Spills always seem to be good for lawyers, if not for the environment.  More than 300 lawsuits have been filed against BP relating to the Gulf oil spill, in addition to the Gulf Coast Claims Facility that is handing out emergency money from the $20 billion set aside by BP. But lower profile spills also attract lawsuits.

Enbridge Inc. – Canada’s largest transporter of crude oil – delivers more than 2 million barrels of crude oil and liquids across Canada, and into the United States per day.[1] On July 26, a break in the Lakehead System’s 6B pipeline

(a 30-inch line which carries approximately 190,000 barrels of oil daily from Griffith, Indiana to Sarnia, Ontario), was detected near Enbridge’s Marshall, Michigan pump station.[2] No one was seriously injured; however, an estimated 877,000 gallons (3,319,708 litres) of oil was released into a creek which subsequently flowed into the Kalamazoo River tributary.[3][4] Drinking water and air quality have been severely affected, forcing several residents to leave their homes.[5] Residents affected by the spill have filed a class action against Enbridge Inc. in the U.S. federal court.  According to Courthouse News Service, the class seeks unspecified damages from Enbridge and its companies for “trespass, nuisance, negligence and violation of the Michigan Natural Resources and Environmental Protection Act.”[6] It is estimated that Enbridge could face more than US$26 million in civil penalties, if the spill exceeds 3.8 million litres.[7] In addition, the Great Lake Law Centre sent Enbridge Inc. a notice of intent

to file a citizen suit under Section 505 of the Clean Water Act (CWA), 33 U.S.C sections 1365.[8]

[2] Enbridge Responds to Leak on Line 6B. Enbridge Inc. Available at http://response.enbridgeus.com/response/

[3] Update 2 – Pipe break hits U.S., Canada refineries. (July 26, 2010). Reuters. Available at http://www.reuters.com/article/idUSN2623027120100727

[4] Tim Martin. (July 8, 2010). Three Million litres of oil spill from Enbridge pipeline into Michigan River. Toronto Star. Available at http://www.thestar.com/news/world/article/840975–three-million-litres-of-oil-spill-from-enbridge-pipeline-into-michigan-river

[5] Joseph Celentino. (August 5, 2010). Pipeline Leak Mucked Up River, Residents Say. Courthouse News Service. Available at http://www.courthousenews.com/2010/08/05/29343.htm

[6] Shaun Polczer. (August 7, 2010). Residents file suit against Enbridge. The Windsor Star. Available at http://www.windsorstar.com/business/Residents+file+suit+against+Enbridge/3371924/story.html?cid=megadrop_story

[7] Enbridge notified of planned spill lawsuit. (August , 2010). CBC News. Available at http://www.cbc.ca/canada/calgary/story/2010/08/02/cal-enbridge-spill-kalamazoo.html

[8] Great Lakes Environmental Law Center sends notice of intent to sue Enbridge over pipeline oil spill. (August 2, 2010) Great Lakes Law. Available at http://www.greatlakeslaw.org/blog/2010/08/great-lakes-environmental-law-center-sends-notice-of-intent-to-sue-enbridge-over-pipeline-oil-spill.html

[9] Greenpeace occupies Enbridge office in downtown Vancouver. (July 28, 2010). Greenpeace Canada.  Available at http://www.greenpeace.org/canada/en/recent/Greenpeace-occupies-Enbridge-office-in-downtown-Vancouver/

©2010 Environmental Law and Litigation. All Rights Reserved.

In all the fuss about the EcoFee, no one seems to have noticed Orange Drop.

The much maligned EcoFee was a  system to have purchasers of household hazardous products pay for the proper disposal of those products, instead of loading the cost on municipalities or future generations. Orange Drop is Stewardship Ontario’s program to help collect and lawfully dispose of such products.

In 2008, Stewardship Ontario began to collect nine types of household hazardous waste – paints, solvents, single use batteries, oil filters and containers, antifreeze, pressurized containers, and fertilizers and pesticides. Orange Drop is an expansion of that program,  to add 13 new categories, from batteries to pharmaceuticals,  as of July 1, 2010. This means that 22  types of household hazardous wastes can now be returned to 92 recycling depots, 738 retail collection sites, and 2700 pharmacies across Ontario. However,  the program cannot operate without funding, which was supposed to come from the EcoFee that was ignominiously canceled last month. Now that Minister Gerretson has lost his post over the EcoFee debacle,  there is no obvious source of sensible funding for Orange Drop.

©2010 Environmental Law and Litigation. All Rights Reserved.

How do the tar sands operators get away with polluting the great Athabaska River, despite federal and provincial laws that allegedly protect rivers? By insisting that everything is fine, and that all the pollution is “natural”.

Now, Professor David Schindler has blown their cover, by collecting the kind of data that governments used to do. Will anything change?

Prof. Schindler is one of Canada’s most eminent water scientists. He identified phosphates in detergent as the pollutant choking Lake Erie in the 1960s and acid rain as the cause of fish deaths in the Great Lakes in the 1970s and 1980s. He has received the NSERC Award of Excellence, the $1-million Gerhard Herzberg Canada Gold Medal for Science and Engineering, and the First Stockholm Water Prize as well as many other national and international awards.

