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Environmental Law Article

This article appeared in The Lawyers Weekly (July 25, 2003).

Clock rolled back on EAA

By Barry Spiegel, Willms & Shier Environmental Lawyers

For more than a decade, large infrastructure projects were plagued by a complex and uncertain approval process under Ontario's Environmental Assessment Act (EAA). It was practically impossible to get approval for new waste disposal sites. Municipalities engaged in seemingly endless waste management master planning exercises, millions of dollars were wasted on the unsuccessful Ontario Waste Management Corporation (OWMC), the Interim Waste Authority debacle came and went, the Hydro Demand Supply Plan hearings and the Timber Management Hearings droned on for years.

Practically everyone agreed that the EAA process did not work. The process was too demanding, complex, iterative and uncertain. Private sector proponents argued that their projects were particularly unsuited to the requirement for a full consideration of alternatives. While municipalities could look at a wide range of sites (because they could expropriate), private proponents are limited to lands they can purchase economically.

In 1997 the government amended the Act to improve the certainty in the process, requiring proponents to consult up-front with the public, before obtaining the Minister of the Environment's approval of Terms of Reference that would provide a binding 'roadmap' for the approval process. Since then, the Minister has been willing to approve Terms of Reference that were tailored to individual projects or proponents, rather than requiring every proponent to provide a full rationale and evaluate a full range of options.

On June 17, 2003 the Ontario Divisional Court ruled that the 1997 amendments to the EAA did not allow the Minister to limit the scope of an environmental assessment.

The court quashed the Terms of Reference (TOR) that the Minister of the Environment had approved in 1999 for an expansion of the Richmond landfill site. Failing a successful appeal or new MOE amendments to the EAA, this could add months or years, plus corresponding costs, to the Richmond expansion, and to other waste management sites requiring approval.

Canadian Waste Services will have to start again, by submitting a new TOR for approval by the Minister - and must deal with all of the elements required by the Act.

Since the 1997 amendments to the EAA, which introduced the requirement for proponents to submit Terms of Reference for approval by the Minister, project approval under the EAA has speeded up and the number of public hearings has significantly decreased.

The MOE and proponents had interpreted the 1997 amendments to permit the Minister to limit the scope of the EA study, especially in the case of private sector proponents. However, in the 2-1 decision in Sutcliffe v. MOE and Canadian Waste Services [2003] O.J. No. 2576, the majority of the court swept aside the interpretation and practice of the MOE since 1997.

The majority held that Terms of Reference must satisfy all of the listed requirements set out in subs. 6.1(2) of the EAA, including consideration of the need for the undertaking and the alternatives to the undertaking.

The decision turned on the meaning of the phrase "other than" in the amended Act.

Section 6.1 (3) of the Act provides that "The approved terms of reference may provide that the environmental assessment consist of information other than that required by subsection (2)."

The majority determined that "other than" in this context means "in addition to" rather than "different than", and therefore a TOR must require the EA to contain all of the elements required by the statute - and may contain additional information.

The MOE and Canadian Waste Services had argued that the Minister could limit the scope of matters that the proponent needed to include in the Terms of Reference and follow through with in the EA process.

The Richmond landfill TOR approved by the Minister in 1999 required that Canadian Waste Services would assess in the EA what expansion capacities, landfill footprints, heights, and designs would be environmentally appropriate for the site.

That TOR is now waste paper, and CWS' application is set back to pre-1999.

The court's majority found that neither the legislation nor other evidence that it reviewed substantiated the MOE's claim that the legislation was amended to facilitate easier approvals for private sector proponents - who do not have as much flexibility as municipalities and provincial agencies.

Justice Susan Lang, with Justice Stanley Kurisko concurring, cited then-Minister Brenda Elliot's words in the legislature stating that the 1997 amendments would still require a full environmental assessment, and concluded that the government did not intend the amendments to short circuit the EAA requirements.
Many readers will disagree with the court's conclusion.

The dissenting judge (Cunningham), in my view, makes a better legal argument.

The dissent states that if the expression "other" is read the way the majority proposes, s. 6.1(3) is meaningless.

"Surely a proponent can always submit additional material even if it chooses to proceed by way of the "generic" s. 6(2)(a) and 6.1(2). There is no ambiguity in this wording…"

Canadian Waste Services and the MOE are seeking leave to appeal from the Ontario Court of Appeal. Will the MOE wait for the Court of Appeal, or act to amend the Act to clarify its 1997 intention to allow scoping in the environmental assessment process?

The latter course is now fraught with political danger, as illustrated by the mid-peninsula highway fiasco, where the government withdrew the proposed Terms of Reference within days after the Canadian Waste Services decision was handed down.

In strong opposition to the Ministry of Transportation's plan to cut a new transportation corridor across the Niagara Escarpment, Burlington and Halton launched a judicial review to challenge the proposed Terms of Reference for the proposed Mid-Peninsula Transportation Corridor, which would link the U.S. and Niagara with the Greater Toronto Area, using a toll highway, and theoretically reduce traffic on the Queen Elizabeth Way.

The ministry will now face more consultations and a proposal for a more detailed environmental study and review of alternatives, especially concerning the Niagara Escarpment, designated by the United Nations as a World Biosphere Reserve. Meanwhile, the Richmond landfill and other projects in the EAA pipeline will just have to wait.

Author's Note:

The Mid-Peninsula Transportation Corridor is part of the Eve's government's long transportation strategy to create a grid of transportation corridors across the Golden Horseshoe.

Apparently in response to the Canadian Waste decision, the MTO withdrew the proposed Terms of Reference, and will go back to the drawing board for more consultations and a proposal for a more detailed environmental study and review of alternatives, especially concerning the Niagara Escarpment. New Terms of Reference will include the following:

o setting out a "Special Study Area" for the Niagara Escarpment. The Ministry of Transportation (MTO) has also committed that, in the event that a crossing of the Escarpment takes place, it would take a best-practice approach to improvements to existing crossings or new crossings of the Escarpment. These include tunnelling and committing to locating interchanges and transit stations outside the Niagara Escarpment Plan area. A new crossing of the Escarpment has not been determined, and is not certain, given that MTO has included options for consideration that include using existing Escarpment crossings or flanking the Escarpment and Burlington entirely;

o acknowledging other concurrent planning initiatives underway that will affect the EA, such as the Transit Opportunities Study and the development of a Goods Movement Strategy for Central Ontario;

o clarifying that any routes carried forward for evaluation will not be restricted to conceptual corridors; and

o making further commitments to consulting extensively with the Niagara Escarpment Commission, Ministry of Natural Resources, local municipalities and other stakeholders, in accordance with a comprehensive consultation plan, to ensure that the requirements of the Niagara Escarpment Plan and other relevant policies are incorporated into the process.

Under the government's proposed Bill 25, the Smart Transportation Act (First Reading) the establishment of development planning areas and infrastructure corridor planning areas would be exempt from the Environmental Assessment Act.

As Silly Season (election) approaches, it is unlikely that the government will be able to develop a measured response to the new EAA confusion.

To comment, call Barry Spiegel in Toronto at (416) 863-0711 or send email to