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At the recent 2015 Canadian Bar Association Symposium on “Environment in the Courtroom” in Calgary, I delivered a presentation on the topic “Judicial Notice of Climate Change”.  The presentation focused on the question of whether or not courts have accepted climate change as a scientific fact so that no further proof of its existence or cause would be required in courtrooms.

This question is quite interesting on many fronts. In the arena of public opinion, as reported in a 2014 Forum Poll survey, while 81% of Canadians believe in climate change, there are still many who deny its existence.  According to the survey, climate denial generally emanated from the following groups: Generation X (18%), males (17%), mid‐income groups (18%), Atlantic Canada (19%), Alberta (20%), Conservative voters (29%), least educated (17%), and Evangelical Christians (32%).

In the arena of politics, there are some very high-profile politicians who also deny the existence of climate change. A couple of months ago, The Washington Post reported that U.S. Senate James Inhofe, who is Chair of the Environmental & Public Works Committee, went on the Senate floor to bring his “proof” that climate change is the “greatest hoax ever perpetrated on the American people”. On the palm of his hand was his piece of evidence: a perfectly round snowball which he later tossed out to an unsuspecting Senate colleague.

Meanwhile, in the academic arena, there are also some very prominent scientists who still deny that climate change is caused by human activities.  The New York Times recently reported that Willie Soon, a scientist at the Harvard-Smithsonian Centre for Astrophysics in Boston, claimed that the variations in the sun’s energy are the cause of climate change and that greenhouse gases cause little risk to humanity. Through the Freedom of Information Act, documents revealed that he received $1.2M from fossil fuel companies for his scientific papers. The article noted that some environmental groups deemed this revelation as clear evidence of “the continuation of a long-term campaign by specific fossil-fuel companies and interests to undermine the scientific consensus on climate change”.

While many public debates continue to rage on whether or not climate change really exists, those debates are interestingly not taking place in the courtroom. As climate change science has developed, courts have increasingly taken judicial notice of it. What is judicial notice? Chief Justice McLachlin in R. v Find,  (2001 SCC 32)  explained that “judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute”. Thus, whenever a fact is judicially noticed, it is not subject to the ordinary procedural processes for testing evidence such as oaths and cross-examination.

So you may ask, where can the scientific consensus on climate change be found? It is found within the confines of the reports created by the United Nations-endorsed Intergovernmental Panel on Climate Change (IPCC). These reports provide rigorous and balanced scientific information to decision-makers. They are written by hundreds of leading scientists and reviewed by thousands of experts. They provide full scientific, technical and socio-economic assessments on climate change. And what have these reports concluded? That warming of the climate is undeniably happening, that human-caused greenhouse gas emissions are likely causing the climate to warm, and that adverse climate-related impacts are presently occurring and are expected to increase in the future unless significant reductions of greenhouse gas emissions are achieved.

In the landmark case for judicial notice of climate science,  the U.S. Supreme Court in Massachusetts vs EPA (2007) stated that: “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere.  Respected scientists believe the two trends are related.” It also stated that “[t]he harms associated with climate change are serious and well recognized”.

Indeed, U.S. courts have heavily relied on IPCC reports because they have various indicia of reliability favoured by the U.S. laws of evidence. They are also backed by highly credentialed organizations and scientists. An American Bar Association article noted that in fact, no judge, except in one dissent, has expressed skepticism about the science underlying climate change. In a survey of the more than 400 climate change litigation cases that have been launched in the U.S., it was noted that the debate on climate change in courts is neither based on its existence nor its cause. Rather the debate is based on its detrimental impacts and to whom those impacts can be attributed.

In Canada, the court in Syncrude vs Canada (2014 FC 776) likewise took judicial notice of climate change. As Justice Zinn declared:  “The evil of global climate change and the apprehension of harm resulting from the enabling of climate change through the combustion of fossil fuels has been widely discussed and debated by leaders on the international stage.” Thus, he noted that “[c]ontrary to Syncrude’s submission, this is a real, measured evil, and the harm has been well documented”.

