CANADIAN ENVIRONMENTAL LAW – LAW 387CSteve Patterson

University of British ColumbiaProf. Shi-Ling Hsu

Fall 2008

TABLE OF CONTENTS

I. Introduction…………………………………………………………………………………….. 3II. Constitutional Law……………………………………………………………………………... 3

Fowler v. The Queen (1980 SCC)…………………………………………………. 4Northwest Falling Contractors v. The Queen (1980 SCC)……………………….. 4R. v. Crown Zellerbach (1988 SCC) ……………………………………………… 4Friends of the Oldman River Society v. Canada (1992 SCC)…………………….. 5R. v. Hydro Quebec (1997 SCC) …………………………………………………. 5

III. The Common Law……………………………………………………………………………... 61. Introduction to Private Litigation………………………………………………………… 6

Faraday Uranium Mines v. Arrowsmith (1962 Ont. CA)………………………… 82. Overview of Common Law Doctrines…………………………………………………… 8

A. Private Nuisance……………………………………………………………………. 8Mandrake Management Consultants v. Toronto Transit (1993 Ont. CA)………… 9

B. Public Nuisance…………………………………………………………………….. 9Hickey v. Electric Reduction Co. of Canada, Ltd. (1970 Nfld. TD)………………. 10

C. Strict Liability………………………………………………………………………. 10Rylands v. Fletcher (1868 UK) …………………………………………………... 10

D. Trespass…………………………………………………………………………….. 10E. Riparian Rights………………………………………………………………………. 11

3. Challenges and Judicial Struggles in Toxic Torts………………………………………… 11A. Prevention of Threatened Exposure to Toxic Agents………………………………. 11

Palmer v. Nova Scotia Forest Industries (1983 NSTD)…………………………… 11B. Proving Causation of Present Injury………………………………………………… 12

Fairchild v. Glenhaven Funeral Services Ltd. (2002 HL) ………………………… 12Missouri v. Illinois (1906 USASC) ………………………………………………… 12

IV. Regulatory Legislation………………………………………………………………………….. 131. Introduction……………………………………………………………………………….. 13

A. Goals of Regulatory Statutes………………………………………………………… 13B. Provincial Regulatory Legislation…………………………………………………… 15

2. Regulation and Standard Setting…………………………………………………………. 15Franson, Franson and Lucas, "Environmental Standards"……………………….. 15Canadian Environmental Protection Act, Chlor-Alkali Mercury Regulations…….. 16

3. Toxic Substances Regulation…………………………………………………………….. 174. Air Pollution Regulation…………………………………………………………………. 205. Emission Trading Versus Command-and-Control……………………………………….. 206. Criminal and Regulatory Offences………………………………………………………. 24

A. Regulatory Offences………………………………………………………………… 24R. v. MacMillan Bloedel (Alberni Ltd.) (1979 BCCA) …………………………… 24R. v. MacMillan Bloedel (2001 BCSC) …………………………………………… 25R. v. MacMillan Bloedel (2002 BCCA) …………………………………………… 25

B. Strict Liability Offences…………………………………………………………….. 26R. v. Sault Ste. Marie (1978 SCC) ………………………………………………… 27

C. Risk Distribution and Resource Allocation – Calabresi Article……………………. 27V. International Trade Frameworks……………………………………………………………… 29

1. Dolphin-Safe Tuna Fishing Case Study…………………………………………………... 29GATT Secretariat – Restrictions on the Importation of Tuna – Sep. 3, 1991……… 29

VI. Environmental Assessment…………………………………………………………………….. 331. Introduction……………………………………………………………………………….. 33

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2. Background: History and Legislation…………………………………………………….. 343. The Canadian Environmental Assessment Act…………………………………………… 34

Alberta Wilderness Assn. v. Cardinal River ("Cheriot Mine") (1999 Admin.)……. 37Bow Valley Naturalists Society v. Canada (1999 Fed. CA)……………………….. 38Friends of the West Country Assn. v. Canada (1998 Fed. Ct. Trial Div.)………… 38Friends of the West Coutnry Assn. v. Canada (1999 Fed. CA)……………………. 38Manitoba's Future Forest Alliance v. Canda (1999 Fed. Ct. Trial Div.)…………. 39

VII. Public Participation and Judicial Review…………………………………………………….. 391. Introduction to Administrative Law………………………………………………………. 392. Judicial Review…………………………………………………………………………… 41

A. Standard of Review…………………………………………………………………. 41Graham v. Alberta (1996 Alta. QB) ………………………………………………. 41New Brunswick (Board of Management) v. Dunsmuir (2008 SCC)………………. 42

B. Grounds for Review………………………………………………………………… 43Halfway River First Nation v. British Columbia (Ministry of Forests) (1997 SCC). 43Aluminum Co. of Canada v. Ontario (Minister of Environment) (1986 Ont. SC)... 44

C. Public Interest Standing…………………………………………………………….. 44Canadian Council of Churches v. R. (1992 SCC) ………………………………… 45Sierra Club of Canada v. Canada (Minister of Finance) (1999 SCC)……………. 45

VIII. Aboriginal Rights……………………………………………………………………………… 46Haida Nation v. BC and Weyerhaeuser (2002 BCCA) …………………………… 47Haida Nation v. BC and Weyerhaeuser (2004 SCC) …………………………….. 47

IX. Contaminated Real Estate…………………………………………………………………….. 481. Introduction………………………………………………………………………………. 482. The Cleanup Standard…………………………………………………………………… 48

Tridan Developments Ltd. v. Shell Canada Products Ltd. (2002 Ont. CA)……… 483. Parties Liability………………………………………………………………………….. 49

A. Owners and Operator Liability – Past and Present…………………………………. 49Canadian National Railway Co. v. Ontario (1992 Ont. Ct. Gen. Div.)…………… 49

B. Parent Corporation Liability………………………………………………………… 50Beazer East, Inc. v. British Columbia (Environmental Appeal Board)…………… 50

C. Lender Liability…………………………………………………………………….. 51Canadian National Railway Co. v. Ontario (1992 Ont. Ct. Gen. Div.)………….. 51

X. Global Climate Change………………………………………………………………………... 551. The Science of Climate Change………………………………………………………….. 552. Rough Guide on Climate Change – What to Know for the Exam……………………….. 563. Comparison of the Carbon Tax and Cap and Trade……………………………………… 614. Summary of Climate Change for the Exam………………………………………………. 625. Kyoto Protocol Provisions………………………………………………………………… 65

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I. INTRODUCTION

- There are many categories of environmental problems:a) Air Pollution

- There are many different kinds of air pollutants:i) SO2 – Sulfer Dioxide

- Combustion of coal, mixes with water vapour in the sky, and comes down as acid rain- Acid rain acidifies lakes and ponds, changes biology and composition of species, and washes away the colours of buildings

ii) PMx – Particulate Matter- These are a range of open sources (PM10, PM2.5, ect…)

- ie: dust from unpaved roads, forest fires, construction operations, ect…- They are small enough to lodge into lung tissue and damage human health

iii) Others- ie: O3 (ozone), NOx (oxides of nitrogen), ect…

- These sources come from energy, industrial sources, transportation, ect…b) Water Pollution

- Comes from sources such as agriculture, shipping, industrial dumping, and other land activitiesc) Solid Waste Disposal

- As opposed to external sources, this problem comes from YOU- The average Canadian produces more than 80,000 kg of garbage in their lifetime

d) Toxics- Comes from industrial sources and agriculture- Includes PCBs, lead, SO2, ect…

e) Subatomic Particle Pollution- Comes from energy, defense weapons, and naturally-occurring radon- Nuclear power plants have become a popular alternative for producing power (w/o Chernobyl)

f) Ozone Layer Depletion- The hole screens out frequencies of UV sunlight that would kill all life on Earth- Comes from aerosol consumer products that produce CFCs (chloroflurocarbons)- CFC byproducts release Cl (chlorine atoms), which convert O3 (ozone) to O2 (oxygen)- Led to the "hole in the Pole" over Antarctica, which produced a skin cancer hazard- The 1987 Montreal Agreement reduced the use of CFCs and the results have been good

g) Global Climate Change- Greenhouse gases come from energy, industrial sources, transportation, and YOU- Top 3 emitters are USA, China (20x as much as Canada), and India- GHGs, especially CO2, trap sunlight in the atmosphere, raising the earth's temperature, making the polar ice caps melt, rising sea levels, flooding coastal cities (Katrina and Gustav), ect…- Biggest, toughest to solve, and potentially most dangerous problem

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II. CONSTITUTIONAL LAW

- The Constitution Act, 1867 sets out the division of powers between the federal and provincial gov't- Powers were meant to be exhaustive and each gov't meant to be supreme within their own sphere- However, there are double aspect matters (ie: environment) that don't have an enumerated head

- Possible federal enumerated heads:a) POGG – "All matters not coming within the classes of subjects by this Act"

- Environmental matters would fall under the national concerns branchb) s.91(12) – Sea Coast and Inland Fisheriesc) s.91(27) – Criminal Lawd) s.91(3) – Taxatione) s.91(2) – Trade and Commercef) s.91(29) and s.92(10) – Federal Works and Undertakingsg) s.91(10) – Navigation and Shipping

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- Possible provincial enumerated heads:a) s.92(13) – Property and Civil Rights in the Provinceb) s.92(16) – "Generally all matters of a merely local or private nature in the Province"c) s.92A – Non-renewable resources

Fowler v. The Queen (1980 SCC)…s.33(3) struck down because it's overbroadF: - Fowler, a logging business owner, hauled logs across a stream

- Debris broke off into salt water, but there was no evidence it affected fish or rearing of fish- Charged under s.33(3) of the Fisheries Act, but says it falls within s.92(13)…feds argue it's s.91(12)

I: - Is s.33(3) of the Fisheries Act ultra vires of Parliament?J: - Yes, for Fowler, ultra vires because it's a "blanket provision"A: - Court finds that the prohibition is too broad and is not necessarily incidental to s.91(12)

- Martland J. wants to put boundaries around federal power…doesn't matter if there's evidence or not- Amended in s.36(3) of current Fisheries Act, which said "deposit of deleterious substance prohibited"

R: - Parliament can't legislate too broadly and intrude into provincial powers

Northwest Falling Contractors v. The Queen (1980 SCC)…s.33(2) upheld because of "deleterious subst."F: - Oil spill into BC tidal waters, Northwest argues that s.33(2) of the Fisheries Act intrudes into s.92(13)I: - Is s.33(2) of the Fisheries Act ultra vires?J: - No, for gov'tA: - "Deleterious substance" defined as deposit of substances frequented by fish

- Thus it limited itself to show that the drafters paid respect to federalism and respect for prov. powersR: - Shows how one provision of the Fisheries Act can be upheld and another be struck down

- Two points from both of these cases:a) Environment is a matter that is not exclusively within federal or provincial powers

- This is not necessarily a bad thing (ie: BC institutes Carbon Tax)b) There are limits to each head of power

- Government drafters must keep this in mind

R. v. Crown Zellerbach (1988 SCC)…Singleness, distinctiveness, indivisibility, and prov. inability testF: - Ocean Dumping Control Act created for Canada to fulfill international treaty obligations

- s.4 prohibits any dumping at sea unless the dumper has a permit that specifies what can be dumped- Crown Zellerbach carries on logging operations on Van Island and dumps woodwaste- They decide to move woodwaste they’ve dumped 60-80 feet into the sea, reported and charged

- Had a permit to dump but the permit specified a dumping location a few miles away- CZ challenges validity of parts of statute that regulates sea that includes internal waters of Canada

- CZ argues that Parliament can’t regulate dumping in BC waters like Beaver Cove which is internal waters under provincial jurisdiction

I: - Does Parliament have jurisdiction to control dumping in provincial waters of substances (ie: woodwaste) that have no pollutant effect in extra-provincial waters?

J: - For government, legislation valid as falls within national concern doctrine of POGGA: - SCC considers whether statute validity with respect to national concern branch of POGG

- Common law rule is that province owns low tide line, seabed owned by Canada to a certain distance- In question are straights…jurisdiction is still up in the air (ie: between island and mainland)

- Case turns on description of dumping restrictions of The Act- Court decides The Act deals with marine pollution and that it is sufficiently distinct and indivisible for it to qualify within the national concern branch of POGG

- Court enunciates 4 very important general propositions about POGG:a) National concern doctrine is distinct from national emergency doctrine (Hsu adds gap branch)b) National concern doctrine can authorize legislation in respect to brand new matters

- Can also authorize matters which, although originally of local or private nature in a province, have since, in absence of a national emergency, become matters of national concern- These two are standard, next two pick up what Beetz said and add to it

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c) Must have a singleness, distinctiveness, and indivisibility that clearly distinguishes the matter from matters of provincial concern

- Thus big issues like general environment protection and the economy don't fall under POGG- Must be able to find a difference between the federal and provincial problem to invoke SDI

d) Suggestion for determining whether the matter has attained the required degree of singleness, distinctiveness, and indivisibility, is the provincial inability test (most important)

- ie: what would happen if the province didn’t cooperate and failed to legislate?- Here, if BC didn’t legislate marine pollution, it would flow into federal waters

- Must have both SDI and pass the test in order to rely on the national concerns branchR: - "For a matter to qualify as a matter of national concern…it must have a singleness,

distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the constitution" (ie: 2-part test)

- Thus out of this case we have 2 tests for matters of national concern:a) Singleness, distinctiveness, indivisibility

- If you are against the legislation, label it broadly and assert that it will upset the Federal Principle if it is upheld (ie: balance intended the constitution and must be maintained)

b) Provincial Inability Test- Need for one national law which cannot realistically be satisfied by co-operative provincial action because the failure of one province to co-operate would carry with it adverse consequences for the other provinces

Friends of the Oldman River Society v. Canada (1992 SCC)…Info gathering v. binding recommedationsF: - Federal Minister granted approval to Alberta to build a dam on Oldman River, but didn't do an

environmental assessment under Environmental Assessment and Review Process Guidelines Order- Guidelines Order requires federal agencies with decision-making authority for any proposal that may have an environmental effect on an area of federal responsibility to screen for harmful effects- Society wants to quash the approval and require the Minister to comply with the guidelines

I: - Is the Guidelines Order too broad and infringes on provincial jurisdiction?J: - No, in pith and substance the Order regulates federal administrationA: - First, court notes that the environment is so diffuse a subject that it doesn't fall under a single head of

power, nor under national concerns branch of POGG since it lacks SDI- Court does a pith and substance analysis to determine whether the legislation falls in a head of power

- Determines that the order regulates federal institutional decision making by requiring environmental impacts to be considered- Any intrusion into provincial jurisdiction is merely incidental

R: - Environment is too broad a federal subject, but information gathering can be upheld

R. v. Hydro Quebec (1997 SCC)…Federal scope of 91(27) is very broad and virtually anything can qualifyF: - Case deals with s.34-35 of Canadian Environmental Protection Act (1988) and the interim orders

made pursuant to it by Federal Minister- Hyrdo Quebec charged with emitting more than 1 gram/day of PCB than is allowed by interim order- Hydro says s.34-35 of the Act and order is ultra vires, not challenge to validity of the Act as a whole- Parliament argues its valid legislation pursuant to 2 reasons:

a) POGG in relation to a serious national concernb) In line with section 91(27)

I: - How does the decision expand the criminal law powers? Was this valid criminal law?J: - Majority for government (valid in relation to criminal law)…dissent disagrees with the formA: - La Forest J. (majority) says a few things:

a) s.34 leaves subject matter in existence and gives a long list of provisions regulating the matter- Thus this upholds regulatory legislation that doesn't have prohibition with a penalty

b) Unanimity that protection of the environment is a valid public purpose for criminal law- Concurrent provincial legislation exemption just reflected the reality that much of the field of environmental protection is effectively concurrent

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c) Prefers criminal law power because its more precise in the federalism sense- Must criminalize specific conduct- p.118-121 says criminal law is plenary in nature and Parliament can criminalize anything

- Thus extends from requirement to a new purpose and encourages Parliament to use 91(27)- Environmental protection added to list of valid public purposes (on its own, no health connec.)

