Jarvis Bike Lane Removal Exposes Serious Weaknesses in Municipal Class Approvals

October 12th, 2012 by Laura Bowman

The “Class EA” was introduced to the Ontario environmental assessment process shortly after the Ontario Environmental Assessment Act was passed, in 1976. The purpose of Class EAs was said to be to streamline approvals for undertakings that were similar in nature (i.e. belonging to the same ‘class’ of project) and that generally had predictable and easy to mitigate effects and therefore did not need full environmental assessments. Class assessments were immediately used for municipal infrastructure projects. Class EAs are an attempt to balance many competing policy factors including reducing the cost of municipal infrastructure, avoiding duplication with other municipal processes and the difficulty of predicting environmental effects on a class‑wide basis. However, strong pressures to exempt an ever growing array of projects from full environmental assessments have led to the growth of Class EAs, and Class EAs have come to dominate EA practices in Ontario by a wide margin.

The Municipal Class EA (MCEA) process was adopted in 1987 as a class approval in collaboration between the Ontario Ministry of the Environment (OMOE/Ministry), the Ministry of Municipal Affairs and Housing, and the Municipal Engineers Association. This process has expanded over time to include nearly all municipal infrastructure under Reg. 334. MCEAs are currently governed by a class approval under the Act.

The MCEA creates three broad classes of municipal infrastructure: A/A+ projects are pre‑approved and not subject to an assessment of environmental effects. These are typically projects related to maintenance and operational changes to existing infrastructure. Schedule B projects are larger projects, and projects where there is new infrastructure or changes in use or purpose to existing infrastructure with potential environmental effects, these require a streamlined consultation and assessment process.

At its discretion, a municipality can elevate a project to a schedule C (more complete) assessment, or a member of the public can request that the Minister elevate a project to a full assessment through a Part II Order. Each schedule in the MCEA sets out criteria for determining which schedule applies. The terms of the MCEA are published by the Municipal Engineers Association (which charges $50 to purchase it).

This leads us to the tale of the Jarvis Street bike lanes in Toronto, in which I acted for Cycle Toronto, a local advocacy organization. Jarvis Street was historically configured as a five lane road, with a central reversible lane. This was changed after an extensive EA process under the MCEA. For policy reasons (promoting active transportation, etc.) the addition of bike lanes is listed as an A+ project, but the removal of the central reversible lane, a change of purpose, was assessed as schedule C. In May 2009 Toronto City Council approved the EA. The bicycle lanes, which necessitated the removal of the central reversible traffic lane, were installed in July 2010. Numerous traffic studies showed benefits to the new configuration including enhanced safety for all road users (pedestrians, cyclists and motorists).

Due to allegations that the new configuration resulted in road delays, the City of Toronto now plans to convert Jarvis Street back to its previous configuration. The City of Toronto determined that the reinstatement of the old configuration, (a project to add the fifth lane and removing the bike lanes) was schedule A+ . This was puzzling because only the addition of bike lanes is exempted by schedule A+ and changing bike lanes to a fifth reversible lane appeared to be a change of purpose under multiple Schedule B listings. Since the 2009 project was schedule C, it logically follows that reversing the decision should be fully assessed. The City did not publish any tracking decision under the MCEA at first, and did not hold any public meetings or consultations on the issue.

Cycle Toronto noted that the five lane configuration used unsafe substandard lane widths, caused traffic bottlenecking at either end, and correlated with a high number of sideswipe, pedestrian and cycling accidents that had been improved according to city data by the reconfiguration to four lanes with bike lanes.  Cycle Toronto asked that the City conduct an environmental assessment earlier this year.

The City denied Cycle Toronto’s request stating that the project was in operational in nature and therefore A+. Unsatisfied with this response Cycle Toronto requested a Part II order from the Minister of the Environment. This request was recently denied on the basis that the City’s rationale was “reasonable”.  As for the application of statutory criteria for reviewing a Part II order request, set out in s.16(4) of the EAA, the Minister did not provide any rationale in his response.

Reasonableness, rather than correctness, appears to be becoming entrenched as the standard for assessing compliance with the MCEA at the municipal level. In the case of William Ashley China Ltd v. Toronto (City) (Ashley). The business and a group of cycling advocates challenged the designation of a sidewalk renewal and expansion that was assessed as Schedule A by the City of Toronto, arguing that it was properly Schedule B. The Divisional Court held that it could assess the tracking decision on a standard of reasonableness and upheld the arguably incorrect designation of the project.

In addition to the poor prospects for judicial review of most MCEA decisions, the prospects for a Part II Order request are also poor. A 2010 report by the construction industry showed that of 99 B and C projects about 20% were subject to requests for a full EA and all of those requests were denied by the Ministry. This shows that the threshold for a reasonable tracking decision at the Ministry and the Divisional Court is extremely deferential, leaving the MCEA process vulnerable to inconsistent application. These problems have been outlined by the Environmental Commissioner of Ontario in a 2007/2008 report.

The MCEA is a class approval and is subject to the prohibition on non-compliance with the conditions of the approval under the Act. Yet, there are no cases I am aware of where the Ministry has prosecuted a municipality (or any class EA holder for that matter) for not complying with its class approval. In the municipal context, this means that although municipal projects are subject to the requirements of both the Act and their approvals on paper, in practice compliance is treated as voluntary and subject to deference.

When making a decision whether or not to comply with the correct schedule in the MCEA, should the municipality be subject to so much deference? In my view it should not. It is established that the breach of an approval is a provincial regulatory offence, and at least one class approval holder has been privately prosecuted for a breach of the class approval process. Without real regulatory oversight however, the costly MCEA process lacks internal consistency, measurable outcomes, and regulatory teeth.

There is no literature from any sector demonstrating benefits to the MCEA process as it currently exists. The consultations on the removal of the fifth reversible lane on Jarvis St. in Toronto were very extensive through the Schedule C process and resulted in major design changes from a wider sidewalk to the use of bike lanes to improve the street-scape. In my view, the benefits from this process are negated if it is reversed through an A+ “pre‑approval”.

Some Schedule B and C assessments may well create public benefits and result in material project improvements. However, in my opinion, there is little logic to having a class EA process if the MCEA requirements are at times ignored, and are not enforced. Reliance on a privately controlled set of approval conditions that are not freely accessible to the public also runs counter to the underpinnings of the environmental assessment process, which should promote public participation. There is also no clear logic to having a Part II Order request process for class EAs if those projects that get enough public attention and engagement to be subject to them are never, or rarely required to conduct an assessment.

Cycle Toronto also made two other Part II Order requests related to John St., and Front Street road modifications that were unfavorable to cycling. The Front Street one was also denied and as yet there is no decision on John St. from the Minister. Cycle Toronto deserved better when they brought their serious safety and compliance concerns about Jarvis Street to the City and to the Minister. The legislature’s decision to make class approvals enforceable under the Act should be respected in a parliamentary democracy with responsible government. In other words, reasonableness is not the appropriate standard for compliance with the MCEA because environmental approvals should not be discretionary and are subject to due diligence requirements. There is no reason the MCEA or other class EA approvals should be different. The management of significant adverse environmental effects from municipal infrastructure should be consistent, rational and cost-effective. It should not blow around in the administrative and political wind of local governance through a complex, inaccessible and inconsistently applied approval system.

To allow it to do so undermines public confidence, raises costs and subjects developers, municipalities and the public to a regime that is arguably very politicized. Instead, it should strive for enforceable, clear, objective, justifiable standards embedded within it and the Ministry and the courts must be willing to police it when necessary.

Filed in: Environment, Municipal/Planning Law

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