Environmental law updates (not advice) by a top Canadian lawyer in Toronto, Ontario

Comments on Ontario’s cap and trade plan are due in three weeks, on July 24. However, the policy context has changed dramatically since Ontario’s discussion paper was drafted, and is continuing to mutate quickly. Canada has done so little for so long that our climate policy has laid us wide open to the serious protectionist provisions in the 1500 page US House of Representatives Bill HR 2454, the American Clean Energy Security Act. That likely means that Canadian rules must match American ones. As climate laggards, Canadian exporters will face substantial tariff barriers to their access to US markets if our rules aren’t found to be consistent with those in the US.
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The province is now accepting comments on the proposed Green Energy Act regulations that will allow  renewable energy approvals to be issued. The biggest issue is the proposed mandatory setback from receptors for all wind turbines,  especially when combined with the proposed set back requirements from roads and railways and property lines. These setbacks will block a high percentage of planned wind projects, and especially those close to load. This will increase the need for long-distance transmission lines, which have significant environmental footprints.  These setbacks should be subject to reduction through study, like the other proposed setbacks in the regulation.

Other key issues that require clarification or amendment include: [Read more →]

George Bush and Dick Cheney must hate reading the newspapers these days. In the last few days, the US government has taken two of the critical steps towards serious action on climate change that the Bush administration fought off for eight years.

First, the White House issued an official government report documenting the major damage that climate change is already doing in and to the United States, especially to agriculture, coastal areas, access to water, and human health.  The Report emphasized the long-term importance of emission reduction and adaptation decisions that are being made now. And on Friday, the  US House of Representatives passed HR  2454, the 1500 page Waxman/Markey  American Clean Energy Security Act of 2009, to establish a greenhouse gas emission cap and trade regime for the United States.
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Environmental consultants do a booming business charging for reliance letters, when someone other than their original customer wants to be able to rely on a report about a potentially contaminated site.  Typical customers for reliance letters include purchasers of property, and lenders. Unfortunately,  both buyers and lenders may delude themselves that a reliance letter is some sort of guarantee as to the environmental quality of a property. This is particularly the case with engineer’s reliance letters for a Phase I ESA.
Obvious items to ask for in the wording of reliance letters include: [Read more →]

We can’t resist a brief digression into cognitive neuroscience. For a short, dazzling survey of Professor Rebecca Saxe’s latest research in the neural basis of theory of mind, i.e. how does our brain allow us to understand the mind of others, click http://amps-web.mit.edu/public/techday/2009/, and fast forward to 52:30. You will never think about cheese sandwiches the same way.

The Commission on Environmental Cooperation has released Taking Stock 2005, its latest report on hazardous emissions by North American organizations. This is the second year of data that includes Mexico, as well as Canada and the United States. The data is also now easier to search.

5.5 billion kilograms of toxic pollutant releases and transfers were reported in 2005. Of these, 90% are 30 substances from 15 industrial sectors. The main polluters were: [Read more →]

On June 15, 2009, Maria Mota, Jorge Mota and Mota Car Sales Inc. pleaded guilty to a six offences under the Environmental Protection Act with respect to the Drive Clean Program.  They were fined a total of $100,000 plus the 25% victim fine surcharge, for a total of $125,000. [Read more →]

The Québec Court of Appeal will soon hear a fascinating case on the power of municipalities to regulate speedboats. Municipal efforts to regulate boats have long been rebuffed, on the ground that boats belong to exclusive federal jurisdiction over navigation. However, recent judicial and statutory initiatives to give greater powers to municipalities emboldened St-Adolphe d’Howard to try again.

St-Adolphe d’Howard is a small municipality in cottage country, one hour north of Montréal. It has 12,000 cottagers and  fewer than 4000 permanent residents. The municipality adopted a bylaw restricting boat access to its two major lakes. [Read more →]

Watch for us on this summer’s bike train. Saxe Law Office is again a proud sponsor of Bikes+Transit.com, a great way to explore the beautiful Lake Ontario waterfront on two wheels. Wave if you see Dianne on her bright yellow recumbent, with her dog in the basket. We hope to see you all out there.

A far-reaching BC decision could cast a pall on infrastructure development across Canada, just as federal stimulus money is pushing it into high gear.

In Heyes v. City of Vancouver, a small maternity clothing business sued all three levels of government and three transit agencies for loss of income, suffered during three painful years of subway construction in front of her store.  Susan Heyes signed a five-year lease, on the basis of government promises that the Canada Line subway would be installed by tunneling, which would have had relatively little impact on her customers. When cost estimates ballooned, as they so often do, the government decided to save $400 million by switching to cut and cover, instead of tunneling.  The cut and cover method was approved after an environmental assessment, on the basis of a prediction that disruption to local businesses would last only three months.  Unfortunately,  the actual  disruption lasted three years. The impact on Ms. Heyes’ business was catastrophic — she lost $600,000. [Read more →]

The Ontario Court of Justice has acquitted a company that spilled caustic soda on a road, on the grounds that the spill did not cause an adverse effect.

UBA Inc. was charged with discharging  70 gallons of caustic soda that caused, or was likely to cause an adverse effect, contrary to section 14 of  Ontario’s Environmental Protection Act. This spill occurred when a truck pressure seal ruptured in an industrial area. As a result, the road was closed to through traffic for the day, while the cleanup took place. Employees of local businesses were allowed to pass. There was no proof of loss of income by any of the businesses in the area. No people, plants, animals, or other sensitive environmental receptors were harmed. [Read more →]

Does Canada do enough to regulate toxic chemicals? Nearly half a century after Rachel Carson’s exposé of the lethal potential of pesticides in “Silent Spring”, controversy still rages about the toxic cocktails we eat, breathe, drink and bathe in. In the recently released consumer classic, Slow Death by Rubber Duck, Rick Smith and Bruce Lourie show that people rapidly absorb toxic chemicals from even two days’ exposure to typical consumer products.

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The Ministry of the Environment has proposed three new regulations to revise how it applies air pollution O.Reg. 419/05, at least to some sectors.

Under O. Reg. 419/05, air standards are set to protect against health and environmental effects, regardless of their technical feasibility or economic consequences. Facilities are required to comply with these standards within specified time lines. Facilities unable to meet these standards may request an “alternative standard” for up to 5 to 10 years, which may be renewable. Such requests require public consultation and must document the technical (and, if requested, economic) grounds for the request.
Requests for alternative standards must be decided on a case-by-case basis, and will have very high transaction costs for both industry and government. In addition, there are serious technical problems with the MOE’s attempts to establish actual “point of impingement” levels, including significant flaws in its interpretation of AirMod, the air modelling software. [Read more →]

In December 2005, Canada’s federal government was about to launch a detailed carbon offset system, after years of multi-stakeholder effort.  Shortly afterwards, the Conservatives were elected, and immediately discarded the  carbon offset program. This week, the Conservatives announced a summary of their own carbon offset system and promised more detailed rules in the fall. [Read more →]

Canada’s major environmental consulting firms typically insist that their clients agree to extremely one-sided terms of service. Under these “Terms and conditions”, appended in fine print to the back of most proposals, the consultants severely limit their liability for negligence to their client, while imposing enormous liabilities in return. In one typical example, the client must agree to cap any future claim for damages against the consultant at $25,000 or $50,000, regardless of how much the consultant’s negligence may actually cost the client. [Read more →]