Ontario’s Minister of the Environment says that it is his second highest priority to increase waste diversion from landfill. Can he do it? Yesterday, Dianne gave a well-received keynote address to the Municipal Waste Association on Obstacles to Waste Diversion.In addition to the usual challenges of uncertainty, delay,  complexity, and policy instability in a time of financial constraint, Dianne focussed on the economics of the current waste diversion structure; the definition of waste; approvals terms and delays; liability, and the very low tolerance for complaints about odour. If Stewardship Ontario succeeds in its current program direction, the current waste diversion program may relieve municipalities of a substantial burden. But if things don’t work out as planned, won’t municipalities end up with ultimate responsibility?

Here are some supporting notes on the funding issue:

Drummond Report

• · Does not specifically mention recycling
• · Move towards full cost recovery and user-pay models for environmental programs and services – cost burden of providing service should be placed on beneficiary’s shoulders, not the public’s[1]
• · Municipalities provide many services — such as …waste management — that are governed by provincial legislation and standards. Most municipal revenue comes from local sources, mainly property taxes. Yet provincial transfers account for nearly one-fifth of their revenue, including contributions to cost-shared programs and unconditional funding through the Ontario Municipal Partnership Fund (OMPF).[2]

Budget

• · The Auditor General and the Commission on the Reform of Ontario’s Public Services also recommended that greater emphasis be placed on prevention and the polluter-pay principle. This recommendation applies to Ontario’s contaminated sites. The Province also recognizes that those responsible for creating pollution and waste should generally bear the costs of environmental programs and services.[3]
• · Hazardous Waste Fee to be revised – will raise tonnage fees; this is estimated to generate $2.5 million in 2014-15 and on ongoing basis.[4]
• · See Ministry expenses (all) on p. 195 – plan for 2012/13 for MOE is decrease from $536 million to $486 million
• · OMPF discussed on pp 51ff

Minister’s February 9 2012 letter to WDO Chair

• · Re move to skills-based board
• · New regulation made under WDA to implement a new fee-setting methodology that enables Stewardship Ontario to recover full costs of operation of MHSW from stewards & will address creation of deficits/surpluses[5]
  • New regulation:[6]
    • Prescribes new methodology Stewardship Ontario (SO) must use to finance MHSW program
    • Replaces fee based on unit/volume [so no more fee schedules]
    • Methodology applies to recovery of ongoing operating costs & accumulated deficits
    • Calculation is “share-of-cost” based on reported “share-of-sales” – i.e., stewards paying for actual costs incurred in each quarter
    • Stewards will be invoiced on actual operating costs every quarter, starting in Q2 (when deficit share invoicing begins, for those materials with deficits)
    • Calculation (see also s. 4 of Reg): quarterly reported quantity by steward as a proportion of total quantity reported to SO  x actual cost for that quarter = payment obligation for following quarter
    • Notes that 7 of 9 materials in MHSW program have deficits due to several factors, incl collection volume, inadequate fee rates, higher costs than estimated [these materials are antifreeze; fertilizers; lubricating oil containers of 30 L or less; oil filters; paints & coatings & containers; pesticides; pressurized containers; single-use dry cell batteries; solvents & containers

• · Minister directs WDO to work with the tire and electronic stewardships to develop similar cost recovery and accumulated deficit/surplus recovery approach
• · Directing WDO to review/analyse all proposed IFO budgets and to monitor actual expenditures on ongoing basis & to implement monitoring/audit program to review IFOs’ annual performance and achievement of plan targets
• · Industry Stewardship Plans (ISP)
  • Costs of ongoing monitoring, auditing and reporting of ISP will be paid by the plans
  • WDO directed to review its policy & procedures on ISP and consider the following when it reviews an application or approves an ISP:
    • Does ISP achieve diversion targets that are similar or better than the associated waste diversion program?
    • Fair operation of the ISP in the marketplace
    • Does ISP ensure accessibility for consumers through its delivery of services?
    • Before accepting any ISP, WDO must consult with public
    • Directs WDO to submit its proposed policy and procedures on ISP to Minister by June 1 2012
    • Consultations set for May 14 (in person) and written submissions invited from May 1-16[7]
• · Incentive programs
  • Directs WDO to review development and implementation of financial incentives paid to service providers by Stewardship Ontario under MHSW, Electronic Stewardship, WEEE program and Ontario Tire Stewardship – reviews to be carried out in consultation with municipalities and other stakeholders

Info from Stewardship Ontario[8]

• · SO is the IFO identified under the WDA[9] as the organization that develops, funds and operates the Blue Box program and MHSW program
• · Accumulated deficit:
  • July 2008- Dec 2009 – Deficit $573,306
  • 2010 – Surplus of $310,059; accumulated deficit $263,247
  • 2011 – Deficit of $3,309,713; accumulated deficit $3,572,960
• · Upcoming changes
  • Reviews of IFO incentive rates
  • Reviews of WDO budgets/expenditures
  • WDO boards no longer include representatives from industry even as IFO’s are required to pay for greater oversight
• · Additional info from SO – general info, backgrounder, FAQ – hard copies provided[10]
• · MHSW rules – 2012[11]
  • Includes fee rates for various products
  • Published Dec 2011, i.e., before Minister’s letter to WDO of Feb 2012

KPMG’s Waste Diversion Ontario Review of MHSW Program – Report – April 12 2012[12]

