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Environmental Assessment Reform

Environmental assessment. These words have been very controversial in Ontario over the last couple of decades for both environmentalists and industry. The problem has been a perceived imbalance between the competing (but not mutually exclusive) in...


Environmental assessment. These words have been very controversial in Ontario over the last couple of decades for both environmentalists and industry. The problem has been a perceived imbalance between the competing (but not mutually exclusive) interests of environmental protection and process certainty.

Prior to 1996, very lengthy hearings were commonplace. Projects sank under the weight of procedural time and cost while, arguably, real environmental issues were decoupled from the process.

The then-Conservative provincial government amended the Environmental Assessment Act in 1996 to allow EA hearings to be “scoped” and make the process more efficient. However, the concept “Terms of Reference” introduced at that time became a new procedural impediment. Since then, several projects (including waste-related ones) have failed to proceed through the environmental assessment process. Despite the fact that infrastructure desperately needs attention in Ontario, EA is a barrier more than a mechanism for environmental protection.

On top of the general regulatory environment, recent court activity has slowed EA even further for all manner of projects ranging from highway development to landfill expansion. The decision of the Ontario Divisional Court to quash the Terms of Reference for the EA of the proposed expansion of the Richmond Landfill owned and operated by Waste Management of Canada Corporation (commonly referred to as the “Sutcliffe decision”) put a hold not only on Waste Management’s plans but also on most projects (waste related and otherwise) for which environmental assessments are required. The decision is under appeal and is scheduled to be heard by the Ontario Court of Appeal in late June 2004.

Recognizing the ongoing challenges related to EA in Ontario, the new Liberal Environment Minister Leona Dombrowsky recently announced that her government will form an EA committee to review changes to the process, to both protect the environment and break up the log jam so that some much-needed projects can move forward, or be stopped for legitimate reasons.

To understand the issues facing that committee, Solid Waste & Recycling magazine formed an expert panel of its own to comment. The panel includes an environment industry consultant, the president of a large waste management company, an environmental activist and a planner.

Solid Waste & Recycling magazine (SWR): Can you give our readers an example of your experience of Ontario’s environmental assessment process, and why the process needs to be changed? It seems that the attempt to expand the Richmond landfill in eastern Ontario (the subject matter of the Sutcliffe decision) is the most-discussed recent example of procedural uncertainty.

Valiante: We’ve worked with clients moving through the EA process, but none have got through to date.

Dan Pio: Waste Management initiated two environmental assessments in 1998 for proposed expansions at our Richmond and Warwick landfill operations. In June of 2003, an Ontario Divisional Court quashed the Terms of Reference that guided the public process for our Richmond project. This had the effect of subsequently halting that project as well as other private and public infrastructure projects in Ontario.

Paul Muldoon: CELA has been involved in Ontario’s EA process frequently in the past and currently. In addition, CELA has since 2000 been engaged in a project to review and comment on Ontario EA. From our perspective EA has been “successful” to some extent, keeping in mind that CELA has represented intervenors, not proponents.

Steven Rowe: I have been involved in a lot of waste management projects in the past (e.g., Halton landfill, OWMC hearings, etc.), but have shifted to other types of EA in recent years, including electricity projects where the process is better balanced.

I’m currently helping a municipality peer reviewing an EA for the Highway 407 completion. The Ministry of Transportation released Terms of Reference (TOR) a year ago, but recently had to release revised TOR because of the Sutcliffe decision to which Dan Pio refers. The process has taken several steps backwards because the TOR can no longer confirm the need and rationale for the project, nor even that the proposed undertaking is a highway, nor can it identify study areas as was done in the previous TOR.

In some projects there is a danger of prematurely resolving issues in the TOR that should be dealt with in the EA, but in this case there is a history of EA studies that generally support a more focused approach. There have been delays since alignments were first announced a number of years ago and people living on the originally proposed route are upset because they want finality, or to sell their property and they are now seeing the EA process extended even further.

Delays resulting from causes such as deferrals by proponents are often blamed on EA. The EA process is especially needed for highway projects because there is no other provincial approval for routing. Other types of projects need Environmental Protection Act, or Planning Act approvals, for example. That’s not to say that projects requiring these types of approvals shouldn’t also be subject to EA. EA enables all the issues to be looked at together, and hopefully creates transparency and accountability and a forum for the resolution of issues.

SWR: What do you believe the “scope” of environmental assessment should be? How should “need” and “alternatives” be dealt with? Should there be a generic approach to the scope of EAs or should they be tailored to each specific project? Please distinguish (if appropriate) between public and private sector undertakings.