The tar sands operators already consume much of the water of the Athabaska, and create giant, toxic tailings ponds. Although the ponds are known to leak pollutants, Alberta has argued that the remaining water is unaffected. By carefully sampling what is happening in the Athabaska watershed, Prof. Schindler has now shown that exploitation of the Alberta tar sands is polluting the river with toxic heavy metals. To put it more politely,

the oil sands industry releases the 13 elements [heavy metals] considered priority pollutants (PPE) under the US  Clean Water Act, via air and water, to the Athabasca River and its watershed. In the 2008 snowpack, all PPE except selenium were greater near oil sands developments than at more remote sites. Bitumen upgraders and local oil sands development were sources of airborne emissions. Concentrations of mercury, nickel, and thallium in winter and all 13 PPE in summer were greater in tributaries with watersheds more disturbed by development than in less disturbed watersheds…. Canada’s or Alberta’s guidelines for the protection of aquatic life were exceeded for seven PPE—cadmium, copper, lead, mercury, nickel, silver, and zinc—in melted snow and/or water collected near or downstream of development.

Fish in the river, we’re told, have become dangerous to eat. Where, given all this, is Environment Canada, the supposed enforcer of the Fisheries Act and the Canadian Environmental Protection Act? They rely on RAMP, an industry-sponsored monitoring program that keeps concluding nothing is wrong. Why? According to Professor Schindler, because they don’t do proper monitoring. He urges that RAMP should be closed immediately and the funds turned over to Environment Canada. Will it happen?

©2010 Environmental Law and Litigation. All Rights Reserved.

Syncrude has decided to make a deal, if it can, rather than keep fighting. The trial for killing 1600 ducks in a tailings pond was  scheduled to resume August 18,  in order to decide whether Syncrude can be fined for both the federal and provincial offences. Instead, the case has been adjourned again until October 22. In the interim, Syncrude and the prosecutors are reportedly negotiating on “creative sentencing”. This might mean that, instead of paying a large fine, Syncrude will spend an equal or larger amount of money on improving its bird deterrent systems, and perhaps on some habitat improvements. For example, birds are attracted to the tailing ponds in the spring because they are the first to melt and lie directly under the migration pathways; maybe Syncrude could use some of the extra heat to melt some clean, nearby body of water first. Watch for better surveillance of the ponds to be part of the deal, plus maybe some money for biological research into bird deterrents. Syncrude will undoubtedly be looking for credit for the program it instituted to reduce bird kills in the tailings ponds. What we are not likely to see is any action to reduce the destruction of bird habitat by the tar sands developments, already estimated at  58,000 to 402,000 birds lost from the regional population, probably permanently. See:

Does the Alberta Tar Sands Industry Pollute? The Scientific Evidence

Kevin P. Timoney and Peter Lee, The Open Conservation Biology Journal, 2009, 3, 65-81 65

©2010 Environmental Law and Litigation. All Rights Reserved.

Is biomass really renewable?  The Green Energy Act treats wood waste as an  infinitely renewable source of energy, like sunlight and wind.  But is it?  Biomass sceptics have pointed to high costs (in money and in energy) to collect, transport and handle wood waste, especially as fuel for  electrical generation.  Now, Trent Professor Shawn Watmough has documented a much bigger problem:  decades of acid rain have  so decimated calcium in the soil that forests on the Canadian Shield cannot long sustain removal of woody debris.   Equally bad, the loss of calcium threatens to tip many lakes back into sterile acidity.

The study has serious implications for recent proposals to remove woody debris from forests for use as biomass, in the hope of building a more sustainable economy.

And you thought that acid rain was yesterday’s problem…

©2010 Environmental Law and Litigation. All Rights Reserved.

Electronic waste, or ‘e-waste’, has become a significant international environmental enforcement challenge.  Each year, hundreds of thousands of used electronic items – containing highly toxic substances like lead, mercury and cadmium – are shipped across the world.

Some provinces, like B.C., Alberta, Manitoba and Ontario, have e-waste recycling programs to encourage residents to get rid of used electronics in an environmentally responsible manner.  Canada has also stepped up enforcement of its regulations on the export of used electronics. However, large amounts of e-waste continue to be exported to developing nations, where they are highly in demand as sources of valuable raw materials and for conversion to other products. However, poor environmental standards in the receiving countries often lead to pollution when the electronics are dismantled or burned.

Actions to strengthen transboundary e-waste enforcement across North America are now underway.  From August 16-17, the Commission for Environmental Cooperation (CEC) Council met in Guanajuato, Mexico for their 17^th annual meeting.  The Council presented the proposed Strategic Plan 2010-2015 which sets forth three new priorities that will ensure the protection of North America’s shared environment:

1. Healthy Communities and Ecosystems;
2. Climate Change – Low-Carbon Economy; and
3. Greening the Economy in North America.

Managing the movement of used electronics and other e-wastes falls under the third priority.  With help from the Hazardous Waste Tracking System (HWTS), the CEC has begun to develop technology to improve their ability to detect and restrain illegal trades of electronic waste in North America.

Paper-based tracking systems were originally used, but struggled to succeed due to delays in sending export requests and consent documents.

Under the new system, governments will be able to more quickly and effectively provide data to enforcement officials.

Jessica Yuan and Dianne Saxe

©2010 Environmental Law and Litigation. All Rights Reserved.

What a beautiful country we have. We are so lucky to live here.

©2010 Environmental Law and Litigation. All Rights Reserved.