• · Analysis of the Municipal Depot Transportation and Processing Incentive Program (MDT&PIP) [JC note: which was launched by SO in January 2012]
• · Before MDT&PIP, SO reimbursed municipalities for post-collection costs of transporting and processing phase 1 MHSW materials
• · Now, under MDT&PIP,
  • Municipalities no longer required to pay transporters & processors to manage the phase 1 MHSW materials
  • Instead, municipalities select contractors to manage the materials (from list of service providers approved by SO)
  • Municipalities participating in program must operate collection (drop-off) depots for their phase 1 MHSW and other waste – SO compensates them for a portion of costs of operating these depots via fixed hourly rate
  • There are incentive rates for transporters, processors (i.e., the prices SO will pay, on a “take it or leave it” basis)
• · SO sees launching of MDT&PIP as shift from municipally-contracted program to an open market incentive program
• · Municipalities were a customer in the old system; now, they are service providers; KPMG identifies this as a concern as municipalities continue to believe they have jurisdiction for waste management[13]
• · Report did not address hourly rate paid to municipalities for materials collection at municipal depots or discrete municipal collection events
• · Identified concerns
  • Materials must now be weighed and reported (in past, recorded volume in litres or estimated weight) – service providers want compensation for additional time this takes
  • New system lacks independent verification of processes, procedures, and diversion outcomes in the industry – mistrust among service providers and concerns with oversight of the program by SO suggest that a 3d party may be needed to audit companies, materials, processes the incentive program covers
  • SO may make decisions re rates in a non-transparent and exclusionary manner, making investments by providers riskier – several have said they are unlikely to make long-term investment decisions where a rate decrease is likely
  • In the past, materials other than just MHSW were collected from municipalities as a bundle and then stored at the transfer station; this does not happen with new process
  • No consensus on definition of “extended producer responsibility”
  • Industry assumes financial responsibility for waste diversion, but differences of opinion as to degree that industry (through an IFO) assumes operational responsibility – critical to precisely determine this
  • varying and conflicting views on the roles and responsibilities of stakeholders (e.g., MOE, WDO, SO, municipalities and service providers)
  • confusion re accountability mechanisms required from IFOs to WDO and MOE
  • Municipalities believe they are ultimately accountable for MHSW materials – they are the face of waste diversion to their citizens. If services are compromised, municipal government feel they would be held accountable.  However SO says it is responsible once the MHSW materials are dropped off at municipal depot[14] – that municipalities provide collection & depot services

Thank you to Jackie Campbell for her assistance in preparing these materials.

©2012 Environmental Law and Litigation. All Rights Reserved.

Ontario has struggled for many years to provide clear, consistent, effective rules to govern the huge amount of soil that contractors move from place to place. Is it a product? a waste? Where can it go? How clean is clean? There is so much confusion that municipalities, such as Clarington, are now starting to pass bylaws forbidding the importation of soil to their jurisdiction.Now Ontario has released a Consultation document, Best Management Practices for Soil Management in Ontario. Despite the restrictions in Reg. 153/04, it proposes the following uses for excess soil:

• reusing the excess soil at the project site or other redevelopment sites where the quality of the soil is appropriate;

• use of the excess soil for site alteration or re-grading;

• the management of the excess soil at approved soil recycling or treatment facilities;

• placement at a commercial fill site; or

• disposal at a ministry-approved landfill site.

Written comments are invited by Thursday, May 31^st, 2012.

©2012 Environmental Law and Litigation. All Rights Reserved.

The Ontario Bar Association has submitted extensive comments on the proposed changes to the Mining Act. The OBA calls on the province to provide greater clarity on who must do what, especially in the area of aboriginal consultation:

“Clarifying the requirements for proponents, the role of government and the rights of stakeholders, including aboriginal groups, is increasingly crucial if Ontario is to be home to a responsible, stable and efficient mining sector that successfully competes for investment money and jobs.”

PS, we apologize for our server hiccups in the last day.

©2012 Environmental Law and Litigation. All Rights Reserved.

Interested in some really good thinking on low carbon policies, that might help lead to the future that Amory Lovins describes? Katie Sullivan of the International Emissions Trading Association (IETA) offers :

1. IEA EE_Carbon_Pricing Summary Report from last month’s Pacific Rim Climate Workshop in Vancouver, where public-private reps from across PacRim jurisdictions discussed recent low-carbon policy + financing approaches and prospects for market linkages, and
2. Report by Christina Hood (IEA/OECD) on Summing Up Combining Policy Instruments Sept 2011

©2012 Environmental Law and Litigation. All Rights Reserved.

What are Ontario’s biggest obstacles to job creation? According to employers contacting the Ministry of Economic Development and Innovation, the Ministry of the Environment is usually on their top 5 list.  And approvals problems (including delay) are high among them. Approvals reform is just starting to help, though only for routine, low risk activities.

Deputy Minister of the Environment Gail Beggs told the Ontario Environmental Industry Association yesterday that nearly 700 registrations have already been received in Phase I of the new Registry system in the four approved sectors:

• heating systems
• stand-by power
• automotive refinishing.

The system is drawing in many properties that never held an approval for these activities before. Posting for proposed activities has closed and comments are being reviewed for:

• waste-collection-and-transport-by-truck
• ready-mix concrete manufacturing
• concrete product manufacturing
• lithographic, screen and digital printing

Proposed new activities are posted for comment until May 17:  ground-mounted solar panels (10kW to 500 kW), on-farm anaerobic digestion and landfill gas electricity generation. Other sectors likely to follow include pesticide operators, laboratory fume hoods, small generators, cooling towers, remote site services, municipal recycling facilities, and temporary collection of household hazardous waste. Funding for the approvals reform process has been promised for three more years.

