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TRCA REPORT


Prepared for Beth Williston Toronto and Region Conservation (TRCA) Matthias Sweet Ryerson University

  Prepared by Daniel Zombori Riley McKnight David Milano Rachel Stuart Brandon Umpherville Emily Yang Azure Pham Isabella Marcucci Danielle Javelosa


CONTENTS

Executive Summary 5 Abbreviations 6 List of Figures 7 1. Introduction 8 2. Province/State Overviews 10 2.1 Ontario 11 2.2 British Columbia 12 2.3 California 13 3. Comparative Chart 14 4. Policy Context 17 5. Technical Processes 24 6. Terms of Reference 29 7. Public Consultation 34 8. Decision-Making Process 39 9. Recommendations and Actions 45 10. Legal Resolutions 50 11. Future Considerations 55 Appendices 57 References 60


EXECUTIVE SUMMARY I

The purpose of this study is to provide the Toronto Region Conservation Authority with guidance on navigating the environmental review process, as it pertains to decision-making, regarding transportation infrastructure projects.

II

Initially this will be presented through an introduction to the issue concerning the TRCA, and the methods used to investigate the issue. This includes an overview of the Ontario Environmental Assessment, and then an introduction to the two case studies that will be continually referred to: California and British Columbia.

III Consequently, a comparative explanation of the federal and provincial policy context for the case studies will be included to find resemblances and disparities with the way Ontario currently operates. IV Following this, the Technical Processes, Terms of Reference and Public Consultation stages of the Environmental Assessment for each case study will be compared, with commonalities and priorities distilled to reach initial recommendations. V

Finally, the conclusion will draw together our initial findings, identifying the most pertinent areas for concern and reviewal. Hence, recommendations will be provided to the TRCA with regards to how to further progress in our research and what questions our groundwork analysis has posed.

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ABBREVIATIONS B.C. CEQ CEQA DOC EAO EIA EIR EA EPA GVTA LPA MOECC NEPA TOR

British Columbia Council on Environmental Quality (United States) California Environmental Quality Act [California] Department of Conservation Environmental Assessment Organization (British Columbia) Environmental Impact Assessment Environmental Impact Report Environmental Assessment Environmental Protection Agency (United States) Greater Vancouver Transportation Authority Locally Preferred Alternative Ministry of Environment and Climate Change National Environmental Policy Act Terms of Reference

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LIST OF FIGURES Figure 1. MOECC EA Process in Ontario Figure 2. B.C.Environmental Assessment Process Chart Figure 3. CEQA Process Flow Chart

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1.INTRODUCTION

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There is growing concern in the Province of Ontario over the treatment of the natural environment due to the increase of infrastructure. Currently, policies at both the federal and provincial level are in place to protect the environment in Ontario ;some policies include the Canadian Environmental Protection Act and Ontario’s Climate Change Action Plan (Government of Canada, 2018) (Government of Ontario, 2016). However, some projects approved by the Ministers still pose potential negative impacts on the environment. It is unclear why policies set out in Ontario by environmental agents, including the TRCA, in the interests of protecting the natural environment are not being complied with. This inconsistency partly stems from the way federal and provincial environmental legislations are interpreted, and partly in how technical and reviewal processes affect proposal outcomes. The former includes lack of streamlined policy objectives at different levels of government, which therefore impact the decisions taken when projects come forward. It also demonstrates a lack of translation from policy implementation to actualization. The latter involves complexities within the Environmental Assessment process itself including the way in which trade-offs between environmental, economic, and social requirements are negotiated and quantified. This presented an opportunity to undertake a comprehensive review of Ontario’s legislation, and context to be set for Ontario against other case studies to compare similarities and differences in policy trends and objectives. In this report, the policy contexts and EA process for Ontario will be initially examined and compared to two other case studies: California and British Columbia. Following this, the technical process, terms of reference and public consultation stage of the Environmental Assessment for each case study will be analysed. Whilst reviewing the EA process for each province and state, those three stages emerged as pivotal stages for change and reviewal, and hence why these will be discussed in further detail within the report. These findings will be brought together in each comparative analysis and also in the conclusion to make initial recommendations and comments to address the discrepancies between conservation and transportation policies.

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2 . PROV I N C E / S TAT E OVERVIEW 2.1 ONTARIO 2.2 BRITISH COLUMBIA 2.3 CALIFORNIA

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O NTA RI O

The Environmental Assessment (EA) process is mandated by provincial legislation, the Environmental Assessment Act (Environmental Assessment Act [EAA], 1990). This process applies principally to public bodies such as municipal and provincial governments and ministries, as well as public agencies and organizations such as Metrolinx (Government of Ontario, 2018). The EA process sets out a regiment through which these public bodies must make environmental considerations in planning decisions (See appendix figure 1 for process diagram). In some instances, EA’s may also be undertaken by private projects. Some projects that require an EA include highways, airports, transit systems and utilities. Within the EA framework there are two types of assessments; the first is an individual EA which applies to large-scale projects where it is important to understand the full implications of environmental effects (Government of Ontario, 2018). The second type of EA is a streamlined assessment, which applies to “routine projects that have predictable and manageable environmental effects” (Government of Ontario, 2018). Within the streamlined process there are four subcategories of assessment; Class Environmental Assessments, Electricity Projects Regulation, Waste Management Regulation, and Transit Projects Regulation. One of the types of streamlined assessments within this second type of EA is the Transit Project Assessment Process, a provincial regulation which has served to speed up the EA process for transit projects. The TPAP process was mandated by Ontario Regulation 231/08, Transit Projects and Metrolinx Undertakings. The TPAP process is important for the Toronto region as it is a provincial regulation that serves to streamline the process for this region alone. The TPAP process will be further analysed within this case study, as well, the Ontario EA context (public consultation requirements, terms of reference development, approval, legal and technical processes) will be compared with other jurisdictions and then analyzed.

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BRITISH COLUMBIA

The Environmental Assessment (EA) in British Columbia is conducted by the Environmental Assessment Office (EAO) when a proponent submits an application for a major project (EAO, 2018). “An environmental assessment certificate is generally required before any physical activity is undertaken on a reviewable project.” The EAO cooperates with federal agencies and departments, scientific professionals, indigenous groups and the public to ensure no direct or cumulative ‘adverse impacts’ go unnoticed before certifying a project to go forward. The purpose of the EA is to mitigate the predicted negative outcomes of a project, put forward by a proponent, on the environment and social groups by following a process defined under the Environmental Assessment Act. The process involves three major stages (see appendix figure 2): • Pre- application phase • Application Review Stage • Post- certificate At the end of the second stage, an ‘Assessment Report’ (Terms of Reference equivalent) will be produced and sent to the provincial Minister who will confirm, decline or request further action to be taken in order to be re-evaluated. Once confirmed by a Minister, the proposal will be EA certified and the proposal is legally bound to ensure it is carried out in accordance to the terms set out in the Assessment Report.

