Casting a new vision for our Environmental Assessment Act
|In 2008, the ECO undertook an analysis of emerging challenges facing the Environmental Assessment Act. The following articles are included:|
The envisioning of what a stronger EA process ought to look like should not be the sole purview of academics and bureaucrats. It deserves much wider discussion and it is important that we work collaboratively on getting it right. Environmental assessment has evolved considerably over the past 30 years, both as a concept and a practice. Under the United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”), for example, which has been ratified by 40 (mainly European) countries, there is an acknowledgment that environmental rights and human rights are linked, and that we owe an obligation to future generations. The Aarhus Convention, which was adopted in 1989 and entered into force in 2001, has been described as a new benchmark in environmental democracy. It establishes rights for the public to receive environmental information; to participate in environmental decision-making; and to access justice if the first two rights are denied.
A growing number of jurisdictions are also beginning to experiment with “sustainability assessments” as an evolutionary step beyond traditional environmental assessment. “Assessment as if sustainability mattered” is how one EA expert has described this concept. The idea builds on EA, but aims to be comprehensive, emphasizing long-term as well as short-term interdependencies. Among other characteristics, sustainability assessment: emphasizes precaution; addresses cumulative and indirect effects, as well as direct effects; recognizes natural limits; and above all, aims for greater community and ecological sustainability.
Ontario’s EA program clearly has a lot of catching up to do. The ECO proposes some essential benchmarks to aim for in the next round of reforms:
- an effective decision-maker at the provincial level, willing to engage in and lead on big picture planning;
- a renewed emphasis on grappling with front-end questions of need and alternatives, and questioning assumptions;
- a process capable of delivering a ‘No’ when appropriate;
- an effective engagement of the broader public in all aspects, but including big and medium picture planning, as well as post-approval technical issues;
- an emphasis on transparency and credibility in public consultation;
- an ability to balance the broader public interest with local concerns;
- a commitment to the precautionary approach;
- an emphasis on achieving not just mitigation, but positive contributions to sustainability (the “betterment” principle of the EAA); and
- an effective regulator, with compliance and enforcement capacity, to protect the quality and integrity of EA processes
As to tools and mechanisms, there are a host of options available for discussion. Some significant changes would include a judicious use of strategic or plan-level EAs and thoughtfully defined public hearings. There is also work needed to better integrate EA processes with land use planning and other planning processes. (MOE has indicated that an inter-ministerial working group is examining this.) Amending section 32 of the Environmental Bill of Rights to allow public input on EA-related approvals and permits would help resolve a number of transparency concerns.
Some of EA’s lingering malaise has been connected to MOE’s strained capacity. It is hard to lead on long-term, big picture planning via a ministry weakened by many years of eroded funding and haemorrhaged expertise. Increased resources and staffing are the missing ingredients needed to fix the weaknesses in EA monitoring and compliance and to impose some quality control on proponents’ use of EA studies and consultation. To make enforcement a realistic prospect, MOE will also need to lengthen the current six-month statute of limitations on prosecutions under the EAA.
The need for a better EA
No private sector corporation can be successful for long without strategic business-case planning or without intelligent due diligence evaluations of new projects. This should hold doubly true for the public sector, where the planning horizons are usually much longer, the issues more complex, the burden of public trust heavier, and the implications of failure often enormous. Other than the EAA, Ontario has no other planning process that begins, at least theoretically, with fundamental questions about rationale or need. We do have a public inquiries process that can take a retrospective look, usually after policy decisions have gone disastrously wrong.
But if we want to avert poor decisions, we should recall the original purpose of the EAA – “the betterment of the people of the whole or any part of Ontario” – and we should share a desire to get the EA process right.
The ECO recommends that MOE’s ongoing reforms of the environmental assessment process give renewed weight to up-front questions of “need” and “alternatives” for projects.
|This is an article from the 2007/08 Annual Report to the Legislature from the Environmental Commissioner of Ontario.|
Citing This Article:
Environmental Commissioner of Ontario. 2008. "Environmental Assessment: a vision lost." Getting to K(No)w, ECO Annual Report, 2007-08. Toronto, ON : Environmental Commissioner of Ontario. 47-48.