©2012 Environmental Law and Litigation. All Rights Reserved.

BlackoutSpeakout: Canadian environmental organizations are using Wikipedia’s protest tactic of darkening their websites on June 4 to protest federal government 2012 Budget plans to slash environmental protection and environmental protest, anything that stands in the way of the oil sands and their pipelines.  The Wikipedia blackout was a very successful protest against proposed legislation in the United States – the Stop Online Piracy Act (SOPA) in the U.S. House of Representatives, and the PROTECT IP Act (PIPA) in the U.S. Senate – that, if passed, would seriously damage the free and open Internet, including Wikipedia. Americans were outraged by the blackout of their favorite websites like Wikipedia. Will Canadians feel the same way about the blackout of their environmental organizations?

©2012 Environmental Law and Litigation. All Rights Reserved.

The Ontario Aggregate Resources Act governs development of aggregates like gravel, sand, clay, earth, and stone. Most of the aggregate resources produced in Ontario are used for construction, but they are also important for many other industries. In light of controversial proposals to create ever larger quarries, such as the so-called “Mega Quarry” in Melancthon Township, and conflicts with local communities and groundwater protection, the provincial Legislature is reviewing the Act.

The purpose of the review is described as:

“Aggregate resources such as sand and gravel are vital to Ontario’s economy — they are used to build roads, subway tunnels, hospitals and schools. The need for aggregates must also be balanced with the protection of other important resources, like water, green space and agricultural lands. While aggregates are plentiful in Ontario, recent studies show that rising demand due to population growth and land constraints could significantly deplete resources within 20 years. By seeking advice and gaining insight from key stakeholders, the committee will make recommendations to the government about how to strengthen the Act.”

The Act,  as it is currently structured, puts a premium on ensuring access to cheap local aggregate, and makes it difficult for residents to stop quarries. Is this still good social, economic and environmental policy? It is imperfectly integrated with other land-use statutes, such as the Clean Water Act and the various protected area Acts.

On Friday, May 4, the Standing Committee on General Government announced that it will be holding public hearings in Toronto on Monday, May 14 and Wednesday, May 16. Those who wish to make an oral presentation must  contact the Clerk of the Committee by 5:00 on Wednesday, May 9. Written submissions must be received by 5:00 pm on Wednesday, May 16.

The short notice, and the absence of rural hearings, will make it difficult for  people in the communities most  affected  to be heard. There are remarkably few gravel mining opportunities in Toronto, and spring is a very busy time for many in the rural areas.

by Meredith James and Dianne Saxe

©2012 Environmental Law and Litigation. All Rights Reserved.

Reinventing Fire is Amory Lovins’ new TED talk on a smart 50 year energy plan. He shows how the US (and Canada) can choose to save $5 trillion, improve national security, increase jobs, reduce carbon emissions, and stop subsidizing its enemies by getting off oil and coal.  How? Conserve, and switch to renewables, on a very large scale. It’s inspiring, credible, persuasive, smart and packed with data. How many people know, for example, that there is now more renewable electricity generation in the world than nuclear? That reliable electricity can be provided by a diverse, distributed, mostly renewable system? That Portugal’s electrical generation is already 45% renewable? That the retrofit of the Empire State Building paid for itself in 3 years by saving energy? That carbon fibre electric cars will be for sale next year?  That big energy savings are often cheaper than small ones? That peak oil demand may come this decade, i.e. that demand for oil could start to fall before its supply?

Lovins knows what he’s talking about. He has a long history of being ahead of the curve on energy. The Rocky Mountain Institute makes its living helping major organizations save energy and money. According to Wikipedia, Amory Lovins has received ten honorary doctorates and was elected a Fellow of the American Association for the Advancement of Science in 1984, of the World Academy of Arts and Sciences in 1988, and of the World Business Academy in 2001. He has received the World Technology Award, the Right Livelihood Award, the Blue Planet Prize, Volvo Environment Prize, the 4th Annual Heinz Award in the Environment in 1998, and the National Design (Design Mind), Jean Meyer, and Lindbergh Awards.

Lovins is also the recipient of the Time Hero for the Planet awards, the Benjamin Franklin and Happold Medals, and the Shingo, Nissan, Mitchell, and Onassis Prizes. He has also received a MacArthur Fellowship and is an honorary member of the American Institute of Architects (AIA), a Foreign Member of the Royal Swedish Academy of Engineering Sciences, and an Honorary Senior Fellow of the Design Futures Council. Furthermore he is on the Advisory Board of the Holcim Foundation.

In 2009, Time magazine named Lovins as one of the world’s 100 most influential people.

©2012 Environmental Law and Litigation. All Rights Reserved.

Some of you have asked for the occasional personal post. So, here is an email I just received from a small Mayan synagogue in Guatemala for whom I sewed a Torah cover, in my “spare time”. The Torah cover was dedicated last weekend.“Dear Miss Diane:  my name is (__).  I belong to the community Adat Israel.  Rabbi Elyse Goldstein give us the honor of being our Rabbi. She was with us last weekend and brought with her a beautiful torah cover,(mantle)  made with native fabric of our country and  with the special touch you gave it, the cover is now  a real piece of art . We will be using it full of proud because it represent what we are, our roots and what we love, Torah.   I always think that the words thank you are very short to expressing gratitude.  Let me add that this cover will be with us for the rest or our community life. Thank you very much.”

©2012 Environmental Law and Litigation. All Rights Reserved.

