Canadian Transit Company v. Canada (Transport)

Canadian Transit Company v. Canada (Transport)
Court (s) Database
Federal Court Decisions
Date
2011-05-04
Neutral citation
2011 FC 515
File numbers
T-2189-09, T-2192-09
Decision Content
Federal Court
Cour fédérale
Date: 20110504
Dockets: T-2189-09
T-2192-09
Citation: 2011 FC 515
Ottawa
,
Ontario
, May 4, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
Docket: T-2189-09
THE CANADIAN TRANSIT COMPANY
Applicant
and
MINISTER OF TRANSPORT, MINISTER OF FISHERIES AND OCEANS, MINISTER OF THE ENVIRONMENT,
WINDSOR PORT AUTHORITY, AND HER MAJESTY THE QUEEN IN RIGHT OF
ONTARIO
Respondents
Docket: T-2192-09
SIERRA CLUB OF
CANADA
Applicant
and
THE ATTORNEY GENERAL OF
CANADA and THE MINISTER OF FISHERIES AND OCEANS, THE MINISTER OF TRANSPORT, THE MINISTER OF THE ENVIRONMENT,
WINDSOR PORT AUTHORITY, and HER MAJESTEY THE QUEEN IN RIGHT OF
ONTARIO
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
TABLE OF CONTENTS
Paragraph Number
OVERVIEW OF THE COURT’S CONCLUSIONS......................................................... [3]
FACTS............................................................................................................................ [11]
ISSUES............................................................................................................................ [81]
STANDARD OF REVIEW.............................................................................................. [83]
RELEVANT LEGISLATION.......................................................................................... [87]
ANALYSIS
CTC Issue No.1:
Was the decision biased and pre-determined because Transport
Canada
opposed the option of building a twin or new span for the
Ambassador
Bridge
based on “governance” concerns?......................................................................... [88]
CTC Issue No. 2:
Did the Responsible Authorities err in relying upon the “need” for the new bridge
project analysis undertaken by the Ontario Minister of Transport in 2005, and did
the Responsible Authorities err in not performing another needs analysis based on
updated traffic information showing a significant decline in traffic crossing the
bridge since 2000?.............................................................................................. [109]
CTC Issue No. 3:
Did the Responsible Authorities breach the Federal Act by purchasing land for
$34 million before the new bridge project was environmentally assessed under
the Federal Act?................................................................................................. [128]
Sierra Club Issue No. 4:
Ought the decision be quashed on the basis of a breach of the precautionary
principle, a failure to consider the best available information, errors on the
record, or because it was unreasonable with regard to its findings regarding
species at risk?.................................................................................................... [152]
Sierra Club Issue No. 5:
Are the Responsible Authorities required to further assess the new bridge project
since its footprint was expanded?......................................................................... [218]
JUDGMENT........................................................................................................... [Page 83]
APPENDIX 1: RELEVANT LEGISLATION............................................................... [227]
[1] These two applications for judicial review are to set aside an environmental assessment decision dated December 3, 2009, with respect to a proposed new bridge called the Detroit River International Crossing Project (the new bridge). The Canadian Minister of Transport, Minister of Fisheries and Oceans, and the Windsor Port Authority made the decision pursuant to section 20 of the Canadian Environmental Assessment Act, S.C. 1993, c.37 (the Act or CEAA).
[2] The decision is that the proposed new bridge crossing the
Detroit
River between
Windsor ,
Ontario and
Detroit ,
Michigan
“would not cause significant adverse environmental effects”. The effect of the decision is to provide Canadian Federal Government environmental assessment approval for the construction of the new bridge and accompanying infrastructure on conditions set out in the decision.