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CALIFORNIA

In the 1960s there were growing concerns about industrialization, increasing urban and suburban development, and the higher levels of pollution that came with it. In 1964 the American government introduced the Wilderness Act which was soon followed by the 1970 Clean Air Act and the 1972 Clean Water Act as a response to environmental concerns (EPA, 2017). Another driver for the development of a national environmental policy was the backlash that came from the proposal and development of the Interstate Highway System, as communities were being destroyed to make way for the large highway infrastructure (Mohl, 2004). Officially, the National Environmental Policy Act (NEPA) was introduced to the Senate by Henry M Jackson in February of 1969, passed the Senate unanimously in July 1969, and signed into law by President Richard Nixon on January 1st 1970 (Wall, 2004). As NEPA was being processed through Congress, the Santa Barbara oil spill occurred off the coast of Southern California. It was the largest oil spill at that time, and is still the largest spill of the coast of California (Griswold, 2012). This disaster sparked a further increase of people to fight for less lenient environmental policy, ultimately helping push NEPA into legal status. California followed the federal footsteps shortly after with their “California Environmental Quality Act� (CEQA), which was enacted by the state that year (State of California, 2014). CEQA does not dictate land use requirements. Instead, the document is designed to act as a legal guideline for environmental conservation and impact mitigation methods that are required for any development decisions made within the State of California, at any legal level (State of California, 2014). CEQA undergoes a process of decision-making to determine if projects fit the requirements set out by both NEPA and CEQA (See appendix figure 3 for process diagram).

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3 . CO M PA R AT I V E C H A RT

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This chart is provided as a brief description to the environmental review processes in each case study region. It can be used as a quick reference guide to the high-level contrasts between regions. Ontario

British Columbia

California

Federal Policy Context

Canadian EA Act Canadian Transportation Act Canadian Environmental Protection Act

Provincial/ State Policy Context

Ontario EA Act Planning Act Provincial Policy Statement Growth Plan Environment Plans

British Columbia EA Act California Resource Agency British Columbia Transportation Act California Environmental Quality British Columbia Environmental Manage- Act ment Act (EMA)

Technical Processes

It appears that there is no apparent hierarchy of importance between environmental and human concerns. Alternative consideration is mandated in the process with analysis of no build scenarios in each proposal.

Prevent, reduce or avoid any negative environmental, economic, social, heritage and health impacts that a project may cause.

The impact of a project on society, the economy and the environment is the focus of the environmental impact report. In search of the least impactful way to go forward with the project, many alternatives are taken under strong consideration.

Terms of Reference

Terms of Reference is required -must outline the purpose of the project, the potential environmental impacts, and alternatives -must be approved by the MOECC

The Assessment Report is B.C equivalent of the TOR, and is completed after a project has been reviewed, following all response from public, government agency and private interests.

Notice of Preparation must be issued - includes project description and location and probable environmental effects. Notice of Intent and Scoping (NEPA).

Public Consultation

Four major opportunities: During and after the creation of the TOR During the creation of the EA document, the proponent will hold several public consultation sessions After the EA report is released, comments are allowed for 7 weeks Then the MOECC writes a review concerning the EA, which the public can comment on for 5 weeks after it is published.

Two key stages: the first public consultation period occurs when a project is deemed reviewable for the EA process; the second public comment period is 30 days, and is undertaken by the proponent before sending off the Assessment Report to the ministers for an EA certification.

CEQA - 30 to 60 day public review period after draft EIR is completed. Responsible agencies are consulted throughout process. NEPA - 45 day public review and comment period after the draft EIS is completed. Public hearings may also be held in the scoping stage of the process as well.

United States Environmental Protection Agency National Environmental Policy Act

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Decisionmaking Process

Once the TOR is approved, the proponent must prepare an EA report, which will undergo a public and government review once completed. If there are no outstanding comments and/or concerns, the Minister must make a decision regarding the EA.

Project determined ‘reviewable’; application reviewed by EAO and commenting bodies; decision certified by ministers.

Lead and responsible agencies involved in approval. Projects with significant environmental effects can still be approved (“benefits must outweigh risks”).

Recommendations and Actions

Main approval authority is the Minister of Environment and Climate Change. Recommendations for approval are made by the Ministry, and the public may also comment and raise concerns to consideration.

The Ministers can issue an environmental assessment certificate with any conditions they consider necessary, refuse to issue the certificate or require further study or assessment.

Legal Resolutions

Non-compliance with provisions set out in the EA Act is guilty of an offence and will result in a fine. Regulations can exempt certain projects from the regular EA process.

All environmental assessments (EA) in British Columbia occur within a legal framework. EAO will assess each case and if a project is non-compliant to the certificate, a range of progressive disciplinary actions will be considered.

The environmental impact report leads to one recommendation and that recommendation is directly used in decision-making. The decision making body may approve, modify, or deny the project. If a public agency fails to comply with the Environmental Impact Report, legal action is taken in accordance with section 21167 of the CEQA.

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4.POLICY CONTEXT

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O NTA RI O

The policy context for the environmental review process in Ontario is widely dominated by the provincial government and its role in planning, and transportation and infrastructure planning specifically. As set out by federal legislation at the birth of Canada, municipal affairs and issues related to land use have been governed by provinces. In Ontario, the dominant legislation that guides land use is the Planning Act of 1983. The Planning Act came into force in Ontario in 1990 and guides land use planning in the province. Transportation, infrastructure and environmental concerns are covered in part by the Planning Act. Other provincial policies that impact the Environmental Assessment process and transportation planning in the province, especially in the Toronto region, include the Provincial Policy Statement, the Growth Plan for the Greater Golden Horseshoe, the Niagara Escarpment Plan and the Metrolinx Act. The Provincial Policy Statement is a document mandated by the Planning Act that gives the provincial government the opportunity to update its priorities regarding planning on a regular basis. An example of a policy from the Provincial Policy Statement that may impact transportation planning and the EA process is the government’s focus on prioritizing the use of existing infrastructure to meet transportation needs (Ministry of Municipal Affairs and Housing, 2014a). The Growth Plan for the Greater Golden Horseshoe directs growth in this region, necessarily affecting transportation planning in the region of Ontario (Ministry of Municipal Affairs and Housing, 2006). The Niagara Escarpment Plan explicitly impacts the EA process and transportation planning. It is an important plan that links land use planning to the environment (Niagara Escarpment Commission, 2017). The Metrolinx Act came into force in 2006, and invested responsibility in Metrolinx for transportation planning at the regional scale, and has impacts in both the EA process and planning. Finally, the 2006 Environmental Act itself is extremely important in transportation planning within the province. The EA Act mainly requires public bodies to undergo an assessment process for projects with significant impacts on the environment in Ontario. Though private entities do sometimes undertake environmental assessments, they principally affect provincial and municipal governments, and public agencies such as Metrolinx (Government of Ontario, 2018).