Many Canadians are horrified by the knee-capping of environmental charities, the Canadian Environmental Assessment Act and the Fisheries Act in last week’s Federal Budget.
These are changes that will really matter. Yes, they really will make it much harder for anyone to dissent from the federal government policy of oil above all.

What is the point of protecting the places people like to fish, if we don’t protect the creatures those fish need to eat? Who will protect the wild areas where few people live, if only people who live there are allowed to speak for them? Who will do the hard, expensive, time-consuming work of collecting, analysing, and speaking about environmental information, if the civil servants are fired or silenced, and volunteers and charities are gagged?

Many eloquent voices are speaking out, with important things to say. Start with: Tzeporah Berman in today’s Globe; Ross McMillan of the wonderful Tides Foundation; Mark Mattson, the Lake Ontario Waterkeeper, three of the passionate people who have devoted their lives to protecting the environment on which we all depend. Public protests are being collected at SAVE CANADA’S ENVIRONMENTAL LAWS, envirolawsmatter.ca. Will enough people protest?

©2012 Environmental Law and Litigation. All Rights Reserved.

The same debate recurs every few years: Are “creative” alternatives to conventional fines a brilliant innovation? Or just another way for corporate polluters to get off cheaply?

We’re big fans of creative sentences; no surprise, since Dianne helped to develop them 30 years ago. They flow from three basic observations about fines, the standard way of punishing environmental offenders:

1. fines don’t help the natural environment; they just disappear into the Consolidated Revenue Fund (or now, into some municipal coffers) and get spent on other things;
2. sometimes offenders have more valuable things to offer the environment and the community than money, (especially when they don’t have much money); and
3. taking a stake in restoring the natural environment can help rehabilitate offenders, motivate them to care more about the issues, and set a good example for others.

For example, why couldn’t a construction company (going through a cash crunch during a downturn) donate its spare labour, equipment and expertise to rebuild the banks of a local creek, rather than being hit with an unaffordable fine? And if money must be the measure of remorse, why couldn’t it go directly to environmental projects, instead of to general government coffers?

Ontario led the way at first, but then got cold feet; now federal, BC and Alberta prosecutors are Canada’s leaders in creative environmental sentencing.

Modern environmental statutes often specifically authorize creative sentences. For example, the Canadian Environmental Protection Act, 1999 authorises a broad range of Environmental Protection Alternative Measures as an alternative to conviction[1]. After conviction, s. 291(1) authorises a judge to order an offender to do many useful and important things, including:

adopt a pollution prevention plan or environmental management system;

conduct environmental effects monitoring or an environmental audit;

publish details of the offence and its punishment;

pay for environmental research about the substance involved;

make grants to local environmental, health or other groups; and/or

provide environmental scholarships.

Federal departments typically direct offenders’ money into the Environmental Damages Fund (EDF), a trust account for environmental protection and restoration projects, and for research and education. Funds are supposed to be used in the region the offence occurred, and, where possible, to address the damage caused by the offence. British Columbia has established two provincial trust funds – the Habitat Conservation Trust Foundation and Grizzly Bear Trust Fund. According to its 2011 report, the Foundation had received 295 awards worth over $2.6 million by March 2009.

Between 1995 and 2010, the EDF received more than $4.5 million from 154 awards. For example, Ontario Northland Transportation Commission pleaded guilty to spilling sulfuric acid into a creek; $50,000 of the $60,000 penalty went to the EDF. Suncor pleaded guilty to depositing effluent into a river near Ft. McMurray. It was fined $200,000, of which $180,000 went to the EDF. Corner Brook Pulp and Paper pleaded guilty to spilling sodium hydroxide into a river; it paid a $5000 fine and $45,000 to the EDF.

In Alberta, Syncrude received penalties of $3 million for the 1600 ducks killed in its tailings pond. It paid $300,000 to the federal EDF under the Migratory Birds Convention Act, and $500,000 on provincial charges, half of which went to Keyano College’s environmental program in Fort McMurray. Another $1.3 million went to the University of Alberta for research into bird migration and deterrents; $900,000 went to the Alberta Conservation Association for wildlife habitat.

Other examples include:

Educational/training programs, bursaries:

• Statoil pled guilty to improperly diverting water from Argo Lake and May River. It was fined $5000, and will pay $185,000 to fund an online training portal on best practices for surface water diversion. Project stakeholders include Alberta Environment, Statoil and the Canadian Association of Petroleum.
• Dunvegan Gardens (AB) Ltd pleaded guilty to diverting water from the Clearwater River without a licence. $5000 of the $10,000 penalty was directed for education on water licensing and conservation for the Alberta Farm Fresh Producers Association.
• Devon Canada Corporation pleaded guilty to failing to identify a watercourse crossing prior to construction. It was fined $25,000 plus $60,000 to establish a bursary at Olds College’s School of Environment.
• The Compass Group Canada (Beaver) Limited and Suncor Energy Inc. pleaded guilty to violating a wastewater approval. $300,000 of the $400,000 penalty will subsidize the Alberta Water and Wastewater Operator’s Association operator training course, and fund a new scholarship to encourage attendance of operators from small, rural facilities.

