On Friday, March 10, 2023, the Ontario government released two proposals in respect of additional changes to the province’s Environmental Assessment Act, R.S.O. 1990, c. E.18 (the “EAA”). The EAA has already been subject to a number of significant revisions as part of the government’s strategy to “modernize” the legislation. The public consultation period for both proposals will close on May 9, 2023.
The first proposal, details of which can be found here, proposes to revoke the Municipal Class Environmental Assessment, which is otherwise applicable to municipal projects. This would ostensibly eliminate the need for environmental assessment for “low-risk” municipal projects such as road, water and wastewater projects. As set out in the proposal, other “higher-risk” municipal projects, such as municipal expressways, waste, transit, electricity and waterfront projects would be subject to other environmental assessment requirements under the Comprehensive Project List Regulation, as set out in the second proposal released Friday, discussed below.
Should this approach proceed, “low risk” projects would be subject only to whatever assessment exists under other legislation and would be left to the various municipalities to undertake, including any assessment of project impacts and any required consultation.
The second proposal, details of which can be found here, proposes further amendments to the list of projects that would not require a comprehensive environmental assessment, but would instead be able to proceed under a streamlined assessment route. The three types of projects which are proposed to be removed from the rigours of a comprehensive environmental assessment are highways (including freeways and expressways), rail lines and electricity transmission projects (transmission lines and transformer stations).
Under the proposed changes, highways would be subject to the streamlined assessment process set out in the MTO Class Environmental Assessment. In turn, the MTO Class Environmental Assessment divides projects into four categories which require varying degrees of assessment and consultation to be undertaken depending upon whether the project is new, minor repairs to an existing transportation system, major repairs to an existing transportation system or operational, maintenance or administrative work to an existing transportation system.
The movement of rail lines to a streamlined process would see that process apply to the development of all rail lines, whereas what had previously been proposed was the need for a comprehensive environmental assessment for rail lines over 50 km in length. The construction of new stations in or adjacent to a sensitive area would also be subject to a streamlined environmental assessment.
The proposed changes for electricity transmission projects relates to two types of projects: transmission lines equal to or greater than 345 kilovolts and equal to or greater than 75 km in length that are not associated with specified generation facilities; and transformer stations of less than 500 kilovolts that are not associated with specified generation facilities. These projects would be subject to the Minor Transmission Facilities Class Environmental Assessment as opposed to a comprehensive environmental assessment.
Additional changes under the proposal relate to the extension of a transition provisions for certain waterfront projects in the Great Lakes-St. Lawrence River System. The effect would be to expand the type of projects exempt from a comprehensive environmental assessment to include those where a Planning Act application that includes proposed waterfront works has been submitted prior to March 10, 2023.
One of the stated purposes for the government’s move to a project list approach is to minimize duplication and remove burdens for low-impact projects. At the time the change to this approach was made, project lists had yet to be developed. Now that the project lists are being proposed, it is unclear whether they can truly be considered low-impact projects, such that a streamlined assessment approach is appropriate.
This blog post was written by Cheryl Gerhardt McLuckie, a member of the Environmental Law team. Cheryl can be reached at 613-369-0365 or at cheryl.mcluckie@mannlawyers.com.