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BRITISH COLUMBIA

The Canadian Environmental Protection Act (CEPA) is an environmental legislation at the federal level. It aims to protect the environment, and prevent pollution as well as other harmful elements detrimental to human health. The CEPA (1999) encourages and supports sustainable development. CEPA 1999 was in force on March 23, 2000 containing significant improvements on the previous Act (Government of Canada, 2017). Some of what the Act strives to do are the following (Government of Canada, 2017): • Encouraging greater citizen input into decision-making • Makes pollution prevention the cornerstone of national efforts to reduce toxic substances in the environment • Initiates the processes that assess the environmental and health risks posed by commerce • Imposing timeframes to manage toxic substances • Phase out the most harmful substances and ensure they are not released into the environment The British Columbia Environmental Assessment (EA) Act covers the process needed to ensure that planned projects meet the goals of the province concerning its sustainability (i.e: environmental, social, etc.) as well as the concerns of the public - including First Nation populations. In particular, Part 3 of the Act is the EA process. In this part, many of the decisions and directives are handed out and made by the Executive Director and Minister. Important sections for consideration in this part include: Section 10 determines whether there is a need for an assessment; Section 13 the variations to any aspect mentioned in Section 11; Section 18 how long the EA effects of the certificate lasts. Part 4 of the Act covers any special provisions for the process. As the issue is centered around guiding decision-making trade-offs between the environment and transportation development, the British Columbia Transportation Act is important to review. British Columbia’s Environmental Management Act (EMA) regulates the environmental impacts of waste management, hazardous wastes, pollution, contamination, and water management in the province. The EMA “provides the authority for introducing wastes into the environment, while protecting public health and the environment” (Government of British Columbia, n.d.). Under the EMA, authorization for the discharge of waste into the earth, water, and air fall under the delegation of Waste Management Authorization. The Ministry intends to shorten the process of obtaining authorization. 19


CALIFORNIA

The United States’ environmental policy is governed and guided on a federal level by the “National Environmental Policy Act” (NEPA) that was enacted on January 1st, 1970 (EPA, 2017). One of the main principles set out by this act mandates how states are required to prepare environmental assessments (EAs) and environmental impact statements (EISs). These assessments go along with reports and recommendations for congressional funding. NEPA also established the President’s Council on Environmental Quality (CEQ); a division of the government that regulates and coordinates federal environmental undertakings. It is important to note that although this act does not carry any criminal or civil sanctions, a project seeking federal funding is required to meet NEPA guidelines (EPA, 2017). NEPA and its principles must be applied to any large construction application on a federal, state, or local level that involve any federal funding or involved agencies. The Act itself contains 3 sections (EPA, 2017): 1. Outlines national environmental policies and goals 2. Establishes provisions for federal agencies to enforce such policies and goals 3. Establishes the CEQA Each state is required to follow the guidelines set out by NEPA, including California and its Natural Resource Agency (CNRA), a state-run agency that is in charge of 25 divisions within the state that oversees natural resource use and guidelines. Regulated under the CNRA, one of the divisions, called the California Department of Conservation (DOC), is tasked with the conservation of large scale development operations within the state. The DOC is a close equivalent legislatively to the TRCA, although the DOC acts on a statewide level whereas the TRCA only has jurisdiction within the Toronto region (State of California, 2017a). According to the DOC, some of the outlined tasks of the agency are as follows: “With a team of scientists and other dedicated professionals, the Department of Conservation administers a variety of programs vital to California’s public safety, environment and economy. The services DOC provides are designed to balance today’s needs with tomorrow’s obligations by fostering the wise use and conservation of energy, land and mineral resources” (State of California, 2017b). Within the DOC are five departments, each of which regulate different conservational efforts. The five departments of Conservation (State of California, 2017a):

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1. Geological Survey - Within this department, the DOC hires scientists to gather data and to map earthquakes, faults, and related tectonic hazards. This information is used to help in the development of buildings and structures that are able to withstand earthquakes, with an overall goal of minimizing property damage and loss of life. 2. Land Resource Protection - This division of the DOC is tasked with creating programs to ensure growth is done in an orderly way. These programs are coordinated and combined with California’s agricultural undertakings to ensure land uses are appropriate. Some of these DOC tools pertaining to land conservation planning include: conservation easement grants, farmland mapping and monitoring, and tax incentives that promote maintenance of agriculture land and open space. 3. Mine Reclamation - The DOC created the Surface Mining and Reclamation Act in 1975 which states that every mining operation conducted within the State of California requires a permit to mine, alongside a state-approved reclamation plan requiring the mined land to be restored to an agreed-upon condition, and each operation must demonstrate adequate financial ability to ensure the restoration can be undertaken. 4. Oil, Gas, & Geothermal - The DOC is tasked with ensuring safe exploration and development of renewable and non-renewable energy resources. “[The DOC] oversees the construction, operation and closure of oil, gas and geothermal wells, an important step in guarding drinking and agricultural waters against pollution.” The DOC provides information to the public about the California’s oil, gas and geothermal industries, including keeping records of 170,000+ wells and their logs and field maps. 5. State Mining & Geology Board - The State Mining and Geology Board operates as a separate division within the DOC with a Board of nine members that “represent the general public interest.” This Board acts as a regulatory, policy, and appeals body that considered California’s interests in geology, geologic and seismologic hazards, conservation of mineral resources, and restoration of land following mining activities. This Board is similar to the Ontario Municipal Board, however its jurisdiction lies only within the Mining and Geology field. The DOC also offers several grants and funding opportunities for agricultural land, including the California Farmland Conservancy Program, the Resource Conservation District Assistance Program, and the Watershed Coordinator Grants Program, all of which are designed as incentives to maintain environmental integrity throughout development. The DOC has also published the Renewal Plan, an official document pertaining to conservation within the Oil, Gas, and Geothermal division. Some of the primary objectives of the Renewal Plan include: modernizing regulatory oversight, modernizing data management, and modernizing the workforce (DOC, 2017). The document is part of an ongoing, four year program designed “to correct past problems and to create a regulatory program for oil and gas production that ensures the environment and public health are protected.” (DOC, 2017)

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Within the National Environmental Policy Act, each state is encouraged to produce their own policy of environmental protection to specify the intent and goals of the NEPA. In California, this legislation is called the California Environmental Quality Act (CEQA) and is communicated through the California Resource Agency. CEQA is a statewide policy that mandates action on environmental protection (EPA, 2017). It requires public and private projects to be examined through an initial study, and if needed, an Environmental Impact Review. The groups involved are the lead agencies, who are responsible for conducting the CEQA review, and the responsible agency who are consulted by the lead agency to ensure input from interested parties. The lead agency has final approval of a project (EPA, 2017). To better describe the policy network and hierarchy, this section will use Pasadena, California as an example to examine the interpretation a city will have on the federal and state level policies. Some cities choose to use CEQA as the decision and governing act but in Pasadena they use CEQA as well as additional environmental standards referenced as the Environmental Policy Guidelines. These guidelines use CEQA goals and objectives to provide more specific standards for the city’s environmental review process. According to the Environmental Policy Guidelines the City of Pasadena acts as the lead agency. Therefore to go through the CEQA process, all applications go through the city and are reviewed by the planning and development department which acts as the CEQA representative. These guidelines are meant to follow the purpose of CEQA and ensure all projects are evaluated for possible environmental damage (Planning and Community Development, 2002).