Restoring habitat

• Ducks Unlimited Canada received:

•  $42,000 for wetland restoration as part of a creative sentencing order issued to Quartz Land and Developments Ltd., which also paid a $38,000 fine for altering a wetland.
• $49,000 for wetland restoration from Harvest Operations Corp, which contaminated a wetland by releasing salt water and oil emulsion and also paid a $21,000 fine.
• $60,000 to improve water circulation to prevent avian botulism, from Western Feedlots Ltd., which pleaded guilty to failing to report a spill.
• Petenco Resources Ltd. released produced water (a salt water/hydrocarbon mixture) which it failed to report or clean up. It was fined $45,000, of which $22,500 went to wetland restoration.
• Imperial Oil spilled untreated wastewater into the North Saskatchewan River. It was fined $20,000 and ordered to donate $180,000 to environmental groups for projects along the River.

Funding research

• The City of Edmonton pleaded guilty to failing to report a sewage overflow. It paid $5000 fine, and $190,000 to the University of Alberta for a study on alternate uses for City wastewater.
• Jovnic Ltd. pleaded guilty to destroying a creek and wetland. It paid a fine of $20,000 plus $180,000 to the University of Alberta to fund research on the decline of lake sturgeon.

Public education

• QIS Trucking Ltd. paid $6000 for removing shoreline vegetation at Jackfish Lake without approval. $5000 went to the Jackfish Lake Management Association for a publicity campaign on the adverse impacts of shoreline modification.

Critics argue that offenders are buying their way out of fines, or directing the money into projects that benefit them, or which they would have funded anyway. That has not been our experience, as indicated by the good projects described above. Others resent the positive publicity that offenders sometimes gain from good works, while we find such publicity motivates stronger local relationships, and greater efforts at good behaviour.

Especially at a time of government deficits and restraint, we think that Alberta and Environment Canada / Department of Fisheries and Oceans are on the right track to use creative sentences whenever possible. Ontario is turning its back on many environmental opportunities by its current boycott of creative sentences.

Dianne Saxe

Jackie Campbell

This article was first published in Canada Water, edited by the inimitable Kerry Freek.

©2012 Environmental Law and Litigation. All Rights Reserved.

The overwhelming re-election of Alison Redford as Premier of Alberta last week has given a boost to the clean energy policy ambitions of the Winnipeg Consensus.

The Consensus was launched by a group of think tanks from across the country, focusing on the role of energy in Canada’s environmental and economic future. After initial discussions between the think tanks,  negotiations were broadened to include federal and provincial representatives. Québec Premier, Jean Charest, and Alberta Premier, Alison Redford, are reported to be strong supporters of the Consensus, and to be pushing for a countrywide strategy at the Premiers’ meeting this summer.  This could be good news.

The Council of the Federation already calls on all Canadians to play a stronger role on climate change:

All Canadians have an important role to play in reducing greenhouse gas emissions, protecting the environment and adapting to the effects of climate change.

In 2010, the Consensus released a report calling for a Canadian Clean Energy Strategy, including a price on carbon. According to the Consensus, Canada needs a Canadian Clean Energy Strategy that will:

Enhance our Economic Prosperity and Energy Advantage by:

• Supporting a full and diverse range of energy sources while recognizing the regional diversity and mix of energy resources as a core Canadian advantage.
• Enabling Canadians to capture the economic opportunities inherent in the global movement towards lower carbon products, services and technologies.
• Seeking out new markets for energy exports, while maintaining a healthy trade relationship with the U.S.
• Making energy innovation a cornerstone of Canada’s success in a competitive continental and global economy.
• Ensuring energy access and security for Canadians, and for our country.

Demonstrate our Environmental Leadership by:

• Minimizing the environmental impact of energy production and maximize waste reduction.
• Maximizing energy conservation at home.
• Building Canada’s global brand and reputation.
• Developing appropriate market and regulatory tools, including a price on carbon.

Create a Stronger Federation by:

• Providing a coordinated structure and framework to encourage investment.
• Contributing to policy coherence and collaboration among all orders of government on required investments and problem-solving.
• Engaging Canadians as consumers and citizens in supporting these advantages

Economists, banks, and major industries have been calling for years for a price on carbon. Could Alison Redford and the Winnipeg Consensus finally persuade the federal government to impose one?

©2012 Environmental Law and Litigation. All Rights Reserved.

The Federal Budget Bill, Bill C-38, dramatically cuts down federal environmental assessment.

The existing Canadian Environmental Assessment Act is revoked and replaced by a new, much more limited assessment regime. It will apply only to projects specifically chosen for review by the federal Minister of Environment or Cabinet. All automatic triggers for federal EA are eliminated.  The federal assessment of “cumulative effects” has bee eliminated.

The only purpose of the new assessments will be to identify “significant adverse environmental effects that fall within the legislative authority of Parliament, or that are directly linked or necessarily incidental to a federal authority’s exercise of a power or performance of a duty or function that is required for the carrying out of the project.”

Even then, the federal assessment can be delegated to a province, or waived if another jurisdiction has an “equivalent” process. And the EA process must be completed “within applicable time limits”. If a federal EA does proceed, there will be some form of public participation, participant funding, a public registry, and some form of followup on the conditions imposed.

The largest federal authorities that have made it hard to approve resource projects are fisheries and endangered species. Both areas will now be made easier for project proponents. Fisheries protection will be limited to commercial, recreational and Aboriginal fisheries, and permits to harm endangered species will be issued quicker, last longer and be easier to renew.

In total, resource project proponents should find it quicker, easier and cheaper to get permission to build what they want, with far less interference from the federal government, or those pesky environmental groups. The courts will eventually tell us whether they can so easily dispose of opposition from First Nations.

©2012 Environmental Law and Litigation. All Rights Reserved.

The Supreme Court of Canada has refused Ellen Smith leave to appeal from the crushing dismissal of her class action against Inco. No reasons were given. Her lawyers now face a difficult hearing to determine how large a cheque they will have to write to Inco to pay for its legal costs, at trial and both levels of appeal.

