Bill 197 Update: Narrowing the Application of the Environmental Assessment Act

Blog post by Richard Lindgren

In late July 2020, the Ontario government enacted omnibus Bill 197, which contains a number of controversial amendments to the Environmental Assessment Act (EAA).

The province’s sudden passage of the Bill 197 changes to the EAA without any public notice and comment opportunities was strongly criticized by opposition MPPs and the Auditor General of Ontario on the grounds that this fast-track approach contravened mandatory consultation requirements under Part II of the Environmental Bill of Rights (EBR).

In addition, individuals, environmental groups (including CELA) and First Nations have commenced legal challenges against Bill 197 in Ontario’s Divisional Court. It is anticipated that these matters will be heard by the Court in the spring of 2021.

In the meantime, Ontario is now proposing steps to implement the revised EAA regime, including provisions that fundamentally change how the EAA will apply to new or expanded undertakings throughout the province.

Since its inception decades ago, the EAA has automatically applied to all public sector undertakings (unless exempted), but the Act has not generally been applied to private sector undertakings (unless designated by regulation).

This long-standing approach has been altered by Bill 197, which provides that the EAA will now only apply to specific types of public/private undertakings that are prescribed on a regulatory list passed by the Ontario Cabinet.

Accordingly, a recent Environmental Registry notice is soliciting public feedback on the province’s proposed short list of undertakings that will trigger “comprehensive” EAs under Part II.3 of the amended EAA. The public comment period for this significant proposal ends on November 10, 2020.

CELA has undertaken a preliminary review of Ontario’s proposed list under the EAA, and we have identified a number of serious concerns regarding:

  • the overall intent of the proposed project list;
  • the factors used to identify candidates for inclusion on the list; and
  • the nature and number of projects currently being proposed on Ontario’s list.

For example, the Registry notice suggests that when selecting the project categories and thresholds for the proposed list, the Ministry of the Environment, Conservation and Parks (MECP) considered various factors to determine environmental significance (e.g. the magnitude, duration, frequency and geographic extent of potential impacts). However, these factors do not actually exist in the amended EAA, which leaves the Ontario government with virtually unfettered discretion to determine which projects should – or should not – be added to the list.

Similarly, the MECP’s application of these environmental factors during the listing exercise was solely based on its “experience,” rather than any rigorous scientific or technical studies, reviews and reports prepared to assist the listing process. In short, Ontario’s consultation materials do not disclose how each of the proposed project types (or thresholds) on the list meet the above-noted factors, or why other potential candidates (e.g. sewage treatment plants) were excluded from the list.

In CELA’s view, Ontario’s highly selective listing process is not evidence-based and lacks credibility, transparency and accountability. This is particularly true since the proposed list is largely restricted to the same set of projects (and thresholds) found in electricity and waste management project regulations that have existed for years under the EAA.

For these and other reasons, CELA concludes that the proposed project list is incomplete, inadequate and unacceptable. The narrow and underwhelming nature of Ontario’s proposed list (which merely contains 13 categories of designated projects) is amply demonstrated by comparing it to the federal project list under the Impact Assessment Act (which contains 61 categories of designated projects subject to the federal law).

These project-listing concerns will be explored in more detail by CELA lawyers during a free public webinar on Bill 197 that will be held on October 22, 2020. CELA will also be web-posting and submitting a detailed legal analysis to the Ontario government in relation to the proposed project list.

Ontarians who are interested in, or affected by, these EAA changes are encouraged to register for the CELA webinar, and to submit their views on Ontario’s proposed project list on or before the November 10th deadline.