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CO M PA R AT I V E A N A LY S I S

The policy contexts for all three of the jurisdictions have positioned the environmental review processes strongly in state or provincial hands. There is a role in all three for local and federal regulation but the strongest policy influences are at the provincial or state level. Another similarity and potential point for further analysis among the case studies is the role of watchdogs such as Ontario’s TRCA, California’s DOC and B.C.’s EAO. In all cases, these groups have a legislated role in the environmental review process. Further analysis will look into the strength of each group’s role in their respective jurisdictions.

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5.TECHNICAL PROCESSES

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O NTA RI O

In Ontario, the EA process mandates proponents to make multiple considerations when approaching the nexus of human and environmental trade-offs in planning. Some of the considerations include, consultation with affected parties, consideration of alternatives, and all impacts upon the environment. The process also requires proponents to evaluate net environmental effects (Environmental Assessment Process, 2016). Following from this list, the process in Ontario provides no hierarchy of importance for human and environmental impacts, in practice however, considerably more weight may be given to one over the other. Legislation within the province requires the consideration of alternatives within the EA process, one of the important alternatives required is a no-build scenario (Government of Ontario, 2018). This scenario requires analysis of the technical implications of making no intervention for a given infrastructure project. There are implications involved in the interpretation of these analyses and how they are shared with the public.

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BRITISH COLUMBIA

Environmental Assessments in British Columbia help identify, mitigate and evaluate potential adverse effects of a proposed project. The assessment, if done properly, will prevent, reduce or avoid any negative environmental, economic, social, heritage and health impacts that a project may cause. Under the Environmental Mitigation Policy, proponents will identify the elements of the natural environment deemed valuable; environmental components of concern will need to be identified as well. An environmental impact assessment will be conducted to determine the extent of environmental impacts the proposed development may cause. The assessment will provide mitigation recommendations appropriate for the project. Proponents will work with “the Ministry of Environment to finalize a policy framework that will provide provincial guidance on environmental mitigation” (Environmental Assessment Office, 2018b). M I N I S T RY O F T R A N S P O RTAT I O N A N D I N F R A S T RU C T U RE - E V E RG RE E N LINE RAPID TRANSIT Description: Ministry of Transportation and Infrastructure is proposing to construct and operate an Advanced Light Rapid Transit (ALRT) connecting Burnaby, Port Moody and Coquitlam, between Lougheed Town Centre in Burnaby and Douglas College in Coquitlam. Assessment studies conducted: Air Quality Assessment, Arboricultural Assessment, Archaeology and Heritage Assessment, Electric and Magnetic Fields Assessment, Fisheries and Aquatic Habitat Assessment. Human Health Effects Assessment, Noise and Vibration Assessment, Screening Level Contaminated Sites Assessment, Socio-community and Socio-economic Assessment, Terrestrial Biophysical Assessment Evergreen line rapid transit project has been approved and has received the environmental assessment certificate. Within the certificate, some key commitments include the following (Ministry of Environment, 2011): • Install erosion and sediment control structures to prevent the introduction of silt, sediment and/or sediment-laden runoff into creeks. • Re-vegetate affected riparian habitats and ensure the survival of plant material in re-vegetated areas, including the control of invasive species. • Undertake a noise and vibration management plan that will set out site-specific measures to mitigate noise and vibration related impacts to residents and businesses. • Provide municipalities with 72-hours advance notice of construction work scheduled beyond municipal noise bylaw hours.

Throughout the EA process, many assessment studies were conducted. The focus on environmental mitigation strategies in the final commitments show that any potential negative environmental, economic, social, heritage and health impacts are taken seriously. 26


CALIFORNIA

Policies to be followed when completing an Environmental Impact Report (EIR) include the California Environmental Quality Act of 1970 and the Fish and Game Code. The California Transportation Commission documents must be submitted for projects interacting with the State Highway System (California Department of Transportation, 2016). Human-environmental trade-offs are taken seriously when examining a new project in the EIR process. Multiple effects are to be taken into consideration such as human use of the land, health and safety problems to humans caused by physical changes, public services, and more (CEQA, 2016). These are major factors necessary in the decision making process. Alternatives are another aspect of an EIR that are taken into serious consideration. Alternatives examined must be within the “rule of reason� which means only put forward alternatives necessary to make an informed decision (California Department of Transportation, 2016). Alternatives must be feasible, meet project objectives, avoid significant environmental impacts and not be a completely remote idea (California Department of Transportation, 2016).

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CO M PA R AT I V E A N A LY S I S

Ontario, B.C. and California go through similar technical processes as the desired outcome for all is to discover the best way to implement a project that will cause the least amount of harm to the environment. With the same desired outcome, different technical processes take place to get there. Ontario focuses on a no-build scenario when considering alternatives. This enforces an analysis to be carried out of the impact created in the case of the project not being carried out. This is to provide a more educated understanding whether the project should be carried out or not. B.C. and California also take into consideration alternatives to the proposed project however, do not look at the impact of a no-build scenario. In measuring the environmental impact, Ontario, B.C. and California look at the air quality, fish and aquatics, noise pollution, and human health effects. In completing an environmental assessment, impact to humans is of great importance in all three case studies. Human-environmental relations are key to create a more environmentally friendly space and this is an aspect that is thoroughly analyzed when completing an EA in Ontario, B.C., and California.

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6.TERMS OF REFERENCE

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O NTA RI O

Depending on the project, it may be required to undertake an Environmental Assessment (EA). The first step in the EA process is to create a Terms of Reference (TOR). A Terms of Reference is required for all comprehensive and streamlined environmental assessments. In this document, the proponent will outline the following (Government of Ontario, 2018): • The purpose of the project • How the environmental assessment will be conducted • The potential environmental impacts and mitigation measures • Alternatives of the undertaking • How assessment and evaluation of the EA will be carried out • How commitments and monitoring will be documented during implementation • Plan for public consultation • “Flexibility to accommodate new circumstances” that arise during the EA and implementation process During the creation of the TOR, the proponent must “consult with the public, Indigenous communities, and government agencies” (Government of Ontario, 2018, p. 1). The proponent must submit the TOR with a documentation of the consultation process for the TOR. After the TOR is completed and submitted, it must be reviewed by the Ministry of Environment and Climate Change (MOECC). Based on their recommendations, the Minister must make a decision on whether to approve it within 12 weeks of submitting the TOR to the Ministry (Government of Ontario, 2018). Within this time period, the MOECC will consult with the public for any additional comments and concerns, review the document, and make recommendations to the Minister for decision (Government of Ontario, 2018). Once approved, the proponent may proceed to create an Environmental Assessment. This report must conform to the approved TOR meaning nothing new should appear in the report that has not been outlined in the TOR. This makes the TOR a document to be considered with much deliberation as it provides the framework for the entire project.