- Lamer and Iacobucci (dissent) discuss regulatory regimes and distinguishes from prohibitory regime:- Agree that the environment is a valid subject matter for the criminal law to deal with, but…a) They can't find a prohibition in the legislation; can't have prohibition with an exemption, as this Act exempted a province from a regulation if that province already had an equivalent lawb) Also, there is no crime until the interim order is made, and it looks like a regulatory schemec) Definition change is too complicated to be criminal lawd) If you violate a matter and go before a judge and jury, it looks like criminal law; if you violate a matter and go before an administrative tribunal, it looks like a regulation

- If advising parliament about drafting legislation, you should get far away from regulations so that somebody could challenge the way that it is framed

- Must be able to persuade SCC that the purpose is a valid public purpose within the context of the Margarine Reference

- This and RJR demonstrate that Parliament received bad advice about using POGG and national security doctrine to regulate (only threw in 91(27) when it went to litigation)

- POGG would upset federal principle because it gives exclusive jurisdiction over a subject matter, while s.91(27) only prohibits specific activities

R: - Federal scope of 91(27) is very broad and virtually anything can qualify, and now an extensive degree of regulation under the criminal law power is acceptable

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III. THE COMMON LAW

1) INTRODUCTION TO PRIVATE LITIGATION

- There are advantages and disadvantages to using private litigation to secure environmental protection:a) Advantages

- Profile of an environmental issue might be elevated through a lawsuit- Not as much political pressure- May be only way to air legitimate grievances where government have refused to act or polluters have failed to listen- Joint and several liability can be effective- Flexibility, as courts may advance law in ways that legislators have not

b) Detriments- Costs of litigation may be prohibitive because of attorney fees and securing witnesses, so therefore litigation needs a highly motivated and financially able plaintiff- Too reactive and adversarial, and not preventative and co-operative- Many torts require P's to have a property interest (exception: negligence)- Haphazard way for law to develop (depending on particular cases) and need for long-term planning processes (ie: through legislation)

- Alternatives include the “Superfund” in US- It's a levy / tax on businesses in certain sectors (e.g. chemical industry) used to clean-up sites without need to first go through litigation- Note that BC business was opposed to such an approach, so government expanded liability through the Waste Management Act instead

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- 5 common law causes used in the CL to protect the environment, which will be developed below:a) Negligence

- Deals with compensation of losses caused by unintentional but unreasonable conduct that harmfully affects legally protected interests- Since it requires unreasonable conduct, it has its limits in its usefulness for environmental law, as reasonableness often attained by looking at industry practice- Not often used anymore to get industries to do better, as all industries might be negligent and thus negligence becomes reasonable- If industry is dirty usually, courts less apt to force it to be cleaner under negligence

b) Nuisance- Fixes problems with negligence actions, as you don't have to be at fault to be liable- Nuisance is the biggest COA for environment- Remember, it is an evolving COA (test, injunction and damages, ect…)

- Used to be if you caused harm, you were liable…now, it is a balancing test- Also, in old days, after proving nuisance, you got an injunction- Now, if you are successful, you often get a review of your damages

- There are 2 kinds of nuisance:i) Private Nuisance

- Involves an unreasonable interference with the use and enjoyment of land that is owned or occupied by another person

ii) Public Nuisance- An unreasonable interference with a right common to the general public

- When trying to decide whether private or public nuisance, balance 4 factors (Toronto Transit)i) The nature of the locality in questionii) The severity of the harmiii) The sensitivity of the plaintiff; andiv) The utility of the defendant's conduct

- Think about these 4 factors when balancing the interestsc) Strict Liability

- Simple…Rylands v. Fletcher gives 3 elements of the tort:i) The defendant is in lawful occupation of propertyii) On which is stored a dangerous agent or thing constituting a non-natural use of landiii) Escape of the agent or thing from the defendant's property, andiv) Causing damage to the plaintiff

- 'ii' is the most important factord) Trespass

- Advantage is that it's actionable per se, but many problems otherwise- Must be a physical invasion- Causation is difficult…ie: case study, did electric companies really cause global warming?

e) Riparian Rights- Right of the water of the stream or lake without sensible diminution- Enjoy water with same quality and quantity as existed in nature

- Policy: why we need statutes and regulations instead of just CL:a) Complicated

- Judges aren't the best decision-makers with scientific data (Nova Scotia)b) Not very pro-active

- Fairchild…man died before any asbestos regulation was enforcedc) Causation

- Illinois…1.4 million people's sewage fell downstream Mississippi River into St. Louisd) Consistent Adjudication

- No special case law…but Palmer v. Nova Scotia could've had a different result in BC or Quebec since they're traditionally cleaner jurisdictions

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Faraday Uranium Mines v. Arrowsmith (1962 Ont. CA)…Common law rights v. statutory languageF: - Contestants operate tourist/summer lodges on Bow Lake

- Mining company gets a licence from Mining Commissioner under s.646 of the Ontario Mining Act to dump waste and radioactive products into the lake- Effect of s.646 is to terminate the common law riparian right to get an injunction…instead, they should be "fully compensated for"

I: - Is the language of s.646 of the Mining Act sufficiently comprehensive to secure to the contestants full recourse for their loss?

J: - They get full compensation and matter is remitted to the Commissioner for a rehearing on the matterR: - Principle of statutory interpretation: When you have a statute that has the effect of taking away

a common law right, the court will try to interpret the common law right as broadly as possible

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2) OVERVIEW OF COMMON LAW DOCTRINES

A) PRIVATE NUISANCE

- Definition: unreasonable and substantial interference with another's use and enjoyment of land- Main question with nuisance: what is unreasonable?- "Intentional invasion of another's interest in the use and enjoyment of land is unreasonable if…the gravity of the harm outweighs the utility of the actor's conduct…"- This refers to balancing the plaintiffs and the defendant's interest…see factors below

- Notes on the tort:a) Can be used by anyone with a legally recognized interest in land…ie: owner, leaseholder, etc.b) Strict liability…ie: no need to show intention or negligence on D’s behalf

- Examples include:a) Loud noises from bars, cable carsb) Smells from pig stys, chemical manufacturersc) Flooding from dams or changing landscapesd) Flies from pig stys or other thingse) Vibrations from confectioners or heavy manufacturingf) Smoke from air pollution

- Where interference involves interference with the plaintiff's enjoyment of the property, courts will weigh various factors in determining whether a nuisance exists, which include:

a) The Nature of Locality- Courts look to industrial/urban v. residential/rural areas

b) Utility of the Defendant's Activity- In cases with public works projects involving transportation, this tends to be the dominant factor

c) Whether the Plaintiff Had Abnormal Sensitivities- Medical conditions such as allergies or asthma won't trigger nuisance

d) Severity of the Harm - Court asks: does P come to the nuisance? Not a defence but can be a factor- ie: isolation hospital, highway construction, spying not considered nuisances- ie: pig sty, mushroom far, noise from go-kart club, sawmill considered nuisances- Courts look to:

i) Gravity of the harm (how harmful is it?)ii) Duration of the harm (long v. short term)iii) Continuousness of the harm (breaks?)

- Thus process: Unreasonable interference Balancing interests Various factors

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Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993 Ont. CA)…BalancingF: - Noise and vibrations from D's subway line caused a disturbance in a commercial area

- Commission appeals trial decision holding that the subway line created a private nuisance and ordering D to remove a frog which formed an integral part of the system

I: - How does the court balance interests when a public works project is involved?J: - For CommissionA: - Court looks at 3 aspects:

a) Not a nuisance based on a balancing act- Severity of the harm doesn't outweigh the utility of the defendant's conduct- In transportation where an essential public service is involved, the factor of the utility of the defendant's conduct is the important one- Additionally, the nuisance didn't affect P's business, and it was a commercial area anyways

b) Defence of Statutory Authority applies- Even if there was a nuisance, s.107(1) of the Municipality of Metropolitan Toronto Act implicitly authorized construction of railways as part of a transportation system- Legislature obviously knew that noise and vibrations were unavoidable side effects

c) Remedy ordered by TJ was grossly disproportionate- Here, safety and convenience of public, not only individual, would be affected by remedy- Injunctions are discretionary, and only awarded if serious harm would be inflicted on many and injunction wouldn't affect safety or efficiency of the subway system

R: - The court will give great deference to public works projects when balancing competing interests in a private nuisance action

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B) PUBLIC NUISANCE

- This is an "action brought to protect the public interest in freedom from damages to health, safety, morality, comfort, or convenience"

- ie: interference with public navigation rights (such as blocking access to harbour or a logging company’s boom blocking transportation down a river)- ie: street prostitution interfering with public’s right to move about freely without being accosted

- Text book lists factors, but overriding factor is the "obligation of the landowner to use reasonable care"- Overall, court balances D’s right to do the activity with public’s right affected. Will take into account factors such as:

a) Severity of inconvenience saucesb) Ease / difficulty in avoiding the inconveniencec) Utility of D’s practiced) General practice of otherse) Character of neighbourhood

- In general, actions in public nuisance must be commenced by the attorney general on the theory that the rights of the public are vested in the Crown…used to be a criminal act that only AG could bring on behalf of their jurisdiction

- Been relaxed, but if you are a private litigant, you must show special damage different both in kind and in degree, and they have been very limited by Hickey- Hickey involved a fishery…spill of noxious substances in the bay, and local fisherman claimed harm- Court said no…fact that they made living off fishing didn't distinguish them from recreational fishers- Hickey discussed more about difference in kind, but degree also important- H: Inuit in case study have difference in degree and kind…may be special enough P to bring a public nuisance COA- H: when talking about special damage, proximity is important…ie: if you live close to an incinerator

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- If you are a private plaintiff, you have to show special damages (Hickey)- ie: obstruction placed on highway that the owner of the premises abating the highway has his or her own private access to and from the property interfered with- Thus OK when public nuisance results in personal injury or damage to/interference with P's property- Questionable when P suffers loss of business profits or economic loss (Hickey)

Hickey v. Electric Reduction Co. of Canada, Ltd. (1970 Nfld. TD)…Need special damages for public nui.F: - D discharged poisonous materials into a bay, rendering poisoned fish of "no commercial value"

- Fishermen claim that the private nuisance became a tortious actI: - Could an individual successfully sue for public nuisance?J: - Here, no, there were no "special damages"A: - Where damage is "common to all persons of the same class" (ie: all fishermen, although everyone has

the right to fish, so all people), then there is no right of action for public nuisance- H: Court analyzed in terms of right to fish and not damages, since accountants and fishermen would be affected by the pollution differently…thus it's a wrongly decided case even though it's good law

- ie: maybe if there was a fishing 'quota', or if they argued about their right to make a livingA: - Courts will take a narrow view of special damages involving pure economic loss

- In Gagnier v. Canadian Forest Products Ltd. (1990 BCSC), the court referred to Hickey as too narrow- Instead, the court indicated that economic loss could be recovered under public nuisance if a plaintiff shows a significant difference in degree of damage from the public generally- However, case was dismissed based on a problem of "record keeping"- H: Hickey is still the law, but the future may trend towards Gagnier

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C) STRICT LIABILITY

- Lord Blackburn in Rylands v. Fletcher (UK 1868), which is still good law in Canada, gives 4 elements:a) P in lawful occupation of propertyb) On which is stored a dangerous agent or thing constituting a non-natural use of landc) There is an escape of agent or thing from the propertyd) This causes damage to P

- Remember that this is strict liability- ie: no need to show negligence, so can be liable no matter how careful the owner was or what precautions were taken to prevent the escape- Also, as opposed to nuisance which requires merely a natural or usual but "unreasonable" use of land that can result in mere inconvenience to the occupier, strict liability rule of Rylands requires some abnormal non-natural use of land that results in actual damage to the land, goods, or person of P

- This focuses on the event of the escape, rather than on the acts of D as in nuisance- Can be thought of as an extension of nuisance to cases of isolated escape, or as a separate principle concerning ultra-hazardous operations

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D) TRESPASS

- Trespass is the direct, intentional, physical interference with another’s interest in land without lawful excuse or justification (need not be physical damage, just interference)…can be:

a) Either direct physical entrance upon land, orb) Remaining after being told to leave, or

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c) Placing or projecting any object upon the land

- Hence there must be a physical invasion- ie: smoke must be thick enough to have "stuff" come onto the property- ie: toxic gases wouldn't qualify, as it's not tangible enough

- Often argued together with private nuisance, both concerning real property rights- Also, it is strict liability…ie: no need to show negligence

- Advantage of being actionable per se, that is, without any proof of damage, and remains actionable as long as the invasion continues

- However, it requires an intentional and direct invasion, and can be difficult to prove "direct"

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E) RIPARIAN RIGHTS

- Riparian rights are described in two ways, both are used interchangeably:a) Right to water of the stream (lake) subject to ordinary use of the flowing water by upper proprietorsb) Right to water of the stream, in its natural flow, without sensible diminution or increase and without sensible alteration in character or quality (H: likes 'b' better)

- Exception: riparian owners upstream may use water for:a) Ordinary/domestic uses, andb) “Reasonable” water disposal

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3) CHALLENGES AND JUDICIAL STRUGGLES IN TOXIC TORTS

- Toxic torts are civil lawsuits addressing expose to toxic agents (chemical, biological or radiological) -- - Three major categories:

a) To prevent a threatened exposure by quia timet injunction (see Palmer)- Precautionary principle possibly useful today

b) P suffering a present injury, but difficulty in proving causation by D’s activity, perhaps due to long latency periods of diseasec) P exposed to toxic agent(s) but not suffering any present injury

- Is there an action for enhanced risk of future injury, or to monitor health and/or ecological impacts, or for fear, or for reduction of property values?

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A) PREVENTION OF THREATENED EXPOSURE TO TOXIC AGENTS

- The next case was a big defeat for environmentalists, but may have been decided differently today, as precautionary principle would suggest different outcome…

Palmer v. Nova Scotia Forest Industries (1983 NSTD)…Court applies high evidentiary thresholdF: - P owned property where D had been given permission to spray herbicide

- P applies for a permanent quia timet injunction ("which he fears") to disallow spraying in advance because it will allegedly cause harm, as this would be trespass, private nuisance, or offend Rylands

I: - Can a court grant an injunction for future environmental damage?J: - Here, no, for industryA: - The court makes a few important points:

a) Injunctions are a discretionary remedy

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- P must show 2 things for a quia timet injuction:i) Damages would be an inadequate remedy (ie: irreparable harm/health risk evidence)ii) Strong/sufficient degree of probability of apprehended harm

- Since the harm has to happen first, preliminary injunctions are difficult to getb) Courts have no role in assessing uncertain science

- If science uncertain about whether a substance poses a health risk, courts can't resolvec) Scale of danger important

- Here, risks from chemicals considered infinitesimally small (below 1 in a million)- Shows to change the common law, you need to pass a strong environmental threshold- Here, P didn't explicitly challenge administrative decision that the pesticide was "safe"

- Instead, this was a common law case alleging trespass and nuisance- Thus demonstrates how it's difficult to be pro-active with the common law- However, even though something is regulated, you can still bring a CL action for nuisance, trespass, and that the gov't wrongly decided a substance and it should be judicially reviewed

R: - Courts will take a conservative and hands-off approach in environmental cases involving future health risks unless science/evidence has sufficient certainty

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B) PROVING CAUSATION OF PRESENT INJURY

- Causation can be difficult to prove in environmental cases, such as in negligence toxic torts actions, since:a) Cancer is a non-signature disease (i.e. cannot discern cause by looking at the disease), so require evidence showing a higher degree of disease in exposed population than normalb) Further, there may not be a single cause, but rather synergistic effects of multiple factors, some environmental, some genetic, some unknown.

Fairchild v. Glenhaven Funeral Services Ltd. (2002 HL)…Causation policy considerationsF: - P died from mesothelioma, a disease only obtained through exposure to asbestos and died

- He was exposed by two different employers, and estate can't prove on BOP that his mesothelioma was the result of his inhaling asbestos dust during his employment with A, B, or A and B together

I: - In special cases such as this, does principle, authority or policy require or justify a modified approach to causation? Can the dead worker recover against either or both employers?

J: - Here, yesA: - No way of identifying, even on a balance of probabilities, the source of the fibre or fibres which

initiated the genetic process which culminated in the malignant tumour- For this reason, CA rejected TJ's findings

- However, "the law's view of causation is less concerned with logical and philosophical considerations than with the need to produce a just result to the parties involved"

- Decisions can't offend one's basic sense of justice…policy involved- Here, policy considerations weigh in favour of finding for the plaintiff

- H: Problem with latency here…check notes for more analysis (didn't discuss it much in class)- ie: Case admits that principle here will be subject of incremental change over time

- H: Shows problem with private litigation…man died before any asbestos regulation was enforcedR: - Even though the plaintiff cannot, because of the current limits of human science, prove, on the

balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment with A, B, or A and B together, he is still able to recover to produce a just result

- The next case produced a less favourable result for the plaintiff bringing the action…

Missouri v. Illinois (1906 USASC)…Unsuccessful action to stop dumping toxics into downstream riverF: - Chicago began to treat their typhoid problem by dumping into Lake Michigan, but it didn't work

- Therefore, they dumped it into an artificial channel, reversing the flow of the river and eventually dumping the sewage into the Mississippi, which eventually hit St. Louis

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- Missouri doesn't want shit in their waters, and argues this causes the increase in typhoid in St. Louis I: - Is there sufficient causation?J: - No, for IllinoisA: - This is a nuisance case, so you look at the four factors and ask if it's an unreasonable interference

- However, the court was persuaded that other cities were complicit- Also, the uptick in typhoid deaths already started before the opening of the canal in 1900- Therefore, there was a correlation, but not causation

- Also, there was a lot of expert testimony stating that whether or not the bacteria could survive the long journey to Missouri- H: Shows why we need statues and regulations to counterbalance the weaknesses with the common law in enforcing environmental regulations, as here, 1.4 million people's sewage fell downstream Mississippi River into St. Louis

R: - Causation can be difficult to prove in environmental cases, such as negligence toxic torts, because the court will not always equate correlation with causation

- Why do we need statutes and regulations in addition to the common law?- Scientific nature of problems require expertise that judges don't have- Hard to prove causation (but it's sometimes there!)- Traditional nuisance required an interest in land- Avoid harm before it occurs- Uniform, consistent adjudications

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IV. REGULATORY LEGISLATION

1) INTRODUCTION

A) GOALS OF REGULATORY STATUTES

- There are 5 good common law causes of action, but problems include:a) Causation – see Missouri v. Illinoisb) Expertise – see Palmer v. Nova Scotiac) Pro-active – see Palmer v. Nova Scotiad) Consistency – all litigation is unpredictable

- Regulatory statutes typically do 5 things:a) Creates a Regulatory Agency

- ie: Environment Canada, BC Ministry of the Environment, ect…- Current federal Minister is John Baird; provincial minister is Barry Penner

b) Creates Obligations- What people/corporations can and can't do

c) Creates Prohibitions- In a regulatory setting, prohibitions tend to be fines, not penal offences

d) Creates Enforcement Provisions- Always something about enforcement in every statute

e) Creates System and Regulatory Infrastructure- There is a system for adjudicating environmental matters

- Two generations of environmental statutes, that demonstrate there has been a recent governmental shift away from difficult-to-enforce blanket provisions to more practical control regimes:

a) Old – Waste Control Statutes- First generation of environmental statutes include the basic air, water and land pollution statutes enacted by Canada and the provinces in the early 1970s

- ie: Missouri v. Illinois problems- Object was control of waste being deposited on land or discharged into water or air

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- Waste disposal likely to cause harm to human life or health or to the environment upon which human life depends was often established as a general offence

b) New – Preventative and Anticipatory Statutes- Second generation of statutes emerging that recognizes waste control as only one aspect- Object is control of persistent toxic substances- They have two characteristics:

i) Small dose toxidity- Recognition that even small amounts of pollution create serious long-term danger

ii) Slow decomposition- Recognition that materials accumulate to produce danger to natural environment

- These laws have more sophisticated enforcement provisions- ie: tickets for minor offences, indictable criminal offences, civil legal actions, mandatory administrative orders, negotiation techniques, ect…

