The Ontario Environmental Review Tribunal recently promulgated some far-ranging critiques of the MOE's air approval process, including the need to consider the MOE's Statement of Environmental Values (SEV) in such approvals, in a decision granting environmental groups leave to appeal two MOE approvals issued to LaFarge Canada Inc.
First, the decision affirms that the test for citizens or others to obtain the right to appeal MOE certificates of approval under s. 41 of the Environmental Bill of Rights is not so rigourous as to require proof on the balance of probabilities that the decision is unreasonable and that harm to environment will result, but rather the test is less stringent: it is sufficient to convince the ERT that "it appears…that there is good reason to believe no reasonable person could have made the decision" and that "it appears…that the decision could result in signficant harm to the environment", applying Simpson v. Ontario (Director, Miniser of Environment) (2005), 18 C.E.L.R. (3d) 123.
Using this lower threshold as a baseline, the Tribunal then concluded that it appeared that no reasonable person would have issued the two approvals to LaFarge for a number of reasons, some of which are quite novel:
Failure to take into account the MOE's Statement of Environmental Values (SEV).
While the Tribunal held that on a leave application it should not determine the reasonableness of the statutory regime as a whole, it was relevant for the MOE director to be able to demonstrate that the decision considered and incorporated not only regulatory requirements, but relevant policies, including those in the MOE's SEV. As that was not done here, there was reason to believe the decision is unreasonable.
A C of A based on regulatory emission standards may nevertheless be unreasaonble.
The MOE SEV states the MOE will adopt an "ecosystem approach" and that in making decisions it will consider “cumulative effects”. The Tribuanal held a director's decision to issue a C of A meeting numerical point of impingement standards set out in EPA air regulations is not automatically or necessarily a reasonable decision.
"Numerical standards for the emission of particular contaminants, such as those provided in O. Reg. 419/05, cannot take cumulative impact into consideration because it is not possible to know the surrounding activities and baseline conditions of local ecosystems at the time the standard is set….Emission standards…limit emissions from single facilities to particular levels, but they do not measure overall ecosystem effects."
"The approach described by the Directors is not consistent with the MOE SEV because it would allow ecosystem deterioration to be caused by contaminants emitted from multiple sources, each in compliance with regulatory POI standards. Therefore, POI regulatory standards can act only as a floor in an application for a C of A. Compliance with the POI standards in the regulation is necessary, but it is not sufficient."
Inappropriate regard for the "precautionary principle" component of the MOE SEV.
The C of A approved incineration of tires as a pilot project yet at the same time the MOE had given notice that it was preparing to institute a ban on tire incineration and lacked experience with the environmental performance of facilities that incinerate tires.
Consistency of Environmental Decisions – The ERT held "a reasonable, prudent person with knowledge of the law, policies and surrounding facts would not expose the residents of Bath to the effects of an activity that the MOE proposed to ban without considering whether such a decision could produce inconsistent environmental effects between communities"
Inappropriate Regard for Common Law Rights.
The ERT decision also agreed the leave test was satisfied where it appeared the Director declined to consider common law rights of landowners in the area. The Tribunal accepted that such rights may be diminished by a C of A, and that "a reasonable decision would consider the rights that are being diminished….In this case the Director declined to consider and weight the common law rights of the applicant landowners or the potential consequences of the C of As upon them."
A C of A which imposes regulatory limits on emissions is not determinative of whether the decision could result in "significant harm to the environment".
The ERT rejected the Director's argument that no significant harm will result if the C of A requires compliance with regulatory standards. The ERT found this second branch of the leave to appeal test can be made out where there is "evidence of environmental effects that could result", as "the regulations do not incoporate considerations of cumulative effects, total ecosystem loading, synergistic effects, or bioaccumulation, and O. Reg. 419/05 does not contain completed standards for high priority contaminants".
Lawyers' representing Loyalist Environmental Coalition, local landowners, Lake Ontario Waterkeeper, and Gord Downie have since filed their formal appeal of the approval decisions and are awaiting perliminary hearings to be set by the Tribunal.
The implications of this decision need to be carefully considered by anyone who may be in the course of making a C of A air or waste disposal application.
To read the Tribunals' decision in its entirety, click here.