Ontario Government Proposes Overhaul of Environmental Assessment Act

On July 8, 2020, the Ontario Government proposed an overhaul of the Ontario Environmental Assessment Act (EAA) as part of the COVID-19 Economic Recovery Act, 2020 (Bill 197). For a review of the remainder of Bill 197, please see our July 2020 Blakes Bulletin: Building on Recovery: Ontario’s Infrastructure-Related Legislative Developments.

The proposed reforms are part of the government’s Made-in-Ontario Environment Plan (Plan), released by the Ministry of Environment, Conservation and Parks (MECP) in November 2018. Following the Plan, in April 2019, the MECP published a discussion paper, Modernizing Ontario’s Environmental Assessment Program, which outlined anticipated changes to the environmental assessment (EA) program, several of which are reflected in Bill 197.

Key features of Bill 197 include:

• Establishing a Project List: The current EAA applies broadly to significant public projects proposed by the provincial and municipal governments and, in a few cases, environmentally sensitive private projects, which are all referred to as undertakings. The proposed amendments would remove the reference to undertakings. Instead, projects requiring EAs would be identified in a regulation and referred to as “designated projects.” This project list approach would be similar to the approach in other Canadian jurisdictions, including the federal framework under Canada’s Impact Assessment Act. The government has not released draft regulations or indicated which projects would be included on the project list.
• Replacement of Class Environmental Assessments: Under the EAA, the class EA regime allows a proponent to obtain an EA in respect of a class of undertakings pursuant to an approved EA process that is less onerous than the process for an individual EA. Bill 197 would replace class EAs with a “streamlined” EA process that will be set out in the regulations. The streamlined process will apply to certain projects to be designated in the regulation. If Bill 197 is enacted, currently approved class EAs will continue to apply to undertakings in each class until each one is revoked and replaced by regulations setting out streamlined EAs for those projects. Non-streamlined EAs, which are currently referred to as individual EAs, will be referred to as “comprehensive” EAs under the proposed amendments. Current individual EAs will be deemed as comprehensive EAs if the amendments are enacted.
• Changes to Ministerial Orders for Comprehensive Environmental Assessments: The EAA currently allows any person to request that the Minister of Environment (Minister) order that a project follow the more onerous individual EA process, instead of an approved class EA process. The Minister may also, by order, impose conditions on such projects. The proposed amendments would limit the timeframe in which the Minister could make such an order and would limit the grounds on which such a request could be made.
• Required Municipal Support for Landfills: The proposed amendments would require proponents seeking to establish a landfill site to obtain municipal support for the project from the municipality in which the landfill would be located, and from adjacent municipalities if the landfill would be within a certain distance from land authorized to be used for residential purposes.
• Standardized Terms of Reference: Under the EAA, proponents are required to submit terms of reference to outline the workplan for an EA for their project. The terms of reference must then be approved by the MECP. Bill 197 introduces language that clarifies the authority to create regulations prescribing requirements for terms of reference for categories of projects. The government has indicated it intends to create regulations standardizing terms of reference to be used by proponents where workplans will not vary significantly between projects within a sector.
• Harmonization Between Jurisdictions: Bill 197 would introduce changes to clarify existing provisions of the EAA that are intended to allow for harmonization and substitution where EA requirements from multiple jurisdictions apply to one project.
• Expiry Dates for Individual/Comprehensive Environmental Assessments: Bill 197 would amend the EAA to provide a 10-year expiry date for all individual (comprehensive) EAs that do not currently have an expiry date. Projects approved by the new streamlined EA process—that will replace class EAs—would also be given expiry dates.

WHAT NEXT?

Bill 197 passed its first reading in the legislative assembly on July 8, 2020. If ultimately passed, the amendments in Bill 197 will be phased in over time to allow for the development of new regulations that would be required to implement the changes to the EAA.

Bill 197 includes a provision that, if enacted, would retroactively exempt the proposed changes to the EAA from the minimum 30-day notice requirement and public participation process under the Environmental Bill of Rights. However, the government has indicated that it intends to consult with the public and Indigenous communities on new regulations under the EAA.

For further information, please contact:

Jonathan Kahn            416-863-3868
Grace Smith                 416-863-3879

or any other member of our Environmental group.

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