Valiante: To some the terms “scope” and “scoping” connote some sort of truncation or abbreviation of the EA ambit and process. EA is about environmental planning. As such each EA is as unique as the proposal it is considering — it is necessarily a “tailored” activity. While the need for a project (both from the perspective of public interest and commercial desirability) is (debatably) a relatively straightforward exercise, the alternatives to be considered are really comprised of those that are “reasonable” for the proponent to consider. What is reasonable? To quote the 1987 policy guideline (issued at the time private waste disposal projects were first designated for EA), “…What is defined as reasonable is based on the inherent constraints of a given proponent’s abilities vis–vis its planning process…”

Pio: We believe that there should be sector-specific regulations for private waste disposal projects given that commercial entities are necessarily constrained by the lines of business they’re in. It makes little sense to require private sector proponents to evaluate alternative methods for waste disposal that aren’t in the suite of technologies that they have available to them. In saying this, it’s important to note that this kind of delimitation of options is not intended to abbreviate conducting thorough environmental assessments. Rather, it’s about creating a clear set of expectations for proponents and other stakeholders about the parameters under which a proposed undertaking will be evaluated.

Muldoon: Every environmental assessment should include need and alternatives as an integral part of the process. In EA, the issue of need (i.e., the do-nothing alternative) should be relevant if a proposed undertaking may pose a risk of environmental harm. A reasonable suite of alternatives-to and alternative methods should be required for consideration during the EA study. The Environmental Assessment Act (EAA) provides a generic approach to EA and this should be followed in each case. Tailoring the scope of the EA study process for each individual undertaking (project) application tends to create an ad hoc process which may be inconsistent, unfair, unpredictable, and unlikely to fully achieve the purpose of the EAA, namely environmental protection. It serves only to cut corners and fails to incor
porate a
ll of the principles of EA.

Rowe: Need and alternatives should be dealt with in the EA rather than the TOR unless there is very good reason not to. EA should be seen as a planning tool as well as a project approval requirement — the emphasis will vary for different types of project. Obviously it’s difficult for private proponents to look at alternative sites. This can’t be resolved without more government intervention than people are prepared to accept today. The environment ministry’s landfill design guidelines change the approach to looking at alternative sites for landfills because they reduce some of the uncertainty regarding hydrogeology.

SWR: Should different sectors (energy, waste, transport, etc.) be treated differently in EAs?

Valiante: It’s not a question of “treatment” per se. It’s really about whether there should be differences in what various proponents must consider in order to demonstrate that their proposal is in the interest of the environment and the public. The overall planning process is largely the same for all projects. The real differences manifest themselves in the alternatives to be considered — the alternatives the province must consider in proposing a highway (i.e., a provincial transportation plan) and what alternatives a wind-farm proponent might have to consider are worlds apart. So, yes, sectors have to be “treated” differently. Those treatments are best described in regulation.

Pio: Yes. A waste disposal project has a different set of marketplace realities as well as potential environmental and social impacts than non-waste sectors.

Muldoon: Different sectors (such as energy, waste and transport) may have specially developed processes for Class EA, but there is no compelling reason to develop different treatment for individual EAs. Obviously, the rationale, alternatives-to and alternative methods will be unique to each sector.

Rowe: There needs to be a more accountable “bump up” (government review/appeal) process for class EA projects in cases of dispute, especially if high profile projects like landfill sites are to be brought under Class EA or a similar type of process.

SWR: Should government (federal, provincial and municipal) bodies be subject to different EA obligations than the private sector as has historically been the case?

Valiante: Yes. The role of government and the role of business are entirely different. One regulates, and the other is regulated. The regulator is responsible for the context in which the regulated proposes a given business activity. A provincial waste diversion plan that drives waste diversion to 75 per cent has an impact on the “need” for disposal capacity and the “alternative” options for disposal that remain commercially viable. The same can be said for government (whether provincial or municipal) transportation and energy policies — they effectively “scope” individual projects. Hence, the planning process undertaken by a regulator is going to be much broader — a public policy exercise asking, for instance, What is the environmentally preferable way to move people around?” or How do we meet our energy needs with the lowest environmental impact?” Conversely, the planning process undertaken by the regulated entity is going to be largely a project-based planning exercise that’s narrower in focus. The EA obligations are necessarily different.

Pio: Governments make public policy, and as a consequence have the powers of expropriation, taxation and the like available to them. Private sector proponents of course do not. How this plays out in reality is that, for example, a public sector entity can implement a measure like a PAYT (pay as you throw) bag tag program to create an incentive for the public to divert waste. This kind of measure is not available to a private entity. Consequently, it wouldn’t make sense to require a private sector proponent to evaluate the potential efficacy of a program that it has no power to implement.