- Policy…there are two kinds of regulations:a) Prescriptive regulation

- Specifies the means by which the regulatory ends (i.e. objectives) are to be met- Highly prescriptive regulation would specify great detail, such as must use this type of valve and check it 3 times a day, etc…

b) Ends or results or performance based regulation - Focuses on the ends, not the means- Operator free to employ their chosen means to achieve objectives - Regulator must still monitor compliance, but only in terms of outcomes- Results based is generally preferred by companies, and there is now much rhetoric for it in B.C. - Argued in wide variety of sectors, including nuclear power generation

- Arguments for each:a) Prescriptive (i.e. against results/performance based):

i) Reduces risk of operator failing to achieve desired ends.(1) E.g. in B.C. the Forest Practices Code is fairly high prescriptive, based on the idea that to

protect the various values it was felt essential to tell the forest companies what to do (e.g. specifies size of culverts, type of building materials, etc).

ii) Need to take into account severity of damage if ends not met (e.g. consider nuclear power station).(1) E.g. in US nuclear power plants are under very detailed prescriptive regimes(2) E.g. height of guard rails set for worker health and safety

iii) Pressure on companies to increase profits/return on investment would encourage them to cut corners if given more freedom

iv) Under results based, innovation is untested and potentially very damagingv) Prescriptive is more attune to the precautionary principle – use the means we know are tried

and testedvi) Perhaps easier to check compliance against prescriptive regulation, compared to results-based

where it might be too late once it becomes clear some result has not been achievedvii) Performance based will still need inspectors/monitoring to ensure results being met, and

would need significant fines, so costs savings to government questionable (although possibility of moving more to self-reporting)

b) Arguments against prescriptive (i.e. for results/performance based):i) Increases costs since forced to operate in a certain way, and objectives could be met much

more cheaply if government wasn’t micro-managing industryii) Fallacy of objective compliance testing with prescriptive regulation, since often no clear

connection between the prescribed means and the ends e.g. B.C. forest industry claims prescriptive Forest Practices Code actually degrades environment in some cases

iii) There would still be compliance measuring, but now against the objective that you really care about, rather than wasting much time/costs on prescribed means

iv) Costs of individually permitting every operation

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v) Can’t use own expertise/confidential proprietary knowledge to change means/cut corners and still achieve objective

vi) Decreases potential/freedom for innovation

_____________________________________________________________________________________B) PROVINCIAL REGULATORY LEGISLATION

- These regulate discharge of environmental contaminants, but it varies province-to-province- British Columbia has the Waste Management Act

- Typical pattern:a) Licencing Regime

- Province establishes a method for licencing and controlling contaminant dischargesb) Quasi-Criminal Offences

- Breach of licencing requirements or terms and conditions of licence results in thisc) Mandatory Administrative Order Power

- In event of unapproved release of contaminants, province has power to issue these

- A model of provincial regulatory legislation would include:a) Interpretation (definitions of key application and limitation terms)b) Statement of purposesc) Scope of application (whether the Crown is bound and general exclusions)d) Prohibition against discharge of contaminants without an approvale) Application procedure provisions and power in a designated official or authority to grant approvalsf) Enforcement order powersg) Exemption or variance powersh) Appealsi) Enabling powers for economic instruments and market-based approachesj) Offences and penaltiesk) Regulation-making powers

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2) REGULATION AND STANDARD SETTING

- This involves setting standards: objectives, criteria, ambient standard, discharge standard, monitoring…

Franson, Franson and Lucas, “Environmental Standards”..Model procedure for setting enviro standardsA: - They describe the standards setting process as involving 5 stages:

a) Identify regulatory objectives/goals - e.g. safe drinking water, preserve the salmon fishery (both anthropocentric), maintain biodiversity (more ecological)- This is one of the most important stages for public input

b) Develop scientific quality criteria - i.e. collect scientific data such as: at X concentration there was no observable effect, at Y there was some effect observed, and Z was the concentration at which deaths were first observed i.e. help answer questions such as “is this water safe to drink”, or “can this inlet support a healthy salmon fishery”- Purely a scientific matter, and may have to consider synergistic (i.e. in combination increased dangers) and antagonistic (i.e. cancel each other out) effects between pollutants

c) Develop ambient quality standards which define desired condition of the air/water based on the criteria

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- An initial technical evaluation will suggest a number of alternative ambient standards, how each meets the objectives, what the practicality and costs to attain each might be, and how measurable each will be- A political choice will then be made, and there is potential for public and interest group input at this stage regarding what level of risk should be accepted (taking into account how likely damage would occur, how serious it would be, how unknown it is, etc), and concerning hard to quantify aspects (e.g. aesthetic/spiritual)- A balance will have to be done e.g. can air be clean enough for everyone, including severe asthmatics

d) Develop discharge standards - “An ambient standard alone is unenforceable because it gives no indication of cause and effect”, whereas a discharge “standard lacking a basis in an ambient quality goal has no reasonable foundation in reality”…2 kinds of considerations:

i) Technical considerations- Mathematical models, computer simulations and sensitivity analysis can be used to develop discharge standard technically.- Also need to choose type of discharge standard: e.g. absolute limit that should never be exceeded, or (as suggested by Popel) a standard value and a permissible probability of exceedence.- Should also coordinate pollution control across air/water/land e.g. setting a strict standard for water discharge can simply result in the discharge being converted to a sludge headed to the land fill. So need to set standards for all discharges taking into account these possible conversions, although this is difficult to do.- Should consider feasibility of the discharge standard i.e. if it is simply impossible at present, perhaps set more lenient standard and work on reducing need for the process- If discharges at less than detectable levels, might consider requiring industry to submit periodic material balance sheets for particular toxics, and any unaccounted for quantities can be assumed to have been discharged

ii) Non-technical considerations- Fairness- Bargaining between regulators and the regulated (claimed by Thompson to be “actually the essence of the regulatory process in Canada”), and between technology and economics (e.g. competitive position of the regulated industry/company).- May simply set discharge standards based on what is currently technically feasible e.g. based on best available technology. Criticized as “It’s too hard to do it right, so let’s not even try”, and has apparently not worked very well, since discourages innovation, accepts the status quo, puts continuation of industry above environment

e) Develop monitoring and information gathering systems- ie: most permitting systems impose duty on permit holder to report discharge / spill beyond that permitted, and government inspectors may also do audits / spot checks

- Mullan, p.26: "At best, modern legislation takes the form of a skeleton of a principle onto which a mass of formal regulations (and less formal policies and guidelines) have to be added to give life to a complex statutory scheme"

Canadian Environmental Protection Act, Chlor-Alkali Mercury Release Regulations (p.23)- This regulation is regarding "regulations respecting the release into the ambient air of mercury from mercury cell chlor-alkali plants interpretation"- To regulate mercury here, you may think about these categories to decide how standards are set:

a) Identification of Objectives- An objective is a goal or purpose toward which an environmental control effort is directed- The setting of objectives for pollution control and environmental preservation/restoration is the keystone of any rational standards-setting process- Here, you might do a cost-benefit analysis, where you balance the benefits of chlorine with the detrimental effects of mercury

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- Examples: preserve and enhance the salmon fishery in these waters; to prevent crop damage caused by air pollution; to protect the public health

b) Formulation of Criteria- This involves a 3-step process:

i) Identify a very large number of pollutantsii) Assess the risk of adverse effects occurring at a number of potential levelsiii) Identify and evaluate the risk of effects of pollutant interactions

- However, practically, we are limited to formulating criteria on the basis of a limited number of parameters of the greatest and/or most obvious concern, gathering the available information on conditions likely to be clearly harmful, and to lie in the "grey area" between, and considering any interactions that may come to light

c) Development of Standards- 2 purposes of standards:

i) Primary – maximize the level of protection of beneficial usesii) Secondary – minimize the cost of meeting the standards

- Job of the standards-setting body is to balance these conflicting objectives in a way that yields the greatest net social benefits- At this point, standards-setting agency should have the best information that physical, biological, and social sciences can provide

Second example: The hypothetical regulation of NOx (nitrogen oxides)- This is one of the main ingredients involved in the formation of ground-level ozone- Nitrogen oxides create a number of harmful effects, such as:

- Creates to the problem of ground-level ozone, which causes many respiratory problems- Also contributes to the formation of acid rain- Contributes to nutrient overload, harming water quality- Forms atmospheric particles, reducing visibility- Reacts to form toxic chemicals- Contributes to global climate change

- NOx is emitted by power plants, oil refiners, waste incinerators, motor vehicles, mining and mineral production, and many other sources such as lighting a fireplace

- High amount of different uses complicates regulation- Goals:

- Safe for human health?- Safe for ecological needs?- Technological feasibility?- Cost-benefit analysis, balancing?

- Some ideas for rate standards include:- Input/output rate…ie: whatever you put into the process, you can emit that amount- Rated capacity

- In Ontario, they uniquely regulate NOx by regulating at the point of impingement which sets standards on how much pollution is acceptable at a receptor (ie: Sarnia, London, ect…)

- An individual polluter must apply for an operating permit- The polluter must run a model on a computer for Minister predicting what emission might be and what consequences on air quality might be- Then they report the model to the Ministry of Environment, and the Ministry analyzes if the modeled emissions violate the point of impingement standards…if they don't, a permit is granted- Process: objective POI standards apply for permit model emissions report model results to ministry analysis permit granted/denied

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3) TOXIC SUBSTANCES REGULATION

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- The federal 1999 Canadian Environmental Protection Act incorporates several matters that were once the subject of separate legislation…ie: disposal at sea, standards for fuels, emissions from engines

- Major difference between CEPA 1999 and provincial regulatory statutes is the apparent lack in CEPA 1999 of broad contaminant discharge prohibitions supported by a permit or approval system

- CEPA 1999 also contains a part on toxics control, which establishes a basis, but not a complete statutory scheme, for a prohibition and approval system for the regulation and management of toxic substances

- Interpretation:a) Part 5: Controlling Toxic Substances - Interpretation

(64) Toxic substances- "For the purposes of this Part and Part 6, except where the expression "inherently toxic" appears, a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that

(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;

(b) constitute or may constitute a danger to the environment on which life depends; or(c) constitute or may constitute a danger in Canada to human life or health"

- Due to Hydro Quebec, federal government can regulate/penalize under criminal law power…s.91(27)- Dissent by Lamer J: CEPA is regulatory, not criminal, due to elaborate scheme with executive powers

- Steps in the statute:a) Information gathering

- Determine whether a substance is toxic or capable of becoming toxic- s.70, s.71…information gathering

b) Assessment- There is a priority substances list of substances (s.76) for which, once listed, the health and environment ministers must carry out an assessment and determine toxicity- Persons using, manufacturing, supplying, or importing substances on two other lists, the domestic substances list and the non-domestic substances list, are required to supply specified information to the minister of the environment, which is then assessed to determine whether the substance is toxic before allowing import, manufacture, or use- s.74, s.76

c) Regulation- On the recommendation of the ministers, decision is made whether substance is added to the toxic substances list- If the substance is found to be toxic, the final stage is regulation- Regulation is through toxicity assessment process itself…toxics are identified, then managed according to generic standards and requirements prescribed by regulation- Ministers will propose implementation of virtual elimination under s.77(4) if:

i) Substance is persistent and bioaccumulativeii) Results primarily from human activityiii) Is not a naturally occurring radionuclide or inorganic substance

- Reasons for delegating regulations is Parliamentary time, expertise, and flexibility

- Some questions answered by the statute (strategy from Hsu):a) Who's covered by this statute?

- First question to ask…is the client covered under the Act?- Manufacturers, suppliers, importers, and users- Also, minister has the power to make regulations

b) What activities are covered by the statute?c) When are the regulated activities subject to the statute?d) What are the obligations imposed by the statute?

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- There is a 3-step regulatory process in s.332 of the Canadian Environmental Protection Act:a) Proposed Regulation

- CEPA, s.332(1) – Minister should publish in the Canada Gazette every order or regulation proposed to be made by the Minister

b) Opportunity to comment and object- CEPA, s.332(2) – Within 60 days after the publication of a proposed order or regulation in the Canada Gazette under subsection (1) or a proposed instrument respecting preventive or control action in relation to a substance that is required by section 91 to be published in the Canada Gazette, any person may file with the Minister comments with respect to the order, regulation or instrument or a notice of objection requesting that a board of review be established under section 333 and stating the reasons for the objection

c) Publication of a final rule- CEPA, s.332(3) – No order, regulation or instrument need be published more than once under subsection (1), whether or not it is altered after publication

- Not all statutes have this administrative process…ie: BC Waste Management Act doesn't have it

- Lists in CEPA:a) List of Toxic Substances (schedule 1)

- Substances found to be toxic after an assessment go here and are subject to regulation- Currently, there are 85 substances on the list (go to Canadian gov't website, which also includes the process of regulation they are subject to)

b) Priority Substances List (s.76(1))- If substance goes on the list, the health and environment ministers must carry out an assessment and determine toxicity- If you think something on the domestic substances list is very dangerous, you can give a request to the Minister under s.76(4) who then has 90 days to deal with it- If the substance is found to be toxic, it goes on the list of toxic substances list in schedule 1 and is subject to regulations

c) Domestic Substances List (s.66(1))- Everything that we knew was being used, manufactured, or imported between Jan 1, 1984 and Dec 31, 1986- If a substance is here, and not on the list of toxic substances, it's OK for now

d) Non-Domestic Substances List (s.66(2))- This covers everything else new that wasn't grandfathered into the act

e) Virtual Elimination List (s.65(2))- s.77(4) "Where the Ministers shall propose to take the measure referred to in paragraph (2)(c) in respect of a substance and the Ministers are satisfied that

(a) the substance is persistent and bioaccumulative in accordance with the regulations(b) the presence of the substance in the environment results primarily from human activity, (c) the substance is not a naturally occurring radionuclide or a naturally occurring inorganic

substancethe Ministers shall propose the implementation of virtual elimination"- Currently, only hexachlorbutadiene is on the list

- Summary of last class:- Look at the 5 lists, and try to figure out how they relate to each other- Cheat sheet tip: try to make a flow chart that tell you how those 5 lists fit together for the exam

- If you are not on the substance list, but have a new hypothetical substance, what to do?- You should report to the Minister if there is a substance that may be of interest that is not on the domestic substances list or the non-domestic substances list- There is a regulation to this effect and see if the substance fits the definition in the regulation

- To figure out the regulation, it's good to do some sort of a table to figure out the law, such as this one in CEPA for New Substances Notification Regulations (Chemicals and Polymers):

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R & D Substance, Export Only All elseChemicals and biochemicals 5 On NDSL: 7, not on NDSL: 8Polymers and biopolymers 6 On NDSL, or reactants there: 11

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4) AIR POLLUTION REGULATION

- Goal here is how to read a statute in two areas:a) Toxic Materials – Federal

- Intended to protect us from short and long-term exposure to bad substances (ie: mercury, PCBs)- Codified in Canada federally in Part 5 of the Canadian Environmental Protection Act

b) Air Pollution – Provincial- Not lethal in short doses, but over long periods of time causes adverse health effects- Most times, it's difficult to regulate facilities that only regulate small amounts

- ie: Ontario's act…can't devise model emissions- In Canada, there is no federal scheme for regulating air pollution

- Existence of the extensive Ontario scheme is evidence of the lack of federal legislation- In BC, there is little regulation over lead smelters in Trail, pulp/power plants, ect…

- However, there is massive auto emission regulation under Air Care modeled after California- Also, BC doesn't have air pollution problems compared to a province such as Ontario, who must worry about big factories, smelters, power plants, ect...

