Since November 2018, the Government of Ontario has repeatedly signalled its intention to “modernize” ‎the Ontario Environmental Assessment Act (“EAA”) to better align the level of review with the degree of ‎potential environmental risk associated with a project and streamline review processes for low risk ‎projects. With the substantial amendments to the EAA recently enacted by the Legislative Assembly of ‎Ontario on July 21, 2020, the government has taken a significant step towards reforming how projects ‎are assessed in Ontario. Nevertheless, whether the government has delivered on its promises and truly ‎‎“modernized” the EAA remains an open question, both because it has yet to publish key regulations ‎elaborating on the new assessment framework and because the amended Act, in its current state, ‎arguably does not address all of the objectives the government set for itself. Regardless of whether the ‎EAA amendments meaningfully realize every one of the government’s self-proclaimed goals, they ‎represent a significant shift in project assessment in Ontario and should be closely examined by project ‎proponents.‎

Overview of environmental assessment in Ontario

Environmental assessment (“EA”) in Ontario dates back to 1975 when the EAA was first enacted. The ‎EAA as it existed from 1975 until July 21, 2020 established an assessment framework that only applied ‎to “undertakings”, as defined in the EAA. These “undertakings” included all public sector projects carried ‎out by provincial and municipal bodies, as well as a small number of private sector undertakings deemed ‎to carry a higher likelihood of adverse environmental effects, such as certain waste management, ‎electricity, and transit projects. Prior to the most recent amendment, the EAA applied to all ‎‎“undertakings” in the province, with specific regulations or ministry-approved documents reducing the ‎procedural requirements for certain classes of projects or, in some cases, entirely eliminating the ‎requirement for assessment. Streamlining environmental assessment through the modification of the ‎default EA process to expedite lower risk projects was achieved by two means: “Class” EA documents ‎and regulations. ‎

Following the passage of significant amendments to the EAA in 1996, a “Class” EA document could be ‎approved by the Minister of the Environment, Conservation and Parks (the “Minister”) for certain classes ‎of ‎undertakings – such as municipal infrastructure work, provincial highway repairs, and electricity ‎‎transmission facility upgrades – expected to have relatively minor and better understood environmental ‎impacts. ‎A minister-approved Class EA document authorized proponents of projects described in the ‎document to carry out their projects following a streamlined “self-assessment” process. Class EA ‎documents generally divided the class of undertakings subject to the document into sub-categories, ‎setting different requirements for project planning, documentation, and public consultation based on ‎project categorization. These categories were devised based on the nature of the project activities and ‎the potential for environmental impacts to be caused by those activities, with more onerous requirements ‎being imposed on undertakings associated with more significant potential impacts. Regulations were ‎also used by the government to exempt certain activities that would have otherwise been required to ‎undergo an individual EA from some or all of the requirements of the EAA. ‎

Development of the “modern” EA framework

In November 2018, the Ministry of the Environment, Conservation and Parks (the “MECP”) released the ‎Made-in-Ontario Environment Plan, which signalled the intention of the then newly elected Progressive ‎Conservative government to reform a variety of environmental statutes with the self-described aim of ‎reconciling the need for a healthy environment with the promotion of a robust provincial economy. This ‎plan briefly mentioned the objective of “modernizing” Ontario’s environmental assessment process to ‎‎“address duplication, streamline processes, improve service standards to reduce delays, and better ‎recognize other planning processes”. The details of how Ontario’s EA regime would be changed to ‎achieve this objective were, however, absent from the plan. Further information about the government’s ‎reform agenda were supplied by a discussion paper, Modernizing Ontario’s Environmental Assessment ‎Program, which was published by the MECP in April 2019. This discussion paper set out several “initial ‎actions” to create a “modern framework” for environmental assessment. In the MECP’s own words, this ‎framework:‎

  • ensures better alignment between the level of assessment and level of environmental risk ‎associated with a project;‎
  • eliminates duplication between environmental assessment and other planning and approvals ‎processes;‎
  • finds efficiencies in the environmental assessment process and related planning and approvals ‎processes to shorten the timelines from start to finish; and
  • goes digital by permitting online submissions to permit interested persons to access information ‎about environmental assessment.‎

Following public consultation and legislative drafting, the Government of Ontario proposed amendments ‎to the EAA via Bill 197, the COVID-19 Economic Recovery Act, 2020, which was introduced on July 8, ‎‎2020. Bill 197 contained amendments to twenty different pieces of legislation, many of them planned by ‎the government prior to the pandemic. The bill was fast-tracked through legislative process and was ‎enacted on July 21, 2020. ‎