The Court of Appeal had dramatically narrowed options for victims of historic pollution to obtain compensation from polluters. The case cuts down the scope of three key environmental torts: trespass, nuisance and Rylands v. Fletcher (negligence was narrowed by Berendsen). It also widens the gap between the broad discretion of regulators, who can, through administrative orders, make historic polluters pay, and victims, who have fewer and fewer options to obtain compensation.

Here is Dianne’s presentation on the case, given at the joint Canadian-US meeting of environmental lawyers in Vancouver: Saxe_slides NEERLS/ SEER

©2012 Environmental Law and Litigation. All Rights Reserved.

When fly-rock from a blasting site hits a house, is that a “discharge” of a “contaminant” that must be immediately reported to the Ministry of the Environment Spills Action Centre? Ontario’s Court of Appeal says “yes”.

In Ontario (MOE) v. Castonguay Blasting, the Ministry of the Environment chose to prosecute Castonguay Blasting, a blasting company, for just such a rock. There were no errors or negligence alleged in the blast itself. Castonguay was working for the Ontario Ministry of Transportation at the time, and the provincial government’s contract specified in detail who should be notified when fly-rock went out of bounds. This did NOT include the MOE. Nor had the MOE ever asked the blasting industry to report such events.

When the rock went awry, Castonguay followed the reporting procedure exactly as directed by MTO, who had a contract supervisor at the site. Since neither Castonguay nor the MTO representative considered the fly rock to be a “discharge” of a “contaminant”, no one reported it to the Ministry of the Environment.

The MOE prosecuted Castonguay for failing to report the rock, an offence with a minimum $25,000 fine. The trial court dismissed the charge, but the Crown won its appeal and the company was found guilty of failing to report the discharge. Castonguay appealed.

The majority of Ontario’s Court of Appeal upheld the conviction. Mr. Justice Blair, in dissent, found that “adverse effect” as defined under the Environmental Protection Act (EPA), includes not only the eight harms listed in that definition, but also a component involving “something amounting to more than trivial or minimum harm to or impairment of the natural environment” in order to trigger liability relating to discharge of a “contaminant” into the natural environment.  In this case, he found that the fly-rock did no harm, and had, at most a trivial impact on the natural environment, so was not a “contaminant” that caused an adverse effect under the Act.

The 2-judge majority disagreed and upheld the conviction, concluding that for a discharge to have an adverse effect, it need not impair the quality of the natural environment. They found Mr. Justice Blair’s interpretation of “adverse effect” was unduly constricted, and failed to reflect the broad purposes of the EPA, and would, if adopted, remove many problematic activities connected with the environment from the purview of the Act.

The majority found that the EPA is concerned with uses of the environment that cause harm to people, animals and property. They noted that blasting, in many cases, would not harm the environment and trigger the definition of “adverse effect” under the Act.  However, where the activity discharges a contaminant like fly-rock into the natural environment, it may harm people, animals or property.  While Castonguay’s blasting activity may have caused only minimal harm to the environment, the fly-rock it generated did harm property.  It was Castonguay’s use of the environment (the air) to disperse a contaminant (fly-rock) that directly resulted in this harm, they said.

I think this is a nonsensical decision, as well as unfair to Castonguay. First, why couldn’t Castonguay rely on the directions of its client, the provincial government, about who in the same provincial government to report to? Second, why can’t regulators be required to tell an industry when they adopt strange new interpretations of existing laws, before they prosecute them for not following that new interpretation?

Third, any object that hits any other object (or person) must travel through the environment (air or water) to get there. Must every car accident, where anything falls off, be reported to the MOE now? Every box, ladder or hammer that falls on anyone’s foot outdoors? Food that is dropped outdoors, causing a stain? Must rioters report the rocks that they have thrown through a window? Must windows or other bits of buildings be reported when they fall off? (Likely to cause an adverse effect if they land on someone…)  Must litterers report their litter? What good would the Ministry accomplish if it received all these reports?

To me, such an over broad decision does not benefit the natural environment, and makes a mockery of environmental law. But then, I’m not on the Court of Appeal.

©2012 Environmental Law and Litigation. All Rights Reserved.

The Ministry of the Environment (MOE) is proposing regulatory amendments to O.Reg. 359/09 under the Environmental Protection Act (EPA) and to Reg. 334 under the Environmental Assessment Act (EAA) to streamline the regulatory process for renewable energy projects as part of the response to the Feed-in-Tariff (FIT) review, and provide additional clarity.

To encourage localized generation from smaller, cleaner sources of electricity and community-based renewable energy facilities, the Ministry is also proposing to allow specific small scale renewable energy projects to register on the Environmental Activity and Sector Registry (EASR). Registered projects are exempt from requiring a Renewable Energy Approval, and cannot be appealed to the Environmental Review Tribunal, a major potential obstacle.

The proposed EASR eligibility criteria for small scale renewable energy facilities are designed to eliminate potential impacts to the environment through facility design and siting restrictions. The first eligible facilities are proposed to be:

Small Ground-Mounted Solar (where the biggest issue is impact on agricultural land)
On-Farm Anaerobic Digestion
Landfill Gas Electricity Generation.

For solar, for example, the Ministry is seeking comments as to whether eligible project should be limited by the maximum footprint  (three hectares); electricity production (500 kilowatts); or both. There would also be land use requirements, such as:

R-3: The facility is located at a site that meets one of the following conditions 

A. The solar facility is a secondary use to existing industrial, commercial or institutional facilities where the land is zoned as industrial, commercial and institutional. 

