Anna Côté
Avocate
Article
11
The Environmental Assessment Act currently requires the Ontario Ministry of the Environment, Conservation and Parks ("MECP") to consider the environmental impacts of Ministry of Transportation ("MTO") projects.
Alongside the July 8th introduction of Bill 197 and its major amendments to the Ontario Environmental Assessment Act (EAA), the Province announced a package of numerous EAA instruments proposing additional changes to the EA regime, including a future regulation to exempt specific MTO projects – all highways - from the EAA. The MTO has identified these as "priority projects", a characterization that is expressly noted in their proposed exemptions. The provincial government says that these exemptions will be made subject to conditions.
Exempted projects:
The class EA projects have likewise undergone their class EAs, but have not yet been implemented.
Currently, all of the above projects are subject to additional requirements under the Environmental Assessment Act. The July 8th notice seeks exemptions for all of them.
The Bradford Bypass - Details
The Bradford Bypass is subject to the conditions of its EA Notice of Approval. Condition 4 makes the design and construction of the highway subject to the MTO Class EA. Currently, the MTO is required to prepare a Transportation Environmental Study Report ("ESR") for the preliminary design and a Design and Construction Report(s) ("DCR") for the detailed design of the Bradford Bypass.
The purpose of the ESR is to outline: (1) the potential environmental impacts associated with the project; (2) mitigation measures to address these impacts; and (3) consultation that occurred during the development of the ESR and how the consultation changed the project to address concerns. One or more DCR(s) must be prepared to document the development of detail design and other project implementation issues.
The government is proposing a regulation to exempt this project from certain requirements of the Environmental Assessment Act and its notice of approval.
The proposed exemption would excuse the proponent, MTO, from Condition 4 of its EA Notice of Approval. As a result, MTO would not need to prepare an ESR or DCR(s), nor complete the associated 30-day consultation period. MTO would also be exempt from other technical design commitments made in the environmental assessment, including the completion of:
The exemption would include conditions that require the MTO to:
It also appears that the future exemption regulation may contain additional conditions that are not stated in the current public notice. The government further states that the proposed regulation will have a process to permit the construction of parts of the project to proceed ahead of others, leading to staggered permits and construction times.
MTO provincial transportation facilities class EA projects - Details
The July 8th notice also identifies a number of proposed MTO projects that have completed the MTO Class EA process, including ESRs, but have not been implemented. These include (1) projects that are new provincial transportation facilities, excluding new freeways ("Group A" projects); and (2) projects that are major improvements to existing provincial transportation facilities ("Group B" projects). Typically, if a project has not been implemented within five years of completing an ESR, the proponent is required to complete an addendum. Addendums consider any significant changes which have taken place since the submission of the original Class EA. The changes may include new conditions in the study area, new government policies, new engineering standards, or new technologies for mitigating measures.
The government's proposed regulation would exempt these projects from the Environmental Assessment Act. As a result, the MTO would no longer be required to complete the addendum process, and there would be no opportunity for the public to review an addendum. Importantly, consistent with July 21st amendments to the Environmental Assessment Act, there would also be no opportunity for the public to submit future Part II Order requests to bump up the project to an individual EA unless the request alleges an impact on Indigenous rights).
The proposed exempting regulation would include conditions that require the MTO to:
Implications with respect to environmental oversight of specific MTO projects
As presently described, the government's proposed exemptions will reduce environmental review and management of several MTO highway projects. The proposed regulation would exempt MTO from considering current environmental policies, conditions, or issues prior to implementing these projects, and also eliminate opportunities for public consultation and involvement. Specifically:
Final details on the exemptions and their conditions will be set out in the anticipated regulation.
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