Ontario’s process for making Crown land available for renewable energy projects continues into its second phase as the Ministry of Natural Resources (MNR) invite the public to provide input on where, when and how the Government should make Crown land available for off-shore wind projects. The proposed policy is also seeking public input on additional offshore areas that may constrain future development and should be taken into consideration.  So far, 9 areas have been considered for potential removal from future development:

Navigational lanes

• Areas of core commercial fishing activity
• Sensitive environmental and ecological areas and features
• Areas subject to important recreational activities
• Cultural heritage features
• Areas of natural gas activity
• Areas of inland lakes not subject to the proposed five kilometre exclusion zone
• Other inland waterbodies (e.g., Lake Simcoe, Lake Nipissing, Lake Nipigon, Lake of the Woods, etc)
• Other Great Lake specific considerations

These MNR rules are in addition to the rules proposed by the Ministry of the Environment, such as the proposed 5 km setback from all major shorelines.

©2010 Environmental Law and Litigation. All Rights Reserved.

Property owners must not worsen problems faced by their neighbours.

In Donley Investments Ltd. v. Canril Corp., Canril owned a vacant commercial property at 90 George Street in Ottawa, one inch west of the Donley building. The Donley basement began flooding in February 2003, after a broken City water main flooded the Canril building. No one knows how long the City leak went undetected. The City paid Canril $1272 as compensation, in exchange for a full and final release, which Canril gave, knowing of the flooding of the Donley property. Soon afterwards, Canril demolished its building, and refused Donley requests for permission to send cameras through its water pipes.

Meanwhile, water continued to infiltrate into the Donley building, which eventually developed mould. In May 2003, the estimated cost of cleanup was $35,000, and climbing.

Judge Métivier ruled that:

• Canril was not responsible for the original pipe burst. But once they were aware that water infiltration was a continuing problem, they chose to do nothing at their own peril.
• Donley efforts to properly investigate the source of the water were impeded by Canril, which repeatedly denied permission to investigate on Canril property.
• While the source of water infiltration was never determined, it was reasonably probable that it came from the Canril building.
• Demolition of the Canril building was done improperly, causing damage to the Donley property, and allowing additional water to flow to the lower basement in the Donley building.    This breached the Demolition Code.
• Canril demonstrated “a rather breath-taking lack of cooperation” with its neighbour.

The continued water infiltration was a private  nuisance for which Canril was responsible. Even if the nuisance was triggered by the broken City water main, Canril was not entitled to ignore the issue, “taking the attitude that it was not their problem.” Canril argued that once holes were drilled through its basement slab, the water infiltrating the Donley basement was merely the normal flow of water following its natural course.  The judge held that Canril remained responsible, because

. … an occupant of land who, by artificial means, prevents the natural absorption in that land or alters the natural drainage therefrom of water caused by melting ice or snow or of rain water naturally falling there is bound to take all reasonable means of preventing that water from collecting on the artificial surface he has created and draining from that surface onto his neighbour’s land to the injury of his neighbour.

101 The Caplan basement was left in place with debris partially filling it and despite the holes in the slab, this was a manmade interference with the natural flow of water.

Finally, Canril had a duty to protect their neighbour and to include them in the claim to the City. Their failure  to do so, raised a presumption of negligence even though causation had not been confirmed.

The Court awarded $202,226 in damages, including nearly $48,000 to rebuild the basement, with pre-judgment interest from November 2003.

Donley Investments Ltd. v. Canril Corp.

2010 ONSC 4134 (Ont SCJ) – July 22 2010

(avail at http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4134/2010onsc4134.html )

©2010 Environmental Law and Litigation. All Rights Reserved.

What are Canadians made of?

Not snakes and snails and puppy-dog tails, or even sugar and spice, as the children’s rhyme goes.  Try lead and bisphenol-A (BPA).

Statistics Canada’s report, Lead and Bisphenol A Concentrations in the Canadian Population, was released on August 16. The report details results of the 2007-2009 Canadian Health Measure Survey, in which concentrations of lead in whole blood and urinary BPA were reported for 5319 and 5476 Canadians, respectively, aged 6 to 79 years.

Good news:  Blood lead levels are only about one-third what they were in the last survey, completed 30 years ago.

While we do not yet know what concentration of BPA poses a health risk, this study provides an excellent baseline for future research.

Below, we highlight some interesting results from the report:

Lead

Lead occurs naturally in rocks and soil, but was also used in gasoline, paints and as solder in food cans for decades.  It is still used in certain car batteries and electronic equipment, and is sometimes found even in children’s jewellery and toys.  Canadians are mainly exposed to lead via inhalation or ingestion (e.g., as dust particles from lead-based paint), through drinking water distributed via lead pipes or through occupations.  Once absorbed, the metal accumulates in tissues and bone, or is excreted via urine and feces. Increased lead levels can harm the brain and kidney.

Lead exposure is measured by blood levels (PbB); this figure may be difficult to interpret as it can represent very recent exposure (lead’s half-life in blood is around 1 month), or exposure that occurred long ago, as lead leaches from bones (where its half-life may be decades) into the blood.

Although there is no known threshold below which lead is safe, PbB levels from 0.30 – <0.5 micromol/L are considered above average for Canadians. PbB levels at or above 10 mcg/dL (0.48 micromol/L) require intervention, for example full investigation of exposure.   Children are more vulnerable to lead toxicity, as they absorb lead up to 10-fold more effectively than adults. Pregnant women and fetuses are also considered high risk, as are workers exposed lead through their occupations, and families of these workers.

