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The Ontario Court of Appeal has refused to grant Lafarge leave to appeal further from the precedent-setting decision of the Environmental Review Tribunal. The ERT permitted neighbours to appeal  certificate of approval (permits) that the Ministry of the Environment had granted to Lafarge, authorizing it to burn waste tires as fuel at its cement kiln. This permission was upheld by the Divisional Court earlier this year, after an equally precedent-setting intervention by Ontario’s Environmental Commissioner. As a result, Lafarge has announced that it will abandon its multiyear attempt to gain permission to use tires as fuel. Instead, it will look for other ways to reduce its environmental footprint and greenhouse gas emissions. 

 

While this particular case is now over, it will have lasting consequences for Ontario’s approval system.

Requirements that the Approvals Branch consider common law rights as well as statutory obligations, and relate all approvals to the ministry’s Statement of Environmental Values, may tighten up some approvals, but may further encumber the already clogged approval process. Many practitioners are particularly concerned by the ERT’s assertion that  serious potential environmental harm can be presumed simply because technology is unfamiliar, i.e. innovative. At a time when Ontario desperately needs innovative technology to rebuild its manufacturing base and cope with climate change, any further drag on innovation may do more harm than good.

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