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Permit-by-rule: It's all about the design, says Environmental Commissioner of Ontario

by Mark Sabourin
EcoLog, 10/27/2017 1:28:00 PM

The introduction of a permit-by-rule system in the Ministry of the Environment and Climate Change (MOECC) has greatly improved environmental protection of Ontarians, according to Environmental Commissioner of Ontario Dianne Saxe. But, she says, a very similar change at the Ministry of Natural Resources and Forestry (MNRF) has had the opposite effect on Ontario’s species at risk.

Two chapters in the 2017 Environmental Protection Report from the Environmental Commissioner — “Good Choices, Bad Choices: Environmental Rights and Environmental Protection in Ontario” — look at MOECC’s Environmental Activity and Sector Registry and the MNRF’s streamlined permitting system under the Endangered Species Act, 2007. In both instances, one of the objectives behind the change was to reduce the regulatory burden on lower-risk activities.

With the MOECC, it meant that staff was now free to develop standards for lower-risk activities, and that has given rise to higher capture and compliance, and greater environmental protection. With the MNRF, standards are rife with exemptions, enforcement is weak, and species that are intended to be protected under the Endangered Species Act, 2007 are likely to be paying a price under it.

The 2011 launch of the Environmental Activity and Sector Registry allowed the MOECC to confine its onerous approvals process to activities that presented unique environmental challenges or risks. Conventional industries that carried known and manageable risks no longer needed to obtain a Certificate of Approval. Their obligation was merely to register with the MOECC and adhere to generic regulations written with the input of the industries and interested parties. Rogue operators that might have tried to avoid the old, burdensome system were more likely to operate above the law. MOECC staff freed of the approval burden could turn their attention to the development of generic regulations, capturing more and more industry sectors.

The Environmental Activity and Sector Registry has levelled the regulatory playing field for industries in competition with each other, according to Saxe. They all face identical regulatory requirements. Enforcement is systematic and consistent, and compliance issues are found most often with new entrants to the registry. This suggests that education, not aggressive enforcement, is the greatest need.

The report tells a different tale about the modernization of approvals under the Endangered Species Act, 2007. There, according to the Environmental Commissioner, a “good law that has the potential to protect and recover species at risk” has been ineffectively implemented, reducing “what should have been a robust system for protecting species at risk to what is largely a paper exercise.”

The MNRF doesn’t share that view. In its response to the Environmental Commissioner’s scathing appraisal of its efforts, it says the protections afforded species at risk were not reduced by regulatory streamlining. It argues that only the process was made more efficient, and that permitted activities require proponents to put in place appropriate protections for affected species.

But in the Environmental Commissioner’s view, the streamlined process now allows many harmful activities to take place provided proponents minimize harm, rather than eliminate or compensate for it, as was formerly required. Not only are standards weak, so is enforcement, she argues.

Tellingly, according to the report, “[t]he MNRF has never denied an [Endangered Species Act, 2007] permit to any applicant.”

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