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The Ministry of the Environment and Climate Change (“MOECC”) has posted to the Environmental Registry  (“ER”) a proposal for a draft regulatory amendment to exempt reflective building surfaces (such as the windows of office buildings) from requiring an Environmental Compliance Approval (“ECA”). (Unfortunately, the date for providing comments has just passed).

Reflective building surfaces are known to lead to “bird-building collisions.” These surfaces confuse birds, causing them to fly into the building, often killing them as a result.

As the MOECC notes in its posting, “there is currently no Environmental Compliance Approval process for sources emitting radiation in the form of reflected light.” It has been the MOECC’s practice, however, to not require ECAs for reflected light emissions.

This practice appears to have come into question after a 2013 decision from the Ontario Court of Justice–Podolsky v Cadillac Fairview Corp, 2013 ONCJ 65. In that decision, the result of a private prosecution conducted by Ecojustice lawyers, Justice Green held that the defendants (the owners and operators of a building complex in northern Toronto associated with frequent bird strikes) had permitted the discharge into the natural environment of a contaminant that may cause an adverse effect in contravention of section 14(1) of the Environmental Protection Act, RSO 1990, c E.19.

However, Justice Green ultimately found the defendants not guilty because, he concluded, that they had exercised appropriate due diligence (findings which were previously critiqued on this blog).

The MOECC’s move to exempt reflective surface light emission appears to be a response to the decision, which seems to have created uncertainty as to whether buildings with reflective surfaces required an ECA to operate.

Fatal Light Awareness Program (“FLAP”) estimates that potentially over 9 million birds are killed by bird strikes in Toronto alone each year. Most of the birds affected are small migratory birds drawn at night by the city lights. They fly into buildings possibly by mistaking the reflection to be shelter or by attempting to fly through what they incorrectly perceive as clear passage to trees on the other side.

The MOECC’s ER posting underscores that this proposed exemption regulation will “provide clarity to businesses regarding a ministry practice not to require Environmental Compliance Approvals for reflected light”–which is almost certainly true.

But how will the issue of bird strikes be addressed?

The ER posting makes reference to the province’s interest in working with key stakeholders such as building operators, NGOs, developers, and municipal governments to address the issue of bird strikes. But the province appears to be taking the position that encouraging voluntary measures by developers and building operators is the best way to achieve this.

Unfortunately, mitigating bird strikes can be expensive, and voluntary efforts have only enjoyed modest success in preventing these kinds of strikes.

The ultimate burden may fall, at least in part, to municipalities. The City of Toronto’s Green Standard, for example, requires certain mitigation measures for new buildings whose windows would otherwise be likely to lead to bird collisions.

To be clear, the proposed exemption regulation would not appear to neutralize the court’s decision in Podolsky. It appears that such emissions, should they result in harm to birds, are still subject to possible prosecution.

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