- This federal/provincial dichotomy is beginning to break down little by little- Federal government is increasingly making use of federal toxic substance legislation to assert federal authority over air pollution

- ie: carbon dioxide, sulpher dioxide, ect…- This is a by-product of R. v. Hydro Quebec- This is surprising, as this initiative is coming from the current conservative government- Harper concerned about regulating air pollution as a federal matter perhaps because he has asthma

- In the Lower Mainland, air pollution and auto emission often drifts downwind into the Fraser Valley- Metro Vancouver website measures Air Quality Index at a number of receptors- Air Quality Index is a combination of the presence of a number of different pollutants- At 75-100, it gets dangerous…usually it's around 15-20

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5) EMISSIONS TRADING VERSUS COMMAND-AND-CONTROL

- There are two ways to regulate air pollution:a) Command and Control

- "Command and control" regulations focus on preventing environmental problems by specifying how a company will manage a pollution-generating process- This approach generally relies on detailed regulations followed up by an ongoing inspection program- Therefore, it's a means of regulation requiring every certain facility of a certain type to install a certain type of equipment- Sounds oppressive because it is…ie: you are burning coal, you must install 'a'- Simple from regulatory agency's POA…installation requires compliance

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- However, may not actually reduce emissions…as non-point source pollution became a more important issue for environmental protection after the 1970s, "command and control" regulations became less useful- While it is successful at directing hazardous wastes to the appropriate disposal facility, it has been less successful at reducing the amount of waste produced

b) Emissions Trading- No federal air emissions legislation in Canada, so borrowed from USA Clean Air Act- Know how it works, and know the pros and cons between this and command and control (previous exam Q)- Know the Ontario Regulation…it's complicated, but see flow chart on powerpoint (go through all powerpoints!!!) that requires polluters to run a model to calculate what they're emissions are, and then send in to the Minister of the Environment before they issue a permit

- Emissions trading (or emission trading) is an administrative approach used to control pollution by providing economic incentives for achieving reductions in the emissions of pollutants…it is sometimes called cap and trade and has several features:

a) Cap- A central authority (usually a government or international body) sets a limit or cap on the amount of a pollutant that can be emitted

b) Emission Permits- Companies or other groups are issued emission permits and are required to hold an equivalent number of allowances (or credits) which represent the right to emit a specific amount- Total amount of allowances and credits can't exceed cap, limiting total emissions to that level

c) Trading- Companies that need to increase their emissions must buy credits from those who pollute less- The transfer of allowances is referred to as a trade

d) Theory- In effect, the buyer is paying a charge for polluting, while the seller is being rewarded for having reduced emissions by more than was needed- Thus, in theory, those that can easily reduce emissions most cheaply will do so, achieving the pollution reduction at the lowest possible cost to society

- Early example of an emission trading system has been the SO2 trading system under the framework of the Acid Rain Program of the 1990 Clean Air Act in the U.S

- Acid rain is a result of combining nitrous oxide (NOx) and sulfer dioxide (SO2) in the atmosphere- When acids fall into the environment, it acidifies water bodies such as lakes, rivers, streams, ect..- Ecology of water body changes and many species are modified/eliminated- USA got serious about controlling/eliminating it in the 1990s

- Congress created a SO2 cap of 8.9 million tons- Table A in s.7651c(a)(1) states that it's unlawful for any affected unit to emit SO2 in excess of the tonnage limitation stated as a total number of allowances in Table A- Allows units to reduce emissions by buying allowances, selling/trading, or bank them like sick days- Units may also operate less or pay a penalty of $2000/ton- As long as a unit has as many allowances as emissions at the end of the day, units are OK- It has been very successful, reducing overall emissions by around 80%

- There are advantages/disadvantages to an emissions trading program:a) Advantages

i) Innovation- Since firms can sell unused allowances, there is an incentive to innovate to pollute less

ii) Economic Incentive- Allows members of a regulated industry to take advantage of gains from trading- There are also cheaper compliance costs

iii) Administrative Costs- Cheaper to administer than a tax or direct regulatory system

iv) Cap- Aims solely at a cap, not at other consequences

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b) Disadvantagesi) Pollution "Hotspots"

- Many firms place hotspots in impoverished or racially segregated areas (in USA at least)- System doesn't create this problem, but there is nothing to prevent hotspots in poor regions- This has lead to the emergence of the idea of "environmental justice"

ii) No Backstop- As long as you have the allowances, you can pollute as much as you want- For improvement, any caps must go down over time

iii) Lack of Incentive- Some units can get away by not reducing emissions at all, instead paying money to another polluter or paying a fine, and then treating polluting as just another cost of doing business

iv) Does Little to Solve Pollution Problems Overall- Groups that do not pollute sell their conservation to the highest bidder- Overall reductions would need to come from a sufficient and challenging reduction of allowances available in the system- Possible this would occur over time through central regulation, though some environmental groups acted more immediately by buying credits and refusing to use or sell them

v) Too Many Emission Credits- If regulatory agencies issue too many emission credits, beneficiaries of emission trading simply do more of the polluting activity

- Another way of doing a cap and trade system is an "emissions intensity" program- This is the current federal Canadian government strategy to reduce greenhouse gas emissions- Under this system, a unit must emit at a rate that is more efficient than the current rate

- ie: you make 100 cars and emit 100 tons, if you do it more efficiently and make 100 cars and emit 80 tons, you can sell the remaining 20 credits to another unit

- Current plan applies to fossil-fueled power plants, oil and gas operations, forest products, smelting and refining, iron and steel, cement, potash, chemical production- This system has no cap…instead, it forces units to stay at an efficient rate, and those units that do are rewarded with credits- Difference is whereas cap and trade quantifies the amount of carbon dioxide and other greenhouse gases produced, emissions intensity reports amount of emissions per some unit of economic output

- Note "Command and control" keywords:- "Reasonably available control technology" - "Best conventional pollutant control technology" - "Best available technology economically achievable" - "Best demonstrated control technology" - "Best available control technology" - "Lowest achievable emissions rate"

- Ontario Reg. 419/05 not O. Reg346) - Goals ...ambient air quality criteria Point of impingement standards - Individual polluter applies for operating permit Individual polluter models its emissions Individual polluter reports model results to MOE Do the modeled emissions violate Point of Impingement standards?

- Goal is to get a handle on how to read statutes, and specifically, toxics regulations and part 5 of the Canadian Environmental Protection Act- Also, understand how air pollution rate standards are created…not necessarily what the substantive law surrounding air pollution entails

- Again, 5 pros and 3 cons to emissions trading:a) Pros

- Incentive to reduce emissions

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- Incentive to innovate- Lower compliance costs- Environmental benefit by way of a cap on emissions- Lower administrative costs

b) Cons- "Hotspots" still exist- Allocating permits- Some units "pay to pollute"

- Benefits/detriments often depends on the substance…it's great for carbon dioxide, bad for mercury due to hotspots problem

- Also, look to "cap and trade" v. "emissions intensity"a) Cap-and-trade

- Emissions trading is now well established as a method of regulating emissions of uniformly mixed pollutants- The classic analysis assumes that the regulatory authority sets an aggregate cap on emissions from a set of sources and then divides the cap into a number of tradable permits (frequently calledallowances), each of which authorizes the discharge of a unit quantity of emissions- Although the allowances could be sold at auction to raise revenue, the most frequently discussed plans assume that the permits will be distributed to the regulated firms on some ad hoc basis- Firms then trade the allowances, establishing a market price- In equilibrium, individual firms choose emissions such that the marginal cost of abating pollution equals the allowance price- They redeem allowances equal to the emissions discharged, selling or banking the remainder- If emissions exceed the initial distribution of allowances the firm must purchase allowances to cover the excess

b) Emissions Intensity- Greenhouse gas intensity is a ratio of greenhouse gas emissions per unit of economic activity (GDP or unit of production such as barrel of oil)- Recently, the Tories have proposed this system, where you can change your individual "cap" on emissions not only by buying and selling allowances, but also on improving the efficiency of your combustion process…if you can produce more automobiles, oil, electricity, ect…per unit of carbon dioxide emitted, you receive more allowances- Under such a scheme, you are given an allocation of allowances, but if you improve your efficiency, you get more allowances to emit and can sell those allowances- Because economies and many industries grow, GHG intensity can decline while GHG emissions continue to rise- In the absence of effective climate change policies, such as a true cap-and-trade system forCanadian industry, this is exactly what happens in most cases- For example, between 1990 and 2004, Canadian industry improved its GHG-intensity by 6 per cent while its emissions grew by 13 per cent.- In other words, improvements in emissions intensity were more than overwhelmed by the growth of polluting activities from Canada’s industrial sector- Setting—and even reaching—intensity-based targets does not ensure that climate change is addressed…the only way to do this is through true emission reductions

- Thus, to figure out the emissions intensity, you must divide emissions by unit intensity- ie: If 2006 emissions were 100 million tons of CO2, and 2006 production was 100 million kwhr of electricity, your 2006 emissions intensity is 1 ton/kwhr

- Reduction by 18% means that in 2010, emissions intensity must be no more than 0.82 tons/kwhr…solutions possible:

a) Emit 82 million tons of CO2, go at 100 million kwhr, and then your emissions intensity is 0.82 tons/kwhr

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b) Emit 164 million tons of CO2, produce at 200 million kwhr, and then your emissions intensity is 0.82 tons/kwhr

- Solution 'b' presents a problem, as technologically efficient producers can pollute more- This is one of the major benefits of "cap and trade"…there is a cap (albeit with allowances)

- A second scenario under emissions intensity whereby increased efficiency leads to increased emissions:Plant A Plant B2006 emissions: 100 million tons CO2 2006 emissions: 50 million tons CO22006 production: 100 million kwhr 2006 production: 50 million kwhr2006 emissions intensity: 1 ton/kwhr 2006 emissions intensity: 1 ton/kwhr

2010 emissions: 100 million tons CO2 2010 emissions: 200 million tons CO22010 production: 200 million kwhr 2010 production: 200 million kwhr2010 emissions intensity: 0.5 ton/kwhr 2010 emissions intensity: 1 ton/kwhr

Credit for reducing 2010 emissions intensity Allowed to emit 164 tons, emitted 200 tonsbelow 0.82 ton/kwhr (18%) Can buy 32 tons of credit from Plant AAllowed to emit 164 tons, emitted 100 tons Overall emissions and production up 400%They get 64 tons of credit 2006 emissions: 150 million tons

2010 emissions: 300 million tons

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6) CRIMINAL AND REGULATORY OFFENCES

A) REGULATORY OFFENCES

- Other than the Canadian Environmental Protection Act, the other major federal environmental regulatory regime is that under the Fisheries Act

- It includes several classic regulatory offence provisions and there is a long history of prosecution- It generally governs water pollution- There are 3 main liability provisions:

a) s.36(1) Throwing overboard of certain substances prohibited – see Fowlerb) s.36(1)c) s.36(3) – See below

- Emphasis is on s.36(3):Deposit of deleterious substance prohibited36(3) Subject to subsection (4), no person shall deposit or permit the deposit of a deleterious

substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water

- 4 elements of the offence in s.36(3) that the Crown must prove BARD:a) A person (natural or artificial)b) Deposited (action) or permitted the deposit of (omission)c) A deleterious substanced) In water frequented by fish "or in a place or under conditions where such deleterious substance or another deleterious substance that results from the deposit may enter water frequented by fish"

- A big issue that is largely unsettled is the "mixing zone" or "teaspoon in the oil of the ocean" issue- Next case is the leading authority on that issue…

R. v. MacMillan Bloedel (Alberni Ltd.) (1979 BCCA)…Presumed guilty w/ strict liability…due diligenceF: - 170 gallons of bunker oil spill under their deep sea dock at Alberni Inlet…quick cleanup

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- D charged with depositing a deleterious substance in the water frequented by fish under s.33(2)- TJ said water was frequented by fish, but the water beneath the deep sea dock wasn't- TJ also claimed that the degredation of water must be shown to be harmful/injurious to fish

I: - Is MacMillan liable?J: - Yes, trial judgment overturnedA: - Court of Appeal overturns trial judgment for two reasons:

a) "Fish" given broad definition in Act- "Water" can't be restricted to a few cubic feet into which the oil was poured would be to disregard the fact that both water and fish move

b) Deleteriousness doesn't need to be proven- If oil is a deleterious substance, and it's deposited, the elements of the offence are proven

- MacMillan makes "teaspoon of oil in the ocean" argument, but court decides it would give rise to liability, as Parliament intended to prohibit depositing, not rendering the water deleterious to fish

- Court refuses to give in to slippery slope argument posited by the appellants- Also, burden of proving whether teaspoon was harmful would be impossible to prove

- No due diligence available because they were negligent as a suction valve was not closedR: - Example of a quasi-criminal offence where a small oil spill led to liability

- The next discusses the due diligence defence, and raises the question of due diligence in relation to what?

R. v. MacMillan Bloedel Ltd. (2001 BCSC)…Successful due diligence defenceF: - D had underground diesel pipes under Crabapple Creek, which were installed in 1960

- They did basic inspections in 1993 and developed internal protocols- A subsequent external audit in 1995 recommended either installing the pipes above ground or installing secondary sleeves to permit early leak detection- The company did neither, and a pipe failed in 1997- However, a metallurgical expert testified that the rupture was due to microbiological corrosion

I: - Did MM successfully prove a due diligence defence?J: - No, for Crown…while MM had an honest belief that its pipes were sound, belief was unreasonable in

the circumstancesA: - 2 branches of the test, which are alternatives (both not required):

a) Reasonable mistake of factb) Took all reasonable care

- TJ found that, while MM had taken steps to prevent leakage from its pipes at many of its operations, evidence was lacking as to any action or plan to prevent an oil leakage from other pipes where burst occurred- Since MM did not lead evidence of a plan, or timetable, for dealing with the pipes at the Skidegate location in response to the report and recommendations, MM did not satisfy this second branch of the due diligence test

- Crown argued that MM's honestly held belief that the pipes were sound was not reasonable- This is because of the audit, age of the pipes, and no plan for replacement

- While age and lack of a plan was concerning, it was legally irrelevant because it wasn't the cause of the rupture…microbiological corrosion caused burst, which wasn't reasonably foreseeable- Here, TJ claims that MM didn't take all reasonable care, as there were no plans to replace the pipes

R: - It is a complete defence to a strict liability offence for the accused to establish on a balance of probabilities that he or she took all reasonable care in relation to the actual cause of the damage

R. v. MacMillan Bloedel Ltd. (2002 BCCA)…Overturns trial judgment, but dissent is relevantF: - See aboveJ: - Trial result overturned, for MM (with strong dissent)A: - Majority focuses on foreseeability of the actus reus of the offence charged

- Here, it was not clear that there was no plan…just low on the replacement list- Irrational to say that an accused may escape liability for an event that was not reasonably foreseeable by taking all reasonable steps to avoid it…one cannot consciously take steps to avoid an event that one cannot foresee

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- Dissent agrees with TJ- The fact that MM could not have foreseen the specific cause of the leakage, and the fact that the fuel leakage occurred as a result of an unforeseeable cause was a relevant but not determinative factor to consider in assessing the defence of due diligence- Absence of any action plan with respect to any potential risk posed by the pipes was fatal to defence of due diligence to TJ and dissent

R: - H: Dissent is better…previous two MacMillan cases were correctly decided

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B) STRICT LIABILITY OFFENCES

- Section 36(3) is an example of a regulatory offence, as opposed to a true crime- They are intended to protect the public or broad segments of the public by preventing future harm through the enforcement of minimum standards of care and conduct- The consequence is that the concept of fault is based on a reasonable standard of care that does not, as in a true criminal offence, imply moral blame

- Pre-Sault Ste. Marie Pros and Cons of Absolute Liability (i.e. no mens rea requirement)a) Pros

- Protection of public safety requires a high standard (people will be more likely to be careful in liability is absolute)- Administrative efficiency (mens rea is difficult to prove)- Penalties are low (not much stigma attached)

b) Cons- It violates an underlying value of criminal law: we don’t wish to punish the morally innocent- No empirical evidence indicates that absolute liability raises the standard of care- The risk of people developing cynicism and disrespect for the law. - Arguably there is a stigma attached to some of these offences. (Since breaching results in high fines or even jail time)

- Pre-SSM these absolute liability offences/regulatory offences were proliferating at a staggering rate, so the SCC recognized the need to distinguish them from true crimes

- SSM creates 3 Types of Offences:a) Full MR Offences – Require some mental state

- Burden of proof is on the crown- True Crime offences fall within this category- There is a presumption that every offence in the Code is a full MR offence- Any crime that carries w/ it the chance of a prison sentence is presumed to be a full MR offence.

b) Strict Liability Offences – The Crown must prove the AR, but not MR- Shifts the burden of proof to the accused- Due Diligence Defence – if the accused can avoid liability if he can show on a balance of probabilities that he exercised reasonable care under the circumstances- All provincial regulatory offences are prima facie under this category unless the statute indicates that MR is required or it’s meant to be an absolute liability offence- This middle ground doesn't exist in the USA…ALO's are called Strict Liability- Pros:

- Crown doesn’t have the onerous burden of proving MR- Doesn’t rule out blameless individuals mounting a defence.

c) Absolute Liability Offences – The Crown must prove the AR BARD and that’s it!!- There is NO MR requirement or defence. (Barring AR defences like voluntariness/identity)

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- There must be an indication from the legislation whether the legislature intended the offence to be absolutely liable. (Dickson J in SSM)- There’s a presumption against absolute liability, especially since the Charter

- We must be able to look at an offence and to determine what category it’s in:a) True Crimes

- Found in the Code (or some other statute if Crown must prove AR and MR)- Look for "willfully", "intentionally", "with intent", "knowingly"

b) Strict Liability Offences- Look for "cause" or "permit"- All provincial regulatory statutes are prima facie strict liability

c) Absolute Liability Offences - Must be indicated in the actual legislation- ie: Guilt follows proof of the actus reus

- Early cases classification factors (ie: how do you know which category the offence is in):a) The penalty

- Higher the penalty, more likely the offence is strict liability because society wants to afford the accused the opportunity for explanation if there is a significant penalty attached

b) Subject matter- Public welfare offences and offences involving community standards tend to be strict liability

c) Need for deterrenced) Difficulty of law enforcement

- Both 'c' and 'd' are an argument for absolute liability

- The General Rule to take from SSM - if there are no words in the statute that indicate it’s a full mens rea offence, it’s a strict liability offence

R. v. Sault Ste. Marie (1978 SCC)…Creation of Strict Liability OffencesF: - City of Sault Ste. Marie contracts with another company to get rid of its garbage

- Contractor uses a method of disposal that pollutes fresh water streams that flowed into a creek- Contractor and city charged with pollution under Pollution Act- Defence of the city is that they didn't know what the contractor was doing, and since they had no knowledge they couldn't be convicted under the statute (but if it was absolute liability offence…)

I: - Was the offence a true crime or an absolute liability offence?J: - For Crown, as Dickson J. creates a third category of strict liability offencesA: - Judge says negligence is not enough for a conviction unless the statute says so (ie: true crimes)

- Balance need for high standards of public safety with caution from punishing the morally innocentR: - Identifies three classes of offences: mens rea, strict liability, and absolute liability, and the vast

majority of environmental offences have been held to fall into the strict liability class since they do not contain language such as "knowingly" or "wilfully"

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C) RISK DISTRIBUTION AND RESOURCE ALLOCATION – CALABRESI ARTICLE

- Course intends to give 3 kinds of learning:a) Black-Letter Law

- CEPA, toxics, Fisheries Act, constitutional law, ect…b) Lawyer Skills

- How to read statutes, make arguments, ect…c) Policy Arguments

- Argue what the law ought to be and be critical of the law- The Calabresi article and this section's notes will focus on these policy arguments

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- 3 meanings of loss distribution:a) As broad a spreading as possibleb) Burden on those "most able" to payc) Enterprises giving rise to the loss should bear the burden whether or not it accomplishes the prior two aims

- Proper allocation of resources has a certain ethical foundation- People know what's best for themselves, and to know what they want, they must know the true price of producing goods and what it costs our economy to produce those goods

- Example of Athens and Sparta:a) Athens – Accident costs are in some way or another charged to the doer

- $200 price, $200 insurance = $400 for a new car, more than $250 for public transport- Under this system, the individual considering a new car doesn't buy because he saves $150

b) Sparta – All accident costs are borne by the state and come out of general taxes- $200 price, $200 mandatory taxes = $200, with $250 public transport able to buy a car- Under this system, he buys the second car, as he's not made to pay the full $400 the car costs, and he must pay part of that cost whether he buys a car or not anyways- In Sparta, driving too much because of too many cars leads to too many accidents, and spends $150 more per person- In Sparta, real cost of the car isn't reflected in the purchase price

- The most desirable system of loss distribution under a strict resource-allocation theory is one in which the prices of goods accurately reflect their full cost to society…the theory therefore requires

a) That the cost of injuries should be borne by the activities which caused them, whether or not fault is involved, because, either way, the injury is a real cost of those activitiesb) That among the several parties engaged in an enterprise the loss should be placed on the party which is most likely to cause the burden to be reflected in the price of whatever the enterprise sells

- Which is this party? In Athens/Sparta, the driver, not the pedestrian

- Proper resource allocation militates strongly against allocating to an enterprise costs not closely associated with it

- But it also militates for allocating to an enterprise all costs that are within the scope of that enterprise- H: maybe due diligence should take this factor into account in strict liability…but problem is how to determine what is in the scope of the business- Not charging an enterprise with the cost that arises from which it leads is an understatement of the true cost of producing goods- Thus, it is not proper resource allocation…it is overproduction and not placing a cost on which it deserves leads to overstatement and underproduction

- Enterprise liability is superior to social insurance in that it promotes proper allocation of resources- Importance of allocation of resources increases to the extent that we value free enterprise- Therefore, so long as our society remains committed to free enterprise, enterprise liability is unlikely to be relegated to the role of a stop-gap measure on the road to social insurance

- If we start getting into how foreseeable an accident is, it gets away from the fact that accidents will happen, so it's each enterprise's liability to have a plan

- As a cost of doing business, liability is imposed, and a factual determination of whether or not an enterprise tried their best is irrelevant

- Point of this lecture is to make you pay for the harm you cause- This is what a carbon tax does…it's easy, as you know the harm you will be doing- Tax doesn't discriminate who is using gasoline for what

- With absolute liability with contaminated real estate, again, it's fair because no questions asked

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- Like a tax…must pay to clean up the pollution- Simple and beautiful because if it's really important to do a pollutant activity (ie: oil producing), you can pay the tax and still make a profit if what you are doing is really important- If you are emitting greenhouse gases, pay tax, producing manual typewriters, and make no profit, it's a signal you shouldn't be producing manual typewriters anymore

- Therefore, importance of Calibresi is that is sorts out who should be in business or not- Important businesses in society still able to make a profit under a Carbon Tax system, others can't- Sorting activity is generally fair

- H: "I hope that was a helpful discussion in class today, about the Calabresi article, and that it helped you understand this different perspective about liability and how absolute liability might be a better liability regime in terms of allocating resources.