Study results:

All individuals tested had lead in their blood, with a geometric mean PbB concentration of 1.34 mcg/dL (0.06 micromol/L).  Concentrations were higher in older people, as would be expected, as seniors were likely exposed to higher environmental lead concentrations when they were younger.  Among individuals under 20 years of age, at least 95% had PbB levels under 2 mcg/dL.  Overall, fewer than 1% of all people tested had blood lead concentrations at or above 10 mcg/dL.

This is a huge improvement over results of the last Canada Health Survey in 1978/79,  in which the geometric mean PbB concentration was 4.79 mcg/dL across the same age range,  with 27% of these individuals having PbB concentrations at or above 10 mcg/dL.

BPA

BPA, on the other hand, is not found in nature. It is used mainly in certain types of plastics, including those for food and water containers, as well as epoxy resins (e.g., linings for canned foods, bottle lids and dental sealants).  We are mainly exposed to BPA in our diet, although it is found in water, soil, dust and consumer products.  Once ingested, BPA is absorbed quickly and metabolized in the liver to an inactive metabolite with a half-life of under six hours; it is the free BPA that is biologically active.  BPA is an endocrine disruptor, and high concentrations adversely affect fertility and development.  Threshold concentrations of concern have not been identified.

Study results:

Nearly 91% of individuals tested had BPA in their urine, which, along with results of US and German studies, suggests that Canadians are exposed to BPA on a continuous basis.  The geometric mean concentration was 1.16 mcg/L, with males having higher concentrations overall than females. The reason for the inter-gender difference is not known.

Adults 40 and older had lower urine BPA concentrations as compared with those under 20 years of age; those in the 12-19 year old age group had the highest concentrations.  As people are mainly exposed to BPA through diet, this may reflect the increased food consumption in relation to body weight by younger people; differences in absorption/distribution/metabolism/excretion of BPA by this age group; and/or  difference in use of BPA-containing products.

Due to BPA’s short half-life and relatively rapid excretion, single urine samples may simply reflect point-in-time concentrations of BPA, not an individual’s average exposure to BPA for any individual.

by Jackie Campbell, environmental lawyer and health professional

References:

Bushnik Tetal. Lead and bisphenol A concentrations in the Canadian population. Health Reports, Vol. 21, no. 3, September 2010 • Statistics Canada, Catalogue no. 82-003-XPE.  Available at http://www.statcan.gc.ca/pub/82-003-x/2010003/article/11324-eng.pdf

Sanborn MD et al. Identifying and managing adverse

environmental health effects: 3. Lead  exposure. http://www.cmaj.ca/cgi/reprint/166/10/1287?maxtoshow=&hits=10&RESULTFORMAT=1&title=lead&andorexacttitle=and&andorexacttitleabs=and&andorexactfulltext=and&searchid=1&FIRSTINDEX=20&sortspec=date&fdate=1/1/2000&resourcetype=HWCIT,HWELTR

©2010 Environmental Law and Litigation. All Rights Reserved.

Is there real enforcement of conservation authority regulations? Often, no, but that may be starting to change.

In Lakehead Region Conservation Authority v. DeMichele, the Ontario Court of Appeal has upheld a permanent injunction preventing a developer from further dredging and filling in a wetland, without a permit. DeMichele had a history of developing land without a permit, and argued that the Authority cannot enforce its regulations against him because it failed to do so in the past.

The Court agreed that further dredging or placing of fill in the wetland might damage the wetland, and that it was in the public interest to ensure that the unauthorized work on the land ceases.  The LRCA cannot, however, force DeMichele to remediate work he conducted in the past, when the LRCA knew or ought to have known that he was doing it; in fact, it appears to have sanctioned some of the work. The LRCA was also awarded legal costs totalling $22,000, although its actual costs were considerably higher.

©2010 Environmental Law and Litigation. All Rights Reserved.

In Ontario’s Cabinet shuffle, Gerretsen is demoted to the consumer services ministry and is being replaced by Revenue Minister John Wilkinson, who will have the job of devising a new household hazardous waste recycling plan by October 18. Details here.

©2010 Environmental Law and Litigation. All Rights Reserved.

Ontario probably can’t make a meaningful switch towards renewable energy  without offshore wind development, which will be largely sterilized by the proposed 5 km minimum setback rules. For a sample letter opposing the setback, click here. To see our letter to the Premier on the point, click ltr to Premier re setback Aug 18 10. The letters are due by August 24.

©2010 Environmental Law and Litigation. All Rights Reserved.

Today, Judge Tjosvold will resume the Syncrude trial for the killing of 1600 ducks that landed on a badly managed, lethal tailings pond. He will decide whether Syncrude can be punished for both the federal and provincial offences that it committed.

Anyone interested in the environmental toll of the tar sands should read this decision, which clearly demonstrates how little weight has been given to environmental protection.It is remarkable how much the Syncrude prosecution has galvanized public opinion in Alberta, which has been almost completely indifferent to destruction by the tar sands mines of the habitat of tens of thousands of birds and other creatures, and which has made the fish of the Athabasca river unsafe to eat.

