environmental zone

EA Morphs Again

Dianne Saxe

In the September 2003 issue, this column described a decision by the Ontario Divisional Court¹ to quash the Minister of the Environment’s approval of Terms of Reference (ToR) for an environmental assessment (EA) of the proposed expansion of a landfill. This decision turned on its head a set of 1997 amendments to Ontario’s Environmental Assessment Act (EAA), which had been intended to reduce the cost and duration of EAs. Now, that decision has been unanimously overturned by the Court of Appeal.²

1997 Amendments

The Tory government of the day believed that few projects could survive the cost and delay of a full-scale EA, especially by private proponents. In Canada, a full-scale EA entails an exhaustive examination of whether the public really “needs” to throw away so much garbage, to drive so much, or to use so much electricity. Individual EAs also entail a detailed examination of all possible sites for a project, most of which the proponent (usually) does not own. These are expensive though not insuperable obstacles for governments, and even greater ones for private organizations.

The federal EA regime manages cost by evaluating almost all projects through “screenings”; only those with the most major impacts receive a detailed review. The Ontario EAA was designed to manage costs by excluding private projects unless specifically “designated,” by authorizing wide-ranging class EAs, and by giving the Cabinet wide discretion to grant exemptions. In practice, designation and exemption proved to be blunt instruments, leading to bitter complaints from all sides.

The 1997 amendments established what was, in principle, a sensible revision to the process: the scope of the EA for each project was to be defined at the beginning. This scope was to be finalized, in written ToR approved by the minister, after two rounds of public consultation. The scope could be anything from a federal-style screening to a full-scale EA, and could be focused on the issues relevant to the individual project. The ToR would govern the project, instead of the normal statutory rules for a “full individual EA.” The most prominent use of scoping to date was in the controversial Adams Mine landfill proposal. The Tories approved narrow ToR for an EA that looked only at whether leachate would escape from the mine. Although the mine project “passed” the scoped EA, it gained little legitimacy from the process and has since been blocked by legislation.

Facts of Current Case

Canadian Waste Services Inc. (CWS) wants to expand its solid, non-hazardous waste landfill site near Napanee. The expansion was “designated” to undergo EA, as all Ontario landfill projects are. Not surprisingly, CWS proposed relatively narrow ToR that focussed on whether it was safe to expand their site, not the “need” to dispose of garbage or sites they did not own. After extensive public and government consultation, the minister approved these ToR.
The applicants, nearby individuals and a native band opposed to the expansion, objected to these exclusions, and asked the court to quash the minister’s approval.

Unfortunately for CWS and for many municipalities, the 1997 minister, Brenda Elliott, had not been candid. She told the Legislature (unwisely and inaccurately) that, despite her amendments, full EAs of need and alternatives would always continue to take place. The applicants urged the courts to take her at her word, and, in 2003, two members of the Divisional Court did so. Surely no responsible minister would have misled the House? If so, “terms of reference” must be an additional EA step, on top of a full-scale EA!

This decision threw the entire process of Ontario EAs into a cocked hat. It quashed the ToR for the Napanee expansion EA, and by implication those for virtually every other EA. Dozens of public and private sector projects, including urgently-needed transit, were delayed while everyone started again.

In August 2004, the Court of Appeal gave a short, unanimous judgment overturning the Divisional Court.³ The amendments mean what they say, the court ruled, no matter what the then-minister said in 1997. Thus, ToR and scoping are back, and CWS’s previously-approved ToR have been resurrected.

Now What?

The case may not yet be over; the applicants have sought leave to appeal to the Supreme Court of Canada. Even if they decide not to hear the case, it is not yet clear who will pay all the legal costs, though no one will compensate CWS for the time that has been lost. Nor is it yet clear what this will all mean for the many projects and proponents that changed direction between the two court decisions. Will their ToR go back to a previous status, and if so, as of when? During this time, the MOE required all proponents to put forward terms of reference that were largely meaningless, without any suggestion of focus or scoping. Should they withdraw these proposals and try again to have scoped ToR approved? Or, should they push ahead without it? The MOE says only that its lawyers are “considering the decision.”

In the short term, not much is likely to change. Scoping is fiercely unpopular among environmental groups and among those opposing any project, and is rarely understood by the public. Ontario’s new Liberal government portrays itself as a friend of the environment, and has less enthusiasm than its predecessor for “short-cuts” through regulation. In July, the current minister created an advisory committee to make recommendations for the “improvement” of environment assessment, and the ministry is now waiting for the committee to make its report. Hot issues to be considered include environmentalist demands for the return of intervener funding, and for changes to the current system of class EAs. The method and degree of consultation with native groups also requires attention, as shown by the recent conviction of the Ontario Realty Corporation for selling one of its properties without adequate native consultation, after a longhouse was discovered on the site. It seems likely that the longhouse had belonged to a native group that no longer exists in Ontario; this complicates the challenge of proper consultation.

Even more troublesome is the awkward relationship between the EAA and the Planning Act. An EA is supposed to be the first approval for a project; but, in practice, projects such as roads appear in approved official plans years before they undergo EA. Meanwhile, subdivisions are built that depend upon the proposed road or that occupy routes it might have taken, so that few alternatives are left when the EA is finally conducted. One such case has led to the first order ever issued under section16 of the EAA, bumping up a municipal road project to an individual EA. The order was issued in July, prior to the Court of Appeal judgment, and refused to scope the EA as the municipality had requested. No reasons were given for the refusal, but it has to have been influenced by the Divisional Court ruling. Although the Divisional Court decision is now history, the section 16 order stands.?

During World War II, the slogan was “Loose lips sink ships.” Brenda Elliott is fortunate indeed that no one can hold her personally accountable for the consequences of her 1997 speech. But, the Sutcliffe case is about more than the consequences of ill-chosen words. The debate about scoping, and whether it is a legitimate part of an EA, is part of an nation-wide dispute as to how public decisions should be made and the role of the EA in that process. We should expect to hear about this issue again and again. MW

From the January 2005 issue of Municipal World

Check out Dianne’s bio on the Municipal World website.

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Footnote
1 Sutcliffe v. Ontario (Minister of the Environment), [2003] O.J. No. 2576 (Ont. Div. Court).
2 See also the article by Adam Chamberlain in the December 2004 issue of Municipal World.
3 <http://www.ontariocourts.on.ca/
decisions/2004/August/C40916.pdf>.

Page last modified on May 11, 2006, at 11:43 AM