B. A previously developed or disturbed site that has undergone a phase two environmental site assessment, that, as of the date of the phase 2 assessment, did not meet the standards that must be met under paragraph 4i of subsection 168.4(1) of the Environmental Protection Act to permit a record of site condition to be filed under the environmental site registry. 

The proposal is open for public comment until May 17.

©2012 Environmental Law and Litigation. All Rights Reserved.

Dalton McGuinty is Ontario’s greenest Premier, and his government has a strong environmental record (especially in contrast to our federal government!) But environmental groups are raising concerns about Bill 55, the proposed Strong Action for Ontario Act (Budget Measures), 2012. Bill 55 amends numerous statutes, including 11 environmental (or related) laws. Because these amendments form part of a bill that is intended to give effect to the provincial budget, the proposed changes are exempted from the mandatory public participation provisions under the Environmental Bill of Rights, 1993 (EBR, section 33).

In his most recent Annual Report, the Environmental Commissioner of Ontario was critical of the government’s continued use of omnibus legislation to amend various environmental statutes. At best, using omnibus legislation to amend environmental laws complicates the EBR process. At worst, it can obstruct the public’s right to participate in environmental decision making.

Ecojustice CELA Legal Analysis re Bill 55 (Budget 2012) is an analysis of Bill 55 by Canadian Environmental Law Association and Ecojustice Canada.  CELA and Ecojustice are concerned that some of the proposed amendments have the potential to cause environmentally significant impacts with reduced public participation.

Bill 55 will not be debated on Tuesday (when the Budget Motion is tabled for debate and decision).  As long as the government does not fall as a result of the budget debate and vote, Bill 55 will go through the usual legislative process and there will be an opportunity to make submissions on desired amendments.

©2012 Environmental Law and Litigation. All Rights Reserved.

In February, West Coast Environmental Law organized the world’s first Twitter moot. As sponsor of Osgoode’s winning team, we are pleased to say it was a resounding success! At one point more people were discussing the Twitter Moot than any other issue in Canada (it was the “trending topic” in the country).

The moot case considered an appeal from the BC Court of Appeal decision in West Moberly First Nations v. British Columbia to the Supreme Court of Twitter. The BC Court of Appeal suspended a permit allowing First Coal Corporation to explore for coal in the habitat of a threatened caribou herd, upholding a decision of the BC Supreme Court that the government had not adequately consulted the West Moberly First Nations on protecting the Burnt Pine caribou herd.  Chief Roland Willson, of the West Moberly First Nations, reacting to the decision, said:

Caribou have been a big part of our culture and diet for countless generations. Our traditional hunting practices are our heritage. This judgment supports our efforts to protect this heritage for future generations. … The court has sent a clear message that BC must take proactive steps to protect the integrity of our Treaty rights. Now that the court has affirmed the government’s duty, we look forward to working cooperatively in the coming weeks and months to do what it takes to save this species from extinction.

The transcript is available on line.

Our congratulations to the winning teams -Team Osgoode, the Moot Champions, and Team UVic, winners of the Peoples Choice Award – and to all of the participants. We look forward to hearing more from this next generation of environmental advocates.

©2012 Environmental Law and Litigation. All Rights Reserved.

On February 8, 2012, Cericola Farms Limited of Bradford, Ontario, pleaded guilty to three violations under the Ontario Water Resources Act for discharging chicken processing effluent into a creek that may impair the quality of the water and two counts of failing to comply with their Certificate of Approval.

Cericola owns and operates an industrial sewage works which processes wastewater from its chicken processing plant. Partially treated wastewater was sprayed on agricultural land but ran off into a creek that flowed into the North Holland River. The company was prosecuted and fined a total of $80,000 plus victim fine surcharges and was given six months to pay the fine.

©2012 Environmental Law and Litigation. All Rights Reserved.

What’s the next step in citizen-empowerment about air quality and noise, now that governments release more of their environmental data on the Internet? Cheap, networked amateur/ citizen data collection?

We’re fascinated watching initiatives like AirQualityEgg and Pachube, and the noise meters available for the iPhone. Cheap environmental data collection devices for amateurs may not (yet) be very accurate, but the practical effect of many data points could be substantial. AirQualityEgg puts it this way:

“The Air Quality Egg is a sensor system designed to allow anyone to collect very high resolution readings of NO2 and CO concentrations outside of their home.  These two gases are the most indicative elements related to urban air pollution that are sense-able by inexpensive, DIY sensors….The sensors will not be calibrated and their precision and sensitivity is mediocre.  However, we believe that generating data, even poor data, will not only contribute in a significant manner given the scale and density we can achieve, but we are also giving a community of people who previously had no voice a way to participate.”

Pachube provides a free platform to publish and aggregate citizen data. They note that large amounts of low quality data can produce meaningful results: “The beauty about crowdsourcing is that the dataset draws strength from its heterogeneity.  The outliers are easily spotted and discarded while the data that is consistent across completely unrelated sources is reinforced. There is a network effect here as each additional source to some degree “validates” the rest.” See also  ”Making Sense” video: http://vimeo.com/39775046“.

Accuracy seems bound to improve as these devices become more popular. If nothing else, rapid, real-time, crowd-sourced data could identify problems overlooked by government bodies, that warrant full scale professional measurement. Such data could also provide real time evidence of which air quality interventions work to improve local conditions. How can we manage what we don’t measure?

