Had you not been surfing Ontario waste industry Web sites you might have missed it - a quiet internal pronouncement by the province's landfill association claiming victory in the industry's fight to "fix" Ontario's Environmental Assessment Act. That's curious. Did the act need fixing? And in a way that favoured dump proponents? Do tell.
Turns out the country's largest landfill corporation, Waste Management of Canada - yes, the company with the "Think green' TV ads claiming to build playing fields over landfills - has been ensnared in a long battle with a wee rural township two hours east of Toronto.
At issue is the firm's plan to expand a local dump near Napanee, known as the Richmond Landfill - a disturbing prospect to local residents who've been fighting for years to stop it. It's a small-town story that hasn't really registered outside county lines. But the legal voyage of these citizens has put enviro planning across the province on a roller coaster ride, one that ended with an Appeal Court decision late last month that has environmentalists cringing.
At the crux of the battle is the right of the Ministry of the Environment to narrow the parameters of the landfill's Environmental Assessment (EA) - in essence allowing the company to skip over basic enviro questions around need and alternatives. As in, is this dump expansion really necessary? And are there better ways to deal with our trash? These are the kinds of questions that weren't asked at Richmond, and the very questions that a committee of nearby Tyendinaga residents and Mohawks of the Bay of Quinte insisted should not be bypassed.
In June of last year, a divisional court judge agreed with the citizens. It was a legal decision that called into question every other EA that had been "scoped," or limited in its mandate. And that meant effectively putting on hold virtually all EAs in progress across the province, freezing over 20 projects, from the expansion of Highways 407 and 427 to hazardous waste depots and 13 landfill projects.
It was a serious victory for eco-minded planners, considering that scoped environmental assessments have become the norm since the Tories decided to "reform" the act back in 96 (right around the time it was gutting the MOE's staff and budget). In fact, all but two EAs across Ontario since 1996 have been OKed, even the contentious Adams Mine landfill.
"The statutes were eviscerated by Premier Harris in order to save money and make it easier for dump companies to get permission from the Ministry of the Environment to fill holes in the ground with toxic waste," says Steve Geneja of the Tyendinaga Concerned Citizens Committee.
Ambiguous legalese pencilled into the act seems to have created the perfect little loophole - one the Canadian Environmental Law Association thought had been ironed out in divisional court back when they defended the Concerned Citizens last summer. But a few weeks ago, the Ontario Court of Appeal ruled in favour of Waste Management of Canada. The scoped EA stands.
And the eco movement that was banking on the precedent-setting case is smarting. "We're disappointed," says CELA lawyer Richard Lindgren. "A lot of us in the environmental community have no problem conceptually with the minister using the terms of reference to fine-tune the kinds of alternatives that should be looked at, but in our view the minister shouldn't be using that power to wholly exclude or jettison alternatives analysis."
Besides, adds Lindren, if we're going to get serious about the three Rs and new province-wide 60 per cent diversion targets, we should be making it harder, not easier, for landfills to get established.
Waste Management of Canada concedes that Ontario needs to consider more diversion and recycling efforts, but says developing additional homegrown landfill capacity is also imperative.
"We have a waste disposal capacity crisis in the province of Ontario. This solution of sending our waste to Michigan is obviously not sustainable," says company spokesperson Wes Muir.
But environmentalists question whether there actually is a landfill capacity crisis or if it's all just media-hyped hysteria. They point to numbers published by eco consultant groups Enviros RIS back in 1999 saying that the province actually has 29 years of dumping time left. Of course, five of those years banked on the now defunct Adams Mine. Subtract today's date and that leaves us with about 15 years.
Regardless of how much landfill space we have left, enviro planners agree that assessment of need and alternatives are fundamental pillars of the EA process that can't be sidestepped if it is to remain meaningful. The old process was slow and unclear, admits Philip Byer, professor of civil engineering and EA specialist at U of T's Institute of Environmental Studies. But, he adds, "the way it was amended, then administered was not the way to do it. With the Court of Appeal decision now, my concern is that the pressure is off the government to deal with it."
But the minister's office says an expert committee has already been formed to advise the minister on how to improve the EA process. In fact, spokesperson Will Hunter says, "The impetus for improving the EA process is our government's conviction that the focused EA process favoured by the Harris and Eves governments was wrong, as it ignored issues of broader importance." He swears his government intends to reverse this.
Still, not everyone trusts Environment Minister Leona Dombrowski on this issue. True, the Richmond dump is actually in her riding, and Dombrowski has spoken out against its expansion, but critics note she was slow to join anti-dump-expansion efforts, taking years to take a position on it.
And residents haven't forgotten the fact that while the minister did pull out of the Environment Ministry's appeal against the original court decision last June that froze up EAs across the province (an appeal launched by the previous Tory government), the attorney general took up the cause only days later, carrying out the appeal side by side with Canadian Waste Services. This after Premier McGuinty had campaigned in the riding on a promise that his government would withdraw the appeal. "That left a bad taste in the mouth of some residents," says Lindgren.
Not convinced that strong, positive EA reform can make it to the end zone on political will alone, the Citizens Committee and Mohawks of the Bay of Quinte are trying to bring their battle to the Supreme Court.
"This could be a huge fight," says Rhonda Hustler of the Warwick-Watford Landfill Committee, a community group granted intervenor status on the case, since they're facing exactly the same company and landfill expansion prospects as Richmond. "The waste industry is a huge, powerful lobby. It would be a considerable battle for the McGuinty government to take this on, and I'm not sure if they can demonstrate that kind of courage."