OVERVIEW OF THE COURT’S CONCLUSIONS
[3] The Court concludes, after four days of hearings and considering thousands of pages of evidence, that both applications are without any merit and must be dismissed. The applications have caused a delay in this project. The two applications relied upon the following five issues or bases:
First Issue – Allegation that Transport Canada was biased against allowing the Canadian Transit Company (CTC) to build a second span to the
Ambassador
Bridge
[4] The governments of the
United States ,
Canada ,
Michigan , and
Ontario created a Partnership, which decided that a new bridge crossing between
Detroit and
Windsor
was necessary for the future. The evidence is that two of the partners, the Ontario Ministry of Transport and the Michigan Department of Transport, made the decision about the best alternative location for the proposed new bridge. While Transport
Canada contended that the new bridge ought to be publicly owned, the evidence clearly shows that this was not a factor, influence, or criteria for the decision to eliminate the alternative of the CTC building a second span for the
Ambassador
Bridge
.
Ontario decided that the new bridge should be at a different location than the
Ambassador
Bridge
for the following four reasons (which the Court paraphrases):
The transportation needs of the Windsor-Detroit corridor represent a vital part of the economy for both
Canada and the
United States
. It is prudent that a second bridge be constructed to relieve any congestion or obstruction which might arise on the existing
Ambassador
Bridge
. For example, if a terrorist or some other event or mishap affected the
Ambassador
Bridge
, the current $146 billion worth of trade which annually crosses this border area would be jeopardized. (The Court finds that it was reasonable that a second bridge at a different location than the
Ambassador
Bridge
was necessary for this vital Windsor-Detroit transportation corridor);
Expansion of the existing
Ambassador
Bridge
with a second span would require a much larger customs and inspection plaza. This would disrupt and displace the historic community of Sandwich, which is adjacent to
Windsor
. The Court finds it reasonable that a new bridge ought be located so that it minimizes the impact on existing communities.
Building a second span for the existing
Ambassador
Bridge would also require the expansion of the existing
Windsor local roads leading to the
Ambassador
Bridge
. These roads would need be converted into a dedicated freeway. This would have a serious impact on the community of
Windsor since the existing roads leading to the
Ambassador
Bridge are essential for local
Windsor
traffic; and
If a second span were added to the
Ambassador
Bridge , the existing
Windsor
roadways leading to the Bridge would be under construction for a period of time which would disrupt international truck and auto traffic using this vital border crossing during construction.
These four reasons for eliminating the option of building a second span for the
Ambassador
Bridge
did not relate to whether the new bridge was publicly or privately owned. Accordingly, an informed person viewing the matter realistically would not have a reasonable apprehension of bias regarding the decision of the Partnership against the option of building a second span for the
Ambassador
Bridge
. This option was simply not reasonably open to the decision-makers from the
Ontario
perspective.
Second Issue – “Needs Analysis”
[5] The Sierra Club and CTC alleged that the Canadian federal authorities erred in relying upon the “Needs Analysis” for the new bridge undertaken by
Ontario in 2005, and erred in not performing an updated “Needs Analysis” based upon the updated traffic volume statistics which show a significant decline in traffic crossing the
Ambassador
Bridge
. This decline is due to the current recession, amongst other reasons. The Court finds that under CEAA, the federal Responsible Authorities are entitled to rely upon the “Needs Analysis” done by Ontario as part of its environmental assessment for this project, and that it was reasonably open for the federal Responsible Authorities to conclude that the decline in traffic does not affect the long-term traffic projections upon which the “need” for the second bridge was based. Moreover, a second bridge is needed as an alternative crossing in case the
Ambassador
Bridge
becomes incapacitated.
Third Issue – $34 million land purchase before environmental assessment
[6] Transport
Canada purchased land from the City of
Windsor
for $34 million in anticipation of the new bridge project but prior to the environmental assessment decision under CEAA. The CTC submits that this land purchase breached the Act, which requires an environmental assessment decision before a federal authority does any act that commits the federal authority to carrying out the project. The Court finds that the purchase of land does not commit the federal authority to carrying out the project. The land can always be sold if the project is not approved. A $34 million land purchase with respect to a multi-billion dollar project is not a commitment in breach of CEAA.
Fourth Issue – Mitigation Measures
[7] The Sierra Club alleges that the federal Responsible Authorities breached the “precautionary principle” under CEAA by failing to specify feasible means of mitigating adverse environmental effects during the construction of the new road upon the following three endangered species:
the
Butler
’s Garter Snake;
the
Carolina
population of the Eastern Fox Snake;
the Colicroot plant.
