1. ONTARIO ENVIRONMENTAL ASSESSMENT LAW NOVEMBER 11, 2013

2. 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)

3. 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

4. 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)

5. 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
Minister authorized to dispense with statutory requirements to harmonize with other jurisdiction s. 3.(1)

6. 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

7. 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

8. 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

9. 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)

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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 $ m
Corridor options:
Kettle Island (8.5 km)
Lower Duck Island (12 km)
Gatineau Airport/McLaurin Bay (12 km)

16. Ottawa River Bridge and Highway Corridor Project

17. 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

18. 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

19. 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)

20. 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

21. 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

22. 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

23. 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?