Blog

Deregulation Redux: Ontario’s Environmental Laws under Attack (Again)

CELA’s core mandate is to use and improve the law in order to safeguard the environment, protect the interests of low-income and vulnerable communities, and ensure access to environmental justice.

In Ontario, however, it now appears that our main challenge is not to incrementally strengthen provincial laws, but to fend off ill-advised governmental attempts to repeal key environmental statutes and eliminate environmental regulations as “red tape.”

Since the current government assumed power several months ago, Ontarians have experienced a fast-paced and systemic dismantling of environmental legislation that was originally enacted by the Legislature to advance the public interest on various fronts.

For example, in its first sitting during the fall of 2018, the Ontario government has passed the following laws to eliminate or dilute important environmental statutes, regulations and programs:

  • Bill 4: This Bill repeals Ontario’s cap-and-trade regime under the Climate Change Mitigation and Low-carbon Act, which had established a successful “polluter pay” carbon pricing system that generated funds for climate change mitigation and adaptation;
  • Bill 34: This Bill repeals Ontario’s Green Energy Act, which had been passed in 2009 to facilitate energy conservation/efficiency programs and the development of renewable energy sources; and
  • Bill 57: Schedule 15 of this Bill amends the Environmental Bill of Rights and abolishes the independent Office of the Environmental Commissioner of Ontario, which has existed for over two decades to provide oversight, transparency and accountability in governmental decision-making affecting the environment.

CELA’s detailed responses to these legislative developments are available on our website.

The latest – and highly alarming – rollbacks proposed by the Ontario government are set out in Bill 66, which was introduced for First Reading yesterday. In our view, Bill 66 – together with the above-noted Bills – constitutes the biggest and most significant environmental rollback to occur in a generation in Ontario.

To our knowledge, the Ontario government appears to have undertaken no meaningful pre-consultations with interested stakeholders prior to suddenly releasing Bill 66 on the final day of the fall legislative session.

We further note that Bill 66 has been rationalized by the provincial government on the basis that it contains “30 actions” that will eliminate “red tape and burdensome regulations,” and will enable businesses to create “good jobs.”

Among other things, these proposed legislative actions include:

  • Repealing the Toxics Reduction Act and its implementing regulations, which presently require large industries to develop plans to reduce the use or generation of toxic substances within their production processes; and
  • Amending the Planning Act to enable municipalities to pass “open-for-business” zoning by-laws that do not have to comply with prescribed provisions in the Clean Water Act, Greenbelt Act, 2005, Great Lakes Protection Act, Lake Simcoe Protection Act, 2008, Oak Ridges Moraine Conservation Act, 2001, Resource Recovery and Circular Economy Act, 2016 and other provincial statutes.

In our view, the attempt in Bill 66 to oust the application of section 39 of the Clean Water Act to “open-for-business” zoning by-laws is particularly objectionable and risk-laden. This section is not an obscure procedural provision buried in the Act; instead, it is the key operative provision that requires land use planning decisions to protect drinking water safety and the health of the people of Ontario.

As a matter of law, section 39 of the Clean Water Act currently requires all Planning Act decisions to conform to policies in approved source protection plans that address significant drinking water threats prescribed by the Clean Water Act (e.g. landfills, sewage systems, and the storage or handling of fuel, fertilizers, manure, pesticides, road salt, organic solvents and other substances on lands near wells or surface water intake pipes used by municipal drinking water systems). In our view, this important provision must remain applicable to all municipal planning and zoning decisions in order to protect public health and safety.

More generally, CELA finds that the unjustifiable content of Bill 66, and the erroneous “red tape” language used by the government to describe the Bill’s legislative intent, is highly reminiscent of the dangerous deregulation agenda that was carried out by the Ontario government prior to the Walkerton drinking water tragedy in 2000.

On this point, we note that Mr. Justice O’Connor’s report on the Walkerton Inquiry identified overzealous provincial deregulation, budget cuts and staffing reductions as major contributing factors that resulted in the deaths of seven persons (and serious illnesses in thousands of other residents) after drinking contaminated municipal tap water.

Significantly, the Clean Water Act was one of the statutes passed by the Ontario Legislature in response to Mr. Justice O’Connor’s recommendations, and the Act is intended to prevent the recurrence of the Walkerton Tragedy elsewhere in the province. Accordingly, we conclude that Bill 66’s attempt to constrain the application of the Clean Water Act does not represent sound public policy, and must be immediately withdrawn by the Ontario government.

CELA is extremely disappointed to see that the lessons from the Walkerton Tragedy are being discounted or ignored by the current Ontario government. We therefore anticipate working closely with our environmental, public health and social justice colleagues to vigorously oppose Bill 66 when the Legislature resumes sitting in February 2019.

Given the passage of Bill 57 to eliminate the independence of the Environmental Commissioner, and the introduction of Bill 66, yesterday was one of the worst days for environmental law in Ontario in decades. Moreover, Bill 66 represents an unprecedented and unacceptable attack on legislative provisions which currently safeguard environmental quality and public health and safety throughout Ontario.