In late 2014 the Environmental Law Centre released what might be the first comprehensive Report on Standing in Environmental Matters in Canada. Standing is often called the “right to a hearing” although it’s more complicated than that. It’s supposedly a dry topic that only interests lawyers, but since the Northern Gateway Pipeline hearings brought the debate into the average living room I’m not sure that’s true anymore. The debate is awakening across the country and several of our recent public engagements affirm that it’s both: a legal topic and a political one.

First come some findings from the ELC’s “Summit on Standing” held in late 2014. What may shock those who get their information from mainstream media is that the harms attributable to public hearings usually come from problems with the system like unclear rules and inadequate funding rather than the conduct of environmental groups. Furthermore, there are numerous cases where public participation makes a difference, especially when provided at earlier, less formal stages of the resource development process.

Second were some comments from a recent meeting of the Environment Section of the Canadian Bar Association (Alberta North). These suggest that old problems can survive reforms. For one, the new Alberta Energy Regulator might be imposing even more stringent requirements to trigger hearings than did the old ERCB. On the flip side were comments that persons seeking standing at tribunals in Alberta need to show at least some evidence that they are affected and sometimes they don’t. A further point is that interveners can be concerned with the cumulative effects of industrial activity over large tracks of land. This is clearly something that tribunals still struggle with when making project-specific decisions and the regional planning in Alberta has yet to provide much help.

Finally there were some questions raised at the 2015 Symposium on Environment in the Courtroom held by the Canadian Institute for Resources Law in conjunction with the CBA. This session was intended to focus on evidentiary issues for the benefit of courtroom lawyers, but the discussion rapidly veered into policy questions about who should be heard and what interests they represent. As this was a national event I learned much about how experiences with different standing regimes can influence a point of view. Most striking were recent legislative developments in Ontario, of which I was unaware, that allow members of the general public to appeal wind power projects.  Even for different types of appeals where the legislated requirements remain stringent, the Ontario Environmental Review Tribunal is finding that requirements for potentially serious environmental harm are met. This is very different from the situation in Alberta where tribunals are provided with restrictive standing tests for everything and have repeatedly created high evidentiary barriers.

So what to conclude? Debates over standing are prevalent in multiple Canadian jurisdictions, litigation is on the rise, and the acute issues are at tribunals rather than courts. The evidentiary barriers imposed by tribunals are the “low hanging fruit” for the litigators, but the bigger debate is a political one. As for that dimension, disputes over standing can and have been aggravated by ill-conceived legislative reforms in multiple jurisdictions. Will the pending election in Alberta bring another chance to get it right? Ignoring the issue won’t make it go away.

Photo credit: waynerd / Foter / CC BY-NC-ND

Photo credit: waynerd / Foter / CC BY-NC-ND

In today’s Calgary Herald: “Prentice confident Springbank dry dam most cost-effective option to protect Calgary.”

The article outlines the reasons behind building a dry reservoir around Springbank in an effort to mitigate flooding in Calgary. While the reasons are largely economic, there was some mention of environmental assessments. “Prentice said a dry dam in McLean Creek would also involve a five to seven year environmental review process and the province would continue to examine that proposal, as well as the diversion tunnel in Calgary.” The article – and that statement in particular – have raised questions as to why the Springbank dam will require less time for an environmental review process than other options currently being considered.

Since reforms to both federal and provincial environmental assessment in 2012, the process largely depends on the size and scope of the project. Adam Driedzic, ELC Staff Counsel, provided a good breakdown of post-2012 requirements in his July, 2014 blog post: “Does a flood mitigation ‘dry dam’ require an environmental assessment?” This post should answer questions as to which projects need which assessments and when.


trashOur lives invariably cause a level of pollution: we drive, we use chemicals to clean our clothes and our homes, we use a seemingly never ending stream of plastics in our workplaces and homes. Who pays for the pollution that results? The resource extractor, the manufacturer, the retailer, the consumer? Should creditors pay for pollution caused by their borrowers? Should governments pay for pollution that they regulate when it results in harm to the environment of its citizens?