Muldoon: The private sector has not been subjected to different EA obligations historically as compared with government proponents. Decisions by the EA Board (now named the Environmental Review Tribunal) have made this clear, though flexibility has been shown with respect to siting in the selection of alternatives. As Dan says, it has been recognized that private proponents do not have the power to expropriate property (i.e., acquire it without the consent of the owner) and do not therefore have the same degree of choice over sites as government proponents. On the other hand, a private sector proponent can purchase land in the market place and is not limited to sites it already owns.

Rowe: Federal is different to provincial and municipal because it is under CEAA, though, increasingly, CEAA also applies to projects subject to provincial EA. Ontario is close to reaching agreement with Ottawa on coordinating these processes.

The process has to be flexible enough to accommodate project differences, including types of proponent, but the outcome expectations should be comparable. Also, there should be some form of EA for major private projects that have a range of environmental and socioeconomic effects, if only to ensure coordination of needed government inputs like infrastructure and planning for supporting development.

SWR: How should EA processes be altered to provide more accurate and certain timelines (and/or deadlines) in order for proponents to plan?

Valiante: Set out the clear rules for what an EA must address, provide rules and guidance on EA process and let the parties go to it. As long as the process is followed and adequate time for consultation is provided (the timeline itself initially set out for consultation in the proponent’s draft TOR) then the project should be weighed on the evidence in support of the preferred alternative and evidence against it — nothing more and nothing less.

Pio: There isn’t a need for prescriptive timelines. However, a clear and concise set of requirements for private sector proponents to pursue EAs is essential. With clear rules, it should be possible to create EA Terms of Reference that will allow thorough evaluations of projects to be completed in a timely manner.

Muldoon: The EA process already attempts to provide certainty of process in terms of timelines, at times to the detriment of full and meaningful public involvement. The EA process is one of planning, assembling information, participation and interaction of many stakeholders, and ultimately integrated decision-making which protects the environment and permits only undertakings that are sustainable. Timelines and deadlines were created as part of the 1996 Bill 76 amendments in order to shorten the process. Presumably these requirements have assisted proponents. However, to an extent accuracy and certainty of outcome is anathema to the principles underlying EA planning as it is an iterative, interactive and responsive process. For that reason “more accurate and certain timelines (and/or deadlines) in order for proponents to plan” cannot be ensured without sacrificing the flexible and comprehensive unfolding of the EA study process.

Rowe: The draft guidelines on TORs and consultation should be expedited, and there should also be guidelines on methodology and other aspects. This will help to clarify expectations of proponents and other parties. The CEAA process has a large volume of manuals, guidelines and supporting material (perhaps too much!), whereas the Ontario process has nothing for individual EAs. There should be freer flow of information — up to date news, project information including TORs, EA documents, Government EA Reviews, guidelines and Class EAs on a centralized website. Guidelines and information on other projects will help to generate a common understanding of what’s required and reduce uncertainty. The language of EA also needs to be turned into plain English so that it is more easily understood.

SWR: Should EA be required of projects or new programs that are not currently co

ntemplated (e.g., stewardship programs, waste export)?

Valiante: I would strongly argue that newer stewardship programs such as those for tires and used oil and Ontario’s existing Blue Box program need to be the subject of EA, what we could call “public policy EAs.” These and future stewardship programs will make or break future waste diversion in Ontario and other provinces. An EA-based planning approach would direct stewards to weigh alternatives for reducing, recovering, reusing and recycling wastes designated under the Waste Diversion Act. Why require EA for waste disposal but not for proposed programs to reduce our reliance on waste disposal? Don’t we want the latter to be maximally effective to reduce our reliance on the former?

Pio: I agree. Why should a proposed landfill development be subject to an EA, and exporting waste to Michigan receive no scrutiny whatsoever? Both have impacts on the environment that should be deliberated if rational public policy choices are to be made.

Muldoon: EA should be required of projects or new programs not currently contemplated provided that they fall within the statutory definition of an “undertaking” and meet any size or other thresholds required by the regulations. As Usman suggests, stewardship programs are a classic example where EA principles apply.

Rowe: As noted above, where a project would have a complex and significant range of environmental (including socioeconomic) effects, EA is an appropriate planning tool.

SWR: What elements of the EA process are most important to ensure the protection of the environment and the public interest? How can those elements be balanced with the need to provide some certainty (at least of the EA process) to proponents?

Valiante: The weighing of “alternatives” — that is, the weighing of the relative environmental and economic impacts of alternative approaches to addressing a given need (i.e., waste disposal capacity) that allows citizens to gauge what is or isn’t in their interest.

