December 2003

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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Landfill expansions may cause concern for neighbouring landowners with respect to the impact of leachate on both ground and surface water and possible adverse effects on agricultural operations. What is the obligation upon a company proposing such a landfill expansion to include in the environmental assessment both the need for the expansion from a public interest perspective and alternatives to satisfying that need?

An Ontario appellate court recently reviewed a decision of the provincial Minster of the Environment approving terms of reference for the environmental assessment of a proposed landfill expansion in which the proponent specifically stated that it would not address alternatives to the proposed expansion. Both the Minister and the proponent relied upon amendments to Ontario’s Environmental Assessment Act (EAA) which provide that the Minister may approve terms of reference which permit an environmental assessment to consist of information “other than” prescribed requirements which include a description of the rationale for the undertaking, alternative methods of carrying out the undertaking and alternatives to the undertaking. In interpreting the meaning to be given to the statutory amendment, the Court stated:

“…if ‘other’ means ‘in addition to’ then the proponent of an undertaking would be required to include in an EA all the components listed…In that case, when approving the (terms of reference) the Minister ‘may’, in addition, seek ‘other’ information. If, on the other hand, ‘other’ means ‘different from’ then a proponent, at its own option and discretion, may be relieved from fulfilling the historical requirements for an EA and simply ‘design its own’.”

The Court decided that the meaning of the amendment of the EAA was ambiguous and that it should be interpreted in a manner that promotes its legislative purpose while at the same time consistent with its legislative text. In quashing the decision of the Minister approving terms of reference which would have permitted the environmental assessment to proceed without consideration of the public interest or alternatives to the expansion, the Court held:

“The purpose of the legislation…includes the betterment of Ontarians by wise management of the environment. This purpose seems to focus on the betterment of the individual and not the betterment of a corporate proponent. In addition to purpose, the Minister is obliged to consider the public interest. The specific requirement to consider public interest suggests an interpretation that favours public over private interests. The concept of ‘wise management’ and a broad definition of ‘environment’ both lend support to the concept that a project would not be approved that did not address a public, as opposed to a private, need or rationale.”

The Court specifically rejected the Ministry’s position which favoured “an approach that provides a proponent with a streamlined mechanism for obtaining government approval”. Whatever “other” information proponents of landfill expansions may provide in connection with obtaining approval of terms of reference for their environmental assessment, proponents must include in their terms of reference provision for consideration of need for the expansion from the perspective of public interest and both alternative methods of carrying out the expansion and alternatives to the expansion.