I also highly recommend Andrew Nikiforuk’s book, Tar Sands: Dirty Oil. It’s packed with devastating facts, made more bearable by memorable writing.  Who could forget, for example, that using natural gas to extract bitumen is like “using caviar as fertilizer to grow turnips”?  Andrew is a dogged public investigator in Calgary who devotes his life to ferreting out inconvenient truths in the honorable belief that transparency will lead to better decisions. His book is well written and well organized, chronicling the corrosive effect of current Canadian and Alberta     policies on air, land, water in and beyond Alberta, and on the Canadian and Alberta economies. Read it and weep, then do something. We plan to try.

©2010 Environmental Law and Litigation. All Rights Reserved.

One of my recent pro bono projects has been develop the Ontario Bar Association’s submission on the need for a new law to control Strategic Lawsuits against Public Participation (SLAPPs). The submission is now posted, and I’ll be presenting it to the Attorney General’s eminent Advisory Panel next week.

©2010 Environmental Law and Litigation. All Rights Reserved.

It’s hard to know whether individual weather events are just random fluctuations, or whether they are growing signs of climate change. What we need to look for are patterns- is the weather changing? And how do the changes that are actually happening compare to those predicted for climate change?

Three years ago, two federal government departments (Natural Resources Canada and Health Canada) published reports on the damage climate change was already doing to Canada, and what we should expect to follow. No one paid much attention, but the predictions just keep coming true, in Canada and around the world.

Time to read only one? Health Canada predicted that global warming would increase Canadians’ exposure to diseases that are endemic in animals, including: bubonic plague. Plague? In Canada?!? The black death that killed one third of the population of medieval Europe? Last week, Parks Canada announced that a prairie dog in a national park had been found, dead of…. bubonic plague.^[i] They recommend that people take “precautions”.

NRCan’s report, From Impacts to Adaptation: Canada in a Changing Climate 2007,[ii] predicted summer heatwaves that are more extreme and longer, leading to deaths, reduced crop growth and wildfires. This year looks as if it will be the hottest year in recorded history.^[iii] Wildfires burned again in BC. The Yukon had 32,000 hectares of forest burned by early June.[iv] Quebec’s May forest fires required people to evacuate their homes, and burned over 350 square miles (880 square kilometres) in a week.[v]

A recent study says that heat waves have already surpassed worst-case projections, but will become more intense and unpredictable.[vi] Toronto’s sweltering summer pales against what is happening in other northern countries. As we write, everyone who can is fleeing Moscow because of fire and smoke^[vii]; Russia has had an estimated 15,000 deaths from heat.[viii] The heat is also predicted to reduce Russian agricultural and industrial output by $1.5 trillion.

Here are more of NRCan’s 2007 predictions, compared to recent news reports (in italics):

Northern Canada will see decreases in permafrost, sea and lake ice and snow cover. Recent research confirms: the Devon Island ice cap, one of the largest and most important arctic ice masses, has been shrinking steadily since 1985.[ix] Arctic ice cover may be at its lowest level in several thousand years.^[x] There will be a shift in the types and number of species of plants and animals, with competition by species that move north, and introduction of new diseases. An epidemic of spruce bark beetle will likely lead to decimation of white spruce trees.   

There will be more frequent and intense storms in Atlantic Canada.  Sea levels will rise, increasing erosion of the coastline and flooding.  Storms in Nova Scotia and New Brunswick brought power failure and flooding in February.[xi] Last year brought record wet weather.[xii]

In Québec and Ontario,  extreme weather, like heat waves, drought, intense rain, ice- and wind-storms, will be more frequent, stressing water, energy and transportation infrastructures.  Much of southern Ontario and Quebec is facing dry to record dry conditions this year.^[xiii] Near-record-low precipitation has deprived hydroelectricity operators of the water levels needed to turn they turbines.[xiv] Ontario had an astonishing 29 tornados in 2009.[xv]

The Prairies will see a shift in fire and insect disturbances, and an increase in non-native species.  Water will become more scarce; wildfires and severe floods will occur more often. Northern Prairies are exceptionally dry this year, while the south wallows in very wet conditions.^[xvi] In July, heavy rain triggered the most severe flooding ever seen in Yorkton, Saskatchewan.[xvii] Calgary had $400 million in hail damage in July, one of Canada’s most expensive storms ever.[xviii] Last year, the Red River had record floods.

Some regions of British Columbia will have more water shortages, and more competition among uses for the water (e.g., for power, irrigation, municipalities, recreation). A melting glacier triggered an avalanche of mud near Pemberton this month, resulting in evacuation of 1500 residents. [xix] [xx] Fires and pest infestations will affect forests. Last year, there was a 7-fold increase in BC forest fires.[xxi] The largest known outbreak of mountain pine beetle has killed millions of trees, and is spreading rapidly.

And as to the floods in Pakistan? They are exactly the sort of extreme weather that the Intergovernmental Panel on Climate Change predicted.

Coincidence or pattern? I’m worried; are you?

