Challenging the federal government’s failure to designate the Bradford Bypass for an impact assessment

Program area – Healthy communities Status: In progress
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The Bradford Bypass is a proposed sixteen kilometre freeway located in Simcoe County and York Region in Ontario’s northern Greater Toronto Area. Environmental groups have raised concerns that the provincial government is pushing this project forward without adequately considering its adverse environmental, climate, community, and health impacts.

The UN's Intergovernmental Panel on Climate Change (IPCC) provided us a sober assessment of our planet's future. In the face of the rising climate crisis, there is no time for delay and no room for excuses. If we combine forces now, we can avert climate catastrophe – and in this fight, every bit counts. If this project moves forward, it will put more cars on the road; traffic on the Bypass would emit more than 86 million kilograms per year of carbon dioxide equivalent, leading to more carbon and air pollution and making it harder for us to meet national and provincial emissions reduction targets.

The highway will also have significant impacts on important habitats, wildlife, and watersheds in the province. The Bradford Bypass will cross and potentially contaminate the groundwater in the Holland Marsh, one of the most productive specialty crop agricultural areas in the country. The project will also lead to the removal of approximately 39 hectares of wildlife habitat and large areas of important wetlands.

Scrutiny of the project at the provincial level has been all but non-existent. Although the project underwent an environmental assessment (EA) in 1997, that assessment suffered from significant gaps and its conditions of approval required that those gaps be filled. The original assessment did not consider cumulative effects, climate change, air pollution, or detail the impacts on natural heritage, migratory birds, fisheries, and First Nations cultural heritage.

Despite these clear shortcomings, the Ontario government has exempted the Bradford Bypass from the conditions of the original 1997 EA and from a further, complete environmental assessment at the provincial level. In the process, the Ontario government has removed important opportunities for public consultation — just one instance of this government’s efforts to dismantle Ontario’s environmental legislation behind closed doors.

Ecojustice, on behalf Rescue Lake Simcoe Coalition and Simcoe County Greenbelt Coalition, first made a request to the federal Minister of the Environment and Climate Change that the highway project be designated for a federal assessment in February 2021. This request was denied.

A second request for a federal impact assessment, made in November 2021 by three community groups, highlighted changes to the provincial regulatory regime, growing public concerns, and mistakes in the Minister’s first assessment of environmental effects the project could cause to areas of federal jurisdiction (like migratory birds, climate change, air pollution, etc.). This request was also denied. It is this decision that we are now challenging in court.

Ecojustice is representing Rescue Lake Simcoe Coalition, Ontario Nature, Forbid Roads Over Green Spaces, Environmental Defence, Wilderness Committee, Wildlands League, and Earthroots in the lawsuit.

The groups say Minister Guilbeault’s choice not to designate the Bradford Bypass assessment under the Impact Assessment Act flies in the face of the federal government’s stated commitments to scientific integrity and meaningful public participation in impact. The decision also fails to reference the relevant criteria for designating a project of impact assessment under the Act, raising concerns about transparency and rule of law. The federal government can and must act as a backstop to ensure projects that may have federal environmental effects, like greenhouse gas emissions, including the Bradford Bypass, undergo meaningful environmental scrutiny before they are allowed to proceed.

The case was heard in Federal Court on November 2, 2022.

The Impact Assessment Act (IAA) allows the public to ask the Minister of the Environment and Climate Change to conduct a federal impact assessment even if one is not automatically required under the Act. This is known as a “designation request.” These requests can be made before the project has substantially begun and can happen any number of times. This is an important safety valve that gives local communities say in making sure that potentially harmful projects do not slip through the cracks, particularly when assessment at the provincial level is lacking (such as with the Bradford Bypass).

Rather than considering public concerns and the project's potential environmental effects, the Minister took a very narrow view of his power to trigger a federal impact assessment, citing a lack of material change to the project itself. If this decision is left unchallenged, it would weaken the designation request tool.

We are going to court to ensure that local communities across Canada can count on the federal government to step in to adequately scrutinize the potential long term environmental, community, and health consequences of large development projects when provincial governments fail to do so.

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