Pio: I agree with Usman and also think “need” is an important consideration.

Muldoon: Environmental science is evolving and full of unknowns. Predicting the possibility and extent of environmental impacts is difficult and very uncertain but needed to protect the public interest. There is no “need” to provide more certainty to proponents than already exists. This is not the same as applying for a building permit. Private sector proponents are not compelled to pursue business opportunities requiring EA. Public sector proponents have a duty to ensure, through EA, that their undertakings are environmentally appropriate.

The important need overall in the EA process is to increase the likelihood that the range and degree of impacts are fully examined and anticipated (particularly cumulative effects), stakeholders (particularly the public) are actively engaged, risk is minimized, harmful undertakings are avoided, and only undertakings that are sustainable are permitted to proceed. The notion that there is a need to “balance” comprehensive EA with the preference of some proponents for a fast process which guarantees approval runs contrary to the fundamental purpose of EA legislation (namely environmental protection).

Rowe: Certainty can only be guaranteed with a “checklist” approach, which is contrary to the “planning” component of EA. As already indicated, guidelines and commonly understood expectations will help. In some cases such as landfills, impact and/or financial agreements with neighbouring uses are appropriate to provide assurances regarding management and contingencies, and to “share the burden” (provided that planning and environmental effect and mitigation requirements are met).

SWR: Do you believe the current state of EA in Ontario (Canada?) is an impediment or disincentive to investment or infrastructure development in Ontario (Canada)?

Valiante: In Ontario, EA is currently an impediment not only to “…investment or infrastructure development…” but to proper environmental planning. Through improper guidance to proponents it has actually been undermined.

Pio: Clearly that is the case. It’s one of the principals of economics that capital flows to where it is likely to get the best return. Conversely, investment capital will not gravitate to markets where uncertainty about potential return exists. With the fractured EA process in Ontario today, there’s no doubt that capital needed for infrastructure development is sitting on the sidelines. It’s critical that Ontario lift this veil of uncertainty so that the kinds of investments can be made that this province needs in order to grow.

Muldoon: The current state of EA in Ontario and Canada is not an impediment or disincentive to investment or infrastructure development here, unless the goal is to engage in a “race to the bottom” in competition with some unregulated, industrial, grossly polluting societies which exist elsewhere in the world. In fact, EA protects investments by ensuring a comprehensive environmental and social review of an undertaking before large amounts of capital are expended. A more enlightened and progressive view is that investment is attracted to clean, green, healthy communities in which investors and workers would actually like to live. A strong competitive economy and a healthy environment are not mutually exclusive goals. In fact, the opposite is the case.

Rowe: Major investors require credible environmental sign off as part of their due diligence and financing requirements. They understand EA because it is similar to corporate planning processes — review of alternatives, etc. Proponents know that the public expects involvement in major decisions that affect them; if it doesn’t happen, through EA or otherwise, projects can be derailed in other ways. So there is no reason in principle why EA should be a disincentive, but the expectations and timelines need to be clear.

SWR: If the EA process isn’t fixed, what will be the result (especially to you)?

Valiante: EA will be diminished and will remain largely ineffective.

Pio: Without a properly functioning EA process Ontarians will be subject to a deepening waste disposal crisis. If the Canada/U.S. border closes, there is likely to be a flurry of emergency Certificates of Approvals issued by the environment ministry to accommodate the over three million tonnes of waste shipped to Michigan and elsewhere each year. And, if this occurs, there will be no time to conduct the thorough environmental assessments that projects like this demand. A better outcome is for Ontario to expand its landfills as a result of a sound public policy process and not crisis management.

Muldoon: CELA agrees that the EA process should be “fixed,” but not in order to make it less comprehensive and effective. The previous Ontario government attempted to undermine, if not dismantle, the EA process while keeping its name alive through window-dressing. The changes that are now urgently required need to augment the Ontario EA system so that it can accomplish what it was originally and legitimately intended to do.

Rowe: Overall, we could see the slower introduction of infrastructure, slower resolution of problems such as waste capacity and transportation, and continued lack of credibility from all parties. Good EA planning practice may be left behind in reaction to crises.

A “fixed” process should include effective monitoring, and research so that we can learn from the past and develop more effective EA techniques. Long-term, integrated planning that recognizes environmental realities should be part of a “fixed” process.

Guy Crittenden is editor of this magazine. Adam Chamberlain is a certified specialist in environmental law with Aird & Berlis in Toronto, Ontario. Contact Adam at achamberlain@airdberlis.com


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