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BRITISH COLUMBIA

In British Columbia, the Terms of Reference are referred to as an Assessment Report. The Assessment Report is drafted by the EAO during the 180 days of the Application Review Process, and then finalised and submitted to an Environmental Minister to accept and certify the proposal with an EA Certificate (EAO, 2018a). This follows the confirmation of the initial phase of deeming the project reviewable for an EA certification process, and therefore potential ‘adverse’ effects on the environment or the public interest have been identified. Consequently, the Assessment Report is the completed account of how the proposal will progress and how it has mitigated potential ‘adverse’ effects to reach its final proposed scheme. It outlines some of the following (EAO, 2018a, p. 18): • • • • •

Documentation meeting the Application Information Requirements The Valued Components of the proposed scheme Procedures and findings of the proposed project’s application The extent to which concerns have been addressed, and predicted impacts mitigated Outstanding issues which remain to be addressed by the proponent

The EAO can also submit recommendations and reasoning as to whether it is advisable to issue an EA, or a draft environmental certificate to speed up the process. Ministers have 45 days to approve or refute an EA certificate for an application if they believe the project will benefit, and has addressed, the public interest. It can also require further study or assessment if the project is believed to have inconsistencies. Once approved by the Ministers, the proposal is eligible for an EA certificate and can go ahead with construction (EAO, 2018, p. 17). It must meet the commitments stated in the Assessment Report, and will be held legally accountable to them.

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CALIFORNIA

When a project is subject to CEQA, the lead agency (the proponent) must prepare an Initial Study to determine whether there is the possibility of significant effects on the environment. If nothing substantial is found, the agency makes a Negative Declaration and the project can move directly to public notice and approval by the decision-making body. If significant effects are possible, the lead agency must create a Notice of Preparation. This notice states that an Environmental Impact Report (EIR) will be prepared for the project - the first step in EIR process. Under the National Environmental Policy Act (NEPA) this is called the Notice of Intent and Scoping Period. The notice must be sent to all responsible agencies and any body involved in the approval or funding of the project. The purpose of the project must be explicitly outlined in the notice, and it will include how specific or general the lead agency intends the project to be. The description and location of the project (presented on a map) as well as potential environmental effects must also be included in the notice. Once the notice has been sent to the aforementioned parties, they have 30 days to make responses to the lead agency. The notice is an integral part of the process because it outlines how the project will proceed. However, once the lead agency has distributed the notices, they can begin working on a draft EIR without waiting for the responses from other parties. The stipulation here is that the lead agency may be forced to adjust or expand their EIR process depending on what responses are made. Most responses include concerns over environmental issues and reasonable alternatives or mitigation measures that should be taken into account by the lead agency together with the other parties. CEQA process makes it very clear that when dealing with projects with multiple agencies, coordinated efforts must be made at every step. An interesting approach in American federal processes is that in the United States they have the option to create tiered environmental reviews. This means for large projects (commonly highways and rail corridors), a Tier 1 EIR would first be created to analyze the environmental effects in a general area of where the proposed project may be located but not its exact location. When the Tier 1 EIR is approved, the lead agency can then do Tier 2 EIRs for further broken down areas of the land identified in the Tier 1. Each Tier 2 is created and completed at its own pace.

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CO M PA R AT I V E A N A LY S I S

It is evident that all three case studies share similar objectives and approaches when finalising the Terms of Reference for a given project, whereby public opinion and environmental scrutiny are processes to ensure a socially, economically and environmentally comprehensive and viable project. Ontario is the only scenario however where a TOR is drafted before an EIA is put forward, and then modified, rather than undergoing an EA process and then consequently compiling a TOR responding to recommendations and research. On the other hand, B.C and California review their given project twice before generating the TOR, and the proponent is obliged to cooperate with commenting agents on their project, and be flexible on the conditions that need to be committed to in order to conclude at a project proposal that favours or compromises well with commenting agents. This is clearly demonstrated by B.C.’s Evergreen Line Rapid Transit, which comprised of 157 commitments agreed upon between a plethora of stakeholders during the EA reviewal process. It could also be observed therefore that proponents in Ontario appear to have a legislation that works more favourably towards their original terms of reference when undergoing an EA, as they are not obliged to respond directly to all public comments, only keep a record of them. Moreover, whilst they have to be ‘flexible’ in complying with new guidance, the process does not present a mandatory stipulations for collaboration with relevant stakeholders.

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7.PUBLIC C O N S U LTAT I O N

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O NTA RI O

For a comprehensive environmental assessment (EA), the public has four main opportunities for consultation within the EA process and provide comments on the project. The first opportunity is during the creation and after submission of the TOR. The proponent is required to submit the Terms of Reference (TOR) with a report that documents the consultation process (Government of Ontario, 2018). After the TOR is submitted to the Ministry of Environment and Climate Change (MOECC) to review, the MOECC may consult with the public for any additional comments before the TOR is approved. The second opportunity is during the creation of the EA document. These public consultation sessions are planned by the proponent and are implemented to engage the public, government agencies, Indigenous groups, and other interest groups. The proponent is required to have documentation of all public consultation sessions, and those documents will be recorded within the EA document. The EA document confirms which stakeholders were involved in the project, and how the comments and issues that have been raised during these sessions have been addressed. Public consultation is also recorded based on the public’s accessibility to information regarding the project’s EA. An example of this would be phone lines, a designated location for project materials,or public information centres held at different dates during the process. The third opportunity for public consultation is after the EA document is completed and submitted to the MOECC. The public has 7 weeks to review and comment on the EA document to raise any additional concerns or issues that were not addressed. The fourth opportunity is after the Ministry Review has been published. The public has 5 weeks to make comments to the MOECC regarding any concerns or issues that still need to be addressed. For streamlined EAs, 30 days is the minimum number required for public consultation (Office of the Auditor General of Ontario [OAGO], 2016). Streamlined EAs do not have an extensive public consultation process as a way to speed up the implementation of the project. The public is also limited in information as the main resource is during this brief consultation period. This makes it harder for the public to influence any decisions made unless an adverse environmental impact is introduced.

