Ontario Releases Draft Regulations to Implement New Environmental Assessment Regime

On November 26, 2021, the Ministry of the Environment, Conservation and Parks (the Ministry) released four draft regulations that offer project proponents greater clarity about whether their projects will need to undergo an environmental assessment (EA) under Ontario’s recently amended Environmental Assessment Act (EAA). The passage of a series of amendments to the EAA on July 21, 2020, formally set in motion a fundamental reorientation of Ontario’s EA regime towards a “project list” framework, which ties the requirement to undertake an EA to whether a project involves activities matching one of the project descriptions on a project list (see our Blakes Bulletin: Ontario Government Proposes Overhaul of Environmental Assessment Act). This change not only aligns the EAA with its federal counterpart, the Impact Assessment Act, which uses a project list approach to designating projects for assessment, but also means that private sector projects that were previously excluded from the application of the EAA could be subject to the EA process.

As no project list regulations have yet been made, the July 2020 amendments have not been proclaimed into force, meaning the old EA framework continues to govern environmental assessment in Ontario. This framework applies ‎to “undertakings”, which are defined by the EAA to include 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. At the present time, specific regulations and ministry-approved Class EA documents either reduce the ‎procedural requirements for certain classes of projects by creating an alternative streamlined “self-assessment” process or, in some cases, eliminate altogether the ‎requirement for assessment for certain projects deemed to have little anticipated impact on the environment.

The newly released draft regulations help to resolve much of the current uncertainty, providing detailed legal text to guide public and private sector entities considering new industrial, infrastructure, electricity and waste management projects.

These proposed regulations include:

1. A “project list” regulation describing the activities that will be “designated projects” under the EAA and require a “comprehensive” EA (previously known as an “individual” EA) overseen by the Ministry, as well as approval by the provincial cabinet before proceeding (the Comprehensive Project List Regulation);

2. A regulation amending the Transit Projects and Metrolinx Undertakings regulation (O. Reg. 231/08) to revise which projects can obtain an exemption from the requirement to undergo a comprehensive EA by following the project planning, documentation and public consultation requirements of the streamlined Transit Project Assessment Process (TPAP);

3. A regulation exempting from the application of all or part of the EAA certain undertakings and designated projects, including municipal waste pilot projects, municipal zoning orders, undertakings by specific provincial ministries and provincial government undertakings carried out for the purpose of implementing a renewable energy project; and

4. A transitional regulation setting out rules governing how projects currently under assessment will be dealt with once the “project list” amendments to the EAA enter into force.

Projects Requiring a Comprehensive EA

Once proclaimed into force, the amendments to the EAA will modify the way in which the Act applies so it will only apply to “designated projects”. The proposed Comprehensive Project List Regulation uses detailed descriptions and numerical thresholds to specify which of these “designated projects” will need to undergo a comprehensive EA in accordance with Part II.3 of the amended EAA.

If approved by the provincial cabinet, this regulation will:

• Revoke the Electricity Projects regulation (O. Reg. 116/01) and Waste Management regulation (O. Reg. 101/07), which currently designate the electricity and waste management projects that require an individual EA;

• Change the trigger for assessment from the planning, design, operation and decommissioning of a project, to the “establishment” of a project, which is defined to exclude project planning, land acquisition and the issuance of licences or permits for a project;

• Set new thresholds for certain electricity, waste management and transit projects to undergo a comprehensive EA, rather than a streamlined EA;

• Specify which electricity, waste management and transit projects can proceed following a streamlined self-assessment process, in most cases permitting projects currently allowed by regulation to follow a streamlined EA process to continue to follow such a process;

• Prohibit proponents seeking to expand the capacity of existing facilities from artificially segmenting prospective expansions to avoid a comprehensive EA;

• Designate certain new passenger rail projects requiring more than 50 kilometres (km) of new right of way and highway projects requiring more than 75 km of new right of way as subject to a comprehensive EA;

• Clarify that transit projects currently captured by the Transit Projects and Metrolinx Undertakings regulation are conditionally exempt from the requirement to undergo a comprehensive EA, so long as their proponents comply with the TPAP described in that regulation or another streamlined process set out in an applicable Class EA document; and

• Designate waterfront “works” along the Great Lakes-St. Lawrence River System as subject to a comprehensive EA if they both alter at least one km of shoreline and require at least 4 hectares of lakebed to be filled.

Organizations planning new infrastructure projects or facility expansions will want to carefully review the Comprehensive Project List Regulation to determine their obligations under the amended EAA. Although many electricity, waste management and transit projects previously designated by regulation as subject to an “individual” EA will still need to complete a “comprehensive” EA once the amended EAA enters into force, the proposed regulation nevertheless adds a number of new project types and modifies thresholds for certain existing project types that currently require an individual EA. At the same time, the Ministry has decided not to designate mining projects as subject to the EAA, on the basis that environmental considerations are adequately considered through the application of other legislation.

Private sector organizations should be aware that their projects may now require environmental assessment. Because the amended EAA no longer ties assessment to whether a project will be carried out by a provincial public sector entity (or whether it is one of the few private sector electricity, waste management or transit projects specifically designated as requiring assessment), a range of private sector projects that previously were exempt from EA could either be required to undergo a comprehensive or streamlined EA, depending on their characteristics. For example, a railway project involving the construction of over 50 km of new right of way that does not fall within any of the exemptions set out in the proposed regulation would require a comprehensive EA, regardless of whether it was planned and built by a provincial Crown corporation or a private sector entity. Similarly, a waterfront marina along the St. Lawrence River could be subject to the amended EAA even if it is built for a private sector entity, a change from the current EAA, which would only require such a project to undergo assessment if the proponent was a provincial or municipal government body or a provincial Crown corporation.

Amendment to the Transit Projects and Metrolinx Undertakings Regulation

The proposed amendments to O. Reg. 231/08, if approved, would revoke Schedule 1 of that regulation, which currently lists the transit projects subject to the EAA. This schedule will no longer be required, as the Comprehensive Project List Regulation will specify which transit projects will be required to undergo an EA. The Ministry also proposes to make several minor amendments to O. Reg. 231/08 in order to revise the notification requirements when following the TPAP, empower the Minister of the Environment, Conservation and Parks to revoke or amend conditions in a notice conditionally approving a project and allow for certain Ontario Northland Transportation Commission-led projects to follow the TPAP.

Amendments to Class EA Documents    

In order to facilitate the transition to a project list-based framework, the Ministry proposes to keep in place all but one of the Class EA documents previously approved by the Minister of the Environment, Conservation and Parks until a streamlined project list regulation enters into force. As a result, proponents whose projects are covered by an existing Class EA will be able to proceed with their projects by complying with the self-assessment process prescribed by the applicable Class EA document. The Ministry proposes to amend six of the ten existing Class EAs in order to align their requirements with the project descriptions and thresholds set out in the proposed Comprehensive Project List Regulation. In addition, the government plans to amend all Class EAs (other than the GO Transit Class EA, which it proposes to revoke) to both update their terminology and to incorporate references to provisions of the revised EAA.

Consultation

Public and private sector proponents of infrastructure projects will want to review the draft regulations in order to anticipate whether the amended EAA will apply to their project and, if so, whether they will be able to rely on a streamlined ‎assessment process. Stakeholders who wish to provide input on the final form taken by the proposed regulations have until January 25, 2022, to comment on the regulations‎.

For more information or assistance with providing feedback on the proposed regulations, please contact:

Lana Finney            416-863-2228                   
Jonathan Kahn       416-863-3868         
Ryan McNamara    416-863-2180

or any other member of our Environmental group.