ONTARIO ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013

Overview: Environmental Assessment Act (Ontario) Application of EAA Preparation of Terms of Reference and Environmental Assessment EA Hearing Process Class Environmental Assessments Ontario Hydro DSM EA) Public participation (Intervenor Act)

Application of Environmental Assessment Act (Ontario) Enacted in 1975, substantially amended in 1996 Aka “Environmental Exemptions Act” Purpose: “the betterment” of the people of Ontario by providing for the “protection, conservation and wise management” of the environment s. 2

Application of Environmental Assessment Act (Ontario) Requires proponents to Consider range of reasonable alternatives Assess environmental effects of alternatives Demonstrate that preferred alternative is environmentally superior and necessary Minister of Environment has overall authority (EA and Approvals Branch) Broad definition of “environment” (biophysical, socio-economic, cultural and their interrelationships) s.1.(1)

Application of Environmental Assessment Act (Ontario) Distinguishes between public and private sector proponents Applies to public sector undertakings unless exempt by order/regulation s.3.(c) Doesn’t apply to private sector undertakings unless designated by regulation, voluntarily included s. 3.0.1 Minister authorized to dispense with statutory requirements to harmonize with other jurisdiction s. 3.(1)

General Regulatory Exemptions Renewable energy projects Municipal undertakings less than $3.5 million Drainage works Some waste disposal sites (pilot projects, mobile PCB destruction facilities) Subdivision agreements Undertakings by conservation authorities Financial assistance programs Research undertakings

Other Regulatory Exemptions Project-specific Exemptions Other municipal and provincial undertakings Long-term Electricity Supply Plan Sectoral Exemptions Electricity Projects Regulation Waste Management Projects Regulation Transportation Authority Undertakings Regulation

Class Environmental Assessments 11 categories of Class EAs (municipal roads, forest management activities, commuter rail stations) Represent 90% of undertakings subject to EAA Provides for pre-approval of undertaking, self-regulation Authority to “bump up” Class EA undertaking to individual EA rarely exercised

Process for Individual Environmental Assessments Intended for “large-scale, complex undertakings with the potential for significant environmental effects and major public interest” (Ministry of Environment website)

Process for Individual Environmental Assessments Proponent submits terms of reference for public consultation, Ministerial approval Proponent submits environmental assessment Ministry coordinates public, Aboriginal, community, government comments Ministry prepares Ministry review Public inspection of Ministry Review Minister’s decision (or referral for hearings) Proponent implements projects and monitors for compliance

Public Hearings EAA empowers Minister to refer an application to Environmental Review Tribunal for public hearing/decision Public hearings held for high-profile undertakings: landfills, incinerators, highways, timber management, provincial energy demand-supply plan Only 2 hearings since 1996

Ontario Energy Demand-Supply Hearings Ontario Hydro 25-year Demand /Supply Plan (DSP) Report released in 1989 DSP projected a supply/demand gap opening up in mid-1990s, reaching 9,700 MW by 2005 DSP proposed several additional nuclear, coal-fired generation plants

Ontario Energy Demand-Supply Hearings DSP referred to EAA hearings by Environmental Assessment Board Persuasive evidence at hearings that energy demand growth overestimated (total demand in 2009 same as 1989) DSP revised in 1992 then abandoned Hearings lasted several years—longest in Ontario history

Ontario Energy Demand-Supply Hearings No additional generating facilities built saving Ontario taxpayers billions Yet DSP hearings considered a failure due to their length and cost

Ottawa River Bridge and Highway Corridor Project National Capital Commission proposed new bridge across Ottawa River, 6-lane highway corridor linking Highway 417 in Ottawa and Autoroute 50 in Gatineau Estimated cost (2008) of $500-600m Corridor options: Kettle Island (8.5 km) Lower Duck Island (12 km) Gatineau Airport/McLaurin Bay (12 km)

Ottawa River Bridge and Highway Corridor Project

Ottawa River Bridge and Highway Corridor Project Stated purpose to divert some heavy truck traffic from King Edward corridor No transportation study completed to assess level of diversion Second purpose to provide more access to Ottawa for Gatineau auto commuters

Ottawa River Bridge and Highway Corridor Project Environmental threats worse for Kettle Island due to higher population density in quiet, well-established neighbourhood Truck noise and pollution Increase in automobile traffic in Ottawa from Gatineau Increased burning of fossil fuels, increased greenhouse gas and other air emissions Urban sprawl in Gatineau

Ottawa River Bridge and Highway Corridor Project NCC commenced screening under CEAA, which was terminated when CEAA 2012 came into force CEAA 2012 would not apply NCC planned to conduct ad hoc EA EA hearings required in Quebec by Bureau d’audiences publiques sur l’environnement (BAPE)

Ottawa River Bridge and Highway Corridor Project Ontario: EAA didn’t apply although declaration for non-application procedure not been employed Agreed that all three options for bridge and highway corridor undertakings under EAA, no regulatory exemption EAA would not apply as Ontario is not a "proponent" but only "partner“ “Undertaking” not “proponent” triggers EAA

Ottawa River Bridge and Highway Corridor Project Possible application for judicial review against Ontario? Judicial confirmation needed that Ontario must apply EAA to undertakings proposed by public sector proponents unless exempted Moot because City of Ottawa and Ontario abandoned project in 2013 on account of expense

Why the rush to evade Ontario Environmental Assessment? Costs of EA? Does carrying out analysis of alternatives make EA work in Ontario more onerous than CEAA 2012 EAs or those of other provinces? Other statutory schemes such as Planning Act duplicate EAs? Other provinces rushing for the EA exits as well

Why the rush to evade Ontario Environmental Assessment? What about wind projects in Ontario? Fracking in Quebec and New Brunswick? Offshore oil and gas development? Is growing civil unrest due to weak EA regimes? Lack of public participation in decision-making?