35


BRITISH COLUMBIA

Public consultation in B.C. occurs at two main stages within an EA process. The first occurs when assisting the EAO in determining whether a project put forward by a proponent is reviewable for the initiation of an EA process. During this period, a ‘working group’ (EAO, 2018a, p. 11) is formed consisting of federal, provincial, and local staff, as well as First Nation representatives, to provide the proponent with technical advice regarding the potential impacts of the proposal, and what further information is required of the proponent. The proponents are responsible for transcribing, summarising, and publishing the outcomes of each meeting and making those available during public consultation. A key feature in this first stage of the process is the transparency in the availability of the documentation generated; all information regarding the proposal must be published to allow the public to make comments and consider all aspects that may affect them. This does hold exceptions for some sensitive issues (EAO, 2018). The second ‘Public Comment Period’ is set up during the Application Review, whereby the public has 30-60 days commencing once the application has been uploaded online, and a record of all written comments are kept and shared on the EAO website during this period. Proponents also need to maintain a record of all received written comments from the public, agencies and First Nations, as well as the responses given to those stakeholders, which will then be presented to the EAO to inform them of any changes that need to be made to the application proposal in response to feedback (EAO, 2018). RICHMOND AIRPORT VANCOU V ER R APID TR ANSIT PROJEC T The Richmond Airport Vancouver Rapid Transit Project is a 19 km rail system connecting downtown Vancouver, the Vancouver International Airport and Central Richmond. It will include 16 stations, two bridges and nine kilometres of tunnel which has been certified with an EA certificate. The EA process mitigates negative environmental outcomes and contains over 12 binding commitments and assurances implemented to “address First Nations’ interests and ensure the project has no residual adverse environmental, economic, social, heritage or health effects”. Their key ‘Valued Components’ include air quality, fisheries, and neighbouring communities, and so with help from the relevant ministers (Sustainable Resource Management; Water, Land and Air Protection; Community, Aboriginal and Women’s Services) commitments including investing $1 million into a business liaison program for the Downtown segments of the line, and the development of traffic and air quality management plans were made legally binding. By prioritizing key social and environmental contingents, the necessary stakeholders are consulted, to make well informed decisions to minimize negative impacts 36


CALIFORNIA

Public consultation takes place once the draft EIR has been completed and the lead agency issues a Notice of Completion. This notice must include a description of the project, the proposed location, an address where copies of the draft EIR are available, and the period for which public comments will be received. Lead agencies must hold a public review period of at least 30 days and no longer than 60. Once the public review period is complete, the lead agency is required to include various aspects in the final EIR. It must include comments and recommendations received, and by whom they were received from , and responses from the lead agency about any significant environmental concerns raised. CEQA regards public participation as an integral part of the process and states the importance of using the draft EIR for discussion during the public consultations.

37


CO M PA R AT I V E A N A LY S I S

Public consultation in each of the three cases is similar in that the public has time to comment and raise any concerns that they may have. The proponent/lead agency is also required to address the public feedback for each of the respective documents in all three cases. Public consultation periods have a slightly different approach in BC. BC’s process first consults government bodies and First Nation representatives before going to the public to ask for comments and concerns. This is helpful as it provides all the necessary information that the public may want to read and help avoid questions that could easily be answered by the availability of this information. In Ontario, there is no requirement to create a ‘working group’. However, there is an expectation that EAs in Ontario are under the advisement of government agencies and other technical advisory groups to provide information and input during the process. Also, similar to both cases, all information regarding the environmental assessment process must be accessible to the public. California is not very different in terms of its approach to public consultation. However, it only provides one opportunity for public consultation in comparison to Ontario. Limited consultation periods may be an effective way to speed the environmental process, however, that is dependent on the separate context of each case. For example, in Ontario the TPAP uses a streamlined 6-month process where the only time for public consultation is during the creation of the Environmental Project Report, and after it has been completed and submitted to be reviewed. The public only has 30 days to review the report in comparison to the more rigorous project that allows for 7 weeks. This accelerated process may allow some concerns and issues to be missed.

38


8.DECISION MAKING PROCESS

39


O NTA RI O

Within the Environmental Assessment (EA) process, there are three major documents: The Terms of Reference (TOR), the EA document, and Ministry Review. The EA document is produced by the proponent according to the approved TOR. There is no time limit for preparing the EA document. Once the document is submitted, the Ministry of Environmental and Climate Change (MOECC) consults with the public, Indigenous communities, government experts, and any other interested party (Government of Ontario, 2018). Public comments are allowed for 7 weeks (Government of Ontario, 2018). The MOECC must then write and publish a Ministry Review in 5 weeks. This review includes all comments made during the public consultation, discusses whether the proponent complied with the approved TOR, and whether the requirements of the EA Act has been met (Government of Ontario, 2018). The public then has 5 weeks to comment on the Ministry Review (Government of Ontario, 2018). Once the public consultation for the Ministry Review has finished, the Minister must make a decision within 13 weeks. There are three options the Minister may choose: “refer it to mediation, refer it to the Environmental Review Tribunal for a hearing, or make a decision to approve, approve with conditions, or refuse the EA “(Government of Ontario, 2018, p.1). The group that has the most influence over these documents would be the MOECC. The MOECC reviews these documents to help provide recommendations to the Minister when deciding whether to approve the documents or not. The proponent has a strong influence over the TOR and EA document as they are the one creating it. Based on the framework that they provide in the TOR, the project is already set for a specific course. The EA document must comply with the approved TOR, which makes the TOR a document that should be created with much deliberation. For the EA document, how the content is fleshed out determines whether the environmental assessment is approved or not. The EA document must report a very comprehensive study of the project and its alternatives. If the study is not conducted in a thorough manner, and the rationale for choosing a certain alternative is weak, the likelihood of the EA document being approved decreases. The public and other government agencies involved in the public consultation do have some influence on the outcome of the process based on the comments they raise. The proponent and MOECC are required to address all comments that are made during public consultations. If at any point during the EA process, the proponent and other interested persons have differences regarding the project, they may ask for mediation to resolve issues or concerns between the two parties (Government of Ontario, 2018). For streamlined environmental assessments, before the Minister makes a decision, the public may make an elevation request for the project to undertake a more rigorous comprehensive environmental assessment. However, based on an audit conducted in 2016, these requests are often denied without a clear explanation (OAGO, 2016). This makes it hard for the public to influence a streamlined EA unless there is a large environmental impact that has not been properly addressed. 40


BRITISH COLUMBIA

For an application to be approved, the Environmental Assessment Office (EAO) must confirm it first as ‘reviewable’ (EAO, 2018, p. 9), and then approved by federal environmental Ministers to be EA certified and therefore proceed with implementing the proposal. A project is considered reviewable if it meets a criteria threshold within the Reviewable Projects Regulation. If it fails to meet the scale required for an EA, but the Minister of Environment identifies the scheme as having ‘adverse effects’ or it being ‘in the public interest’ to review the scheme, it must also undergo an EA process (EAO, 2018). Likewise, if a proponent comes forward requesting the EAO ‘designate a project’ for the EA process and it gains approval, then that project is then also obliged to comply (EAO, 2018b). When the proponent has completed the pre-application phase, and written up their Assessment Report, the final assessment project is submitted to Environmental Ministers who have 45 days to approve or refute an EA certificate for that application. They can also require further study or assessment if the project is believed to have inconsistencies (EAO, 2018).

