Since our comprehensive article on complying with environmental obligations during the COVID-19 pandemic in April, governments across Canada have made a number of changes to suspend or delay environmental protection measures and obligations. Almost four months into the COVID-19 pandemic, governments have begun to take steps to address unique problems caused by the pandemic through legislative and regulatory change. This article provides an update on the current state of COVID-19 related exemptions, delays and regulatory changes as they relate to environmental laws in Ontario and federally.
Suspension of limitation periods and court operations
Several provinces across Canada, including Ontario, continue to suspend limitation periods and timelines for court proceedings for the duration of the declared state of emergency. Such measures provide for more time to commence a civil claim, for example.
Since March 2020, virtual hearings have been expanded to allow urgent matters to be heard electronically. As of July 6, 2020, courts in Ontario have begun to hear limited matters in person in certain court locations. Small Claims Court matters and Provincial Offences Act proceedings, such as charges under provincial environmental legislation, remain suspended until further notice, but increased virtual hearings are available for Small Claims Court settlement conferences and for judicial pre-trials and some guilty pleas in POA matters. As set out below, restrictions in the Provincial Offences Act have prohibited certain matters from proceeding electronically.
Deadlines in approvals and orders
The suspension of limitation periods does not apply to deadlines in orders or approvals issued by the Ontario Ministry of Environment, Conservation and Parks (MECP). The MECP has not yet provided any general guidance but has been considering temporary requests for regulatory relief on a case-by-case basis from members of the regulatory community who are facing disruptions to their business due to COVID-19.
The specific relief granted by the MECP and federal regulators is set out below, but it is still the case that in the absence of any specific guidance or extension from a provincial or federal regulator, facilities should continue to comply with all environmental laws and conditions of permits or approvals. If compliance issues arise, it is always a best practice to document due diligence efforts and any conditions making compliance impossible, including COVID-19 considerations.
Public consultation restored under the Environmental Bill of Rights
On June 15, 2020, the Ministry of the Environment, Conservation and Parks (MECP) revoked O. Reg. 115/20, which temporarily exempted all new laws, regulations, or policies impacting Ontario's land, air, water, and wildlife from undergoing a 30-day consultation period under the Environmental Bill of Rights (EBR). The regulation, before it was revoked, also exempted government ministries from needing to consider environmental values while making decisions.
The requirement to post new laws, regulations or policies affecting the environment allows Ontarians to participate in decision-making by providing comments on postings. Although the regulation was revoked, a number of regulatory actions were taken without consultation during this time, including:
- Delayed commencement of the new Excess Soil Regulation and exemption from Record of Site Condition for temporary hospitals and residences
In response to impacts from COVID-19, the government of Ontario has delayed the implementation of Phase 1 of the new Excess Soil Regulation from July 1, 2020 to January 1, 2021. Phase I includes the implementation of standards governing the re-use of excess soils, the processing of excess soils at project areas, and transportation of excess soils.
In the meantime, those generating and dealing with excess soils should continue to follow best practices. The MECP continues to work with municipalities and other stakeholders to help explain and implement the regulatory changes and to encourage early adoption of these changes, as appropriate.
In addition, the government also amended O. Reg. 153/04 (Records of Site Condition Regulation), to exempt temporary health facilities or residential facilities that will be built on land previously used for community or commercial purposes in response to emergencies declared under the Emergency Management and Civil Protection Act.
Generally, a Record of Site Condition (RSC) is required to be filed in the Environmental Site Registry before a property use can be changed from a less sensitive use (such as industrial or commercial) to a more sensitive use (such as residential).
The filing of an RSC may take more than a year. This would create a significant delay where these temporary facilities are required urgently to respond to a declared emergency. The exemption applies to:
- temporary facilities established in response to the current emergency, such as COVID-19 testing tents or isolated medical structures
- the establishment of temporary facilities, responding to any future declared emergencies, including any future phases of the pandemic
- Amendments to the Petrochemical Industry Standard under the Local Air Quality Regulation
The MECP is providing temporary relief to four petrochemical facilities in Ontario in the Petrochemical Industry Standard. The required frequency of inspections of storage tanks and primary oil/water separators and surveys has been reduced. This is intended to support physical distancing measures needed to help stop the spread of COVID-19.
- Amendments to 2019 Greenhouse Gas Emissions reporting requirements
To align with the federal government's extension and maintain reporting harmonization, the government of Ontario has made amendments to Ontario's greenhouse gas quantification, reporting and verification regulation as we advised in our article.
- Amendments to the Planning Act in Bill 189, Coronavirus (COVID-19) Support and Protection Act, 2020
To respond to municipal concerns about planning decisions and timelines, the government of Ontario passed amendments to the Planning Act that temporarily and retroactively suspend certain Planning Act timelines. A full analysis of the impact of these amendments is found in Gowling WLG's comprehensive article.
Regulatory changes at the Federal level due to COVID-19
At the federal level, COVID-19 has caused delays in a number of previously-planned initiatives:
- Delayed implementation of the clean fuel standard
Environment and Climate Change Canada announced that the implementation of the clean fuel standard would be delayed from January 2022 to an unspecified date later that year. This is an important piece of Canada's climate strategy, which aims to reduce the country's carbon emissions by 30 million tonnes per year. The government has also delayed releasing the proposed regulation, which was supposed to be made public this spring, but is now expected to be released this fall.
- Extension of the deadline for industry to report pollution data
On April 23, 2020, Environment and Climate Change Canada announced that it would extend the facility greenhouse gas emissions reporting deadline from June 1 to July 31, 2020 to provide temporary relief to large emitters by extending administrative greenhouse gas emissions reporting and verification requirements.
It is also expected that COVID-19 will also delay the 2021 plastics ban and reform of the Canadian Environmental Protection Act (CEPA), although this has yet to be officially confirmed.
Recent regulatory and legislative change as a result of COVID-19
On July 8, 2020, Bill 197 entitled the COVID-19 Economic Recovery Act, 2020 was given first reading in the Legislative Assembly of Ontario. This omnibus bill contains a number of significant proposed amendments to twenty pieces of provincial legislation, including the Environmental Assessment Act. Despite its title, much of the proposed bill deals with reforms on the Ontario government's pre-pandemic agenda as opposed to responding directly to challenges caused by COVID-19.
The Gowling WLG Environmental Law group will be providing a series of articles discussing the significant changes to the EAA proposed in Bill 197, which go beyond COVID-19 reforms and are based, in part, on the government's proposals found in the Made-in-Ontario Environment Plan.
One of the proposed legislative changes in Bill 197 does respond to challenges caused by COVID-19:to those involved in environmental offence matters is
- Amendments to the Provincial Offences Act
Changes to the Provincial Offences Act are being proposed to allow for increased remote or electronic participation in court proceedings under the Act, as well as allowing for remote means of filing and service. As set out above, proceedings under the Provincial Offences Act, including those relating to provincial environmental offences, have been almost entirely suspended during the COVID-19 pandemic as a result of limitations in the legislation around remote appearances and filings. These legislative changes should increase the ability to deal with Provincial Offences Act matters for the duration of COVID-19 and in the future.
As always, Gowling WLG's Environmental Law Group is keeping on top of developments in environmental law and impacts from COVID-19.