Ecojustice Blog – Healthy communities Posted on April 8, 2020 (updated: June 24, 2020)

Warning: ‘disaster capitalism’

Randy ChristensenLawyer
environmental regulations
Chimney Smoke at Sunset by Anirudh Koul via Flickr CC-BY-NC-2.0

Update (June 24, 2020): We first wrote this blog in early April 2020.

Amid the COVID-19 crisis, we’ve witnessed governments suspend key environmental regulations. First, the Trump administration in the United States rolled back environmental oversight, then in April, the Alberta and Ontario governments followed suit.

Both Premier Kenney and Premier Ford introduced sweeping measures to weaken environmental reporting, more far-reaching and potentially riskier than what is unfolding in the United States. Under the new regulation, the provincial government did not have to notify Ontarians or give them the opportunity to weigh in on decisions that may have a significant effect on the environment, even if they were not related to COVID-19.

That’s why in May 2020, Ecojustice, acting on behalf of former Environmental Commissioner of Ontario Gordon Miller and the Canadian Association of Physicians for the Environment (CAPE), called for the Minister of Environment, Conservation and Parks Jeff Yurek, to review Ontario’s controversial decision to broadly limit public participation in environmental decision-making during the COVID-19 emergency, and beyond. 

In June 2020, the Ontario government announced that it would revoke the suspension of public participation in environmental matters in the province.

At the end of June 2020, Alberta announced that environmental reporting will be reinstated on July 15, following sustained criticism of their actions by environmental groups and several First Nations.  

Ecojustice will continue to monitor how both Alberta and Ontario, and all governments across Canada, uphold environmental laws that protect the health and security of Canadians.

 


As people stay home and frontline workers put their lives on the line during the COVID-19 crisis, some governments are rolling back environmental regulations

While most Canadians are coming together and making sacrifices to fight COVID-19, it is perhaps inevitable that some would try to exploit the situation for their own benefit.

It started, as perhaps many bad ideas do these days, with a policy of the Trump administration in the United States.

At the end of March, the Environmental Protection Agency (EPA) issued a directive outlining situations where laws requiring the monitoring and reporting of environmental pollution laws would not be enforced. It was such an egregious and unnecessary move that the head of EPA enforcement under the Obama administration called it “essentially a nationwide waiver of environmental rules for the indefinite future”.

Sadly, this idea is now spreading like a contagion.

Not to be outdone by Trump, the governments of Alberta and Ontario have now made moves that are more far-reaching and potentially riskier than what is unfolding in the United States.

The U.S. directive signaled to polluters that the EPA would exercise discretion not to enforce laws where complying with the law is “not reasonably practicable” because of COVID-19, but at least requires polluters to explain why that is.

Unfortunately, the Alberta’s order goes further and simply suspends the reporting otherwise required under licences and other instruments issued under the province’s primary environmental statute — the Environmental Protection and Enhancement Act — as well as the Water Act (excepting drinking water facilities) and the Public Lands Act.

There is seemingly no reasonable explanation for why Alberta is granting a blanket waiver of environmental reporting without regard to the specific impacts of COVID-19. What’s worse is that Alberta’s waiver applies to air pollution that harms human lungs — and lung disease significantly raises the odds of dying of COVID-19.  This risk is more than theoretical given that Alberta has also waived requirements of the immediate reporting of some exceedances of ambient air quality standards.

As some U.S. groups who are challenging the EPA order note, both COVID-19 and air pollution can have a disproportionate impact on our most vulnerable populations.

In Ontario, the Ford government has used the cover of the COVID-19 pandemic to pass a regulation that effectively suspends public consultation under Ontario’s Environmental Bill of Rights (EBR). This means that the Ontario government does not need to consult the public on laws, regulations, policies or projects,  no matter how “environmentally significant” they may be. It will likely remove public rights to appeal at least some proposed projects and permits.  Further, the government will not require its ministries to consider their own “Statements of Environmental Values” when making decisions that might significantly affect the environment.

Ontario’s regulation, like Alberta’s order, does not tailor its application to the impacts of COVID-19. It also comes on the heel of other sweeping changes to Ontario’s environmental laws, made before the COVID-19 outbreak, that have substantially reduced environmental protection, transparency and accountability in the province. Ontario’s order is particularly egregious as there are already provisions in the EBR that would allow the province to forgo consultation in an emergency on a case-by-case basis.

Ecojustice would not dispute that the COVID-19 crisis creates challenges for governments and industries across Canada, and as such, require flexibility.

However, there is no benefit — only considerable risk — to waiving environmental reporting outright and ending public consultations on proposals and projects that aren’t affected by COVID 19. If reporting is not feasible because of COVID-19, it can be waived later, on an appropriate case-by-case basis. Catch-up reporting should be required where possible.

All told, Alberta and Ontario appear to be buying into “disaster capitalism” — the exploitation of national crises to establish controversial and questionable policies.

One of the tenets of disaster capitalism is never to let a good crisis go to waste. What better time to push through regressive policy than when citizens are too distracted to engage, develop an adequate response, and resist effectively?

In the throes of this pandemic we’ve seen both Premier Kenney and Premier Ford step up and advocate for the health and wellbeing of people in their provinces. But these recent moves to weaken environmental reporting and standards pose, in effect, a different kind of public health threat.

It’s quite the disappointing turn of events. Now, more than ever, the interests of citizens and their health must take precedence over the concerns of polluters.

What now?

While the actions governments take during a global public health emergency are difficult to legally challenge, the Ecojustice team is monitoring the situation on the ground and across the country very closely and recalibrating our strategy accordingly.

You can count on us to do everything we can to ensure governments do not exploit the COVID-19 crisis to further harm the environment and public health.

How can I help?

Self-isolating at home? Here are three simple things you can do right now to contribute to Ecojustice’s mission while we all navigate these uncertain times:

 

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