Intervenor: Vol 25. No 3 & 4 July-December 2000

The top 10 things wrong with environmental protection under the Common Sense Revolution

The first four years of the "Common Sense Revolution," (the all-inclusive name for the policies and actions of the Ontario provincial conservative government), saw radical changes to Ontario's environmental protection framework. Government actions during those years (1995-1999) can be described as the "Three D's": Deregulation, De-funding and Devolution. The government radically cut back on the reach and impact of environmental laws (particularly environmental assessment laws and enforcement activities), cut the staff and budgets of the Ministries of the Environment (MOE) and Natural Resources (MNR), and handed down to municipalities, and to private industries, responsibilities for environmental protection.

It is difficult to adequately describe the negative consequences of these cuts, the risks they have created and the damage they have done. Every year since the advent of the Common Sense Revolution, the Canadian Institute for Environmental Law and Policy (CIELAP) has issued a report detailing the cuts and their consequences. The following list summarizes the highlights of this year's report.

No. 1
Cuts have crippled the Ministry of the Environment, Conservation Authorities and the Ministry of Natural Resources.

Since the advent of the Common Sense Revolution, MOE budgets have been cut by about 60 percent. The May 2000 budget continued the trend. In 1994, the ministry had an operating budget of almost $400 million and a capital budget of more than $150 million. For 2000-1, the Ontario budget shows $158 million for operations and $65 million for capital expenditures. Budget cuts to the MNR are significant. In the budget plan 2000-01, capital expenditures for the MNR are $376 million, a decrease of $82 million or 18 percent from the $458 million in the interim 1999-2000 budget. Staff at the MNR has been cut almost in half from 6,639 in 1995 to 3,380 in 2000. Many conservation authorities have been forced to delay and scale back programs because of limited funding and staff. Conservation authority staffing is at 50-75 percent of levels before the provincial reduction in operating grants in 1995.

No. 2
Common Sense Revolution loads municipalities with environmental responsibilities and then ties their Hands.

The Common Sense Revolution has transferred to municipalities a long list of responsibilities to manage with few resources. In 1995, the province cut funding for municipal curbside recycling and household hazardous waste collection. In May 1997, the province withdrew funding for municipal sewer and water infrastructure and public transit. The Common Sense Revolution has also severely restricted the power of municipalities to manage environmental problems caused by factory farms and development pressures.

In 1998, the provincial government enacted legal protection to large-scale industrial livestock facilities with the Farming and Food Production Protection Act. The Act gives these facilities the right to appeal municipal by-laws aimed at controlling the environmental and health effects of their operations.

No. 3
The Common Sense Revolution thinks environmental protection is red tape.

Deregulation-or cutting "red tape"-has been a major component of the Common Sense Revolution. Environmental "red tape" cuts include air and water quality monitoring systems, environmental assessment hearings, environmental inspections, provincial oversight of risky undertakings such as mining, and municipal controls on developers. The first four years of the Common Sense Revolution accomplished most of the major cuts to environmental protection. Between July 1999 and June 2000, Bill 11 made some more small cuts to a few environmental laws. The province also cut the last of its acid rain monitoring program (total savings of this cut to the taxpayer: $100,000, an amount less than six percent of the $1.6 million annual budget of the Red Tape Commission).

No. 4
New laws and regulations are not enough to protect the environment.

Between July 1999 and June 2000, the province's attempts to put environmental protection laws in place paled in the face of other provincial policies. Some of the measures are so weak they will not accomplish the province's stated goals.

For example, in January 2000, the province took the positive step of listing two more species-the king rail and the prothonotary warbler-under the Endangered Species Act. This is small progress, however, when compared with provincial policies under Ontario's Living Legacy Strategy announced in July 1999. Almost 400 new "protected" areas will be created under the strategy, but, where mineral deposits warrant, mining will be permitted as well. It is also an open question whether sport hunting will be permitted in Ontario's new "protected" areas.

Beginning in January 2001, the government will introduce caps for NOx and SO2 emissions for the province's electricity sector. The limits would cap total annual emissions from coal and oil-fired electricity generating stations in Ontario but these limits permit much higher emissions than recommended by the Ontario Medical Association and by the post-2000 acid rain control program of the Canadian Council of Ministers of the Environment. Moreover, they do not include thermal or radiation emissions, which are a serious issue with Ontario's nuclear power plants.

The province took action in May 1999 to restrict bulk water exports from the Great Lakes, a long overdue protection measure. However, it also maintained its practice of permitting massive withdrawals of groundwater, free, to practically any applicant. Late in 1999, the province suggested it had placed a "moratorium" on issuing new permits to take water but this proved not to be true.