"Remember, this is about allocating resources. Some of you continued to have discomfort about imposing undue burdens on certain industries, and this will always be a part of lawyering, so I would not want to disabuse you of that notion. I do want you to appreciate that allocating resources assumes that resources are scarce, and that sometimes making hard decisions. So, for example, it might seem harsh to cause much of the oil sands industry to shut down – that's what we're talking about – but it might in the long run be a good thing if we allocated money, human talent, land, water, air to other industries that might also be very lucrative as well, like technology.

"The point is not that technology is a better or cleaner industry than oil production, but merely that if you don't take hidden pollution costs into account, then the oil industry has a hidden advantage over the technology industry. Placing them on a level playing field would require them both to face the costs of their activities, passing them on to consumers where they can. The oil industry would complain that all of a sudden, you're placing them at a disadvantage vis-à-vis the technology industry, but then you argue that the absence of absolute liability up until this point was an implicit subsidy that they have enjoyed for many years! "Consider the MacMillan Bloedel corroding pipes case. If you really believe that MacMillan Bloedel should not have been liable – and that is a very defensible result under Sault Ste. Marie – then who do you think pays to clean up the diesel fuel? It is the taxpayer. Perhaps that is the right result, but perhaps not. As someone in class pointed out last week, these kinds of spills happen in this industry a lot, and one might reasonably think of the cost of cleanup as a cost of doing business. Who might be disadvantaged by letting Mac Bloe off the hook? Maybe the recycling industry, maybe alternative materials producers, like plastic or steel producers. These industries pay into taxes that help pay to clean up spills, but don't get the benefits of having their spills cleaned up, like Mac Bloe and the rest of the paper and wood industry "Now, we do make choices as a society. We subsidize agricultural activities in Canada, and some of that is a desire to maintain some prairie way of life that we might think culturally important. Some of it may be a desire to maintain some food security. I won't debunk any of that. This analysis is just about costs, environmental liability, and allocating resources. And this perspective is that the environment is a resource, and one that might be considered and allocated. Maybe businesses should have to pay to pollute, just like they pay for steel, labour, energy, etc."

______________________________________________________________________________________ V. INTERNATIONAL TRADE FRAMEWORKS

1) DOLPHIN-SAFE TUNA FISHING CASE STUDY

- Under GATT, Article XX (General Exceptions) allows state to defend a trade restricted measure on the basis it is “necessary to protect human, animal or plant life or health”

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GATT Secretariat – Report of the Panel – Restrictions on the Importation of Tuna – September 3, 1991F: - Earth Island Institute had a Save the Dolphins Project, with one of its goals to stop the killing of

dolphins by the tuna fishing industry- Chose dolphins because it's a complex mammal, had slow reproduction processes, was a good indicator of the health of the overall ecosystem, and could lead to other bans- No one knows why dolphins swim above tuna…but when commercial tuna fisherman switches to purse seine nets, about 6 million dolphins were killed between 1960-1990- USA tried to legislate this away…UN passed the Marine Mammal Protection Act (MMPA) in 1972 outlawing the "taking" and importation of any of the listed mammals, including dolphins- It helped whales, but not other marine mammals- Institute faced options to save the dolphins:

a) Seek new legislation or try to get existing legislation enforcedb) Lobby Congress or file lawsuitsc) Try to persuade USA tuna fishermen or USA consumers to choose more selectively

- 3 MMPA regulations weren't being enforced:a) Putting observers on a percentage of tuna boats to count dolphin deathsb) American Tuna Boat Association (ATA) got permits by saying dolphin deaths were "merely incidental" to fishing operationc) ATA didn't adapt to new technologies

- When lobbying failed, Association turned to litigation and then a publicity campaign calling for a nation-wide boycott for all canned tuna, which was successful due to a video showing dolphin deaths- Eventually, success and lobbying led to H.J. Heinz holding a press conference announcing it would obey Earth Islands' dolphin-safe rules, wouldn't buy tuna could by setting purse-seine nets on dolphins, wouldn't buy anything caught in a drift net, and Earth Institute could monitor compliance- Other brands followed…but this was only 75% of the USA market, and USA only 50% of the world market, so the world outside the USA would still eat purse-seined tuna- Congress put a "comparability provision" (s.101(a)(2) into the MMPA) to deal with high foreign dolphin mortality rates…stated that foreign governments must give evidence:

a) Regulation program compares to the USA programb) Average rate of incidental taking of marine mammals in course of harvesting compares to USA

- Earth Island went back into federal court to enforce, and a Judge declared an embargo on Mexican and Venezuelan yellowfin tuna…USA gov't eventually imposed its own embargoes- In response, Mexico filed a complaint under GATT that the tune embargo violated free-trade rules

- In Oct 1991, a GATT panel agreed…Judge that ordered the embargo ignored the GATT ruling- Mexico got nervous…wanted NAFTA, but it's GATT complaint made it look like a villain- Therefore, they backpedaled hard, asked GATT to delay making a final ruling on the tuna embargo, and invited the USA to a bilateral tuna talk

- Despite this, environmentalists were concerned that the GATT panel decision might undermine far more than the tuna embargoes

- ie: if USA couldn't ban tuna imports from countries with high dolphin mortality, couldn't enforce other MMPA provisions

I: - Could Article XX(b) or XX(g) justify the MMPA provisions on imports of certain yellowfish tuna?A: - 2 important provisions of GATT:

a) Article XI – General Elimination of Quantitative Restrictions back to top- "No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party"

- Thus can't levy quotas, duties, tariffs, restrictions on any other contracting party except within terms of the GATT

b) Article XX – General Exceptions- "Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the

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same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:

(a) necessary to protect public morals;(b) necessary to protect human, animal or plant life or health;(g) relating to the conservation of exhaustible natural resources if such measures are

made effective in conjunction with restrictions on domestic production or consumption"

- USA tried to take advantage of levy in terms of trapping dolphins, and it didn't work- Both sides made arguments:

a) USA- USA argued measures imposed under MMPA were OK, and even if they were inconsistent with Art. III of GATT, they were covered by the exceptions in Art. XX (b) and (g)- USA claims MMPA embargo was necessary to protect the life and health of dolphins- No alternative measure could achieve this objective- Purse-seining for tuna meant deliberate encirclement of schools of dolphins with nets, and without efforts to protect them, they would be killed when the tuna was harvested

b) Mexico- Mexico argued that MMPA embargo was not "necessary" within the words of Article XX- They claimed they already had measures in conformity with the GATT

- The panel then reviewed the import ban under the two provisions:a) Article XX(b)

- Refers to life and health protection without limiting it to the contracting party concerned- Didn't accept USA's broad interpretation…otherwise each contracting party could unilaterally determine the life or health protection policies from which other contracting parties could not deviate without jeopardizing their rights under GATT- GATT then wouldn't be a trade framework, but rather would only provide security between a limited number of contracting parties with identical internal regulations

b) Article XX(g)- Provision intended to permit contracting parties to take trade measures aimed primarily at rendering effective restrictions on production or consumption within their jurisdiction- Didn't accept USA's extraterritorial application argument…otherwise each contracting party could unilaterally determine the conservation policies from which other contracting parties could not deviate without jeopardizing their rights under GATT

R: - Case study demonstrates the possible implications of GATT and other multilateral trade frameworks for international agreements that use trade restrictions to try to protect the environment

- GATT is the General Agreement on Tariff and Trade- Originally, it was a treaty and not an organization, and was adopted in 1947- However, it quickly became a de facto organization, and negotiates through rounds

- In 1995, following the Uruguay Round, this de facto organization became a de jure organization: The World Trade Organization

- General goals and principles of GATT include:- Most favoured nation (MFN) – no discrimination between trading partners- National treatment – imported and local products treated equally- Predictability of the rules

- Also important is the dispute resolution system- It is the responsibility of the Dispute Settlement Body (includes all WTO members)- Involves several stages: consultation, panels, hearings, often experts, panel's interim report, review, panel's final report (recommendations), rules, appeal possible- Panel: 3 or 5 experts chosen by the WTO in agreement with the parties, and then there's a consensus- Takes one year to 15 months (if there is an appeal)

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- Enforcement is the objective

- Criticism against the WTO include:- Lack of democracy- Pro-big corporation and a tool of American imperialism- Anti-environment

- Benefits of trade (and GATT) include:- Peace, increased global trade, more world income, keep prices down, solid dispute resolution system, more choice, and more jobs

- From Wikipedia:

The 'General Agreement on Tariffs and Trade' (typically abbreviated 'GATT') was the outcome of the failure of negotiating governments to create the International Trade Organization (ITO). The Bretton Woods Conference had introduced the idea for an organization to regulate trade as part of a larger plan for economic recovery after World War II. As governments negotiated the ITO, 15 negotiating states began parallel negotiations for the GATT as a way to attain early tariff reductions. Once the ITO failed in 1950, only the GATT agreement was left. The GATT's main objective was the reduction of barriers to international trade. This was achieved through the reduction of tariff barriers, quantitative restrictions and subsidies on trade through a series of agreements. The GATT was a treaty, not an organization. The functions of the GATT were taken over by the World Trade Organization which was established during the final round of negotiations in early 1990s.

The history of the GATT can be divided into three phases: the first, from 1947 until the Torquay Round, largely concerned which commodities would be covered by the agreement and freezing existing tariff levels. A second phase, encompassing three rounds, from 1959 to 1979, focused on reducing tariffs. The third phase, consisting only of the Uruguay Round from 1986 to 1994, extended the agreement fully to new areas such as intellectual property, services, capital, and agriculture. Out of this round the WTO was born.

GATT signatories occasionally negotiated new trade agreements that all countries would enter into. Each set of agreements was called a round. In general, each agreement bound members to reduce certain tariffs. Usually this would include many special-case treatments of individual products, with exceptions or modifications for each country.

Mexico etc versus US: ‘tuna-dolphin’

A case brought by Mexico and others against the US under GATT. The panel report was circulated in 1991, but not adopted, so it does not have the status of a legal interpretation of GATT law. The US and Mexico settled “out of court”.

This case still attracts a lot of attention because of its implications for environmental disputes. It was handled under the old GATT dispute settlement procedure. Key questions are:

* can one country tell another what its environmental regulations should be?* do trade rules permit action to be taken against the method used to produce goods (rather than the quality of the goods themselves)?

What was it all about?

In eastern tropical areas of the Pacific Ocean, schools of yellowfin tuna often swim beneath schools of dolphins. When tuna is harvested with purse seine nets, dolphins are trapped in the nets. They often die unless they are released.

The US Marine Mammal Protection Act sets dolphin protection standards for the domestic American fishing fleet and for countries whose fishing boats catch yellowfin tuna in that part of the Pacific Ocean. If

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a country exporting tuna to the United States cannot prove to US authorities that it meets the dolphin protection standards set out in US law, the US government must embargo all imports of the fish from that country. In this dispute, Mexico was the exporting country concerned. Its exports of tuna to the US were banned. Mexico complained in 1991 under the GATT dispute settlement procedure.

The embargo also applies to “intermediary” countries handling the tuna en route from Mexico to the United States. Often the tuna is processed and canned in one of these countries. In this dispute, the “intermediary” countries facing the embargo were Costa Rica, Italy, Japan, and Spain, and earlier France, the Netherlands Antilles, and the United Kingdom. Others, including Canada, Colombia, the Republic of Korea, and members of the Association of Southeast Asian Nations, were also named as “intermediaries”.

The panel

Mexico asked for a panel in February 1991. A number of "intermediary" countries also expressed an interest. The panel reported to GATT members in September 1991. It concluded:

* that the US could not embargo imports of tuna products from Mexico simply because Mexican regulations on the way tuna was produced did not satisfy US regulations. (But the US could apply its regulations on the quality or content of the tuna imported.) This has become known as a “product” versus “process” issue.

* that GATT rules did not allow one country to take trade action for the purpose of attempting to enforce its own domestic laws in another country — even to protect animal health or exhaustible natural resources. The term used here is "extra-territoriality".

What was the reasoning behind this ruling? If the US arguments were accepted, then any country could ban imports of a product from another country merely because the exporting country has different environmental, health and social policies from its own. This would create a virtually open-ended route for any country to apply trade restrictions unilaterally — and to do so not just to enforce its own laws domestically, but to impose its own standards on other countries. The door would be opened to a possible flood of protectionist abuses. This would conflict with the main purpose of the multilateral trading system — to achieve predictability through trade rules.

The panel's task was restricted to examining how GATT rules applied to the issue. It was not asked whether the policy was environmentally correct. It suggested that the US policy could be made compatible with GATT rules if members agreed on amendments or reached a decision to waive the rules specially for this issue. That way, the members could negotiate the specific issues, and could set limits that would prevent protectionist abuse.

The panel was also asked to judge the US policy of requiring tuna products to be labelled “dolphin-safe” (leaving to consumers the choice of whether to buy the product). It concluded that this did not violate GATT rules because it was designed to prevent deceptive advertising practices on all tuna products, whether imported or domestically produced.

P.S. The report was never adopted______________________________________________________________________________________

VI. ENVIRONMENTAL ASSESSMENT

1) INTRODUCTION

- Environmental assessment is a cost-benefit analysis that weighs the merit of human activity against its potential harm to the environment

- It's a requirement to follow a process and requires agencies to think about alternatives to projects- It's also useful because it is proactive, not just reactive

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- In Canada, the federal government does not approve/carry out/fund a project unless:a) There are no significant adverse environmental impactsb) SAFE can be justified in the circumstances

- Goals of environmental assessment include:a) Comprehensive planning, “look before you leap”b) Gather more information including potential effects (social, economic, cultural, cumulative)c) Impact reduction: consideration alternatives and possible mitigation methodsd) Enhance public participatione) Develop predictions about the futuref) Monitor approved projects

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2) BACKGROUND: HISTORY AND LEGISLATION

- First legislation to insist on a comprehensive environmental approach was the US National Environmental Policy Act (NEPA) (1969)

- It required consideration of alternatives for any major federal action that may significantly affect the quality of the human environment- The CEAA is more constraining that NEPA, as it required agencies to "avoid significant adverse environmental impacts" or at least justify them under the circumstances- With NEPA, however, it just requires the process of an assessment, not quash a project because SAFE- H: debatable which statute is better…one focuses on process, the other on effects/justification- Despite weaknesses, it's a victory to get agencies to think about alternatives, as they define choices

- Environmental Assessment and Review Process (EARP) started in 1973 for review of significant projects, programs, and activities

- 1974 set up the Federal Environmental Assessment Review Office (FEARRO)

- One of the first Canadian environmental assessments was the 1977 Berger Inquiry into the Mackenzie Valley pipeline proposal

- Created model of how environmental assessments should be handled

- In 1984, following internal and external review of the environmental assessment and review process (EARP), the government approved the Environmental Assessment and Review Process Guidelines Order

- It was an executive order that called for environmental assessments- Oldman River: Guidelines trumped conflicting Navigation statute, as federal decision making can constitutionally consider environmental impact assessment

- Inherent power either as an adjunct to federal legislative powers or "in any event, it falls within the purely residuary aspect of POGG"

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3) THE CANADIAN ENVIRONMENTAL ASSESSMENT ACT

- In Canada, we now have the Canadian Environmental Assessment Act (CEAA), which was tabled in 1990 and passed as law in 1995

- Differs to NEPA in that it is “decision driven”…ie: responsible authority does the assessment and Minister of that authority makes final decision, not the proponent

- Note that each province has it’s own regime as well, but the Provinces are more dependent on resource exploitation, so often weaker

- ie: Ontario’s regime only applies to government (province and municipal) activities, not private ones unless designated

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- ie: B.C. Environmental Assessment Act does not cover forestry at all, and gives Cabinet power to exclude any project from assessment (e.g. NDP Dosanjh excluded sky-train expansion), and high threshold for what projects require public process

- Some definitions from s.2:a) “Agency” = Canadian Environmental Assessment Agency, established by s.61b) “Minister” = Minister of the Environmentc) “Proponent” = the person, body, federal authority or government that proposes the projectd) From s.11(1): “Responsible authority” = the federal authority referred to in s.5

- Inclusion list regulations (ie: oil and gas operations, nuclear anything, testing of weapons, physical activities in natural parks, physical activities for transportation, destruction of fish by any means other than fishing) in statute shows when environmental assessment may be needed

- Steps in the assessment:a) Step 1 – "Project"?