©2012 Environmental Law and Litigation. All Rights Reserved.

Hi Ms. Saxe

I live in Waterloo Ontario. I wanted to inform you of something I recently discovered. A new well is being proposed in the City of Waterloo and I submitted a Part II order request for the well saying it lacks evidence for proven need, it poses a risk to natural recharge areas and rare species. The submission resulted in a meeting I had with regional hydrology officials to see if we could resolve issues.

We’ve had a number of high water using industries close in recent months here in the Region of Waterloo including two Schneider meat processing plants, so I inquired if the Region is aware of how much water volumes were used by these companies and if that volume is enough to offset the need for a new municipal well. I found out the Region actually has no records for industrial water use, nor are they aware of the potential consequences of closing those well or how it will impact our local water budget. This poses an enormous liability risk.

In Kitchener for example, a municipal well system known as the Greenbrook Wells had to be closed due to contamination issues and an upgrade to address the matter. When the wells were closed the natural water table started to return and this resulted in the flooding of multiple homes in the area. Who assumes liability when these factories close? There are many issues to consider.

With trends of technical firms replacing our high water using industries, we might see more issues like this in the days ahead. The Ontario MOE and Ontario Environmental Commissioner have been informed of this but I wasn’t sure who else to contact in regards to this so if you know of anyone who may benefit from this information please feel free to share this information

In theWN EA Response to Part II Order Request is the minutes of the meeting as taken by Regional staff members where they clearly admit they do not have this vital information.

Thank you kindly for your time.

©2012 Environmental Law and Litigation. All Rights Reserved.

Pelee Quarries and Erie Sand and Gravel Ltd. were fined $35,000 for Permit To Take Water Violations contrary to the Ontario Water Resources Act .

The companies failed to comply with the conditions of a Permit to Take Water by exceeding the maximum number of litres of water taken per day.

670026 Ontario Limited operating as Pelee Quarries runs a quarry on Pelee Island. Erie Sand and Gravel Limited is a company located in the Township of Gosfield South. Surface water is taken or pumped from each site to facilitate the extraction of limestone, sand and gravel. In 2010, the ministry received a report for each of the two sites. The report revealed that both sites had exceeded the water taking limits.

The companies were fined a total of $35,000 plus victim fine surcharges and given 180 days to pay the fine.

©2012 Environmental Law and Litigation. All Rights Reserved.

Today is the 30th anniversary of the signing of the Canadian Charter of Rights and Freedoms. The Charter has had an enormous impact on Canadian society, both good and bad, especially in areas of criminal law and social policy.

The Charter does not mention the environment. For environmental issues, the biggest impact may have been to strengthen the hand of First Nations to influence resource extraction on their traditional lands, and to claim exemption from general laws on resource protection.

Environmental prosecutions have became more expensive, due to disclosure, fault and other requirements, leading to an increasing government appetite for non-judicial options such as administrative orders and administrative monetary penalties. It has also required an increased professionalism of environmental investigators and litigators.

More generally, the Charter has contributed to the decline in deference to government, has increased the power of the courts, and has accentuated the personal freedoms of women and most minorities. It has also helped shift the balance away from group rights and interests to those of individuals.

Perhaps it is therefore not surprising that the current federal government has chosen not to celebrate this anniversary, but perhaps the rest of us should. Happy Birthday, Charter!

©2012 Environmental Law and Litigation. All Rights Reserved.

Shawn Paul Haniff pleaded guilty to two violations under the Environmental Protection Act for giving false information to a provincial officer during a Waste Disposal System Certificate of Approval interview.

The Court heard Mr. Haniff is the sole director of a company that submitted an application for a waste management system Certificate of Approval to the ministry to allow company trucks to transport solid non-hazardous waste to landfills. As part of this application process, Mr. Haniff attended an interview. During the interview, he provided false information concerning the registration of his vehicle fleet and his attendance at a specific Toronto address.

Mr. Haniff was fined a total of $10,000 plus victim fine surcharges and given 12 months to pay the fines.

©2012 Environmental Law and Litigation. All Rights Reserved.

In response to a City Council resolution to remove the Jarvis Street bike lanes that were installed in July 2010, and add a fifth reversible centre lane, the Toronto Cyclists Union sought a legal opinion whether the Project would be subject to screening under the Municipal Class Environmental Assessment (MCEA).  The opinion, prepared by Laura Bowman of Iler Campbell LLP,  concludes that the removal of the bike lanes would trigger a minimum of a Schedule B assessment either on the basis that the Project involves the reconstruction of Jarvis Street for a different purpose, use or capacity, where the cost is less than $2.2 M (Category 20) or as a road related work, where the cost is less than $2.2 M (Category 41).

The opinion also argues that given the likely adverse environmental impacts of the Project, and the significant public interest, it should be subject to a more thorough Schedule C assessment. The opinion highlights a range of impacts of decommissioning the bike lane, including:

• Social effects, such as increasing the risk of car/bike collisions and the nuisance effects of increased car traffic;
• Reduced transportation efficiency due to increased commuting times and increased transportation costs;
• Bio-physical environmental impacts due to increased air and noise pollution; and
• Loss of cultural heritage due to a user experience that is inconsistent with the street’s history.

The Cyclists Union has requested that the City elevate the assessment of the Project to a Schedule C environmental assessment and has given the City until Friday, April 13 to respond. If they do not receive a response, they state that they will submit a request for a Part II Order under the Environmental Assessment Act to the Minister of the Environment.

By Meredith James

©2012 Environmental Law and Litigation. All Rights Reserved.