Nevertheless, the success of any climate change litigation will turn on the factual basis that is established by the plaintiffs. Indeed, despite the scientific consensus that greenhouse gas emissions cause climate change, it is difficult to prove the contribution of specific defendants to the problem in a specific location. It cannot be denied however that climate change litigation performs several functions: to keep the pressure on fossil fuel companies and other large emitters, to keep the issue live in the public mind, and to send a strong message to the legislature that comprehensive climate legislation is needed because current statutes are inadequate to address it.

At the end of the day, while courts have taken judicial notice of climate change, the future of climate change litigation is less certain. This is because it hinges on the strong political will and ambition of governments to establish, implement and strongly enforce climate change legislation.

Pollution pocketbook is a short blog series regarding how our laws and policies incorporate the polluter pays principle.

Featured image

Imperial Refinery, Calgary, AB, Canada. Dept. of Mines and Technical Surveys / Library and Archives Canada / PA-015634

The polluter pays principle (PPP) is aimed at ensuring that those who pollute pay to remedy the environmental harm they cause and that costs to the environment are internalized (to incent us to pollute less).  In applying the principle we generally focus on the party who is the most proximate cause of the pollution: however, our laws don’t make every polluter pay for all pollution.

Who pays? Scale matters

In the context of who pays we see that scale matters. We don’t pay for the pollution from driving our cars (at least not directly).  If we did perhaps we would see more compact cars or cyclists on our streets.  (Driving a car is also a great example of the complexity of calculating how much we pollute, from the resources that go into the car itself, to the fuel, to the infrastructure that must be built and maintained: the sources of payment track an extensive chain of pollution).

On the other hand we do pay utility bills which incorporate costs associated with waste water treatment.  Even then scale matters, as larger urban areas typically treat wastewater more thoroughly then smaller urban areas (taking advantage of the greater number of polluters to meet higher standards).  At different scales the economic feasibility of payment typically differs.

We could require everyone to pay for their specific pollution levels but such an approach would likely be too cumbersome to track and administer. Rather our laws and polices focus on pollution that is likely to create significant harm to people or property.  The greater the risk and gravity of harm that your activity may or does have the greater likelihood PPP will be applied.

Who Pays? Sector matters

Some sectors may pollute but seem to be able to evade application of the PPP.  We know that land conversion and application of fertilizers for agricultural purpose can result in significant pollution.   Some pollution mitigation measures may apply to the agricultural sector, such as the need to create nutrient management plans, but typically the regulations fall well short of a comprehensive polluter pays system.

The exclusion of some sectors from being subject to the PPP may be due to practical, political and economic factors (or combination thereof).  Sectors which result in significant non-point source pollution may avoid application of the PPP due to the difficulty in quantifying the pollution itself and discerning the level of impairment on the environment.  Political, cultural and economic rationale may also be relied upon to justify exceptions to oayment.

(For a general review of the polluter pays principle and agriculture see Margaret Rosso Grossman, “Agriculture and the Polluter Pays Principle”, vol. 11.3 Electronic Journal of Comparative Law (December 2007))

Who Pays? Policy matters

The policy context of the PPP also matters.  Cap and trade policies can be viewed as a form of polluter pays but typically include the “grandfathering” in of polluting activities which predated the policy.  A baseline of pollution credits is often provided to these historic polluters free of charge.  This in turn raises equity concerns as an uneven pollution playing field is created.  An initial auction of credits has been suggested as a better representation of the PPP.

Who should pay? Who could pay?

I have previously proposed (on the heels of the Supreme Court of Canada’s AbitibiBowater decision) that we should expand the net of who is considered to be a “polluter” to those facilitating the polluting activities, possibly all the way to financiers and other creditors.  Such an approach might change our view of pollution and better incorporate environmental considerations from project conception to decommissioning (and bring us a step closer to full cost accounting).    Is such a move radical? (Start the debate in the comment section).