After an extensive review of the evidence, the Court is satisfied that the federal Screening Report adequately specifies general mitigation measures for these endangered species and reasonably relies upon a Permit to be issued by the Ontario Ministry of Natural Resources under the Ontario Endangered Species Act. This Permit was issued by the time of the Court hearing, and consists of 46 pages plus 10 detailed Appendices which specify mitigation measures for the endangered species.
[8] The Sierra Club’s questions about the reasonableness of this Permit are subject to review before the
Ontario Divisional Court
in May 2011. The Court finds as a matter of law that the federal Responsible Authorities are entitled under CEAA to rely upon provincial mitigation measures. Moreover, the jurisprudence under CEAA recognizes that the details of mitigation measures often have to be developed as the project unfolds after the Screening Report.
[9] The Sierra Club also criticizes the mitigation measures proposed for migratory birds, which are not an endangered species. The Court finds that the general mitigation measures in the Screening Report for migratory birds were a reasonable basis upon which to conclude that there will not be any significant adverse environmental affects to migratory birds. The mitigation measures for migratory birds set out in the Screening Report are lights of specific colours, specific intensity, and specific wavelengths, which have been shown to effectively mitigate bird collisions. The specific location and colour of each light cannot be specified until the bridge design is finalized.
Fifth Issue – Expanded Footprint
[10] Sierra Club alleges that the federal Responsible Authorities erred in not further assessing the new bridge project after its footprint was expanded by an additional 100 metre buffer zone along the road being constructed by
Ontario
. This buffer zone was purchased by the
Province of
Ontario
for homes on the route. This is a separate project undertaken by the Ontario Government after the decision under review. These lands were not required for the new bridge project and will only be acquired by
Ontario
from property owners who do not wish to remain in the vicinity of the new road leading to the bridge. Accordingly, this issue is not a basis for setting aside the decision under review.
FACTS
The parties
[11] The applicant Canadian Transit Company (CTC) is a private corporation that owns and operates the Canadian half of the
Ambassador
Bridge
. CTC’s parent
U.S. company owns and operates the
U.S. half of the
Ambassador
Bridge
. The
Ambassador
Bridge is the existing bridge which spans the
Detroit
River between
Windsor ,
Ontario and
Detroit ,
Michigan
. The
Ambassador
Bridge
has been privately owned since it was built in 1929.
[12] The applicant Sierra Club of Canada is a federally incorporated non-profit, and has been active in environmental issues in
Canada
since 1963.
[13] The respondent Minister of Transport is named as representative of Transport
Canada
. As a co-proponent of the new bridge (see “Partnership,” below), Transport
Canada
had a responsibility for ensuring that an environmental assessment was conducted.
[14] The respondent Minister of Fisheries and Oceans is named as representative of Fisheries and Oceans Canada. As the entity responsible for providing regulatory approval under the Fisheries Act, R.S.C. 1985, c. F-14, Fisheries and Oceans Canada had a responsibility for ensuring that an environmental assessment was conducted.
[15] The respondent Windsor Port Authority is a proponent of the new bridge, and a prescribed authority under the Canada Port Authority Environmental Assessment Regulations, SOR/99-318. The Windsor Port Authority also had a responsibility for ensuring that an environmental assessment was conducted pursuant sections 9 and 9.1 of the Act.
[16] Transport
Canada
, Fisheries and Oceans Canada, and the Windsor Port Authority are the “Responsible Authorities” under CEAA who made the decision that is the subject of these judicial review applications.
[17] The respondent Minister of Environment had responsibility for ensuring that the Responsible Authorities conducted a proper environmental assessment.
[18] The respondent Her Majesty the Queen in Right of Ontario is also a proponent of the new bridge, and has an interest in the outcome of these applications. Her Majesty the Queen in Right of Ontario had no responsibilities under the CEAA.
Sources of Evidence
[19] The evidence on which the decision relied was submitted in voluminous records by each of the active parties. Below, I describe the principal affidavits to which the evidence has been appended.