41


CALIFORNIA

The approval process involves the lead agency and any responsible agencies. While it is ultimately up to the lead agency to be the decision-maker, issues and concerns brought up by responsible agencies must be addressed. When significant environmental effects are found, the lead agency must present their findings on each effect. Responsible agencies will usually have expertise in one or a few aspects of the project and may only disapprove if environmental effects arise within their jurisdiction. However, the lead agency may disapprove a project if they believe it is necessary to avoid significant environmental effects. Lead agencies are limited in the sense that they cannot approve a project if they find alternatives or mitigation measures to lessen the environmental impacts. Although they can approve projects even with known significant effects. CEQA requires the lead agency to “balance the benefits of a proposed project with the unavoidable environmental risks� (State of California, 1970). It is considered acceptable as long as the benefits outweigh the risks. This brings up more questions than it answers because there is no universal guide for weighing project benefits with environmental risks. This is left to the discretion of the lead agency. Of course this does not allow them to approve any project they want, but it does give them the power and foremost authority to make the decision. CEQA also states that there must be no feasible way to lessen or avoid effects in order for a project to be approved. CEQA makes it clear that if an agency approves a project with environmental effects, they must assume responsibility if further mitigation or alternatives are found later down the road. W E S T S I D E S U B WAY E X T E N S I O N - LO S A N G E L E S CO U N T Y Tiered EA process to determine best possible outcome of heavy rail expansion in west LA. The project area studied covered 38 square miles and portions of several cities. The draft EIR presented several alternatives and one was selected as the Locally Preferred Alternative (LPA) for further evaluation in the final EIR. The draft compared environmental consequences from two construction alternatives and a NO BUild Alternative. The major issue with this project is the property acquisition needed to proceed with the LPA. LA Metro found significant impacts to property tax revenue losses in multiple jurisdictions and increased unemployment from job losses. The City of Los Angeles (in conjunction with the other cities) approved the project based on the compared economic losses and potential benefits. Benefits also included increased capacity of transit to serve anticipated ridership in the area.

42


CO M PA R AT I V E A N A LY S I S

The environmental review approval processes of Ontario and British Columbia are comprehensive but still leave room for undesirable effects. In the case of Ontario, the ability to streamline (ie: TPAP) attempts to expedite the EA process. This turns out to be a double-edged sword because while it may ensure priority transit projects are sped up, it also allows proponents to glance over potential environmental impacts without as much consultation to the public and outside agencies. In California, the legislation explicitly explains that projects with negative impacts to the environment are in no way prohibited. It is left to the lead proponent to prove that the benefits of each project will outweigh the environmental risks. They must also prove that there is no way to lessen or avoid the environmental risks they find. This does leave a lot of power in the hands of the proponent, but CEQA also explains that proponents will be held accountable if alternatives or mitigation measures are later identified. What is common between the three regions is the ability of the public and outside agencies to influence the approval process. All relevant concerns raised by these groups warrant replies from the lead agency/proponent. The TRCA would likely fit the role of a responsible agency in the context of California. This means the TRCA would apply its expertise through the EA process in consultation with the lead agency, much like it does in Ontario. In California, if a responsible agency finds significant impacts in their area of expertise, the lead agency may not be able to get the project approved without addressing those concerns.

43


9 . RECO M M E N DAT I O N S & ACTIONS

44


O NTA RI O

The main approval authority of the Environmental Assessment (EA) process is the Minister of Environment and Climate Change. The Minister’s decision is mainly influenced by the Ministry Review, and public consultation. After the EA is completed, the Ministry must publish a Ministry Review. The Ministry Review provides recommendations for the Minister to consider based on the project’s compliance to the approved TOR and its ability to address the requirements of the EA Act. The Ministry Review also addresses each of the alternatives and mitigation measures mentioned in the report, and evaluates whether they have been properly considered. After this document is published, the public, Aboriginal communities, government bodies, and other interested persons have an opportunity to make comments and raise concerns that they would like the Minister to consider before making a decision. This public consultation period will last for 5 weeks. After this period is over, the Minister has 13 weeks to make a decision.

45


BRITISH COLUMBIA

When an Environmental Assessment is completed, two Ministers will then decide whether an environmental assessment certificate is issued. Under the Environmental Assessment Act, the decision-making authorities include the Minister of Environment, one other responsible Minister (for transportation projects it would be the Minister of Transportation and Infrastructure and/or the Minister of Municipal Affairs and Housing) and the Environmental Assessment Office (EAO) Executive Director. After 45 days, a decision will be made; the Ministers can issue an environmental assessment certificate with any conditions they consider necessary, refuse to issue the certificate or require further study and assessment. An Environmental Assessment Certificate holds legally binding conditions. Once an environmental assessment certificate is issued, the proponent is required to comply to the conditions listed. During the post-certificate period, the EAO will actively monitor and enforce environmental assessment certificate compliance. Compliance and enforcement programs are used to verify compliance with the environmental assessment certificate. It is important to note that compliance with the environmental assessment certificate includes pre-construction, construction, operation and/or decommissioning phases of the project.

46


CALIFORNIA

During the Environmental Impact Report (EIR) process, information circulates between the applicant, the public and the decision making body on various occasions. The decision-making body consists of the lead and responsible agencies. Responsible agencies are public agencies that contribute to the approval of a project when more than one agency is involved. A lead agency is the public agency holding primary responsibility in approving an EIR (State of California, 1970). At the end of the day, the decision-making body may choose to approve, deny or revise the project or permit. All information gathered during the EIR process is taken into account when making a final decision of approval. This includes the environmental, social and economic impacts, as well as alternatives that may help to mitigate these impacts. If approved, a notice of determination is to be filed (State of California, 1970). This must be done within 5 days of the decision and posted for 30 days following. This allows for legal challenges to the approval.

47


CO M PA R AT I V E A N A LY S I S

Outcomes put forth by the decision-making body in Ontario, B.C. and California are final. The public is a large part of the decision-making process and therefore it is required the public has the chance to review and report back suggestions before a final decision is made. No revisions may be made following a final decision with the exception of California. California takes the public opinion very seriously therefore following the approval of a project or permit. Notice must be filed within 5 days of the decision and left for 30 to allow the public time to challenge this decision. B.C. has very strong regulations when enforcing the outcome of an EA. Post approval, a program is set in place to monitor all stages of the project to ensure the applicant is complying with the decision. Compliance with the decision-making body is required and legal action may occur if not. The decision on approving or denying an environmental assessment is completely based on the environmental assessment process. California’s decision weighs heavily on human impacts and public consultation meanwhile Ontario and B.C. do not place as much importance on those aspects. All three regions want to provide the best services possible while sustaining the environment, economy and society, and the decision to approve or deny the EA is based on the best way of doing so.

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10.LEGAL RESOLUTIONS

49


O NTA RI O

If an Environmental Assessment (EA) cannot comply with the approved undertaking, they must notify the Minister to either withdraw the project or remedy the reason for potential non-compliance (“Environmental Assessment Act� [EAA], 1990). The EA Act for Ontario mentions that failure to comply with the provisions in the Act is guilty of an offence (EAA, 1990). The first offence is fined $10,000, and the subsequent offences are fined $25,000 every day the offence occurs or continues (EAA, 1990). In the EA Act there are regulations that allow for exemptions of particular projects. An example of this would be Regulation 231/08, which exempts public transit projects from the more rigorous EA process and class EA process to a 6-month streamlined process called TPAP (EAA, 1990). EAs in Ontario are also subject to the Canadian Environmental Assessment Act based on the type of project that is being undertaken. The project would go through a federal screening process to determine whether a federal EA is required or not (Government of Ontario, 2018).