Which polluters pay under our current laws varies widely across jurisdictions and levels of pollution.   Alberta often focuses on those polluters who directly impact land, soil and groundwater. Other impacts on water and air typically involve a level of pollution payment in terms of environmental monitoring and investment in pollution abatement technology.  There remains a large amount of pollution that continues free of charge.

The scale, sector and policy context adds to the complexity of deciding who should pay.  In each case application of the PPP will likely result in economic arguments of why a polluter should not pay.  The complexity and efficiency of specific polluter pays mechanisms (the “how” or “when” we pay) is also central to who pays.

In future blogs we will consider some of the key issues with how the principle is applied in the Alberta and Canadian context and determine whether the right polluters are paying, at the right time, in the right amount.

Polluter pays (in brief)

The PPP is one of the most cited or adopted principles in laws around the world; by way of just a few examples it finds support in Canadian and Alberta law, US federal laws regarding superfund sites and clean water, as well as the Treaty on the Function of the European Union (article 191(2)). 

Governments rely on a host of mechanisms to implement the PPP including:

  • Effluent standards (with related costs of abatement systems and technology)
  • Administrative orders (with related costs or fines)
  • Financial security for remediation and reclamation
  • Pollution taxes
  • Cap and trade or pollution offset systems

Fracking Fall Out

Controversial spin-off industries expose gaps in regulation

Click Here for some media coverage about a dispute over the storage of fracking sand in Penhold, Alberta. Here is some more coverage of the same debate. The sand contains crystalline silica, which is known to cause deadly lung ailments including cancer. This Google Earth photo shows how close this facility is to people’s houses. It’s right across the street.

Silica sand has countless uses from golf courses to glass-making, so blaming fracking for this neighborhood uproar isn’t exactly fair. Or is it? Click here for a similar news story about chemical tank farms used to store fracking fluids. Here are photos of heavy trucks pounding country roads in the heartland of the US fracking debate. So there are “cumulative effects” of the primary industry, which happens to be unconventional energy development, and that tests the limits of conventional regulation. Back to sand:

danger

Crystalline Silica is already regulated in the “workplace” or “occupational” health and safety context. The regime involves mandatory Material Safety Data Sheets (MSDS), warning signage, limits on occupational exposure and workers compensation claims. In fact “miner’s disease” has been recognized since Roman times.  But when it comes to modern environmental health there is a gap where exposure to pollution is indirect, intermittent, or disproportionately felt by local people.

Consider the following:

  • No “toxic substance”: Crystalline silica is not listed as “hazardous” or “toxic” under federal or provincial environmental legislation. It was sufficiently “high priority” to be screened for federal listing in 2013 but it did not meet the necessary criteria as was “not entering the environment in a sufficient quantity, concentration, or under conditions” that would create a health danger for “the general population in Canada”.
  • No environmental permits: Sand storage operations on private land usually do not typically require federal or provincial permits. This is somewhat different from chemical tank farms which can be caught by provincial regulations if they are large enough. The provincial Environmental Protection and Enhancement Act (EPEA) can potentially require permits for activities that are not specifically designated, but that is not done in this case.
  • Outside Air Quality standards: Crystalline silica isn’t directly targeted by federal or provincial air quality guidelines as these are focused on “particulate matter” more broadly. Also, the guidelines target particles under 2.5 microns which are small enough that they usually come from burning, not sand and dust. There is some monitoring of particles under 10 microns, which could catch dust, but this larger size is not used for regulatory compliance.

inhalation Therefore the regulation of fracking sand depends on municipal bylaws and development permits, and on general legislative provisions for the storage of hazardous substances and prohibitions on “releases”. Any of these tools require enforcement that is subject to administrative discretion and political oversight. Individuals who suffer harm to health or property can initiate private law suits against polluters but  that is a poor substitute for harm prevention and such cases are notoriously difficult to succeed at. We can ask operators to be good corporate citizens above and beyond their legal obligations, but that won’t work if the lack of “social license” applies to the whole industry and actually comes from lack of confidence in the regulatory system. Improving that system is going to require the recognition of indirect impacts and cumulative effects, and a leading case in Alberta like elsewhere is fracking.