The CTC Affidavit: Paula Lombardi
[20] The evidence relied upon by the applicant CTC was submitted in 180 exhibits to the Affidavit of Paula Lombardi, sworn on September 24, 2010. Ms. Lombardi is vice-president and general counsel of the applicant CTC.
The Sierra Club Principal Affidavit: Dan McDermott
[21] Much of the evidence relied upon by the applicant Sierra Club was submitted in 250 exhibits to the Affidavit of Dan McDermott, sworn September 27, 2010. Mr. McDermott is Director of the Ontario Chapter of the Sierra Club of Canada.
[22] Sierra Club also submitted three additional affidavits which pertain to specific issues regarding species at risk. Those affidavits are described in more detail below.
The federal respondents’ Affidavit: Kaarina Stiff
[23] In addition to relying upon the same documents filed by the applicants, the respondents filed the Affidavit of Kaarina Stiff with 28 exhibits. Ms. Stiff was the Environmental Assessment Project Manager in the Surface and Infrastructure Programs Directorate of the Programs Group at Transport
Canada
from May 2004 to June 2009. She worked on the new bridge project throughout her time as Environmental Assessment Project Manager.
[24] In addition to background information on the new bridge project Ms. Stiff deposes as to the discussions and negotiations that occurred among the respondents and other authorities throughout the process of developing the Screening Report for the new bridge project.
Creation of the Partnership
[25] On February 7, 2001, the Governments of Canada, the
United States of America , the
Province of
Ontario and the State of
Michigan established a partnership (the Partnership) for the purpose of improving the safe and efficient movement of people and goods across the Canada-U.S. border within the region of southeast
Michigan and southwest
Ontario
. The government authorities in this partnership were the following four federal, provincial, and state departments:
Transport
Canada
(TC),
The Ministry of Transportation of
Ontario
(MTO),
The
Federal Highway
Administration of the
U.S.
Department of Transportation, and
The Michigan Department of Transportation.
[26] The Partnership was concerned with the transportation needs of the Windsor-Detroit corridor because it represents a vital part of the economy of both countries. Currently, $146 billion worth of trade passes across this border area annually, with a projected increase to approximately $230 billion worth of surface trade by 2030. This represents approximately 25% of total trade in merchandise between the two countries. The objectives of the Partnership included a single environmental assessment process which met the requirements of all the partners:
The purpose of the Partnership is to improve the movement of people and goods across the
United States and Canadian border within the region of Southeast Michigan and
Southwest Ontario . The overall objectives of the Partnership in support of this purpose are the following:
…
d) To expedite the planning and environmental study process to ensure that future travel demands in this corridor can be accommodated in a timely manner;
…
f) To use a single integrated planning and environmental study process, resulting in a single product, which will meet the requirements of all member of the Partnership;
…
First act of the Partnership:
The Planning/Needs Feasibility Study (the P/NF Study)
[27] In May 2001 the Partnership initiated the “Planning Needs and Feasibility Study” (the P/NF Study) by the consultants URS Canada Inc. and URS Inc. to assess the existing transportation network in the region and to develop a 30-year strategy to address its needs. Two years and eight months later, in January of 2004, URS released the P/NF Study Report recommending, inter alia the construction of a new or expanded international crossing of the
Detroit
River between
Windsor and
Detroit
.
[28] The P/NF Study Report recommended that formal environmental assessment processes be initiated in all jurisdictions with respect to the different locations where the international crossing might be located.
The Partnership’s Coordinated Environmental Assessment
[29] Three pieces of legislation governed the environmental assessment requirements that the members of the Partnership would have to meet:
The Canadian Environmental Assessment Act, S.C. 1993, c.37 (the Federal Act or CEAA),
The
Ontario Environmental Assessment Act, R.S.O. 1990, c. E.18 (the
Ontario
Act), and
The
U.S. National Environmental Policy Act, 42 U.S.C. § 4321 (1969) (the
U.S.
Act).
[30] The three acts have the same objective. As a result, the Partnership decided to conduct a coordinated environmental assessment process that would generate a single body of documentation to help each member of the Partnership meet the requirements of its own environmental legislation. In this way, each partner would remain responsible for meeting its legislative duties, but could reduce overlap and waste in production of the underlying documentation and studies required to conduct an environmental assessment.
