At its Bath, Ontario facility some years ago, Lafarge Canada decided to explore the possibility of replacing some of its energy requirements with municipal solid waste. Lafarge applied to the Ontario Ministry of the Environment for approvals to allow it to replace 30 per cent of its energy with municipal solid waste, including scrap tires.
The environment ministry was asked to subject the proposal to an EA. The minister refused and Lafarge proceeded to apply for the required Certificates of Approval.
Eventually, ministry directors issued two approvals. Unfortunately for Lafarge, a number of environmental activists and concerned citizens (including a member of the Tragically Hip music band) sought Leave to Appeal the issuance of the approvals. The application for Leave, made pursuant to the Ontario Environmental Bill of Rights, has historically been very difficult to obtain and is subject to an onerous legal test. Leave to appeal, if granted by the Court, allows an individual(s) to appeal an approval issued by the environment ministry to the Environmental Review Tribunal (ERT). Without such leave the approval is unassailable, except by the holder of the approval or the ministry itself.
Surprisingly, several of the applicants were granted Leave by the ERT.
In the fall of 2007 a number of associations joined together to form a coalition that was known as the Industry Coalition for Environmental Fairness. Included in ICEF were the: Cement Association of Canada; Ontario Stone, Sand and Gravel Association; Ontario Waste Management Association; and, the Ontario Mining Association. The associations that comprise ICEF were asked by Lafarge to consider intervening in the judicial review, which had been instituted by Lafarge and the ministry, of the ERT decision granting leave.
Meanwhile, the Ontario’s Environmental Commissioner also sought to intervene, primarily on the basis that the Commissioner was of the view that decisions to grant the approvals to Lafarge ought to have considered the Statements of Environmental Values in determining whether or not to issue the approvals. SEV’s are documents created by ministries of the Ontario government, and the Commissioner has taken the position for some time that they ought to be given more consideration when approval decisions are made. The Commissioner has met with limited success in efforts to obtain this requirement and apparently decided to attempt to obtain a ruling in this regard at the judicial review of this matter.
Two days had been set aside by the Divisional Court for the hearing of the judicial review itself in the spring of 2008 and the judge was par- ticularly concerned (as it turned out in her decision) with the fact that the numbers of people involved and the amount of documentation being filed would result in a delay of the judicial review.
In a bittersweet decision from the point of view of ICEF, the Divisional Court judge decided not to allow ICEF to intervene. The small silver lining from ICEF’s point of view was the fact that the Environmental Commissioner was also turned down.
This article won’t provide a detailed analysis of the decision but suffice it to say that the judge came to the conclusion that the proposed interveners did not meet the legal test set out for them to obtain intervener status. For those present in the court it appeared that the judge had a significant concern that the judicial review would become a three-ring circus given the potential numbers of documents and parties that would have been participating had the intervention been permitted.
At the time of writing this article, the Environmental Commissioner was making efforts to appeal the decision of the Divisional Court judge with respect to his intervention. The outcome of those efforts would not be known until after press time of this publication.
Implications for waste management
This case is important to the waste sector. Almost every waste management facility in Ontario is subject to at least one CofA issued by the ministry. The ability to appeal a CofA was thought nearly impossible in such cases. Should the decision stand, there are many who believe that the floodgates will be open for a multitude of appeals related to waste facilities.
Only time will tell how the matter resolves at the judicial review this spring and, if that procedure is unsuccessful for Lafarge, how the appeal of the Certificates of Approval will result before the ERT, likely later in 2008. In any event, members of the community regulated by the environment ministry (waste or otherwise) ought to watch very closely as these various legal proceedings run their course through the courts and tribunals in the near future.
In the meantime, Lafarge’s plans are effectively on hold while the judicial review is completed and, possibly, the appeal of the Certificates of Approval is concluded.
Adam Chamberlain, LL. B. is a Certified Specialist in Environmental Law with Borden Ladner Gervais LLP in Toronto, Ontario. Contact Adam at email@example.com