Waterkeeper endorses CELA's review of proposed Environmental Review Tribunal Rule Change

Lake Ontario Waterkeeper submitted a brief comment yesterday on the proposed changes to the Environmental Review Tribunal’s Rules of Practice and the accompanying, “Guide to Appeals by Members of the Public regarding Renewable Energy Approvals under section 142.1 of the Environmental Protection Act”. We endorsed the submissions provided by the Canadian Environmental Law Association (CELA) with respect to the proposed changes. CELA provided an excellent overview of the proposal and a list of recommendations that, if implemented, would improve the Tribunal’s Rules of Practice and the Guide.

With the introduction of the Green Energy and Green Economy Act in 2009, a new set of rules regarding when the public has the right to appeal a Renewable Energy Approval (REA) was added to the Environmental Protection Act (EPA). The new leave test for REAs set a much narrower standard than the leave test under the Environmental Bill of Rights for when the public can exercise its right to appeal to the Tribunal. It limited appeals to situations where the appellant can prove that the project will cause serious harm to human health, or serious and irreversible harm to plant life, animal life or the natural environment. This change reduced the public’s right to seek a hearing before the Tribunal regarding the issuance of a REA, even in cases where environmental harm could be significant.

Following the changes to the EPA, a regulation was promulgated under the Act that restricted the Tribunal’s right to control the timeline of its hearings. O.Reg. 359/09, “Renewable Energy Approvals Under Part V.0.1 of the Act”, introduced a six month time limit within which the Tribunal must render a decision on a REA-related appeal. If the Tribunal does not render a decision during the prescribed time period, the REA is “deemed to be confirmed by the Tribunal”, whether or not a hearing has taken place, evidence has been considered, or the public has been heard. The only discretion retained by the Tribunal relates to granting adjournments, as the six month time period does not include any time during which the appeal has been adjourned by the Tribunal on the consent of the parties, on the motion of a party, or during a judicial review, or when a stay has been granted by the Divisional Court.

In response to the new six month time limit, the Tribunal has issued revised Rules of Practice, and an accompanying Guide to Appeals by Members of the Public regarding REAs. While LOW recognizes the constraints placed on the Tribunal by the EPA and O.Reg. 359/09, we submit that the Tribunal has a responsibility to ensure that procedural fairness is maintained in every proceeding, regardless of the type of energy to which it pertains. LOW therefore endorsed the recommendations provided by CELA, which, if implemented, would help ensure that the Tribunal’s hearing process remains fair.