[31] The Partnership’s integrated environmental assessment process was coordinated by a Steering Committee, with representatives from each of the four partners in the Partnership. A working group reported to the Steering Committee. The working group was responsible for directing and coordinating the environmental assessments in each jurisdiction, and its members ensured that the coordinated assessment met the requirements of their jurisdictions.
[32] In the
U.S. , the Michigan Department of Transportation took the lead in conducting the environmental assessment required by the
U.S.
National Environmental Policy Act.
[33] In
Canada , pursuant to section 9 of the Canada-Ontario Agreement on Environmental Assessment Cooperation and its associated informational guide, “Federal/Provincial Environmental Assessment Coordination in
Ontario
,” the MTO was designated as the lead party for the Canadian coordinated assessment.
[34] Another reason for naming the MTO as the lead party stemmed from the differences between the Federal Act and the Ontario Act. In particular, the Ontario Act imposes a statutory duty upon proponents of an undertaking to identify and evaluate alternative means of achieving the purpose of the proposed undertaking. In contrast, the CEAA applies when a specific project has been identified. As a result, the respondent federal government departments initiated their environmental assessment once a preferred “alternative” has been selected by
Ontario , and a general location had been identified in the
Ontario
assessment.
The
Ontario
Environmental Assessment before the formal launch of the Federal Environmental Assessment
[35] Pursuant to the Ontario Act, the MTO, as a proponent of a project, required “Terms of Reference” from the Ontario Ministry of the Environment for an environmental assessment of the project. The Ontario Terms of Reference recognized the coordinated Canadian assessment process and, at page 7, stated that the
Ontario
assessment would provide the necessary foundation for triggering the federal assessment:
It is anticipated that work to be carried out during the EA/EIS will provide sufficient information to support a decision to trigger the federal EA process and to make a decision regarding likely significance of adverse environmental effects under CEAA. In recognition of federal interests and information requirements, concept design of the preferred practical alternative(s) will be undertaken during the OEA. This information will assist federal and provincial EA processes to move forward in an integrated manner.
[36] The Terms of Reference stated that
Ontario
would establish the purpose and need for the new or expanded bridge, identify and evaluate a range of alternatives, and select a recommended alternative. The Terms of Reference identified 35 criteria for evaluating practical alternatives for the new bridge.
[37] At the same time, the
U.S.
partners would conduct their environmental assessment. Like the Ontario Act, and unlike the Federal Act, the
U.S.
National Environmental Policy Act requires the identification and evaluation of possible alternatives for the proposed project. As a result, the Partnership determined that once the two sides had generated their lists of preferred alternatives they would select common recommended alternatives to “carry forward” for further study.
[38] In carrying out its task, the MTO engaged a consultant company, URS Canada Inc., to investigate and report on the need for a new crossing and the alternative means of responding to such need. At the hearing, I asked counsel about URS but they had no information. According to the worldwide web, URS Canada Inc. are consulting engineers and architects specializing in “transportation, municipal infrastructure, facilities and environment”. This includes transportation and traffic planning, roadway engineering, bridge engineering, and environmental assessment.
September 29, 2005 URS Preliminary Report to the Working Group of the Partnership
[39] At a meeting of the working group of the Partnership on September 29, 2005, URS presented its evaluations of the alternatives for the new crossing.
[40] URS Canada informed the Partnership that it recommended three crossing options amongst the 15 alternatives. At the same time, the Partnership received the rankings of alternatives from the
U.S.
side. Each alternative crossing was marked with an “X” number. The X-12 Option was the alternative to build a second span of the existing
Ambassador
Bridge along with an expansion of the existing plaza at the foot of the
Ambassador
Bridge
on the Canadian-side (the Twin Span Option). The
U.S.
side reported to the meeting that they had identified two options as the best performing: X-11 and X-12. The Canadian-side reported that alternative crossings X-9, X-10 and X-11 were the highest performing and that the X-12 Option (the Twin Span Option) did not perform well from the Canadian perspective. The meeting notes stated:
. . . On the other hand, the plaza expansion at the foot of the
Ambassador
Bridge (CT-1) associated with twinning of the
Ambassador
Bridge
, did not perform well. Len Kozachuk [the URS representative] summarized that, when paired with the
Huron Church Road
alignment, the second span of the
Ambassador
Bridge Crossing/CT-1
Plaza
combination has a very low performance. Len then suggested the Canadian team would do additional research to determine whether Plaza CC-7 could be used with a secure roadway via Essex Terminal Rail right-of-way to serve the proposed second span of the
Ambassador
Bridge
.