Our laws (both common law and codified) deal with the issue of who pays for restoring environmental harms to varying degrees. The issue of environmental liability (and the corollary cost of preventing harm) was the topic of a panel comprised of Alex MacWilliam and I at the recent Canadian Association of Environmental Law Societies Conference in Calgary (moderated by Martin Olszynski).

From the ELC perspective any discussion of environmental liability leads to a focused evaluation of whether our laws adopt the “polluter pays” principle.  If we have to pay for our pollution, the reasoning goes, we will be motivated to avoid polluting in the first place or seek out less polluting alternatives.

The principle is espoused in pollution laws both provincially and federally. The Alberta Environmental Protection and Enhancement Act recognizes “the responsibility of polluters to pay for the costs of their actions” (at s.2) and the Canadian Environmental Protection Act, 1999 notes “the Government of Canada recognizes the responsibility of users and producers in relation to toxic substances and pollutants and wastes, and has adopted the “polluter pays” principle” (at the preamble). Tort law similarly attempts to hold a defendant liable for harm to a plaintiff resulting from pollution by ordering that remedial actions be taken or through the payment of compensation.

The law’s application of the polluter pays principle is far from perfect. In the coming months the ELC blog will, in addition to our regular blog posts, focus on specific issues arising around environmental liability and the polluter pays principle. This blog series, Pollution Pocketbook, will discuss:

  • who should pay for pollution;
  • how to ensure a polluter pays;
  • when should a polluter pay; and
  • how much should a polluter pay.

Stay tuned; you won’t be shortchanged.

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Today’s Edmonton Journal features an article about Alberta Environment ordering Leduc County to clean up a former landfill and a lawsuit brought against the county by residents of the property. This is an unfortunate situation for all parties and one worth avoiding if you can.

In real estate transactions the onus is generally on the buyer to do their due diligence and the general rule for buying and selling real estate is “buyer beware.” Environmental information often doesn’t appear on land title, so it’s up to the buyer to find this information elsewhere. Unfortunately there’s no checklist to prove due diligence and no one-stop shop for environmental information.

The best way to demonstrate due diligence is to identify environmental concerns, learn what information is available about those concerns and act on that knowledge. Buyers who make inquiries into the environmental conditions of the specific site and the local area are in the best position to make sound choices and solid deals.

What Lies Beneath? Access to Environmental Information in Alberta, a recent ELC publication, provides practical information-finding tips, outlines environmental concerns you may want to think about and describes where to get started to find the information you need to make the best choices when buying property in Alberta. A twelve-page booklet based on this guidebook, Buyer Beware, is also available on our website.

Celebrate the World
At the 2015 Canadian Association of Environmental Law Societies Conference held at the University of Calgary last week, I presented a brief overview of global, Canadian and provincial developments in carbon pricing and greenhouse gas reduction policies.  One of the questions I sought to address was whether Canada can be expected to have a strong, ambitious national carbon pricing policy in time for the Paris climate change conference in December 2015.

Indeed, the Paris climate conference has been touted as the “world’s last best chance to reach an agreement on cutting carbon emissions.”  As successor to the Kyoto Protocol, the international climate change treaty that emerges from Paris will consolidate all the Intended Nationally Determined Contributions (INDCs) of more than 190 developed and developing countries.  The INDCs are countries’ plans that articulate their greenhouse gas (GHGs) reduction targets and how these will be achieved, including the possible use of market-based mechanisms such as emissions trading and carbon taxes.

