April 11,2005

Expert panel proposes reforms to Ontario EA program

Ontario's environmental assessment (EA) process suffers from a serious "disconnect" between the provisions of the Environmental Assessment Act and the actual "on the ground" delivery of the program. In particular, legal experts heading an expert panel assigned to develop proposals for reforming the process have cited significant policy gaps, procedural inconsistencies and administrative shortcomings which should be addressed as soon as possible.

The panel was set up in June 2004 by Ontario Environment Minister Leona Dombrowsky. Headed by University of Toronto environmental studies professor Dr Beth Savan, its executive members included lawyers David Estrin (Gowlings), Rod Northey (Birchall Northey), Richard Lindgren (Canadian Environmental Law Association) and Alan Levy. Panel members came from the municipal, waste management and clean energy sectors, as well as the consulting industry and the environmental, academic and legal communities.

Its report, released last week, presents recommendations aimed at revitalizing, rebalancing and refocusing Ontario's EA planning and decision-making process, while ensuring the timely approval of projects which will enhance the quality of life for Ontario residents. While waste management systems and/or facilities, transit and transportation projects and clean energy facilities were the specific types of projects cited, it is expected that reforming the EA process will benefit other types of undertakings as well.

In carrying out its mandate, the panel executive quickly realized that its proposals would have to resolve competing considerations and dynamic tensions within Ontario's EA program. On one hand, the program must be expeditious and efficient so as not to create undue delays in the approval of beneficial projects.

At the same time, it must be thorough and rigorous, taking into full account environmental, social and economic benefits and providing mitigation for any possible adverse impacts. A key mechanism for ensuring this balance, says the report, is the application of clear, consistent and transparent rules.

The report's first five recommendations represent the cornerstone of the executive group's vision for EA reform and provide the foundation for the remaining 36 recommendations. These primary recommendations, says the report, articulate the need for (1) general EA principles; (2) sector-specific EA policies; and (3) sectoral EA procedures based on the nature and extent of the anticipated benefits and negative impacts of projects in a particular sector. These procedures should prescribe an appropriate EA planning and decision-making process in order to evaluate the significance of the outcomes, the report explains.

The panel calls for the Ministry of Environment (MOE) to develop guiding EA principles, entrenched in a policy guideline issued under the EA Act. These principles should include goals, objectives and values such as sustainability benefits, the precautionary principle, the ecosystem approach, environmental protection, public participation, transparency, clarity, consistency, predictability and timeliness. These principles should ensure one integrated process for one project and an approval process based on good data, science and sound engineering.

The panel proposes that the MOE establish sector-specific working groups to develop sectoral policies for listing and prioritizing "green" projects. These groups would also develop clear, consistent, predictable and timely sectoral EA procedures. The planning, consultation and documentation requirements should reflect the environmental risks and benefits associated with each project, it adds.

The report further recommends that the Ontario government establish a high-level office expressly mandated to help facilitate green projects within the EA process and other statutory approval regimes.

The panel says the MOE should levy EA application fees, with the revenue from these fees to be used for prescribed EA activities. Other recommendations call for the MOE to:

*ensure greater use of alternative dispute resolution (ADR) techniques throughout the EA process, and refer certain projects to the Environmental Review Tribunal (ERT) for public hearings that are consolidated with other hearing requirements where applicable;

*amend Class EA procedures and the electricity projects regulation (O Reg 116/01and Guide) to create opportunities to seek summary rulings from the ERT on contentious matters such as bump-up/elevation requests;

*establish an independent advisory committee to provide expert advice and solicit public views on various EA matters such as community acceptance of proposed projects and effects/effectiveness monitoring;

*set up an enhanced Web site or on-line registry to facilitate access by proponents and the public to EA documents and project status information; and

*expand its EA monitoring, inspection and training activities to ensure compliance with the EA Act, regulations or terms and conditions within approvals.

The report says the procedures proposed by the executive group would create rules respecting the interests of all major stakeholders. Proponents would benefit from expeditious timelines and greater efficiency, while the public would receive more notice and resources, and thus increased effectiveness.

For government, the procedures would create a shift from broad discretion to clear rules, leading to more timely decision-making, better use of human resources and increased transparency-in short, says the report, "more steering and less rowing."

The executive group strongly urges the Minister of Environment to adopt the recommendations and to adopt them as an integrated reform package, not in a piecemeal or disjointed manner.

The Ministry is inviting public comment on the panel's report, which may be viewed on the Environmental Bill of Rights registry (www.ene.gov.on.ca, click on Environmental Registry and search for reference No XA04E0015). The deadline for comments is July 4, 2005.

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