[41] The September 29, 2005, meeting notes therefore demonstrate that the X-12 Option was problematic because it performed very well on the
U.S.
side and very poorly on the Canadian-side. The partners would therefore need to reach some sort of compromise.
[42] In an email dated October 10, 2005, URS sent updated rankings to the MTO. MTO forwarded those rankings to TC in an email dated October 27, 2005. That email demonstrates that as of October 10, 2005, the X-12 Option was ranked ninth out of 11 feasible options. The parties agree that the October 10 rankings contained two numbers: first, the ranking produced by the URS consultants pursuant to their criteria, and, second, a “public ranking” determined on the basis of surveys distributed to the public by URS. In both, X-12 was ranked ninth on the Canadian-side.
Transport
Canada
Emails– October to November, 2005
[43] In a series of emails presented into evidence as exhibits to the Lombardi Affidavit, TC urged its
U.S.
partners to recognize that the low Canadian ranking would be a sufficient basis upon which to exclude X-12 such that the Partnership could generate a single list of agreed-upon alternatives. For example, an email from Mr. Sean O’Dell, Transport Canada’s representative on the Partnership’s Steering Committee, to his colleagues at TC, dated October 6, 2005, explains that the U.S. partners are uncomfortable eliminating the X-12 Option on the basis of the Canadian rankings, because they have a rigorous mathematical formula for evaluating alternatives and the Canadian ranking does not matter in that formula. As such, the
U.S.
authorities were concerned that they would be seen to be eliminating the X-12 Option on the basis of factors not acknowledged in the initial criteria. Mr. O’Dell also describes the reasons why the X-12 Option on the Canadian-side could not be modified to improve its performance and thereby bring it more closely in line with its
U.S.
ranking.
[44] Evidence in emails dated November 7 and 9, 2005, from Ms. Stiff reporting to her colleagues at Transport Canada, demonstrates that the U.S. partners ultimately determined that their legislative duties did, in fact, enable them to rely on the Canadian analysis to make a decision under the U.S. environmental assessment law regarding which alternative to “carry forward.” Therefore, as of November 8, 2005, the partners agreed on the same short list of practical alternatives. This list did not include the Twin Span Option.
Generation and Assessment of Illustrative Alternatives Report, dated November 2005
[45] In a report titled “Generation and Assessment of Illustrative Alternatives,” dated November 2005, URS describes the results of its alternatives selection process. It describes the criteria that it used for evaluating options, which involved a list of seven evaluation factors and performance measures that incorporated the original 35 criteria established in the Ontario Terms of Reference but simplified them “to enable the public to more easily provide input to the Project Teams in terms of rating the importance of the factors.” These included the ability of an alternative to provide “continuous/ongoing river crossing capacity” (i.e., “redundancy”, or another bridge in case the existing crossings were blocked or congested), operational requirements for the customs and border security plaza, and impacts on communities that would be affected by the project.
[46] With regard to the X-12 Twin Span Option, URS stated, at section 3.5.5., the following reasons why this option was not feasible:
…
However, expansion of the existing crossing and connections has a limited ability to provide continuous/ongoing river crossing capacity (i.e. redundancy), in comparison to providing a new crossing and connections.
The Canadian Project Team also recognizes that expansion of the crossing and existing plaza creates high impacts to the historic
Sandwich community around the existing bridge and plaza. This alternative would have high community impacts in terms of residential displacements and disruption, impacts to built heritage features, and community character and cohesion.
The expansion of
Huron Church/Talbot Road
to a freeway also has high community impacts, particularly on the section north of E.C. Row Expressway. The constructability of this option is made additionally complex by the need to keep international truck and auto traffic moving efficiently at this important border crossing during construction.