- s.2(1) project means:(a) "any proposed construction, operation, modification, decommissioning, abandonment or

other undertaking in relation to a physical work, or(b) any proposed physical activity on the Inclusion List regulation s.59(b) e.g. navel

exercises, nuclear submarine testing, activities in national parks, prospecting for minerals, weapons testing, low level flying, forestry activities, activities on Aboriginal lands, etc."

- Thus clearly limited to physical changes/activity, not plans or transactionsb) Step 2 – Section 5 trigger?

- Decision makers that qualify as "federal authorities" whose actions can trigger a s.5 environmental assessment are defined in s.2 as:

a) a minister of the federal Crownb) an agency of the government of Canada or any other body established by or pursuant to an act of Parliament that is ultimately accountable through Cabinet to Parliament for the conduct of its affairsc) certain corporations under the Financial Administration Actd) any other body prescribed by regulations

- Thus, decisions of the federal Cabinet are not automatically subject to the CEAA, but may be subject to the CEAA through regulations- To trigger the Act, there has to be what the CEAA deems a "project" (ie: some physical activity) under s.5 where a federal authority:

a) is the proponent of the projectb) makes or authorizes payments or guarantees a loanc) has the administration of federal lands and sells, leases, or otherwise disposes of those landsd) issues a permit or licence, grants an approval or takes any other action for the purpose of enabling the project to be carried out

- Inclusion list in 'd' includes national parks, federal infrastructure, military, ect…- ie: government policy regarding construction in national parks is not a project, while constructing a conference centre in a national park is a project- Old Man River: although under the EARP Guidelines Order, the court held that federal decision making can constitutionally consider environmental impact assessment, “superadded” / supplemental to each federal statutory power, and it can consider matters beyond the biophysical environment, such as socio-economic matters

c) Step 2a – Special trigger?- To address potential gaps in environmental assessment (between provincial and federal), even if s.5 doesn’t apply, Minister can refer a project to mediation or review panel (so no self-directed assessment, but with some special rules ss.49-53) if the Minister is of the opinion that significant adverse environmental effects may result, for:

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i) s.46 interprovincial effectsii) s.47 international effectsiii) s.48 effects to Indian or federal lands or project on Indian lands that effects other lands

d) Step 3 – Exemption?- s.7: environmental assessment is not required if the activity is on exclusion list regulation- ie: maintenance/repair work, small buildings, scientific research, modification of irrigation, ect…

e) Step 4 – Timing of assessment: when does it apply?- We didn't cover this section in the assigned readings- However, under s.11(1) the responsible authority shall ensure the environmental assessment is conducted as early as is practicable in the planning stages of the project and before irrevocable decisions are made

f) Step 5 – Scope of Environmental Assessment- Every screening, comprehensive study, mediation or review panel shall consider:

i) Alternatives Requirement- The requirement under the CEAA requires considering alternatives- There are two provisions under CEAA that require the consideration of alternatives:

a) s16(1)(e) "need for the project and alternatives" andb) 16(2)(b) "alternative means for carrying out the project…"

- Courts have almost exclusively focused on scrutinizing consideration of s16(b)(2)- Cheriot Mine: court held that it was a discretionary decision for the minister and the responsible authority to decide which "alternative means" of conducting a project a panel can consider

ii) Cumulative Effects- “Cumulative effects” not defined in CEAA, but may include:

a) Cumulative physically over timeb) Cumulative physically over space (ie: another source in already polluted airshed)c) Cumulative chemically or biologically…ie: synergistic, exceeds sum of the parts, due to change or reaction that occurs in the environmentd) Cumulative socio-economically

- Also note cumulative effects do not mean:a) The combination of a significant effect and a mitigation measure for it, which results in what is better called a “net” effectb) The combination/balancing of adverse effects and beneficial effects

- Friends of the West Country: even if this project is found to have only insignificant adverse effects, that implies some effects, and so possible cumulative effects should still be considered since a series of insignificant effects can accumulate to the point of being significant- Bow Valley: Court will defer to the responsible authorities to the scope of the project, the extent of the screening and the assessment of the cumulative effects if the proper statutory process is followed- Note: maybe s.16 requirement to carry out a cumulative effects assessment is nullified by the fact that s.16(3) gives the minister and the responsible authority the complete discretion to decide whether other future projects should be included in the environmental assessment

iii) Significance- The CEAA requires a special form of evaluation- s.16(1) requires that screenings and comprehensive studies consider the significance of the effects associated with a project- This evaluation is a 3-part test:

a) Are the environmental effects adverse?b) Are the adverse environmental effects significant?c) Are the significant adverse environmental effects likely?

- s.16 gives different requirements concerning likelihood- Significance must be determined objectively, having regard to scientific info- Canadian Wildlife Federation: under Guidelines Order which said “moderate impacts” are significant environmental effects (i.e. only “insignificant” effects are not significant)

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- Note that the CEAA defines both "environment" and "environmental effect" in s.2:- "environment" means the components of the Earth, and includes

(a) land, water and air, including all layers of the atmosphere,(b) all organic and inorganic matter and living organisms, and(c) the interacting natural systems that include components referred to in

paragraphs (a) and (b);- "environmental effect" means, in respect of a project,

(b) any effect of any change referred to in paragraph (a) on(i) health and socio-economic conditions,(ii) physical and cultural heritage,(iii) the current use of lands and resources for traditional purposes by

aboriginal persons, or(iv) any structure, site or thing that is of historical, archaeological,

paleontological or architectural significance, or(c) any change to the project that may be caused by the environment,

whether any such change or effect occurs within or outside Canada"g) Step 6 – Determine type of assessment and undertake it

- There are 4 possible means of environmental assessment under the CEAA, done if there's a s.2 project/s.5 trigger/no s.7 exemption- A s.14 full environmental assessment can include 3 elements:

i) "Self-Directed": Screening or Comprehensive Studya) Screening

- Basic level of environmental assessment- Applies to almost all approval decisions made under acts listed in the law list regulations- s.16(1) lists what is always required (ie: screening minimum)

- Note that s.16(e) is not often taken seriously, which says you can consider alternatives

- Looks at 4 things:i) Environmental effects of the projectii) Significance of such effectsiii) Comments from the publiciv) Measure technically and economically feasible that would mitigate any SAFE

- s.20 lists 3 possible outcomes:i) No significant adverse environmental effect ("SAFE"), therefore approvalii) SAFE not justified, so rejectediii) Uncertain, or SAFE not justified, or public concerns, so it goes to panel review/mediation

b) Comprehensive Study- All such projects are identified in the comprehensive study list regulations- Includes major projects such as national parks; water management; oil, gas, or mineral resources; pulp and paper mills; smelters; defence works; navigable waterways; and waste management- This, along with panel review and mediation, considers all factors from screening, including:

i) Purpose of the projectii) Alternative means of carrying out the projectiii) Need for a follow-up programiv) Capacity of renewable resources likely to be significantly affected

- s.16(2) lists what is also required for everything else- s.21 lists 3 possible outcomes:

i) No SAFE, or SAFE are justified…approvalii) SAFE not justified…rejection

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iii) If the Minister thinks there would be SAFE even if mitigated, or public concerns warrant panel review or mediation, the matter goes to panel review or mediation

ii) "Public Review: Panel Review or Mediationc) Panel Review

- Most extensive type of environmental assessment under CEAA- Includes gathering info, conducting hearings, preparing a report, and submitting the report

d) Mediation- Alternative to panel review, but rarely used

iii) Follow-up Program

Alberta Wilderness Assn. v. Cardinal River Coals Ltd. ("Cheriot Mine" case) (1999 Admin. LR)F: - The NGO Alberta Wilderness Association challenged an environmental assessment on two grounds:

a) That there was insufficient consideration of both alternatives to the project itself- ie: siting it somewhere else

b) There were alternative means of carrying it out- ie: having it be an underground mine instead of an open pit mine

I: - Can the courts interfere with the discretion of the minister and the responsible authority to decide which "alternative means" of conducting a project a panel can consider?

J: - Kind ofA: - The Court rejected the application for judicial review with respect to the alternatives to the project

itself, but granted it with respect to the alternative means- The Court took the panel to task for failing to obtain information with respect to the environmental effects of alternative means, and with respect to the environmental effects of other likely mining projects and forestry projects in the area, and of cumulative environmental effects- But note, importantly, the court was concerned with procedure, and the failure to obtain information, not the assessment itself

R: - Under s.16 of the CEAA, every review panel "must include a consideration" of a number of listed factors, such as cumulative effects, the need for the project, mitigation measures, and alternatives to the project

Bow Valley Naturalists Society v. Canada (1999 Fed. CA)…Minister has power to determine scopeF: - Society argued that the superintendent of Parks Canada didn't deal with cumulative effects of long-

term Lake Louise developments- Assessment had considered the effects of the construction of a meeting facility for which a licence was being sought, but not those resulting from the construction of other facilities Canadian Pacific Hotels had included in their long-range plan

I: - How far do we draw the boundaries of what the "project" is?J: - It dependsA: - TJ dismissed application on the grounds that the environmental assessment had met the requirements

of the CEAA and that the superintendent had not committed any error to justify CA intervention- CA agreed…as long as statutory process is followed, courts can't decide on project approval- H: In Bow Valley, anyway, one way would be to ask the proponent, Canadian Pacific Hotels, to consider all of the plans that it currently had that are connected to the upgrade of the Chateau Lake Louise…some students were uncomfortable with the idea of casting the net too broadly

R: - Ministers and responsible authorities have the power to determine the scope of cumulative effects of its plan, and courts will not intervene in that exercise of statutory discretion

Friends of the West Country Assn. v. Canada (1998 Fed. Ct. Trial Div.)…Scope of enviro assessmentF: - Coast Guard, as the responsible authority, approves application to build 2 bridges, stating that they

were not likely to cause significant adverse environmental effects- Group of rural residents challenge approval, worrying it will disrupt the environment/quality of life

I: - Should the environmental assessment look at just the bridges and their effects on the rivers, or should it look at the road and/or the forestry operations?

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J: - Yes, for Society, no consultation and no consideration of cumulative environmental effectsA: - At trial, while J. Gibson held that the scope of the project was subject to the sole discretion of the

agency (or the Minister), s.15(3) imposed a non-discretionary duty to look at related works- Therefore, TJ agreed with Coast Guard’s scooping of project under s.15(1) as just the bridge, but thought s.15(3) required scope to also include road

R: - According to J. Gibson, s.15(3) imposes a mandatory duty on the responsible authority to conduct an environmental assessment of other physical works outside the scope of the projects under environmental assessment because the other physical works are "in relation to" the projects as scoped by the responsible authority (overruled below)

Friends of the West Country Assn. v. Canada (1999 Fed. CA)…Current state of law for s.15(3)F: - See aboveA: - "I agree with Gibson J. that the words of s.15(3) are mandatory as to the environmental assessment

that must be conducted in respect of what is proposed by the proponent. However, I must respectfully disagree with the learned judge that s.15(3) imposes a mandatory duty on the responsible authority to conduct an environmental assessment of other physical works outside the scope of the projects under environmental assessment, simply because the other physical works are "in relation to" the projects as scoped by the responsible authority. Put another way, the words in s.15(3) do not have the effect of rescoping a project to something wider than what was determined under s.15(1)"- Thus then-J. Rothstein (now Rothstein SCJ), overturns TJ, holding that s.15(3) is subsidiary in nature, and doesn't work to expand the scope required under s.15(1)

- s.15(3) does not have the effect of requiring responsible authority to conduct assessment outside the scope of the project as determined by RAorM under s.15(1)- Rather, s.16(1)(a) cumulative effects provides for things outside the scope to be considered in cumulative effects- So s.15(3) is for things like a temporary dam to hold back water during construction, or temporary living accommodation for construction crew

- J. Rothstein, did, however, hold that the panel incorrectly interpreted its mandate too narrowly, refusing to consider factors that were within the agency's purview under Friends of the Oldman River

R: - According to Rothstein JA, s.15(3) is subsidiary in nature and doesn't work to expand the scope required under s.15(1)

Manitoba's Future Forest Alliance v. Canada (1999 Fed. Ct. Trial Div.)…Agrees with Fed. CA decisionF: - Case about another bridge over a creek in Manitoba

- Alliance claim that the application didn't comply with s.15(3), which required assessment of works in relation to physical work that constitutes the project, or that, in the opinion of the responsible authority, is likely to be carried out

A: - Note that in Manitoba Future Forest Alliance, J. Nadon reached the same interpretation of s.15(3), finding that it only applied to other "life cycle" actions that would be taken in the future to fix or maintain the project itself, but not other projects, however the agency defines them- The agency has sole discretion to scope the project, even to determine what factors will be considered in terms of cumulative impacts per s.16(1)(a)…see s. 16(3)

R: - Upholds Rothstein JA's holding on s.15(3)

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VII. PUBLIC PARTICIPATION AND JUDICIAL REVIEW

1) INTRODUCTION TO ADMINISTRATIVE LAW

- Administrative law is a body of law that governs government officials and administrative tribunals that are charged with the power to make decisions or pass regulations that affect people's rights or interests

- All governmental decision makers that are statutorily vested with such powers, either directly or indirectly, must comply with the principles of administrative law- It is a combination of common law and regulation

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- In the environmental law context, this means:a) Decisions

- Broad range of decisions are subject to administrative law requirements- ie: pollution-permitting decisions made by environmental tribunals

b) Regulations- Bind "subordinate law makers" – bodies and officials that have a statutorily delegated power to make regulations – in the exercise of their lawmaking functions- ie: Cabinet/ministerial regulations governing waste, water, air, ect…

- Administrative tribunals have several advantages over the courts:- Give more opportunities for public participation that can check on administrative discretion

- Almost never any loser-pays-cost rules that exist in the courts- Expertise and experience (see case where judge was in over his head)- More flexible and efficient- Carry out public policy, which is something the courts aren't supposed to do- More informal and open

- Tribunals and other public decision makers are creatures of statute- Their powers are granted and defined by statute; they may act only within the confines of their statutory jurisdiction- Lack of jurisdiction renders an administrative action ultra vires and may entitle the challenging party to a remedy- All administrative action is subject to review for lack of jurisdiction by the superior courts under the inherent jurisdiction…this is the essence of the concept of judicial review

- There are some problems with administrative law for citizens trying to protect the public interest:a) "Free Rider" Phenomenon

- Public has a collective action problem similar to the tragedy of the commons…if somebody does more than their fair share, others feel they don't have to do their fair share- Many members of the public who agree to sit back and let a few active members (ie: David Suzuki Foundation) do the work and provide the funds

b) Heterogeneous Views- Environmentalist views are not so homogeneous as business, with differing views coming from the fact that they are citizens, producers, and consumers

c) Overbroad Concerns- Environmentalist concerns of the average citizen are broad, whereas those of a business interest are more concentrated and intense (ie: on a particular project, issue, or location)

d) Information Gap- Industry/developer might have more information than the public

- Administrative bodies do two things that affect individuals, and to challenge them, a) Adjudicating (by tribunal)

- Less formal than a court trial- Looser evidentiary rules- Broader right to participate, but still have standing issues

b) Rulemaking (regulations)

- If you exhaust administrative remedies, you can go to judicial review, which raises 3 important issues:a) Standingb) Standards of reviewc) Grounds for review

Public Health Advisory and Appeal Board of Alberta (PHAAB) (1996 Journal of Canadian Studies)F: - Appeal for the approval of the design and location of a large industrial waste facility in Athabasca

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J: - PHAAB denied standing to individuals and environmental groups on the grounds that these Albertans were not "directly affected" by the development because they could not demonstrate upon themselves "more direct than a general affect on the population at large"

A: - Calls broad public participation into question by limiting standing

Riverside Forest Products (1994 BC Forest Appeals Commission)F: - Appeal concerning stop work order under the Forest Practices Code in front of a panel of the Forest

Appeals CommissionI: - Can the Cariboo-Chilcotin Conservation Council (CCCC) get full intervenor status?J: - YesA: - In deciding whether intervenor status was granted, Commission held that the test is whether the

applicant has a valid interest in participating and can be of assistance in the proceedings

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2) JUDICIAL REVIEW

- Under the heading of judicial review, there are 3 issues:a) Standing

- Standing at administrative tribunals are generally pretty liberal as opposed to the court systemb) Standards of Review

- Used to be 3 standards of review, from correctness (no deference whatsoever) to reasonableness simpliciter to patent unreasonableness (most deferential level)- Dunsmuir: 3 standards collapses into 2 standards: reasonableness and correctness

- Reasonableness is now a contextual inquiry, where some circumstances will require a more deferential approach, while others will not- H: since this is a new case, we will have to wait what this new "reasonableness" means- H: may impact how administrative tribunals act, as the BC Administrative Tribunals Act was originally constructed as a codification of the common law- H: However, while Dunsmuir changes the common law, the BC Administrative Tribunals Act still has 3 standards, and Dunsmuir probably can't change that

- Privitive clauses are still important…not so prevalent in environmental statutes as in labour, but they note how much deference is to be awarded to the administrative agency- Jurisdictional error is usually afforded less deference

c) Grounds for Review- Halfway River: There are 5 grounds for review:

i) Consider irrelevant/fail to consider relevantii) Fetter discretioniii) Real/apprehended biasiv) Error of factv) Procedural fairness/right to be heard

- H: Halfway has been overturned by BCCA

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A) STANDARD OF REVIEW

- In judicial review, courts will first determine the standard of review to determine what extent they will defer to the administrative board, and before Dunsmuir, there were 3 standards:

a) Patent Unreasonableness- Deference at its highest

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- ie: tribunal protected by a privative clause deciding a matter within its jurisdiction and no statutory right of appeal

b) Reasonableness simlicitor /Unreasonableness c) Correctness

- Deference in terms of legal questions at its lowest- ie: issue concerns interpretation of a provision limiting the tribunal's jurisdiction

