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By Richard Lindgren, CELA Counsel
As part of its contentious “EA modernization” initiative, the Ontario government has recently proposed more regressive changes under the Environmental Assessment Act (as amended by Bill 197 in 2020).
For example, proposals to construct large-scale provincial freeways or high-voltage transmission lines are currently subject to individual EA requirements under Part II of the Act. From 2020 to 2022, when the province solicited public input on its draft projects list regulation under the amended Act, the Ontario government indicated that these types of projects (e.g., multi-lane highways >75 km and transmission lines >345 kV and >75km) would continue to trigger individual EAs (re-named “Comprehensive EAs” under the Bill 197 amendments).
At the time, CELA’s legal analysis and submissions in relation to Ontario’s project list proposal supported the provincial commitment to keep these kinds of major projects subject to individual EA, which is the most rigorous form of EA available under the Act.
However, the Ontario government has apparently changed its mind and is now proposing to further narrow the scope of the draft projects list regulation. This draft regulation remains in limbo despite the fast-tracked enactment of the Bill 197 changes without public consultation almost three years ago.
According to the Registry posting (ERO-019-4219), “the revisions to the proposal involve moving all transportation (highways and rail) and electricity transmission projects that had been proposed for a comprehensive EA to a streamlined EA process (emphasis added).” The Registry notice provides no environmental reasons or compelling evidence to support these revisions.
In CELA’s view, this is an inappropriate, unjustified, and unacceptable rollback of current EA requirements for these environmentally significant projects for several reasons:
- the Streamlined EA process is not as robust, accountable, or participatory as the Comprehensive EA process;
- the Streamlined EA process does not result in a project-specific approval with binding and enforceable conditions imposed by the Minister and/or Cabinet;
- pursuant to the Bill 197 changes, it is no longer possible for Ontarians to file a “bump-up” (or “elevation”) request on environmental grounds to ask the Minister to move a particularly significant project from the Streamlined EA process to the Comprehensive EA process; and
- Ontarians cannot request the Minister to refer a Streamlined Class EA project to the independent Ontario Land Tribunal for a public hearing and decision.
Members of the public have until May 9, 2023 to submit comments to the Ontario government about this alarming proposal.
At the same time, the Ontario government has also posted notice (ERO 019-6693) of its intention to make further revisions to the current Municipal Class EA regime in relation to infrastructure projects (e.g. roads, water and wastewater).
Among other things, this notice questions the continued need for the Municipal Class EA to apply to infrastructure projects that are subject to other statutory or planning processes, and it proposes that this alleged “duplication” can be addressed by revoking the Municipal Class EA and amending the Act and regulations accordingly. For certain projects (e.g., municipal expressways, waste, transit, electricity, and waterfront projects), the notice states that such projects will remain subject to “other processes” under the Act, although this might take the form of Streamlined EA rather than Comprehensive EA, as described above. Public comments on these Municipal Class EA proposals are due by May 9, 2023.
In addition, the province has posted an information notice on the Registry (ERO 019-6705) to advise that the province intends to “improve” timelines for Comprehensive EAs, although the amended Act’s provisions regarding Comprehensive EAs (Part II.3) have not yet been proclaimed into force.
This vague notice suggests that such improvements could be achieved through various measures, such as using sector-based (not project-specific) terms of reference to direct EA processes, preparing additional guidance materials for proponents, updating existing EA codes of practice (e.g., public and Indigenous consultation), and improving the Ontario government’s internal EA review process. No specific details have been released about these suggestions at this time, and there is no prescribed deadline for public comments.
Nevertheless, CELA will prepare, submit, and web-post our submissions on all the above-noted EA postings. Based on our decades-long experience representing clients in EA matters throughout the province, CELA concludes that the problematic proposals outlined in the three Registry notices, if implemented, will further diminish the scope, application, and credibility of Ontario’s EA program, and they are inconsistent with environmental justice principles and the public interest purpose of the Act.