Probably the best example of an environmental initiative that is cancelled out by other provincial policies is Drive Clean, the program that requires drivers to emission-test their cars before they can renew their driver's license. The program was initially limited to the Greater Toronto Area and the Region of Hamilton-Wentworth and extended to heavy trucks and buses in the fall of 1999. The province claims Drive Clean is a success. However, in terms of improving overall air quality, Drive Clean hardly has a chance. Provincial land-use policies that support and subsidize urban sprawl, transportation policies that focus on highways and ignore public transit and 100 percent funding cuts to municipal transit systems mean there are more cars on the road than ever before. More cars equals more emissions, not cleaner air.

No. 5
Government's focus on enforcement is ineffective, inefficient, and expensive.

Enforcement of environmental laws in Ontario dropped sharply after 1995 when the Common Sense Revolution began. Criticized for its poor performance by the Environmental Commissioner, CIELAP and other members of the environmental community, the provincial government apparently increased enforcement activity in 1999.

However, enforcement is only one part of an environmental protection regime. It imposes the cost of environmental protection almost entirely on the taxpayer and is much less effective in the end than preventive activities such as environmental assessment.

The province's record on prevention did not appreciably improve over 1999/2000. The province did refuse Trans-Cycle Industry's application to accept PCB contaminated waste from outside Canada, but also approved with "unseemly haste" another PCB incineration facility in Cornwall. There has not been an environmental assessment hearing in the Province of Ontario since 1998. The Environmental Assessment and Appeal Board's greatest concern appears only to be that its decisions are made quickly. Performance measures for the Assessment Branch to follow up on and evaluate compliance with environmental assessments are poorly defined and still only under development.

No. 6
"Protected" areas are not.

The provincial government established the "Lands for Life" process in April 1997 to determine the future uses of public lands in Central and Northern Ontario, an area totalling 47 percent of the province's land area. The government said it would protect 12 percent of the lands in the planning area from development. But it also guaranteed the forestry and mining industries access to resources, some of which are within the boundaries of the so-called protected areas. In the case of mining, mineral tenure in new parks and protected areas will be maintained, and prospecting and exploration permitted.

For the forestry industry, the government has committed to no long-term reduction in wood supply, no increases in the costs of the wood supply, potential exemptions for the biodiversity protection provisions of the Crown Forest Sustainability Act in areas of intensive silviculture, the opening of the region north of the 51st parallel to logging activities, and millions of dollars in new subsidies and compensation to the forest industry. Lands for Life agreements mean that expansion of parks and protected areas in Ontario will require the agreement of the forestry and mining industries. Commercial fur harvesting and sport hunting and fishing will be permitted in most new protected areas, and consideration has been given to the expansion of hunting in existing parks.

In July 1999, the province announced the implementation of the Living Legacy Land-Use Strategy. As proof that the province meant what it said when it committed to protect mineral tenure, an aggregate (gravel) company from Thornhill is cutting and removing blocks of granite from the Mellon Lake Conservation Reserve under a permit issued March 23, 2000 by the Ministry of Northern Development and Mines. The company is also seeking approval under the Aggregate Resources Act to go into full production on the site. With its permit, the company will remove stone in 20-tonne blocks to be shipped to Europe for processing. All of this, in an area newly designated under the Living Legacy Strategy as a "conservation reserve."

No. 7
The Government refuses to act when it should to protect the environment.

Throughout 1999-2000, repeated requests were made to the provincial government to protect the Oak Ridges Moraine from development. In February 2000, conservation groups presented a petition to the province signed by 465 scientists urging a moratorium on development on the moraine. City and regional councils voted against approval of development applications on the moraine pending a provincial strategy. Five regional governments asked the province to work with them on a coordinated policy on development that would protect the Oak Ridges Moraine. The City of Toronto and a group of environmental organizations both requested a review under the Environmental Bill of Rights (EBR) of provincial law and policy pertaining to the moraine.

The province never met with the regional governments to discuss their proposed coordinated policy. In response to the requests for review under the EBR, the Ministers of the Environment, Municipal Affairs and Natural Resources stated that current guidelines, policies and legislation were sufficient to protect the moraine and that a further review was not warranted.

In January 2000, the Ontario Ministry of Agriculture, Food and Rural Affairs initiated a consultation on intensive agricultural operations and "nutrient" (manure) management in rural Ontario. The consultation included a discussion paper on intensive agricultural operations that reveals a strong presumption against any kind of regulatory protection from the emissions of factory farms. The discussion paper states "by-laws and regulations which unduly restrict the ability of agriculture to evolve, or establish unrealistic financial impediments are likely to contribute to an unhealthy and potentially unsustainable agricultural sector." This consultation began after the province granted protection to large-scale industrial livestock facilities with the Farming and Food Production Protection Act, in May 1998. The Act gives these facilities the right to appeal municipal by-laws aimed at controlling environmental and health effects of their operations.

The province was, therefore, prepared to pass a new statute to protect factory farms from municipal by-laws, but is reluctant to even consider a regulation to protect the environment and human health from the farm emissions.

No. 8
Industry self-regulation and self-monitoring increase the risk of environmental damage.