[47] In other words, URS reported that the X-12 Option, both as initially considered and with the alternative plaza and roadway suggested at the September 29, 2005, meeting, had high community impacts and failed to achieve “desired redundancy”. As a result, the X-12 Option performed poorly on Canadian-side rankings based upon the criteria established in the May 2004 Terms of Reference.
[48] The URS Report describes the difficulty faced by the Partnership in the face of the divergent rankings produced by the
U.S.
and Canadian-sides:
In the evaluation of illustrative alternatives, the crossing X12 alternative was unique in that this alternative had relatively high negative impacts on the Canadian side in comparison to other Canadian alternatives, but relatively low negative impacts on the
US side compared to other
US
alternatives. In terms of benefits provided to regional mobility, the alternative provides improved regional mobility for the border transportation network on both sides of the river, but was considered by the Canadian Team to have limited ability to provide continuous/ongoing capacity on the basis that this alternative would not provide a new crossing.
In consideration of the high community impacts to the residential area impacted by the expansion of the Canadian bridge plaza and the expansion of Huron Church Road to a freeway facility on the Canadian side, and the potential for disruption to border traffic during construction of the plaza and freeway, on an end-to-end basis, the disadvantages of this alternative outweighed the advantages.
Crossing X12 was eliminated from further study. The expanded U.S. plaza of the Ambassador Bridge, with the improved connections to the interstate freeway system will be carried forward within the Area for Continued Analysis as a possible U.S. plaza site for a new crossing connecting to a new inspection plaza and connecting roadway on the Canadian side located downriver of the Ambassador Bridge. [Emphasis in original]
The “Generation and Assessment of Illustrative Alternatives Report”, dated November 2005 confirmed that the Partnership agreed that three bridge crossing options within a circumscribed geographic location should be carried forward for future study (identified as the “area of continued analysis”).
[49] URS Canada’s investigation provided the following three types of information:
Confirmation of the purpose and need for the undertaking in two documents, the “Travel Demands Forecast Working Paper” (September 2005), and the “Transportation Planning and Need Study Report” (November 2005).
Preparation of a list of illustrative alternative means of meeting the identified needs, in the “Generation and Assessment of Illustrative Alternatives Report” (November 2005). The list initially comprised 15 alternatives of potential bridges and tunnels over a large location (“crossing options”) and 13 plazas and access road solutions.
Application of specific criteria (identified in the
Ontario
terms of reference) to whittle down the list of illustrative alternatives to identify an “area of continued analysis”: “Generation and Assessment of Illustrative Alternatives Report” (November 2005), Ontario Environmental Assessment Report, W.O. 04-33-002, December 2008, sections 6.5 and 6.6.
Launch of the Federal Assessment
[50] A few months after the November 2005 URS reports above, in early 2006, draft guidelines for the federal assessment were circulated by Transport
Canada
to other potential federal authorities. These were based on the options or alternatives identified by URS on behalf of
Ontario
. On November 22, 2006, the federal Environmental Assessment Guidelines were published and opened to public comment. The Guidelines were updated twice. At section 8.2, “Scope of Assessment,” the Environmental Assessment Guidelines establish the scope of the project including a provision that the Screening Report will address the purpose of the project, the need for the project, and the benefits of the project:
. . .
The scope of the assessment for the DRIC Project shall include environmental effects of the project, including the environmental effects of malfunctions or accidents that may occur in connection with the project, and any cumulative environmental effects that are likely to result from the project in combination with other projects or activities that have been or will be carried out. With the discretion allowed for in paragraph 16(1)(e) of the CEAA, the RA(s) will also consider the purpose of the project, the need for the project and the benefits of the project, as part of the coordinated EA process.
(“RA” is responsible authority “EA” is environmental assessment.)
[51] Although the project description was therefore relatively well-defined, it still consisted of three bridge options, three alternative locations for border-inspection facilities, and five design options for an access road connecting the plaza to the provincial highway.
[52] Between March 2006 and June 2008, the Partnership’s study team analyzed these “practical alternatives” for the final project. This analysis generated a series of reports, including, for example, the Draft Practical Alternatives Evaluation Working Paper: Natural Heritage, dated July 2007.