Dianne Saxe

Jackie Campbell

[ii] http://www.adaptation.rncan.gc.ca/assess/2007/pdf/full-complet_e.pdf

^[iii] http://www.theglobeandmail.com/news/national/its-the-hottest-year-in-recorded-history/article1643338/

[iv] CBC news. Yukon mine braces for wildfire. http://www.cbc.ca/canada/north/story/2010/06/02/yukon-nwt-ffire-conditions.html

[v] Bloomberg. Quebec Forest Fires Send Smoke, Haze South to Boston (Update2). May 31 2010.  http://www.businessweek.com/news/2010-05-31/quebec-forest-fires-send-smoke-haze-south-to-boston-update2-.html

[vi] Ganguly et al., Higher Trends But Larger Uncertainty And Geographic Variability In 21st Century Temperature And Heat Waves, Proceedings of the National Academy of Sciences, 2009.  Fulltext at http://www.pnas.org/content/106/37/15555.full.pdf+html

^[vii] http://www.theglobeandmail.com/news/world/europe/smoke-from-forest-fires-choke-russian-capital/article1664389/

[viii] Bloomberg. Russia heat wave may kill 15,000, shave $15 billion of GDP. Sugust 10 2010.  http://www.bloomberg.com/news/print/2010-08-10/russia-may-lose-15-000-lives-15-billion-of-economic-output-in-heat-wave.html

[ix] Boon S et al. Forty-seven years of research on the Devon Island ice cap, Arctic Canada. Arctic 2010 March;63(1):13-29.  See news report “Decades of research show massive Arctic ice cap is shrinking”. EurekAlert Apr 12 2010. At http://www.eurekalert.org/pub_releases/2010-04/aion-dor041210.php

^[x] http://www.treehugger.com/files/2010/06/arctic-ice-cover-at-lowest-point-past-several-thousand-years.php

[xi] CBC news. Power outages, flooding still concern N.B., N.S.  February 28 2010. http://www.cbc.ca/canada/nova-scotia/story/2010/02/28/nb-ns-power-outage-flood-red-cross-254.html

[xii] Environment Canada. Canada’s Top Ten Weather Stories For 2009 http://www.ec.gc.ca/meteo-weather/default.asp?lang=en&n=645a8f9c-1

^[xiii] Drought Watch, http://www.agr.gc.ca/pfra/drought/nlrl365dy_e.htm

[xiv] Globe and Mail, August 12, 2010. http://v1.theglobeandmail.com/servlet/story/LAC.20100813.RBPOWERHYDROMCCARTHYATL/TPStory/?query=Companies

[xv] Environment Canada. Canada’s Top Ten Weather Stories For 2009 http://www.ec.gc.ca/meteo-weather/default.asp?lang=en&n=645a8f9c-1

^[xvi] http://www.agr.gc.ca/pfra/drought/nlrl365dy_e.htm

[xvii] CBC news. Flood emergency declared in Yorkton, Sask. July 2 2010. http://www.cbc.ca/canada/saskatchewan/story/2010/07/02/sk-yorkton-flood-1007.html

^[xviii] http://www.ibc.ca/en/Media_Centre/News_Releases/2010/08-11-2010.asp

[xix] Times Colonist. 13 campers airlifted after melting glacier triggers avalanche http://www.timescolonist.com/news/airlifted+after+landslides+tourist+spot/3368909/story.html

[xx] Vancouver Sun. 40-million-cubic-metre Pemberton avalanche second only to Hope Slide.  August 9 2010 http://www.vancouversun.com/news/million+cubic+metre+Pemberton+avalanche+second+only+Hope+Slide/3372960/story.html

[xxi] Environment Canada. Canada’s Top Ten Weather Stories For 2009 http://www.ec.gc.ca/meteo-weather/default.asp?lang=en&n=645a8f9c-1

©2010 Environmental Law and Litigation. All Rights Reserved.

Seven years after ten million people were affected by the August 14, 2003 blackout, our electricity policy remains somewhat schizophrenic. I’m a strong supporter of the Green Energy Act; we do need to shift what we can to conservation and to small scale, distributed, renewable electric generation. It’s not the cheapest option, if all that counts is cash out of pocket, but cash is not all that counts. The Feed in Tariff has created lots of buzz about renewable energy in Ontario, despite the recent slashing of the price that will be paid for ground level solar. But getting permission to build renewable energy generation remains hard.

Distributed generation can have significant benefits in terms of reliability, flexibility, and avoided transmission and distribution costs, if power is generated close to where it is needed. Its major disadvantage may be opposition from NIMBYs: lots of little plants are, by definition, near lots of people and places. Everyone wants electricity, whenever they want it, but no one seems to want it generated (or transmitted) near them.  As president of Windshare, I’m particularly concerned about the proposed 5 km setback for all offshore wind developments. The proposal may please some Scarborough Bluffs residents, who didn’t want to see turbines 2 km offshore.  But it’s a death knell  for wind development anywhere near Toronto, where the electricity demand is greatest.

The 5 km proposal ignores one key fact: Lake Ontario is too deep to build economic turbines 5 km out. The lake is relatively shallow 2 km offshore, where Toronto Hydro proposes to build its wind farm, but drops off quickly after that.

©2010 Environmental Law and Litigation. All Rights Reserved.

Social media has helped to beat back efforts by pro-whaling countries, like Japan and Norway, to legalize commercial whale hunting.

At the International Whaling Commission meeting held in Morocco in June, web campaigner Avaaz.org, delivered to Australian environment minister Peter Garrett, an anti-hunting petition signed by more than 1.2 million supporters.  This helped to galvanize supporters of the 24 year old whaling ban, which they managed to uphold again. Meanwhile, evidence continues to grow of the intelligence and social networks of whales.

The battle will undoubtedly be resumed again next year.  Pro-whaling nations continue to court support from other countries, and to press for establishment of a whaling quota. Meanwhile, Japan continues to kill whales with impunity, under the alleged rubric of “research”.