50


BRITISH COLUMBIA

All Environmental Assessments (EA) in British Columbia occur within a legal framework. The Environmental Assessment Act (EAA) is the major legal framework in which EAs operate under. The EAA is supported by regulations, policies, procedures and technical guidelines. Under this Act, compliance to the conditions under the certificate is mandatory. A project must comply with the issued environmental assessment certificate. Failure to do so will result in a thorough investigation and possible disciplinary actions. For projects that display non-compliance, the EAO will assess each case and decide on an appropriate action. Once a project is deemed non-compliant, the Minister of Environment has the power to stop the project’s construction or operation. The Minister may also suspend, cancel or amend an already issued certificate. The reasons are under the Minister’s discretion. Additionally, fines and/or imprisonment may also be required (EAO, 2018c, p.6). Regulations under the Environmental Assessment Act have the same force of law as an Act. There are six regulations: Reviewable Projects Regulation, Prescribed Time Limits Regulation, Public Consultation Policy Regulation, Concurrent Approval Regulation, Environmental Assessment Fee Regulation and Transition Regulation (EAO, 2018c, p.6-8). Another legal framework that EAs must follow is the Common Law regarding First Nation consultation. Proponents are required to consult with First Nations to ensure their rights and titles are not negatively impacted. Consultations include (EAO, 2018c, p.8): • Providing information about the proposed project to First Nations early in the planning process; • Obtaining and discussing information with First Nations about specific Aboriginal interests that may be impacted; • Considering modifications to plans in order to avoid or mitigate impacts to Aboriginal interests; and • Documenting engagement including specific Aboriginal interests that may be impacted and any modifications to address concerns, and providing this record to EAO.

51


CALIFORNIA

If a public agency fails to comply with the CEQA, legal action must be taken in accordance with Section 21167 of the Act (CEQA, 2016). If non-compliance is of concern, a petition must be filed and a hearing must be requested within 90 days of the petition being filed. If not, it is subject to dismissal. Once the petitioner has filed a hearing request, a notice must be passed out. Following the notice, the court must establish a briefing schedule and hearing date. The briefing is to be completed within 90 days from the date the hearing request is filed. The hearing then shall be held 30 days after (CEQA, 2016).

52


CO M PA R AT I V E A N A LY S I S

Legal resolutions in Ontario, British Columbia and California are similar; when non-compliance to conditions provided after an EA is identified, legal actions against the proponent will be taken. However, the three cases do have slightly different approaches. In Ontario, non-compliance is only briefly mentioned in the EAA. When a proponent fails to comply to the conditions, under the EAA, the proponent is guilty of an offence. If the proponent is a first offender, the proponent will be fined $10,000 and for subsequent offences, $25,000 each day the offence occurs/continues. While, in California, proponents who fail to comply with the CEQA will have to go to court and will have to undergo a hearing. British Columbia is a bit different compared to the other two cases. In BC, there is a post EA or post-certificate period. Unlike Ontario and California, BC has a dedicated program to monitor a project after the certificate has been issued. During the post-certificate period, the compliance and enforcement program takes place and is to ensure the proponents comply with the conditions listed in the environmental assessment certificate. When a project is deemed non-compliant, various disciplinary actions are possible.

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11. FUTURE CO N S I D E R AT I O N S

54


The background research from this report will provide a foundation for further analysis and recommendations. While it is difficult to derive a single recommendation from the EA process, the research suggests more incremental adjustments are needed. Furthermore, there are still potential lessons to be learned from the environmental review processes in each of the three regions. Although each area of the EA process has been thoroughly reviewed, the next step will be to further interpret these areas to provide TRCA with guidance and possible tangible recommendations towards environmental and transportation trade-offs. Analyzing the background information has demonstrated that technical processes are quite different between different provinces and states. Such differences should be further examined moving forward.

55


Appendix A Figure 1

Ministry of the Environment and Climate Change Environmental Assessment Process in Ontario Terms of Reference • Consult with interested parties • Prepare and submit a Terms of Reference detailing the proposed scope of the Environmental Review • Can take up to a year

Consultation/ Preparation Resubmit ToR

Government & Public Review

Proponent Decision

• Review by government experts and other interested groups

Minister’s Decision

ToR Rejected

Abandon

Environmental Assessment • Prepare and submit Environmental Assessment Report, in consultation with interested parties • Typically requires at least a year of scientific studies (all season)

Consultation/ Preparation Government & Public Review

• Review by government experts and other interested parties • Government posts its expert review for public inspection

Minister’s Options

Minister’s Decision

Refer to Environmental Review Tribunal (Hearing)

Refer to Mediation

Mediator Submits Report to Minister Approve

Approve with conditions

Refuse

Approve

Approve with conditions

Refuse

*Adopted from the Code of Practice Consultation in Ontario’s EA Process*

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Appendix B Figure 2

Application Review Stage

Pre Application Stage 30 days

Project determined reviewable

Scope & process determined

Focus determined (AIR)

Application prepared by proponent

Application evaluated by EAO

180 days

> Application reviewed >EAO Assessment Report > Referral to Ministers

Post Certificate Stage

45 days

Decisions to certify by Ministers

Compliance monitored & enforced

57


Appendix C

CEQA PROCESS FLOW CHART Public Agency determines whether the activity is a “project�

Figure 3

Not a project

Project Project is ministerial No possible significant effect

Public Agency determiens if the project is exempt

Statutory exemption Cateforical exemption

Not Exempt Public Agency evaluated project to determine if there is a possibility that the project may have a significant effect on the environment

Notice of Exemption may be filed

No further action required under CEQA

Possible Significant Effect Determination of lead agency where more than one public agency is involved

RESPONSIBLE AGENCY

LEAD AGENCY Lead agency prepares initial study

Respond to informal consultation

Consultation Lead agency decision to prepare EIR or Negative Declaration

Negative Declaration

EIR Respond to Notice of Preparation as to contents of draft EIR

Consultation

Lead agency sends Notice of Preparation to responsible agency

Lead agency prepares draft EIR

Comments on adequect of draft EIR or Negative Declaration

Consultation

Decision-making body considers final EIR or Negative Declaration prepared by lead agency

Lead agency files Notice of Completion and gives public notice of abailability of draft EIR

Public Review Period

Consideration and approval of final EIR by decision-making body

Findings on feasibility of reducing oravoiding significant environmental effects

Decision on permit

Decision on project

File Notice of Determination with Office of Planning & Research

Local Agencies File Notice of Determination with County Clerk

Public Review Period

Lead agency prepares final EIR including response to comments on draft EIR

Findings on feasibility of reducing or avoiding significant environmental effects

State Agencies

Lead agency gives public notice of availability of Negative Declaration

Consideration and approval of Negative Declaration by decision-making body

State Agencies Local Agencies File Notice of Determination with Office of Planning & Research

File Notice of Determination with County Clerk

58


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