[53] In May of 2008 the Partnership announced the
Windsor-Essex Parkway
as the selected alternative for the access road portion of the project. In June of 2008 it announced the preferred location for the international bridge crossing and Canadian plaza. Together, these choices constituted the “Technically and Environmental Preferred Alternative” that was to be assessed and further refined for the purposes of the Act.
[54] Once the “Technically and Environmental Preferred Alternative” had been selected, the Canadian environmental assessment focused on developing a detailed analysis of that choice and identifying appropriate mitigation measures for any adverse environmental effects that would be encountered.
Approval of the
Ontario
Environmental Assessment Report – August 21, 2009
[55] Based upon the studies conducted between March of 2006 and June of 2008, the
Ontario
“Draft Environmental Assessment Report Individual Environmental Assessment” was prepared and circulatedfor review and comment by the public, external agencies and all interested stakeholders.
[56] The study team revised the draft report in response to comments received.
[57] The Ontario Assessment Report was submitted to the Ontario Minister of the Environment on December 31, 2008, for review and approval. In accordance with the Act, the formal submission of the Ontario Assessment Report was followed by a seven-week comment period.
[58] Following the period of comment and review, the Ontario Minister of the Environment approved the new bridge project on August 21, 2009. The approval contained conditions requiring the proponents of the project to undertake certain measures to ensure continued compliance with the Ontario Act.
[59] The final Ontario Assessment Report consists of 11 chapters and four appendices, totalling 576 pages. In addition, the report references 63 supporting documents on which it relies. In total, the
Ontario
environmental assessment report consists of thousands of pages.
[60] There was no application for judicial review of the Ontario Minister of the Environment’s decision to approve the new bridge project under the Ontario Act. However, the Ontario approval depended in part on the acquisition of permits from the Ontario Minister of Natural Resources, as required under the Ontario Endangered Species Act, 2007, S.O. 2007, c. 6 (Ontario ESA). As discussed below, these permits were granted but are the subject of litigation before the
Ontario
courts.
The Federal Environmental Assessment Report (the Screening Report)
[61] As the Ontario Ministry of the Environment review of the Ontario Assessment Report was ongoing, the Responsible Authorities prepared a draft Screening Report to be submitted in accordance under CEAA. The Screening Report was prepared by URS, the same consultants used by
Ontario
.
[62] The draft Screening Report was made available for comment by the public and other authorities on July 9, 2009. As with the
Ontario
assessment, comments received were considered and responded to by the Responsible Authorities.
[63] The Screening Report is based on the documentation generated and referred to in greater detail in the Ontario Assessment Report. The Screening Report itself is a summary document consisting of approximately 60 pages. It is organized into 12 chapters, which describe the background to the new bridge project, the coordination between Ontario and federal authorities in conducting the environmental assessment, the spatial and temporal scope of the environmental assessment that was conducted, the existing environment in the project area, the forecasted environmental effects of the new bridge project, and mitigation measures that should be taken to mitigate any negative environmental effects.
[64] The Screening Report details the consultations conducted by the Partnership in producing the Screening Report, including those undertaken pursuant to the Ontario Assessment Report, and discusses monitoring and follow-up programs and commitments to future work that form the basis for the Partnership’s request that the new bridge be approved.
[65] The Screening Report has 11 appendices. The most relevant appendices to the Screening Report are as follows:
Appendix A: Response and Consideration of Public Input on the Draft Screening Report.This document contains responses from the Responsible Authorities to the CTC and other interested members of the public.
Appendix B: Disposition Tables of Responses to Comments Received from Federal Reviewers on Preliminary Draft CEAA Screening Reports. Together with Appendix C, this contains the Responsible Authorities responses to federal agencies, including Environment Canada.
Appendix C: Disposition Tables of Responses to Comments Received from Federal Reviewers on Provincial Technical Reports. Together with Appendix B, this contains the Responsible Authorities responses to federal agencies, including Environment Canada.
Appendix D: Cumulative Effects Assessment Report. This contains the Responsible Auth