©2010 Environmental Law and Litigation. All Rights Reserved.

Procedural skirmishing is underway in the Hanna lawsuit against Ontario wind turbines.

Hanna is seeking a declaration striking down certain sections of O.Reg. 359/09 that could authorize renewable energy permits for wind farms.  He argues that the Environmental Bill of Rights requires the MOE to consider the Ministry Statement of Environmental Values in its decision-making, and that the regulation breaches the precautionary principle because of  uncertainty concerning the health effects of wind turbines.

The Canadian Wind Energy Association has been permitted to intervene in the case as a friend of the Court, but not as a party. Also, certain of Hanna’s supporting affidavit material has been struck out. Otherwise, the case continues to grind on. I still don’t think it has any chance of winning, but Hanna may be able to frighten some potential investors.

©2010 Environmental Law and Litigation. All Rights Reserved.

Freedom of information (FOI) laws are important, in that they are supposed to provide citizens with access to information that is under the control of government institutions.  However, the FOI request process is cumbersome and confusing, and many requests are rejected with little or no explanation.In Canada, the Access to Information Act applies to federal government institutions, and each province has its own FOI statute(s), all of which operate in a similar manner.  In Ontario, for example, there are separate laws for information held by provincial institutions  (e.g., ministries, agencies, boards, commissions and universities) and municipal ones (e.g., municipalities, police services boards, school boards, conservation authorities, health boards).  We will use Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) to highlight concerns with the FOI process, in particular in light of a recent Supreme Court of Canada (SCC) decision relevant to the issue.

The FOI request process

Making an FOI request sounds easy: a written request (made on the prescribed government form) along with a fee must be sent to the government institution that likely has the records sought.  It is acceptable to attach a letter to the FOI request form that sets out the request in as much detail as possible, to avoid misinterpretation and omission of relevant documents. It is wise to file FOI requests with all government institutions that may have relevant information (e.g., environmental material may be held by the Ministry of the Environment (MOE), city, regional municipality, certain boards). Of note, information may be in various forms, and includes documents, computer files, photographs, films, videotapes and sound recordings.

Generally, the institution must respond to the FOI request within 30 days, but an extension may apply where the request is for a large number of records or consultations with external persons are required to comply with the request.  There are also other ways in which the process can be delayed.  For example, some requests are subject to third party notification, and party may object to information being disclosed. As well, in some cases, the institution requires further applications; recently, we made an FOI request for environmental records relating to a defined geographical area, and the MOE responded that we must submit a separate FOI request form plus fee for each of the many street addresses within the area of interest.

If the request is refused, the requester may appeal within 30 days to the Information and Privacy Commissioner, who is appointed by the legislature but is independent of the government. This may be a wise option, as the government institution may simply reject a request by reciting the clause number of the FIPPA exemption, without providing reasons.  Details concerning the basis for the rejection will be clarified on appeal.

If the request is accepted, the requester will be provided with an estimate of the fee to cover costs associated with locating, retrieving and copying the records.  This can be high, for example if a lot of time must be spent to review the documents or if hundreds of pages are involved.  The requester may opt not to proceed, to narrow the scope of the search, or to request a review of the fee amount.

In 2009, of the 10,240 general information requests received by provincial government organizations, the Ministry of the Environment received the most of  any provincial institution, 4944 requests. (see attached Commissioner’s report at 10-11)

Exemptions

Exemptions under FIPPA limit or prevent disclosure of certain information.  Where only part of a document is exempted from disclosure, the remainder of the record must be disclosed.  Exemptions include Cabinet records; advice to governments (e.g., by public servants, consultants or others); law enforcement records; defence records; third party information (e.g., trade secret, scientific, technical or labour relations information); information relating to Ontario’s economic and other interests; records that are subject to solicitor-client privilege; records that, if disclosed, could threaten an individual’s safety or health; personal information; records that put species at risk; and information that is already or soon to become publicly available.

FIPPA contains an override provision that mandates disclosure of records if there is a compelling public interest to do so. However, this provision doe not apply to all exemption categories, for example, to records subject to solicitor-client privilege and law enforcement privilege.

A recent SCC decision in Criminal Lawyers’ Assn. v. Ontario (Ministry of Public Safety & Security) is important as it recognized a limited Charter right to access government information. A lower court judge stayed murder charges relating to a 1983 mob killing because of abusive conduct by the police and Crown attorney.  The Ontario Provincial Police (OPP) investigated the conduct of the officials and exonerated them, without explaining why the misconduct found by the judge did not attract criminal charges. The Criminal Lawyers’ Association (CLA) requested disclosure of the OPP investigation report under FIPPA. The Minister refused, claiming exemptions that included solicitor-client and law enforcement privilege, among others, although he failed to explain how these exemptions applied.  The Assistant Information and Privacy Commissioner reviewed and upheld the Minister’s decision with respect to these two claimed exemptions, which were not subject to the FIPPA override.

The CLA argued that freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms would be breached unless the documents were released under FIPPA’s public interest override provision.  The Divisional Court upheld the Minister’s decision and found that the FIPPA exemption scheme did not violate freedom of expression; the Court of Appeal disagreed and held that the scheme violated the Charter.