Industry self-regulation has been a dominant theme within the Common Sense Revolution. In May, 2000, the provincial government changed regulations to the Mining Act that both follow this theme and pose potentially great risks to the health of the environment and to the public purse. The changes apply to plans to ensure safe and environmentally sound mine closure and to "financial assurance" requirements that ensure public funds are not required to clean up a mess left behind by a private mining company. The new provisions propose more or less to eliminate governmental oversight of closure plans, and to radically reduce financial assurance requirements. Specifically, the amendments include the option of demonstrating financial capacity to safely close and decommission a mine site with a "corporate financial test".

The corporate financial test does not adequately protect against the eventuality that, further along in the mine's operations, the company may not be as financially able either through falling mineral markets or a corporate restructuring. Mining is a risky business, subject to the fluctuations of the global commodities market. The "corporate financial test" does not take these risks adequately into account.

The problem with these amendments is the same as the problem with other "reduced regulatory burdens" on other potentially hazardous or destructive undertakings (such as hazardous waste management) in the province: they provide an insufficient failsafe. The Common Sense Revolution appears not to believe in Murphy's Law (if something can go wrong, it will), or, possibly more accurately, is wilfully blind to it. "Reducing the regulatory burden" in many cases-and most especially the case with the amendments to the mining regulations-reduces the margin for error to practically zero.

No. 9
Common Sense Revolution protects game animals and commercial fisheries, not biodiversity.

Fish and wildlife regulations, policies and strategies developed during the report period all reveal a ruling preoccupation within the Common Sense Revolution. What is called "wildlife" is in fact only game. "Fish" are treated the same way: the term means fisheries. If an animal can be caught on a hook or shot with a gun (or crossbow) then it falls within the purview of the regulatory regime. The only other animals included in regulatory activity over the past year were two birds listed on the Endangered Species Act. Late in 1999, the province considered the conundrum of maintaining the commercial fisheries in the Great Lakes but at the cost of restoring the lakes' native fish populations. The commercial fishery prevailed. The province "restored" elk populations to Ontario for hunting, announced the success of the wild turkey population restoration, and expanded the hunting season.

In May 2000, the Ministry of Natural Resources issued Beyond 2000, a "strategic directions document" that describes the "desired outcomes" of MNR management activities. In its overall tone and message, Beyond 2000 places too great an emphasis on management and consumption of natural resources, and insufficient emphasis on the protection and conservation of natural systems. The policy pays little attention to the issues of maintaining biological diversity and maintaining and restoring the diversity and function of natural habitat. The approach to wildlife is overwhelmingly focused on management and use, rather than on protection of habitat and supporting natural systems, and maintaining healthy populations. The fact that the document does not mention the protection of biodiversity as a "desired outcome," is a great cause for concern.

No. 10 The Revolution fumbles national and international environmental protection initiatives.

In March 2000, Ontario emerged as the "major obstacle to a federal-provincial agreement on climate change" at a meeting in Vancouver. The negotiations finally failed on March 28. Under the Framework Convention on Climate Change, Canada agreed to cut emissions by 6 percent from 1990 levels by 2010. The contribution by Ontario's Minister of the Environment Dan Newman to the discussion in Vancouver was to question the desirability of meeting the Kyoto target.

Canada and Ontario share responsibility to restore, protect and sustain the Great Lakes ecosystem. Since 1974, they have maintained a Canada-Ontario Agreement (COA) that sets out their shared responsibility and describes priorities and programs to protect the lakes. In March 2000, the existing COA expired. The provincial government's commitment to renew the COA agreement is uncertain. In its 2000-01 business plan, the MOE states, "we are committed to continuing efforts with the Federal Government and other partners to address environmental challenges in the Great Lakes Basin" but makes no specific commitment about the COA. In June 2000, three months after the expiry of the COA, uneasy negotiations between the two governments began. For example, both governments have undertaken consultations regarding the agreement, but not together.

Ontario stands by a "blame the US" strategy regarding transboundary air pollution. This stance has made it difficult if not impossible to successfully negotiate with the US on cooperative action to clean the air. At the 1999 Great Lakes governor and premiers meeting in Cleveland, Premier Mike Harris "reinforced Ontario's opinion that several Great Lakes states have to do more to reduce emissions."

During the summer months of 2000, Ontario's "get tough" strategy incited similar tactics from the other side of the border. On July 5, 2000, New York Attorney General Eliot Spitzer wrote to US Secretary of State Madeline Albright to urge her to "pressure Canadian officials into pollution concessions at an upcoming Canada-US Annex Agreement meeting." In fact, "getting tough" appears to equal "achieve nothing." Talking tough gives rise only to retaliatory accusations instead of meaningful cooperation that actually helps clean the air.

Karen Clark, Legal Analyst, Canadian Institute for Environmental Law and Policy
As compiled by the Canadian Institute for Environmental Law and Policy in its report Ontario's Environment and the Common Sense Revolution: A Fifth Year Report.