Climate change, class actions, contaminated sites and water again dominated 2007 for environmental practitioners.
The biggest international news was the increasing urgency of climate change. The release of the fourth report of the Intergovernmental Panel on Climate Change swept away any remaining doubt about the seriousness of the problem, or of the need for immediate and decisive action. Canada’s position remains an international embarrassment, as well as a breach of our legal obligations under the Kyoto Protocol. The federal Clean Air Act died an ignominious death, after the Conservatives refused to accept opposition amendments. At the end of 2007, it had not been replaced with any other federal legislation.
The provinces are taking some steps. Under Alberta’s Climate Change and Emissions Management Act, facilities that emit > 100,000 tonnes of GHG/ year will be required to reduce their emissions intensity (though not their absolute emissions) by 12 per cent compared to 2003-2005. Two regulations are now in place: the Administrative Penalty Regulation (setting out penalties for non-compliance) and the Specified Gas Emitters Regulation, which sets out reporting requirements, emission targets, and compliance guidelines.
These are the first steps towards development of an all-Alberta GHG trading system. By June 1, 2008, large existing emitters must file their Baseline Emissions Intensity Application, verified by a Third Party Auditor’s Report. Any necessary reductions can be made in-house, purchased from other regulated emitters, purchased elsewhere in Alberta through a somewhat risky Offset System, or replaced with $15/tonne payments into a Climate Change and Emissions Management Fund.
British Columbia has promised its own climate change legislation, after joining the International Carbon Action Partnership (ICAP). This group of governments have agreed to control GHG with cap and trade systems, and to share best practices. ICAP members intend their domestic trading regimes to be compatible with other systems, in the hope of building a global carbon market. Other members of ICAP include Manitoba, New Zealand, several European countries and U.S. states.
In Ontario, the new Clean Water Act came into force, to control landuses and activities that threaten municipal water supplies at source. Source water protection committees have just been formed, and must submit their terms of reference next year. Assessment reports of drinking water source quality and quantity will be due in 2009.
The first phase of Ontario’s administrative penalty system also came into force, for large, MISA-type industries. Elaborate guidelines help to calculate the penalties, some requiring considerable arithmetic. Each penalty will contain one charge to strip away the monetary benefit of non-compliance, plus one charge to reflect the gravity of the incident. Gravity charges are subject to discounts, e.g. if the offender has a qualifying Environmental Management Systems (such as ISO 14001).
On the litigation front, class actions continue to be the hottest topic, with Quebec still leading the way. The Supreme Court of Canada granted leave to appeal from one of the first environmental class actions to award substantial damages. In Barrette v. Ciment due St-laurent Inc., adult neighbours of a cement plant were awarded between $935 and $11,000 each for six years of dust, sometimes amounting to “storms of cement”. While St. Lawrence Cement had spent huge sums on pollution control equipment capable of excellent performance, the equipment sometimes broke down. According to the Court of Appeal, “this fragility was its Achilles’ heel”, and contravened Quebec’s Environmental Quality Act.
The Supreme Court denied leave to appeal from Nova Scotia v. MacQueen, where the NS Court of Appeal refused to strike a claim for breach of fiduciary duty against the federal and provincial governments. The two governments had allegedly assured neighbours of the notorious Sydney Tar Ponds that there is no connection between the contamination of their property and the emissions from the plant and/or ovens and that it is safe for them to live on their property. This opens scope for lawsuits across the country, as politicians everywhere are tempted to reassure residents when contamination is found.
In terms of certification, leave to appeal to the Supreme Court is pending in Monsanto v. Hoffman, where the Saskatchewan Court of Appeal refused to certify an action by organic farmers against Monsanto for germ cell pollution. In contrast, Regroupement de citoyens due quartier St.-Georges v. Alcoa was certified for fifty years’ historic contamination near an aluminium plant. Most of the houses were subject to a pollution easement, and Alcoa had voluntarily investigated and cleaned the area. However, the residents wanted more investigation and cleanup of their homes than Alcoa and the government thought was necessary. Certification was also upheld by the Alberta Court of Appeal in Windsor v. CP, a case of historic contamination of groundwater with TCE.
In other cases, the combination of climate change, population growth and aboriginal rights is focussing attention on water issues. For example, the growing town of Strathmore, Alberta, is facing huge costs and water (and perhaps growth) restrictions after running out of easy ways to get rid of its sewage. When the local irrigation district (farmers) stopped accepting the town’s sewage, the Town built a pipe to the sensitive Bow River, just upstream of the Siksika Nation reserve. The Siksika were successful in persuading the Alberta Environmental Appeal Board that this put them, and the River, at risk; permission to dump into the River was revoked: Siksika Nation v. Town of Strathmore and Alberta Environment. This is a sign of the times; aboriginal claims are an increasingly important part of many environmental disputes across the country.
The proper scope of federal environmental assessments was widened again in Miningwatch Canada v. Canada, despite apparent narrowing in the earlier TrueNorth decision.
Finally, Wainwright v. Pearson emphasized the tort duties of waste generators and handlers to accurately characterize each waste. Sawdust from lacquered furniture went through numerous hands, losing critical details about its flammability along the way. As a result, the sawdust caused a million-dollar fire in a municipal waste incinerator. The generator avoided liability, as it had properly described and labelled the waste, but the two intermediate waste handlers were ordered to pay all Wainwright’s costs.
An earlier version of this article appeared in Lawyer’s Weekly.