The SCC overturned the Court of Appeal decision, ruling that the Charter guarantee of freedom of expression does not extend to access to all information held by the government.   Access to such documents is constitutionally protected only where it is necessary to permit meaningful discussion on a matter of public importance, does not encroach on protected privileges (e.g., solicitor-client or law enforcement privilege) and is compatible with the function of the institution (e.g., Ministry) concerned.  Unfortunately, the Court did not clarify what “meaningful discussion” means.

The SCC upheld the Commissioner’s decision on the solicitor-client privilege claim.  However, it noted that the absence of reasons and failure by the Minister to order disclosure of any part of the “voluminous documents” sought by the CLA raised concerns that should have been investigated by the Commissioner; accordingly, it sent the matter back to the Commissioner for reconsideration of the decision relating to the law enforcement exemption.

The SCC decision should serve as a warning to government officials that merely refusing an FOI request without providing the rationale behind the refusal is no longer appropriate.  Nor is withholding an entire document where only portions are exempted from disclosure.

Jackie Campbell

©2010 Environmental Law and Litigation. All Rights Reserved.

Quebec City has successfully defended a bylaw requiring private property owners to naturalize the shoreline of its water supply.

The St. Charles River, which flows into the lake of the same name, provides over half the potable water used by Quebec City.  A study revealed that the banks of the lake were eroding due to human activity, including structures within 20 metres of the shore. To protect the water supply, the City adopted a by-law requiring owners of lakefront property to put in 10-15 metre buffer zones composed of trees, bushes and other plants.  Owners of shore land challenged the City’s authority to adopt the by-law.

Clause 19 of the Municipal Powers Act provides that local municipalities may adopt by-laws on environmental matters.

Held: The City has the power to adopt the by-law, and exercised its discretion in a reasonable manner.  The by-law provisions do not totally take away the plaintiffs’ enjoyment of property rights.  The Court recognized that the forest buffer required by the by-law substantially affects part of the property.  There was no evidence that the City acted in bad faith or for anything but the collective interest.  Nor is the by-law disguised expropriation.

©2010 Environmental Law and Litigation. All Rights Reserved.

I think I forgot to mention it: The Supreme Court of Canada granted Berendsen leave to appeal from the Court of Appeal’s dismissal of his lawsuit against the province for the contamination of his land. The case has now dragged on for more than 20 years…

©2010 Environmental Law and Litigation. All Rights Reserved.

Skytruth.org is a great site for seeing what is really happening in big environmental problems, like the BP oil spill, and fast-growing oil and gas production fields. They collect and publish up to date aerial photos. That’s another good thing about Google, the web and social media: it’s getting harder and harder to hide things like this…

©2010 Environmental Law and Litigation. All Rights Reserved.

Canada’s electricity sector is responsible for 17 percent of national greenhouse gas (GHG) emissions. Most of that -13%- comes from 51 coal-burning electricity plants, along with mercury, particulates, NOx/ SOx and other health hazards. [i]^{, [ii]}

Minister of the Environment Jim Prentice has promised new regulations for these coal-fired plants. Scheduled to take effect on July 1, 2015, the proposed regulations will impose tougher performance standards on new coal-fired electricity generation units and on those units that are no longer “of economic value”.[iii] The second rule could be the one that matters, depending on the details in the regulation. In the US, old coal fired plants have been allowed to keep spewing massive amounts of GHGs and health hazards long after they were expected to retire. 33 of Canada’s 51 existing coal burning electricity plants are predicted to reach the end of their economic life by 2025.[iv]

According to Minister Prentice, the new regulations will encourage electric utilities to transition towards lower- or non-emitting types of generation such as high-efficiency natural gas, renewable energy, or thermal power with carbon capture and storage (CCS).[v] Also, the policy would dovetail with the commitments of several provinces (like Ontario) and companies to close old coal plants. Together, Prentice predicts that phasing-out inefficient coal-fired generation will reduce emissions by 15 megatonnes (Mt) by 2020.[vi]

Draft regulations are to be published in Canada Gazette early in 2011 with final regulations following later that year.

Footnotes

[ii] Environment Canada. News Release: Government of Canada to Regulate Emissions from Electricity Sector. Media Room, At http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=E5B59675-BE60-4759-8FC3-D3513EAA841C

[iii] Environment Canada. News Release: Government of Canada to Regulate Emissions from Electricity Sector. Media Room, At http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=E5B59675-BE60-4759-8FC3-D3513EAA841C

[iv] Environment Canada. Canada moves to reduce emissions in the electricity sector. Reports and Publications: Issue 101, At http://www.ec.gc.ca/envirozine/default.asp?lang=En&n=5AE042C9-1

[v] Environment Canada. Canada moves to reduce emissions in the electricity sector. Reports and Publications: Issue 101, At http://www.ec.gc.ca/envirozine/default.asp?lang=En&n=5AE042C9-1

[vi] Environment Canada. News Release: Government of Canada to Regulate Emissions from Electricity Sector. Media Room, At http://www.ec.gc.ca/default.asp?lang=En&n=714D9AAE-1&news=E5B59675-BE60-4759-8FC3-D3513EAA841C

©2010 Environmental Law and Litigation. All Rights Reserved.

One of the joyful things to do on a lovely spring, summer, or fall day is to cycle the beautiful areas around Toronto. We are proud to be sponsors, for the third year running, of Bikes and Transit. This great website has maps, GPS coordinates and encouragement for combining bicycles and public transit in the greater Toronto area. Give it a try, and let us know what you think. Happy summer!

©2010 Environmental Law and Litigation. All Rights Reserved.