The Rural Voice, 2003-12, Page 62Agrilaw
Landfill expansion - the public interest
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul G. Vogel
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 Minister of the
Our versatile Drag Hose
System has 3 forms of Application:
' Injection System
r Low Boom Top Spread
* Aerway System
Accurate Manure A ►
'�IIII� CUSTOM
tai MANURE INC.
R.R. # 2, Zurich, Ontario
NOM 2T0
58 THE RURAL VOICE
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.0
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,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column, readers should obtain
legal advice with respect to their own
particular circumstances and
geographical area.