EA is Not Red Tape: The Case against Ontario Bill 197

Posted by Richard Lindgren

The Ontario government has continued its relentless attack on the Environmental Assessment Act (EAA) by recently introducing Bill 197 (COVID-19 Economic Recovery Act, 2020).

Schedule 6 of Bill 197 proposes almost 80 pages of amendments to the EAA, which is one of Ontario’s oldest and most important environmental statutes.

At present, the EAA establishes different types of information-gathering and decision-making processes (i.e. individual EAs, Class EAs, and sectoral screening processes) that include opportunities for public and Indigenous engagement at key stages.

These EAA processes have been traditionally applied to wide variety of environmentally significant undertakings across Ontario, including landfills, incinerators, hazardous waste facilities, provincial freeways, timber management on Crown lands, electricity projects, and municipal roads and sewage works.

In essence, the EAA is a prudent “look before you leap” statute since the legislation requires an upfront public examination of the potential ecological, socio-economic, and cultural impacts of proposed undertakings before they proceed. This precautionary approach enables informed decisions on whether such undertakings should be approved (or not), and whether terms or conditions should be imposed to safeguard the public interest.

Over the past five decades, CELA has been involved in numerous court cases, public hearings and other administrative proceedings under the EAA on behalf of low-income individuals and disadvantaged or vulnerable communities. In our view, while there are opportunities to strengthen and improve the implementation of the EAA, the statute is fundamentally sound and has generally helped to ensure the protection, conservation and wise management of the environment in Ontario.

Unfortunately, as outlined in CELA’s preliminary analysis of Schedule 6, the Ontario government is now proposing a series of regressive and unacceptable amendments to the EAA program. If enacted, for example, Schedule 6 will:

  • remove the automatic application of the EAA to public sector undertakings, and instead the provincial Cabinet will have unfettered discretion to pass a new regulation that lists which projects are (or are not) subject to the Act;
  • re-name individual EAs as “Comprehensive” EAs, but the Environment Minister will still be empowered to approve EA Terms of Reference that exclude, or “scope”, key environmental planning matters (i.e. “need” and alternatives) from consideration in the EA process;
  • terminate the 10 currently approved Class EAs, and replace them with as-yet unknown “streamlined” regulatory requirements; and
  • significantly restrict the grounds upon which Ontarians can request “bump-up” or “elevation” of contentious infrastructure projects from a streamlined EA to a Comprehensive EA.

These and other problematic changes in Schedule 6 of Bill 197 follow other recent rollbacks that have been passed or proposed in relation to the EAA program, including (but not limited to):

CELA further notes that despite the length and complexity of Bill 197, Schedule 6 is not proposing any of the legislative changes recommended in recent years by EA practitioners, academics, non-governmental organizations, the Auditor General of Ontario, and the Environmental Commissioner of Ontario.

In addition, Bill 197 contains other Schedules that set out sweeping changes to a number of other key statutes, including the Drainage Act, Planning Act, and Building Code Act.

In these circumstances, it appears to CELA that the Ontario government is proceeding on the mistaken premise that the EAA and other environmental laws are simply “red tape” that may delay or stop the province’s economic recovery from the COVID-19 crisis.

In our view, there is no merit to such claims. CELA further notes that many of the EAA changes proposed in Bill 197 were first identified in a governmental discussion paper in mid-2019, long before COVID-19 emerged in Ontario.

CELA therefore concludes that the de-regulation agenda now being fast-tracked by the provincial government is inconsistent with the stated purpose of the EAA (i.e. “betterment” of the people of Ontario), and it will not address the environmental injustices that have been exposed (if not exacerbated) by the COVID-19 pandemic. To demonstrate its commitment to addressing these long-standing inequities, the Ontario government should withdraw Schedule 6 from Bill 197.