- Statutes may give right of appeal to the courts, but if not there is no judicial appeal- There might even be a privative clause in the statute that restricts judicial review and states the conditions under which and the standards under which you review a tribunal decision- However, courts can always test whether the agency was operating within its jurisdiction- Tribunal findings are never binding and final, as you can't take away the court's inherent jurisdiction for judicial review

Graham v. Alberta (1996 Alta. QB)…Finding of patent unreasonableness (but see Dunsmuir below)F: - In 1987, Chem-Security plant built, and application for expansion came up in 1991

- In 1995, Chem-Security applied for renewal, but instead of emissions projected to fall, they were projected to double, and group was unhappy with renewal of the licence- After exhausting their low-level adjudicative AEP resources, Lesser Slave Lake Indian Regional Council go to the Alberta EAB and successfully quash the original issuance of the licence- Chem-Security, unhappy with administrative decision, goes to the Alberta Queen's Bench to appeal- Chem-Security claims that issue of emissions had been previously addressed by another permitting tribunal, the AEP, and thus this was not a "new matter" properly under the EAB's jurisdiction, as set out in its empowering legislation, the Environmental Protection and Enhancement Act (EPEA)

I: - What is the standard of review applicable to the Environmental Appeal Board's decision?J: - For Graham, court awards deferenceA: - While Chem-Security argues that there was no new matter, the emissions from the plant doubled

- While first admin board heard about the plant emitting at 15, now it's at 34- Court holds that this is not a pure question of law, but rather a mixture of law and fact, and therefore they take a "pragmatic and functional" analysis

- H: Dunsmuir eliminated this "pragmatic and functional" analysis because it misguided courts in the past, and prefers to refer simply to "standard of review analysis" in the future- This analysis suggests deference

- Court concluded due to analysis that the legislature intended the tribunal to be the ultimate decider on this issue, so they are a specialized board entitled to curial deference

R: - Legislature intended the tribunal to be the ultimate decider on this issue, so should be deferential and so should only interfere with tribunal’s decision if “patently unreasonable”

New Brunswick (Board of Management) v. Dunsmuir (2008 SCC)…No more "patent unreasonableness"F: - Not givenI: - What is the appropriate standard of review to determine what extent the courts will defer to

administrative bodies?J: - The majority in Dunsmuir concluded that the distinction between “reasonableness” and “patent

unreasonableness” was untenable and so, henceforth, there will only be two standards of review: reasonableness and correctness

A: - After reviewing jurisprudence on judicial review, SCC comes to the conclusion that the present system must be simplified from 3 standards of review to 2 standards:

a) "Reasonableness" concerned with:- Reason for outcome, justification, transparency, intelligibility, and whether the decision falls within a range of possible, acceptable outcomes

b) "Correctness" concerned with:- Undertaking own analysis…if different, the court will substitute its own view

- Judicial review power of the courts is inherent, so even privative clauses aren't absolute- However, they indicate government intent to use the reasonableness standard

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- 3 factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied:

a) Privative clause- This is statutory direction from Parliament/legislature indicating the need for deference

b) Special expertise- Discrete and special administrative regime in which decision maker has special expertise

c) Nature of the question of law- A question of law that is of "central importance to the legal system and outside the specialized area of expertise" of the administrative decision maker will always attract a correctness standard- On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate

- While previous system label "pragmatic and functional approach" may have misguided courts in the past, SCC prefers to refer simply to the "standard of review analysis" in the future- This new scheme is not intended to pave the way for a more intrusive and less deferential approach to the review of administrative action- Lebel and Bastarache JJ. also confirm that deference continues to convey the idea of respect for the legislative choices of government

R: - SCC collapses three standards of administrative review into two standards: reasonableness and correctness

______________________________________________________________________________________B) GROUNDS FOR REVIEW

- There are a limited number of recognized grounds upon which courts are prepared to review administrative action

- This is federally codified in s.18(1) of the Federal Court Act…elsewhere by precedent

- While the next case is not good law, as overturned by CA, it provides a good illustration on how to think about grounds for review (ie: how will court consider 'bias'?)…

Halfway River First Nation v. British Columbia (Ministry of Forests) (1997 SCC)…5 grounds for reviewF: - Band seeks review of a tribunal decision approving a forest cutting permit

- Lawson (District Manager of Ministry of Forests in Fort St. John District) made approval decision- Band claims the decision violates principles of administrative law and Aboriginal rights

I: - Did the decision violate principles of law?J: - Yes, for BandA: - 5 administrative law issues arise:

a) Lawson made an error by failing to consider relevant considerations or by considering irrelevant considerations

i) Relevant Considerations- Exercise of discretion will only be ultra vires if the decision-maker overlooked a relevant factor that its enabling statute expressly or, more usually, impliedly obliged it to consider- Here, Forest Act and Forest Practices Code of British Columbia implies obligation to look at impacts on wildlife, arachaeological sites, ect…- However, court finds Lawson considered it

ii) Irrelevant Considerations- Even if Lawson's decision was based in part on the factors suggested by the petitioners, it cannot be said to have been entirely or even predominantly based on irrelevant factors- He must make a decision on the merits, and he did

b) Lawson unlawfully fettered his discretion- Lawson fettered his discretion by blindly following government policy to not halt development

c) There was real or apprehended bias on the part of Lawson as to disqualify him

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- Alleged improprieties were insufficient to establish real bias- However, attitudinal bias arises where a decision-maker has pre-judged an issue and has not brought an open mind to the decision making process- Here, Lawson never considered Aboriginal rights

d) Lawson committed an error of fact- 2 situations:

i) Jurisdictional error- Here, there was at least some evidence on Aboriginal and treaty rights

ii) Patently unreasonable fact finding- Lawson couldn't come to a conclusion as to the impact on Halfway's rights without obtaining info from Halfway on their uses of the area in question

e) Lawson violated principles of procedural fairness by failing to adequately consult with Halfway or by failing to provide Halfway with sufficient notice of his decision

- 3 factors to determine whether a duty of fairness was owed:- Nature = specific, relationship = fiduciary, effect = final

- Here, not adequate notice was given- H: This case was overturned by the BCCA (p.276)

- Lawson didn't fetter discretion, no reasonable apprehension of bias, and the notice was adequate given the nature of the process- However, Finch JA found that Halfway had been denied the right to be heard and that Lawson had erred in concluding that aboriginal and treaty rights would not be infringed

R: - Good illustration of the kinds of recognized grounds upon which courts are prepared to review administrative action

- Judicial review includes review of administrative bodies, tribunals, boards, etc., and also of cabinet regulation making, such as in the next case…

- However, it would take an egregious case to strike down an Order in Council – generally, deference to cabinet…ie: given much wider berth in its discretionary powers than are bureaucratic decisions

Aluminum Co. of Canada v. Ontario (Minister of the Environment) (1986 Ont. SC)…Bodies upon reviewF: - Ontario gov't made regulation delaying implementation of aluminum cans for 2 years to allow the

steel industry in Hamilton to develop thin rolled steel for soft drink cans- P claims once aluminum shown to be recyclable, the gov't couldn't impose a timetable because economic and political considerations were outside the scope of the Act

I: - Can the regulations be struck down on administrative law principles?J: - No, for OntarioA: - Dickson CJC: with general policy decisions to be struck down, although the possibility of striking

down an Order in Council on jurisdictional or other compelling grounds remains open, it would take an egregious case to warrant such action

- Both sides conceded that the purpose of aluminum cans not being used until 1987 was to protect the steel industry and protect jobs in the Hamilton area- P claimed that this ulterior motive was fatal to the regulations- However, court found no evidence of bad faith- Therefore, this wasn't an "egregious case" as to warrant judicial intervention

- Demonstrates that if you are going to challenge Cabinet decision making, who are favouring one industry (steel making) over another (soft drink manufacturing), you must have a strong case

- H: This is clear bias, but the court thought otherwiseR: - Canadian courts will give Cabinet and Cabinet ministers broad deference in respect of the

exercise of their discretionary powers

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C) PUBLIC INTEREST STANDING

- Over the last two decades, courts have gradually liberalized the law of public interest standing

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- A trilogy of pre-Charter cases developed the common law position as to public interest standing:a) Borowski

- 3-pronged test to decide whether or not a petitioner has standing…this liberalized the previous standard of being "directly affected" only:

i) There must be a serious or justiciable issue as to invalidityii) Must be:

a) Directly affected, or b) Have a genuine interest as a citizen

iii) No other reasonable and effective manner in which the issue may be brought before the court

- This may be the most difficult hurdle for environmental organizations- The advent of the Charter makes the Borowski test more generous and liberal- Otherwise, these Charter rights might not be protected

b) Finlay- Extends scope of this trilogy to award public interest standing to challenge administrative decisions as well as legislation…basically grants standing to non-constitutional cases- Following this lower courts were more willing to grant standing, especially when groups could demonstrate a longstanding involvement in the issue

c) Canadian Council of Churches- No standing required when on a balance of probabilities- This check the expansion of standing, as seen below

Canadian Council of Churches v. R (1992 SCC)…Expansion on the granting of standing checkedF: - Church was interested in challenging changes to federal immigration laws on behalf of current and

future refugee claimants, claiming they violated Charter rightsI: - Can the Church get standing to represent the refugees?J: - No, for gov'tA: - Court must take care not to overextend judicial resources, which are already mostly operating to

capacity…must “screen out the mere busybody”- Court went through the Borowski test, but checked it by stating that Finlay shouldn't be taken as a "blanket approval to grant standing to all who wish to litigate an issue"

R: - SCC holds that public interest standing is not required when, on a balance of probabilities, legislation or public act can be subject to attack by a private litigant

- In subsequent cases, results from Canadian Council are mixed in terms of whether it limits or alters the ratio in Finlay:

a) Shiell v. Atomic Energy Control Board – Limits Finlay- Required a "direct personal interest" to satisfy the "genuine interest" test- Since applicant lived several hundred miles from uranium facility in question (although had history of involvement in the issue), not directly affected, so application for judicial review denied

b) Algonquin Wildlands League v. Ontario – Doesn't change Finlay- Applicants are non-profit public interest environmental organizations with history of responsible involvement in the area, and members of the organization either live in or frequent the area- No reasonable or effective manner to get this issue before the courts- So just remains to show if it's a serious issue, and if so, standing can be granted to bring the application for judicial review

- Although the Federal Court Act apparently excludes litigants not “directly affected”, in the next case Evans J. said the same Finlay test should be used in federal courts since would be anomalous otherwise and would have required much more explicit statutory language to create such a situation…

Sierra Club of Canada v. Canada (Minister of Finance) (1999 SCC)…Borowski used in federal courtsF: - Gov't sold 2 CANDU nuclear reactors to China without doing an environmental assessment

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- Sierra Club claims the Ministers must do a full environmental assessment under the CEAA- Claims public money attracts a statutory duty and that the government breached that statutory duty by not conducting an environmental assessment- Atomic Energy of Canada Ltd., acting as intervener for the gov't, brought a motion to strike down Sierra Club's notice of motion because they don't have standing and are not directly affected as required by s.18.1(1) of the Federal Court Act- Lost at trial, and now gov't appeals

I: - Does Sierra Club meet the common law criteria for the grant of public interest standing?J: - Yes, for Sierra ClubA: - Whether a public interest applicant should be granted standing is determined by Borowski test:

a) A serious or justiciable issue – Yes- Gov't conceded this point, but intervener didn't…claims applicant was so unlikely to be successful on merits on the application for judicial review that it should be denied standing- Merits of claim should be taken into consideration- However, still a preliminary motion at this point…also, no need to prove illegality will cause future harm- Therefore, this is not a matter that can be properly decided in the context of a preliminary motion to strike

b) A genuine interest – Yes- 2 aspects:

i) Directly Affected- s.18.1(1) – "in the subject matter in respect of which relief is sought"- Intervener argues that PIS should only be granted to protect members of vulnerable groups from reasonably apprehended harm- However, court holds that an important reason for the extension of public interest standing beyond the Attorney General has been to protect the constitutional precepts of the rule of law and democratic accountability

ii) Genuine interest- Intervener argues that SC has no track record relevant to the issues here to make it have a "genuine interest" in the subject matter of the case…not enough proof- However, SC will be able to have a general understanding of the issues based on their history, Elizabeth May's letters, and corporate objectives in SC's charter

c) Is there a more appropriate applicant? – Yes- Maybe Chinese are more directly affected, but they're not going to use Canadian courts- Other Canadians might also be more affected, but there's a lack of facts at this point

- H: note that this is on a motion to strike…intervener wants to knock out Sierra Club's notice of motion, and this is not done very often due to high threshold

- Also, Sierra Club was ultimately unsuccessful in compelling an environmental assessmentR: - Courts will take standing more seriously than administrative tribunals, will apply the Borowski

test for standing, and shows courts are generally reluctant to knock out standing at a pleading stage

- Q: do we want environmental associations to represent interests that aren't as tangible as the interests not usually represented in court?

- Stages:a) Common law – only granted standing if directly affected as Pb) Borowski – broadened standing standards testc) Finlay – extended review of admin law decisionsd) Council – expansion checked for now, as standing not required when, on BOP, legislation or public act can be subject to attack by a private litigante) Sierra – Finlay test should be used in federal courts, and easier "no other reasonable and effective manner" requirement at pleadings stage

- Tendency of courts, since standing is at the pleadings stage of litigation, is to loosely apply 3 Borowski factors…whether it's ultimately successful is another matter for another court

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- Case law demonstrates that standing is different with administrative tribunal v. the courts- Alberta Public Health Advisory and BC case…tribunals can do anything regarding standing- Sierra Club…courts will take standing more seriously, and will apply the Borowski test for standing

- Shows courts are generally reluctant to knock out standing at a pleading stage______________________________________________________________________________________

VIII. ABORIGINAL RIGHTS

- Aboriginal law has almost become a "fourth layer of government"- Note the Aboriginal/environmental overlap, as many courts will be more lenient (ie: standing) when there is an Aboriginal plaintiff

- If a group can ally with an aboriginal group, they can bypass a lot of the standing problems that face environmental groups such as the Sierra Club

- Courts often look at pecuniary interests, so if you are not economically hurt, court has little sympathy than arguments such as "our existence is lessened"

- Protection of First nations' cultures will often serve to protect lifestyles that include "aboriginal environmental ethics", which in turn could advance the goal of environmental protection

- Conservation has always been integral to the survival of indigenous peoples- Without renewable resources, aboriginal rights are lost

- The next Haida cases present the sliding scale consultation requirement- The stronger claim to title appears, the greater level of consultation required of an agency that might infringe upon Aboriginal title

Haida Nation v. BC and Weyerhaeuser (2002 BCCA)…Both Crown and third parties have duty to consultF: - BC issues tree farming licence to Weyerhaeuser without doing any consultation with the Haida

- Haida challenges legality of licence, as they claimed title for over 100 years and had been subject to treaty negotiations since 1992

I: - Did the BC gov't have a duty to consult with the Haida Nation who have specifically claimed aboriginal title or aboriginal rights about potential infringements?

J: - Yes, for Haida (unanimous)A: - Lambert J.A. makes a number of comments about Aboriginal rights:

a) Fiduciary Duty- Roots of any duty lie in trust-like or fiduciary relationship between Crown and Aboriginals- Reflected in Royal Proclamation, and is a duty of utmost good faith

b) Legal Duty to Consult- There is a legal duty to consult (on both Crown and Weyerhaeuser here…only on Crown according to SCC)- Consultation must be made in good faith and to "endeavour to seek workable accommodations" for both First Nation cultural and economic interests before the infringement occurs at least where there is a good prima facie case for title and infringement- Scope and strength of duty to consult increases according to the soundness of the aboriginal claim to rights and title…thus it's a sliding scale duty

- ie: strong prima facie case requires high duty to consult, more than just minimal consultation, but less accommodation/consent for less strong claims

c) No encumbrance- No encumbrance on land until Aboriginal right or title is proven, even if there is a good prima facie case

R: - Both the Crown and third parties have a legal duty to consult and seek workable accommodations for both First Nation cultural and economic interests before any infringment of Aboriginal rights or title occurs

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Haida Nation v. BC and Weyerhaeuser (2004 SCC)…Crown has duty to meaningful consultationF: - Same as before…gov't and Weyerhaeuser appealI: - Do third parties and the provincial Crown owe a duty to consult? Or only the federal government?J: - Both provincial and federal gov't have a duty, but Weyerhaeuser does notA: - Government duty is "grounded in the honour of the Crown"

- The honour of the Crown cannot be delegated- H: jurisprudence in this area suggests that gov't agencies can use all the help they can get in terms of consultation processes

- Scope of duty to consult is proportional to preliminary assessment of aboriginal claim- Crown is not under a duty to reach an agreement, but to meaningful process of consultation in good faith- This duty applies to both the federal and provincial governments- Duty arises when the Crown has actual or constructive knowledge of the claim- Content of the duty varies with the circumstances…but sharp dealing is not permitted- Weak claim = minimal consultation…strong claim = accommodation

- Third parties (ie: Weyerhaeuser) cannot be held liable for failing to discharge the Crown's duty to consult and accommodate

R: - Both the federal and provincial Crown owe a sliding scale duty to consult with First Nations regarding any licence that might affect Aboriginal title or rights

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IX. CONTAMINATED REAL ESTATE

1) INTRODUCTION

- This section deals with the hazardous waste that is disposed of improperly…usually in the soil, and thus is difficult to get rid of

- Origin in 1978 in Love Canal…Hooker Chemical Company sold land to the board of education for $1- Told them hazardous waste was buried in drums by taking $1 for indemnification- As bargain property, a school and residential housing developments were developed- Led to a 60 Minutes report, Al Gore visit, ect…and relocation of everything was at Niagara's expense

- This prompted passage of Superfund law in 1980, 4 years after Love Canal problem came to surface- Law passed because this created such horrible stories about how hazardous the waste was- Law authorized the A-G to sue individuals who were somehow responsible for hazardous waste, and use the money to pay for the cleanups (thus a "superfund")- Like NEPA, it created a model for a lot of toxic real estate legislation worldwide- For environmental law purposes, what was important about Superfund were the liability provisions