watershed2

The Oldman Watershed Council (OWC) interviewed Adam Driedzic, Staff Counsel at the Environmental Law Center (ELC), for the film “Oldman Goes to Hollywood”, a visual story of change and stewardship in the watershed.  Adam spoke about the impacts of land use on water and emerging pressures on the watershed such as municipal growth and recreational activity.  The ELC is currently assisting the OWC advance its Headwaters Action Plan, which seeks to protect the source of our water, the Eastern Slopes of the Rocky Mountains. The ELC’s research compares recreation management in Alberta to other states and provinces in North America.  A preview of the ELC’s research will be published in the upcoming edition of Alberta Wilderness Association’s Wild Lands Advocate publication.  Media coverage on this film can be viewed here.

globe and leaf

Brenda Heelan Powell, Staff Counsel at the Environmental Law Center (ELC), has been selected to participate in the Alberta Energy Regulator (AER)’s Best-in-Class Regulator Initiative.  This initiative is being conducted by the University of Pennsylvania through its Penn Program on Regulation, which will develop the tools and framework necessary for the AER to measure and track its performance against best-in-class regulator attributes globally. As the single regulator for Alberta’s energy industry, the AER plays a central role in the protection of Alberta’s natural resources and environment.   In order to be a best-in-class regulator, the AER must conduct itself in a transparent and accountable manner. As well, the AER should operate within a regulatory and policy framework that achieves overall sustainability and sets clear and measurable environmental outcomes.

water earth

In celebration of Canadian Water Day last March 22, 2015, the Strathcona County invited Jason Unger, Staff Counsel at the Environmental Law Centre, to participate in a water panel discussion on the nature of complex water concerns in the North Saskatchewan River Basin as well as on the policy and legal contexts around contentious issues such as fracking. Joining Jason as panelists were representatives from EPCOR and the North Saskatchewan Watershed Alliance.  The panel discussion followed the documentary film screening of WaterLife (see the trailer here) at the Strathcona County Council Chambers.  The film is about the Great Lakes that follows the flow of the lakes’ water from the Nipigon River to the Atlantic Ocean. The panel brought the key message of the film into the Alberta context, particularly in respect of the complex water challenges regarding the North Saskatchewan Basin.

Earlier this month, the Alberta government introduced its proposed amendments to the Municipal Government Act (MGA) in the form of Bill 20: Municipal Government Amendment Act.  These amendments follow from several months of public consultation conducted by Municipal Affairs (details can be found on the MGA Review website)

Given the key role that municipalities play in the management and protection of Alberta’s environment, we have participated in this review by making written submissions. Our key recommendations for strengthening the MGA are:

  1. Protection and management of the environment is a valid municipal planning purpose and, as such, should be expressly recognized in the MGA.
  2. The MGA should incorporate by-law purposes specific to protection and management of the environment.
  3. The MGA should expand the enforcement tools available to municipalities for the purposes of environmental protection and management.
  4. The MGA should expand the revenue generation options available to municipalities to enable environmental stewardship and, particularly, land conservation.
  5. The MGA should enhance opportunities for public participation in municipal planning processes.

Unfortunately, Bill 20 reflects few of our recommendations.  We had recommended that opportunities for public participation be enhanced in the MGA and, as such, we welcome the new requirement for municipalities to establish a public participation policy (see section 24) and changes to modernize the petitions process (see section 30).  However, it is disappointing that changes to strengthen the role of municipalities in environmental management and protection have not been proposed in Bill 20.

The Alberta government has indicated that it will be introducing a second amendment bill this fall to deal with more complex issues.  The ELC will continue to work to have our recommendations reflected in the second amendment bill.  Ultimately, we would like to see the MGA amended to require and empower municipalities to manage and protect the local environment.

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