Intervenor: vol. 27, no. 3 - 4, July - December 2002

CELA in the Courts - CELA Challenges "Scoped" Landfill EA in Court

In early 2003, CELA will be arguing an important test case under Ontario's amended Environmental Assessment Act (EA Act). The case focuses on a proposed large-scale expansion of the Richmond Landfill Site near Napanee. Although the site is privately owned and operated, the expansion was designated by regulation as an undertaking to which the EA Act applies.

As the initial step under the EA Act, the proponent (Canadian Waste Services Inc.) drafted "Terms of Reference" to guide the EA planning process for the expansion. Once approved, the Terms of Reference are legally binding and serve as the basis for the preparation of the EA documentation.

Significantly, the proponent's Terms of Reference for the Richmond Landfill expansion excluded fundamental EA considerations, such as: (a) whether there is a demonstrable need for the proposed expansion; (b) whether there are preferable "alternatives to" the expansion (e.g., 3R's, export, etc.); and, (c) whether there are more suitable sites for the proposed increase in disposal capacity.

Despite these omissions, Ontario's Environment Minister approved the narrow Terms of Reference. In effect, this approval purports to relieve the proponent from considering crucial threshold questions (e.g., need, alternatives to, and alternative sites) during the EA process. Thus, CELA applied for judicial review of the Minister's approval on behalf of local residents who live beside the existing Richmond Landfill Site.

A similar judicial review application was commenced by a nearby First Nation community (the Mohawks of the Bay of Quinte). The Divisional Court has ordered that the two applications be consolidated and heard together.

In essence, CELA's judicial review application focuses on whether - or to what extent - the Minister has jurisdiction to approve Terms of Reference that wholly eliminate fundamental EA planning considerations. The CELA application also challenges the adequacy of the public consultation program that led up to the Minister's approval of the narrow Terms of Reference.

To date, the EA Act's provisions regarding Terms of Reference and public consultation have not been judicially considered by the courts. Therefore, it is anticipated that the Divisional Court's ruling in this case will provide considerable guidance on the proper interpretation and application of the EA Act, particularly in the context of waste management. The outcome of the judicial review proceedings will be reported in a future issue of the Intervenor.

Rick Lindgren is a lawyer at CELA