Blog: Taking Care of Business: Ontario Proposes Flawed Project List Regulation

By Richard D. Lindgren

As part of its controversial “modernization” of Ontario’s Environmental Assessment Act, the provincial government recently revealed the proposed list of designated projects that will automatically trigger Comprehensive Environmental Assessments (EA) under the Act.

This regulatory proposal follows the substantial amendments to the Act in July 2020. Among other things, these statutory changes removed the automatic application of EA requirements to public sector undertakings (unless exempted) and enabled the passage of regulations specifying which types of projects will be subject to the Act.

The scope and content of the draft regulation is crucial because proponents of any projects left off the regulatory list will not be legally required to prepare an EA, undertake public consultation, or seek approval under Part II.3 of the Act.

For non-listed projects, statutory approvals may still be required under other environmental or planning laws, and it remains theoretically possible for a proponent to voluntarily agree to conduct an EA if it elects to do so.

Similarly, it is open to the provincial Cabinet, on a case-by-case basis, to utilize its discretionary authority to designate a non-listed project as being subject to the Act. However, there is no guarantee that this Cabinet discretion will be exercised adequately or at all, and the Act contains no express criteria to identify when a non-listed project should be made subject to EA requirements.

Despite such uncertainty, the provincial government is promoting the draft regulation on the basis that it provides greater clarity and transparency for proponents, stakeholders, governmental officials, and members of the public regarding the types of projects that will – or will not – require an EA.

Given this overall objective, it is important to ensure that the regulatory list is sufficiently inclusive of public and private undertakings that may cause significant adverse environmental or socio-economic impacts. From a public interest perspective, it is necessary and appropriate to subject these kinds of projects to the detailed information-gathering and decision-making provisions in Part II.3 of the Act.

Notably, the provincial government previously released a discussion paper in 2020 which stated that the project listing exercise under the Act is intended to designate “projects which demonstrate the potential for the highest degree of environmental impact.”

In response, CELA raised a number of concerns about the implementation of this policy constraint, and noted that the discussion paper did not set out an “objective, persuasive, or evidence-based justification for the projects (or thresholds) that have been included (or excluded) from the proposed list.” Accordingly, CELA concluded that “the proposed list is not credible or transparent since it inexplicably omits too many environmentally significant projects that otherwise should trigger EA requirements.”

Unfortunately, this fundamental flaw is not rectified by the draft regulation, which has been crafted in an excessively narrow manner. For the most part, the draft regulation simply replicates the same short list of 13 project types (and thresholds) that had been proposed in the discussion paper. In short, the draft regulation only designates a relatively small handful of major projects that currently trigger an EA under the Act.

For example, the draft regulation provides that an EA will continue to be required for certain electricity projects and waste management projects. However, the regulation also proposes a new change that would enable landfill proponents to follow a “streamlined” process for large site expansions.

In addition, the draft regulation carries forward and adjusts the EA requirements that are currently applicable to transit and other transportation projects. Railway line projects equal to or greater than 50 km in length, and certain highway projects equal to or greater than 75 km, will also require an EA under Part II.3 of the Act.  Large-scale waterfront projects (e.g., developments that alter more than 1 km of shoreline and involve at least 4 hectares of fill) in the Great Lakes/St. Lawrence River system are also designated by the draft regulation.

Given the foregoing designation proposals, it is readily apparent that the draft regulation has not dramatically expanded the types of projects that have been traditionally subject to EA requirements in Ontario.

At the same time, the draft regulation does not designate other environmentally significant public undertakings, such as governmental plans and programs (e.g., long-term energy plans, climate change plans, transportation plans, provincial land use plans, etc.).

This is an alarming omission because, as noted by the Auditor General in her 2016 report on EA, “the impact of government plans and programs can have a broader and longer-term impact compared to individual projects, and therefore warrant a thorough assessment beyond that which is possible for individual projects.”

Moreover, the draft regulation inexplicably omits numerous types of private sector projects, activities, or facilities that may pose serious risks to the environment or human health and safety.

For example, although the 2020 discussion paper raised the possibility of designating mines under the Act, the draft regulation does not include any mining projects. As observed by the Auditor General’s 2015 report, this continuing omission leaves Ontario “as the only province in Canada that does not require a provincial environmental assessment to be performed for mining projects.”

Similarly, the draft regulation also omits sewage treatment plants, quarries, refineries, intra-provincial pipelines, forestry operations, pulp mills, smelters, and other environmentally significant projects which warrant EA scrutiny. CELA’s cross-country comparison of project lists found that these types of undertakings generally trigger EA requirements in other Canadian jurisdictions, but not in Ontario for unexplained reasons.

Because the provincial government wholly removed logging on Crown lands from EA Act coverage in 2020, and because mining has not been included in the draft regulation, resource development is now largely exempt from Ontario’s EA requirements. This makes Ontario’s EA regime an outlier compared to other provincial EA laws across the country and at the federal level since renewable and non-renewable extractive activities are a prime focus of EA legislation in these other jurisdictions.

The draft project list regulation is subject to a public comment period that expires in late January 2022. Public feedback is also being solicited by the provincial government with respect to related regulatory reforms and other proposed measures under the Act.

CELA encourages all interested Ontarians to review these regulatory proposals and submit written comments to the Ministry of the Environment, Conservation and Parks prior to the deadline. CELA will be preparing and web-posting its own submission on these incomplete and unacceptable regulatory proposals.