wind projects in Ontario?• Fracking in Quebec and New

Brunswick? • Offshore oil and gas development?• Is growing civil unrest due to weak EA

regimes? Lack of public participation in decision-making?