“Ambitious but achievable” are adjectives that the Guardian used to describe the upcoming Paris international climate treaty. Why? Last November 2014 in China, U.S. President. Barack Obama & China President Xi Jinping forged a historic deal that their countries, the two largest emitters in the world, would commit to significantly reduce their GHGs. For the U.S., Obama committed to cutting its GHGs between 26% and 28% by 2025 over the 2005 baseline period. For China, Xi Jinping committed to peaking its GHG emissions by 2030. China is also poised to officially launch a national emissions trading market in 2016. Not to be outdone, the European Union, which has the largest emissions trading scheme in the world with 30 countries participating, also committed to cutting its GHGs by 40% by the year 2030 using a 1990 baseline. Interestingly, even Pope Francis is scheduled to issue an encyclical this year to encourage his 1.2 billion Catholic followers to take action on climate change because it is a moral responsibility.

With bold, significant steps by the U.S., China and the European Union, the question arises: Will Canada follow suit and forge ahead with a strong, ambitious national climate policy in time for the Paris climate conference?  To address this question, it may be helpful to recall Canada’s historical record on the climate file.

In 1997, Canada made a binding commitment under the Kyoto Protocol to reduce its GHGs by 6% below 1990 levels by 2012. In 2011, Canada withdrew from the Kyoto Protocol because it had already emitted 30% more above its Kyoto obligation.  If Canada fulfilled its Kyoto obligation, the government claimed that it would cost Canada $14 billion or about $1,600 for every Canadian family.

Because the federal government knew that Canada would fail in its 2012 Kyoto obligation, as early as 2009, it committed the country to a non-binding commitment to reduce its GHGs by 17% below 2005 levels under the Copenhagen Accord.  As of 2014, however, Canada has already missed its Copenhagen target by 122 megatonnes of CO2e.

Given Canada’s dismal record of keeping its climate reduction obligations, it appears that Canada is not poised to emerge with a strong, ambitious national carbon pricing policy at the Paris climate conference. This conclusion is buttressed by Prime Minister Stephen Harper who avowed: “It’s not that we don’t seek to deal with climate change, but we seek to deal with it in a way that will protect and enhance our ability to create jobs and growth, not destroy jobs and growth.”

To fill in this void on federal climate policy, several provinces have gone ahead and established their own carbon pricing schemes. Alberta has its emissions intensity trading scheme, being the first jurisdiction to legislate on reducing GHGs in North America. British Columbia has a revenue-neutral carbon tax scheme, which has won praise from the OECD and the World Bank. Quebec has a cap-and-trade scheme which is linked with California’s scheme through the Western Climate Initiative. Ontario has cut its emissions by 6% below 1990 levels and will soon be implementing either a cap-and-trade scheme or a carbon tax this year.

But there is still time for Canada to act. It should seize this rare opportunity to repair its poor climate change reputation by joining the 74 national governments that the World Bank has reported as supporting a strong carbon price. In doing so, Canada can manifest its climate leadership in time for the Paris climate conference. However, this can only happen if the Canadian government can muster within itself the strong political will and courage to do so.

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The National Energy Board (the “NEB”) recently began its public engagement initiative relating to pipeline safety [the information about the cross-country engagement initiative in this blog post was gathered from the NEB’s website at http://www.neb-one.gc.ca ].  The NEB seeks public input on pipeline safety and environmental protection with particular emphasis on:

  • improving the safety of pipelines regulated by the NEB,
  • promoting environmental protection,
  • engaging with landowners and people who live near pipelines, and
  • keeping Canadians informed about the topic they care about.

What is happening?

Early this year, the NEB will be meeting with Canadians in every province and the North to gather feedback and suggestions for improving its pipeline safety program.  According to the NEB, it intends to meet with interested groups including municipal and provincial leaders, Aboriginal organizations, environment groups, first responders and academics.  As well, the NEB intends to meet with professional and industry organizations.

How can you share your ideas?

The NEB is inviting comments from the general public via email [pipelinesafety@neb-one.gc.ca].  As well, an online discussion forum is available at http://neb.soapboxhq.com/welcome/?l=en.  The online forum allows individuals to post comments, concerns and suggestions on pipeline safety and environmental protection.


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