Two Ontario cases in the last year decided that it’s not enough to meet MOE standards. One is Berendsen v. the Queen (see February 1). The other is Dawber v. Director, Ministry of the Environment.
In Dawber, Lafarge obtained MOE approval to burn waste tires as fuel in its cement kiln. Lafarge proved that the kiln’s air emissions would meet all of the MOE’s most current standards, including the up to date modelling software required by O.Reg. 419/05.
Neighbours of the site sought leave to appeal the approval under the Ontario Environmental Bill of Rights. To get leave, they had to show the Environmental Review Tribunal that “no reasonable person, having regard to the relevant law and.. government policies… could have” issued the approval and that the approval “could result in significant harm to the environment”. Lafarge and the MOE vigorously opposed the application. How could the approval result in significant harm, and be unreasonable, if the projected emissions would meet MOE’s specific benchmarks for such emissions?
Amazingly, the Tribunal granted leave. It was not enough, they ruled, for Lafarge to meet the air emission standards in O.Reg. 419/05. Why? Because the very concept and design of that regulation is not good enough to deliver the promises made in the MOE’s Statement of Environmental Values. In the SEV, the MOE promises to take “an ecosystem approach” and to “consider cumulative effects”. But the “Point of Impingement” approach that has always been taken in regulating Ontario air emissions does neither of these things. An “ecosystem approach”, the Tribunal says, would necessarily be based on cumulative ecosystem effects, rather than on individual emissions. “Facilities should be regulated as necessary to limit environmental effects to a consistent level across Ontario.” This result would be hard to achieve without statutory change. In the meantime, this decision makes it hard to predict what emissions will be approved.
Another striking feature of the decision was the Tribunal’s unusual treatment of uncertainty: “A precautionary approach presumes risk in the absence of proof to the contrary.” Lafarge would be the first Ontario cement facility to actually burn tires. Therefore, the ERT said, “the MOE is uncertain about the adverse effects of tire burning… and …the Directors [must] consider the incineration of tires to be as hazardous as it could possibly be”. If so, Ontario could become even more inhospitable to innovative technologies than it already is. Is it really for the best to just keep on doing things the way we are?
Lafarge has appealed.