Waterkeeper submits review of Ontario's proposal to fundamentally change the environmental approvals system

The Ministry of the Environment has initiated a process to develop legislation that would fundamentally change the system of environmental approvals in Ontario. The Ministry has outlined its proposed changes in a document entitled, “Proposed Framework for Modernizing Environmental Approvals”.

The proposed framework for legislative change is the most alarming policy proposal Lake Ontario Waterkeeper has encountered in our organization’s history. If implemented, Ontario would have a two-tiered system of environmental approvals wherein the majority of proponents that currently require an individual Certificate of Approval (C of A) would instead register activities online and agree to abide by a checklist of rules. These registered activities would never undergo any Ministry review, would not be subject to public notice or comment, and could not be appealed to the Environmental Review Tribunal.

The Ministry has identified significant problems with its ability to evaluate proposed activities in a timely manner, while ensuring the public is notified and consulted before a decision is made. LOW accepts that the Ministry must fix these problems and avoid a backlog in the system that can compromise environmental protection. The fact that many activities that could be impacting the environment are currently being conducted without C of As, and therefore without any Ministry review, is a serious threat to the environment in Ontario. However, the proposed risk-based, two-tiered legislative system is more likely to decrease environmental protection than to increase it, while reducing public participation rights, accountability, and transparency.

There will be no true benefit to industry, government, or the economy if this proposal is implemented. The only guaranteed outcome is the loss of clean air, clean water, and healthy ecosystems in Ontario and across the Great Lakes for generations to come.

Lake Ontario Waterkeeper reviewed the proposed framework and provided the Ministry with the following recommendations:

1. Public participation rights under the EBR must be preserved for all activities that require Ministry approval. All approval applications must continue to be posted to the Environmental Registry for notice and comment, and the public’s right to appeal decisions must be preserved.

2. The Ministry must abide by the legal requirement to consider cumulative and site-specific impacts for all approvals it issues. The registry system as proposed will not fulfill this obligation.

3. Risk and relativism are not valid bases for a system of environmental approvals. Environmental decisions should be made on the basis of the precautionary principle and scientific evidence.

4. Any changes to the current system must be based on valid assertions. The current justifications include a misquote from the Environmental Commissioner, jurisdictions selected randomly for comparison, and a false premise that old laws are necessarily in need of “modernization”.

5. The Ministry must redefine the problems with the current system after consulting with the public. The current problem statement is not a valid basis for legislative change. From LOW’s perspective, the problem statement would include:

a. There are too many loopholes exempting projects from consultation;

b. The Ministry fails to provide reasons for a majority of decisions;

c. The Ministry fails to make information accessible in a complete and timely manner;

d. The Ministry fails to include expiration dates on approvals;

e. The Ministry fails to provide enough time to comment on many proposals;

f. Regulatory capture decreases the effectiveness of the Ministry as a regulator.

6. The Ministry must provide a level of public consultation commensurate with the seriousness and far-reaching potential implications of this proposal. This consultation must occur before the proposed changes reach the Legislature. It must include assurances that all proposed drafts will be posted for comment on the EBR and committee hearings will be held if a Bill is developed.

7. System-wide or multi-site approvals would be inconsistent with the Ministry’s SEV and should be eliminated from the framework.

8. Electronic access to documents should be implemented, but does not require a legislative change.

9. Site-wide issues and impacts should be considered for all approval decisions, but no legislative change is required to achieve this goal.

10. Environmental legislation should be technology and industry-neutral.

11. The Ministry must resolve its staffing and resource problems without compromising environmental protection in Ontario.

Read our entire comment here.