Changes to the EA process

The key amendments to the EAA that were passed in Bill 197 include:‎

  • Tying environmental assessment to inclusion in a project list – Unlike the existing ‎framework for EA, the amendments passed on July 21 make the requirement to undertake an ‎environmental assessment contingent on whether or not a given project involves activities ‎matching one of the project descriptions contained in a project list, which is to be set out in a ‎forthcoming regulation. This new approach to identifying which projects require environmental ‎assessment aligns the EAA more closely with its federal counterpart, the Impact Assessment ‎Act, which likewise ties impact assessment to whether a project is “designated”. By removing the ‎requirement for all “undertakings” proceeding through the EA process, the amendments ostensibly ‎further the government’s objective of allocating resources to the assessment of major projects ‎with the potential to cause significant environmental effects rather than requiring all public sector ‎projects, regardless of the level of associated risk, to undergo environmental assessment.‎
  • Eliminating Class EAs in favour of streamlined EAs – The newly enacted amendments set in ‎motion a process to replace Class EA documents with a single streamlined EA process, which ‎will be specified by regulations applying to certain classes of designated projects. As of July ‎‎21, 2020 no more Class EA documents will be approved; nevertheless, proponents will continue ‎to be allowed to comply with the EAA by following the assessment processes described in one ‎of the 10 existing Class EA documents. This option to follow a Class EA process will only be ‎eliminated once each of the 10 Class EA documents are revoked and replaced, where ‎appropriate, with new regulations.‎

    A new part of the EAA, Part II.3, will now govern the review of “individual” EAs, which will now be ‎referred to as “comprehensive” EAs. Part II.3 will largely replicate the requirements and EA ‎processes that applied to projects previously subject to “individual” EA. ‎

  • Limitations of “bump-up” or elevation requests – Prior to amendment, the EAA permitted ‎‎“any person” resident in Ontario to request that the Minister issue an order elevating a project that ‎would otherwise follow the streamlined Class EA process to an “individual” EA. These “bump-up” ‎orders may still be requested or issued by the Minister at his or her own initiative; however, ‎section 16.1 of the amended EAA now restricts the timeframe in which the Minister can make ‎such an order. Even more significantly, the amended Act limits the grounds on which a person ‎may seek a “bump-up” order to where a project will have an adverse impact on existing aboriginal ‎and treaty rights of the aboriginal peoples of Canada.‎
  • Expiry dates for approvals – Approval of a project by the Minister or the Environmental Review ‎Tribunal following a comprehensive EA will now expire after 10 years, where the Minister or ERT ‎has not otherwise specified an expiry date for the approval.‎
  • Municipal approval required for new landfills – A proponent which proposes to “establish” a ‎landfill must obtain the approval of the municipality in which the landfill is located. In addition, ‎the approval of other municipalities may be required. If a proposed landfill is within 3.5 km of the ‎boundaries of a municipality in which a parcel of land is (a) zoned for residential uses and (b) ‎located within an “area of settlement”, the proponent of that landfill will need to obtain the ‎approval of that municipality as well. ‎

Concerns raised about the new amendments

Concerns have been raised by members of affected industries and environmental groups about certain ‎elements of the amended EAA. Legal practitioners and participants in the waste management industry ‎have expressed disquiet about the requirement that landfill proponents secure the approval of local ‎municipal councils before proceeding with construction. The Ontario Waste Management Association ‎‎(“OWMA”), for example, has suggested that this “municipal veto” will put the economy and environment in ‎jeopardy by “making it virtually impossible to build new landfills in Ontario.” This is a significant concern ‎given that in its 2018 report the OWMA estimated that population growth would result in the depletion of ‎landfill capacity by 2032 if no new landfill waste disposal facilities were approved and the rate of waste ‎exports remained at 2018 levels‎. ‎

Environmental groups, meanwhile, have expressed numerous objections to the recent EAA amendments. ‎For example, the Canadian Environmental Law Association (“CELA”) in its analysis highlights the ‎permissive nature of the new provision in the EAA that empowers the government to introduce Project ‎List regulations, objecting to the government’s decision not to set a deadline for the publication of ‎regulations, communicate criteria that will be used to designate projects for assessment, or provide a ‎draft list of designated projects. The CELA is of the view that the broad discretion given to the provincial ‎cabinet by the amended EAA to prescribe projects for which an environmental assessment is required ‎creates the risk that the government will designate only those projects that “have the most potential to ‎impact the environment”, thereby exempting medium to smaller-scale projects that may still carry ‎environmental risks. ‎

A second major concern about the government’s amendments to the EAA mentioned by several ‎environmental groups is that the limitation of requests to elevate a streamlined EA project to a ‎‎“comprehensive” EA to circumstances where such an order will prevent, mitigate, or remedy harm to a ‎recognized Aboriginal right or treaty right is far too restrictive and prevents members of the public from ‎raising concerns about environmental or other non-Indigenous impacts that may nevertheless be relevant ‎to the level of scrutiny that should be applied to a project. ‎

It remains possible that some of these criticisms will be addressed through forthcoming regulations. ‎Because of the dependence of the new EAA framework on regulations establishing a Project List and ‎determining which classes of projects may proceed via a streamlined EA process, the extent to which ‎overhaul of the EAA will impact project proponents and achieve the government’s stated objectives ‎remains to be determined.‎

Consequently, proponents will want to follow the regulation development process closely to ascertain ‎whether their proposed projects will fall within one of the activity descriptions contained in the ‎forthcoming draft Project List regulations and, if so, whether they will be able to rely on a streamlined ‎assessment process. It may be the case that the Project List regulations will include project types that ‎were not included in the definition of an “undertaking” under the EAA and, thus, not previously subject to ‎the EAA. ‎