- Canadian provinces started passing similar laws soon after passage of the Superfund law- Note: under s.92(13), "Property and Civil Rights" is the exclusive jurisdiction of the provinces

- There are only 2 issues regarding contaminated real estate:a) Standard of Liability – Responsibility

- Liability is:i) Absolute

- Thus there is liability without fault- Until recently, individuals/corporations couldn't raise a due diligence defence- Now in BC statute, there is a statutory defence of due diligence available

ii) Retroactive- Hooker was retroactively liable even though they'd been transparent

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- This was one of the most controversial aspects of the Superfund lawiii) Joint and Several

- Has spawned a lot of litigation, as A-G first sued the many large corporations with deep pockets may have had some connection to the contaminated site- Thus if a company contributed one drum, they were responsible for the entire cleanup- However, liable corporations can collect evidence and try to seek apportionment

b) Extent of Cleanup – Remediation- Goal of the legislation is to get money and clean up the contaminated real estate

- If a client has any hazardous materials, they must undertake due diligence and insulate themselves from liability before taking over the property

- Industries affected: oil/gas, cement mixing, pesticides, pesticide mixing, cleaning solvents, car wash- "If you have a reasonable belief in a mistaken set of facts that, if true, would render the act innocent"

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2) THE CLEANUP STANDARD

- Determining "how clean is clean" has been an ongoing debate in the context of the cleanup of contaminated lands…next case illustrates extent to which remediation my be required to satisfy liability

Tridan Developments Ltd. v. Shell Canada Products Ltd. (2002 Ont. CA)…No stigma if pristine conditionF: - Shell operated service station adjacent to car dealership owned by Tridan

- Gas leaked from underground fuel line on Shell's property, which undertook remediation of its property in accordance with gov't standards applicable at the time in 1990- However, Shell didn't remove all contaminated soil, and Tridan discovered some gas migrated to their property in 1991- Shell accepted responsibility, but dispute arose as to the appropriate level of cleanup- TJ gave $550,000 to cleanup to pristine condition, and $350,000 for loss of property value due to the stigma associated with the contamination…Shell appeals assessment of damages

I: - Was cleanup required to pristine condition or Ministry of Environment guidelines in place at time?J: - For P, to pristine level but no damages for stigmaA: - 2 damage awards:

a) Property remediated to pristine condition for $550,000 – OK- Rylands: D responsible "for all the damage which is the natural consequence of its escape"- Here, MOE guidelines wouldn't eliminate all the damage

b) Residual reduction of value of land caused by knowledge it was once polluted – not OK- Shows that while a court can order the cleanup of neighbouring land to pristine condition, landowners that benefit from a 100 percent remediation cannot claim that there is a contamination stigma attached to their land thereafter that warrants additional damages

R: - In appropriate circumstances, D who permits a contaminate to migrate offsite may be required to remediate the neighbour's property back to its original pristine condition, even if that remediation level is more stringent or protective than standards established by government cleanup guidelines

- Often the level of permissible pollutants varies depending on factors, such as:a) Use of property…is it used for agricultural, residential or commercial purposes?b) Use of groundwater…is it used for drinking purposes?c) Soil at contaminated site…is it fine, medium, or course?

- Lower concentration levels of pollutants are permitted for coarse grain soil, since pollutants can travel more easily through coarse soil than fine soil

d) Contaminant…what is the contaminant?

- Note that the common law still has a role to play in hazardous law- There are guidelines, but in a common law action you don't necessarily defer to them

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- In Tridan, quote Rylands v. Fletcher, where product that may cause mischief escapes to a neighbour's property, there is responsibility "for all the damage which is the natural consequence of its escape"- Thus, as lawyer ask for CL remedy in alternative, but courts will usually defer to statutory standard

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3) PARTIES LIABLE

A) OWNERS AND OPERATOR LIABILITY – PAST AND PRESENT

- Jurisdictions give vast power to its ministries to order current/past owners to clean up contaminated sites, as seen in the following case…

Canadian National Railway Co. v. Ontario (1992 Ont. Ct. Gen. Div.)…Ironic result from old cleanup lawF: - On land owned by CNR, AP Inc. operated wood treatment business in Thunder Bay

- At that point, AP assigned the lease and sold the business to NWP Inc., and took back a mortgage by way of sublease to secure the sale…thus act as vendor and creditor to NWP- Thus AP becomes old plant owner and lessee, and NWP becomes new plant owner and lease assignee- Over the years, soil, groundwater, and sediments in and around the site became contaminated by creosote and other chemicals arising from current and past use of the site- In 1987, Minister of the Environment issued a control order under the Environmental Protection Act

- Control order goal is to stop any current activity on the site and start cleanup immediately- Order also sought payments for being liable for the hazardous waste

- Order made to CNR (landowner), AP (past plant owner and operator), and NWP (current plant owner and operator), all of whom appealed the order to the provinces Environmental Appeal Board- Board confirmed order against CNR and NWP…they appeal

I: - Who is liable for the contamination?J: - Only NWPA: - 3 big issues:

a) Ownership, Occupation, and Control of a Source of Contaminant – CNR not liable- Act 1(1) states ""person responsible" means the owner, or the person in occupation or having the charge, management or control of a source of contaminant"- Court holds since CNR only owned the soil, and didn't control the source of the contaminant, they weren't responsible for the contamination

b) Responsibility of Former Owner and Occupant – AP not liable- Construction of Act doesn't cover past owners and occupants of contamination- H: this is old law, and different than how most laws operate now

c) Evidence that NWP Participated in the Contamination – NWP liable- Board made finding of fact that the contamination was caused by operation of plant- NWP, which didn't do due diligence before acquiring the plant, is liable

- H: ironic, as CNR and AP get off the hook for past activities, and gives message to pollutants that they should sell before they get a control order from gov't...and since sole purpose of Act is cleanup, shouldn't dump liability on a new buyer who many not be able to cover cleanup costs- In current day BC, everybody here would be joint, severally, and retroactively liable

R: - Courts look to who is controlling the source of the contaminant when apportioning liability for contamination of real estate

- Problem with CNR is that it doesn't encourage responsible waste management- Even if NWP tried to be diligent, they get stuck with 100% liability and AP gets off free- It is good policy to keep even absentee owners liable because of the value in preventing tenants from polluting or being responsible for cleanup- If Canadian taxpayers have to pay to clean it up, then there will be incentives to dump, which is bad both from an environmental standpoint and an economic efficiency standpoint

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B) PARENT CORPORATION LIABILITY

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- 2 liability theories that may be applicable to parent corporations, as seen in the next case:a) Liable by way of owning shares in a subsidiaryb) Liability by way of control exercised by the parent over the subsidiary

Beazer East, Inc. v. British Columbia (Environmental Appeal Board)…Must have actual controlF: - Beazer was parent corporation (through share ownership) of operator of wood treatment facility

- Whole point of the corporation is limited liability for shareholders…thus can lose initial investment, but if the corporation is liable for more money than the shares are worth, they aren't personally liable- In 1997, after coming into force of the contaminated site remediation provisions of the Waste Management Act, a manager for the provincial environment ministry issued a site remediation order to Beazer as a previous owner, operator, and producer- Board found Beazer liable as being a previous owner and operation- Beazer appeals to quash Board's finding and a declaration relieving the corporation of liability for remediation of the hazardous waste problem…ie: limited liability

I: - Is Beazer liable as the owner of the property that runs the wood treatment facility?J: - Yes, for BC, Beazer responsible as operator but not ownerA: - Court establishes a test in establishing whether Beazer was liable:

- Did the parent corporation have actual control of the facility in order to be liable for the hazardous waste problems that derive from the facility?- Here, Beazer made on-the-ground decisions with regards to hazardous materials, so it was a previous operator by way of its control of an operation at the site

- "Person who makes decisions is in control, the person who has authority to make decisions is responsible"…therefore Beazer is responsible as operation- "There is a difference between the right to control and ability to control"

R: - The definition of operator is far broader than the definition of an owner

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C) LENDER LIABILITY

- Lenders potentially can be held liable for the costs of remediating the contaminated property of those who borrow from them if they assume the ownership of the property or exercise control or management of the property

- Realizing on security taken on assets that happen to be environmentally contaminated lands may constitute "control" sufficient for lenders to incur liability for cleanup costs- The next case is one of the first environmental cases in Canada to consider the situation of mortgagees in this context…

Canadian National Railway v. Ontario (1992 Ont. Ct. Gen. Div.)…Actual control establishes liabilityF: - On land owned by CNR, AP Inc. operated wood treatment business in Thunder Bay

- At that point, AP assigned the lease and sold the business to NWP Inc., and took back a mortgage by way of sublease to secure the sale…thus act as vendor and creditor to NWP- Thus AP becomes old plant owner and lessee, and NWP becomes new plant owner and lease assignee- Over the years, soil, groundwater, and sediments in and around the site became contaminated by creosote and other chemicals arising from current and past use of the site- In 1987, Minister of the Environment issued a control order under the Environmental Protection Act

- Control order goal is to stop any current activity on the site and start cleanup immediately- Order also sought payments for being liable for the hazardous waste

- Order made to CNR (landowner), AP (past plant owner and operator), and NWP (current plant owner and operator), all of whom appealed the order to the provinces Environmental Appeal Board- Board confirmed order against CNR and NWP…they appeal- See case before…NWP liable

I: - Is AP responsible as mortgagee, even though they are not an owner or a person in control? Is their security interest enough to impose liability on AP?

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J: - NoA: - Beazer established that actual control is needed to establish liability

- Here, security interest not enough to establish actual control- H: with actual control, think about if actual controlling party could make and perform decisions- H: if you can show "real coercion", you can show actual control- H: ironic, as AP was responsible for most of contamination through previous ownership

- For lenders/secured creditors that have to take over a business if they have to realize security after mortgagor defaults, they should do their best not go beyond financial involvement into actual control, otherwise they will become liable under the BC Environmental Management Act

R: - Lenders and secured creditors will become liable for waste handling, even if they aren't the owner or operator, if they exercise actual control over the contaminated site

- The BC Environmental Management Act attempts to address this disincentive to lending and disincentive towards taking active steps to reduce contamination problem rather than running away from the problem:

a) Part 4 – Contaminated Site Remediation45(3) Persons responsible for remediation of contaminated sites

- "A secured creditor is responsible for remediation of a contaminated site if(a) the secured creditor at any time exercised control over or imposed requirements

on any person regarding the manner of treatment, disposal or handling of a substance and the control or requirements, in whole or in part, caused the site to become a contaminated site, or

(b) the secured creditor becomes the registered owner in fee simple of the real property at the contaminated site"

45(4) Persons responsible for remediation of contaminated sites- "A secured creditor is not responsible for remediation if it acts primarily to protect its security interest, including, without limitation, if the secured creditor

(a) participates only in purely financial matters related to the site,(b) has the capacity or ability to influence any operation at the contaminated site in a

manner that would have the effect of causing or increasing contamination, but does not exercise that capacity or ability in such a manner as to cause or increase contamination,

(c) imposes requirements on any person, if the requirements do not have a reasonable probability of causing or increasing contamination at the site, or

(d) appoints a person to inspect or investigate a contaminated site to determine future steps or actions that the secured creditor might take"

- Thus if control with liable party is an attempt to solve the problem and assist the liable party, these sections provide an incentive to do so

- There is also regulation (see powerpoint slides) regarding secured creditors described in s.45(3)(a):25(1) Persons not responsible – Secured Creditors

- "…whereby the secured creditor is not responsible for remediation of a contaminated site if the secured creditor does any of the following":

a) Imposes requirements on any person to comply with environmental lawsb) Participates in loan work out actions, including the giving of financial or other advicec) Takes steps to prevent future contamination

25(2) – Fee simple registration liability endures, only while they are the registered owner25(3) – Subsection (2) doesn't remove liability of secured creditor for remediation…if at any time the past owner in fee simple at the contaminated site at any time exercised control

- Think about 2 things when reading through this Act:a) Cleanup

- Basically reading a number off the table…know how to read the tableb) Liability

- Liability is absolute, joint and several, and retroactive

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- Liability under the BC Environmental Management Act:a) Section 45 – Persons responsible for remediation of contaminated sites

45(1) - "Subject to section 46 [persons not responsible for remediation], the following persons are responsible for remediation of a contaminated site:

(a) a current owner or operator of the site;(b) a previous owner or operator of the site;(c) a person who

(i) produced a substance, and(ii) by contract, agreement or otherwise caused the substance to be disposed of, handled

or treated in a manner that, in whole or in part, caused the site to become a contaminated site;

(d) a person who(i) transported or arranged for transport of a substance, and(ii) by contract, agreement or otherwise caused the substance to be disposed of, handled

or treated in a manner that, in whole or in part, caused the site to become a contaminated site;

(e) a person who is in a class designated in the regulations as responsible for remediation"45(2) - "In addition to the persons referred to in subsection (1), the following persons are responsible for remediation of a contaminated site that was contaminated by migration of a substance to the contaminated site:

(a) a current owner or operator of the site from which the substance migrated;(b) a previous owner or operator of the site from which the substance migrated;(c) a person who

(i) produced the substance, and(ii) by contract, agreement or otherwise caused the substance to be disposed of, handled

or treated in a manner that, in whole or in part, caused the substance to migrate to the contaminated site;

(d) a person who(i) transported or arranged for transport of the substance, and(ii) by contract, agreement or otherwise caused the substance to be disposed of, handled

or treated in a manner that, in whole or in part, caused the substance to migrate to the contaminated site"

b) Section 46 – Persons not responsible for remediation46(1) - "The following persons are not responsible for remediation of a contaminated site:

(a) a person who would become a responsible person only because of an act of God that occurred before April 1, 1997, if the person exercised due diligence with respect to any substance that, in whole or in part, caused the site to become a contaminated site;

(b) a person who would become a responsible person only because of an act of war if the person exercised due diligence with respect to any substance that, in whole or in part, caused the site to become a contaminated site;

(c) a person who would become a responsible person only because of an act or omission of a third party, other than(i) an employee,(ii) an agent, or(iii) a party with whom the person has a contractual relationship,if the person exercised due diligence with respect to any substance that, in whole or in part, caused the site to become a contaminated site;

(d) an owner or operator who establishes that(i) at the time the person became an owner or operator of the site,

(A) the site was a contaminated site,(B) the person had no knowledge or reason to know or suspect that the site was a

contaminated site, and(C) the person undertook all appropriate inquiries into the previous ownership

and uses of the site and undertook other investigations, consistent with good commercial or customary practice at that time, in an effort to minimize potential liability,

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- To get around this, get a client to talk to environmental lawyers and get environmental consultants to do an assessment of the property

(ii) if the person was an owner of the site, the person did not transfer any interest in the site without first disclosing any known contamination to the transferee, and

(iii) the owner or operator did not, by any act or omission, cause or contribute to the contamination of the site;

(e) an owner or operator who(i) owned or occupied a site that at the time of acquisition was not a contaminated site,

and(ii) during the ownership or operation, did not dispose of, handle or treat a substance in a

manner that, in whole or in part, caused the site to become a contaminated site;(f) a person described in section 45 (1) (c) or (d) or (2) (c) or (d) [persons responsible for

remediation of contaminated sites] who(i) transported or arranged to transport the substance to the site, if the owner or operator

of the site was authorized under an Act to accept the substance at the time of its deposit, and

(ii) received permission from the owner or operator described in subparagraph (i) to deposit the substance;

(g) a government body that involuntarily acquires an ownership interest in the contaminated site, other than by government restructuring or expropriation, unless the government body caused or contributed to the contamination of the site;

(h) a person who provides assistance respecting remediation work at a contaminated site, unless the assistance is carried out in a negligent fashion;(i) a person who provides advice respecting remediation work at a contaminated site

unless the advice is negligent;(j) a person who owns or operates a contaminated site that was contaminated only by

the migration of a substance from other real property not owned or operated by the person;

(k) an owner or operator of a contaminated site containing substances that are present only as natural occurrences not assisted by human activity and if those substances alone caused the site to be a contaminated site"

- More important sections of the BC Environmental Management Act:a) Section 47 – General principles of liability for remediation

47(1) – "A person who is responsible for remediation of a contaminated site is absolutely, retroactively and jointly and separately liable to any person or government body for reasonably incurred costs of remediation of the contaminated site, whether incurred on or off the contaminated site"(2) - "Subsection (1) must not be construed as prohibiting the apportionment of a share of liability to one or more responsible persons by the court in an action or proceeding under subsection (5) or by a director in an order under section 48 [remediation orders]"(3) - "For the purpose of this section, "costs of remediation" means all costs of remediation and includes, without limitation,

(a) costs of preparing a site profile,(b) costs of carrying out a site investigation and preparing a report, whether or not there has

been a determination under section 44 [determination of contaminated sites] as to whether or not the site is a contaminated site,

(c) legal and consultant costs associated with seeking contributions from other responsible persons, and

(d) fees imposed by a director, a municipality, an approving officer or the commission under this Part"

b) Section 48 – Remediation orders48(1) - "A director may issue a remediation order to any responsible person.48(2) - "A remediation order may require a person referred to in subsection (1) to do any or all of the following:

(a) undertake remediation;

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(b) contribute, in cash or in kind, towards the costs of another person who has reasonably incurred costs of remediation;

(c) give security, which may include real and personal property, in the amount and form the director specifies"

c) Section 49 – Allocation panel49(1) – "The minister may appoint up to 12 persons with specialized knowledge in contamination, remediation or methods of dispute resolution to act as allocation advisors under this section"

d) Section 50 – Minor contributors50(1) - "A director may determine that a responsible person is a minor contributor if the person demonstrates that

(a) only a minor portion of the contamination present at the site can be attributed to the person,

(b) either(i) no remediation would be required solely as a result of the contribution of the person

to the contamination at the site, or(ii) the cost of remediation attributable to the person would be only a minor portion of

the total cost of the remediation required at the site, and(c) in all circumstances the application of joint and separate liability to the person would be

unduly harsh"

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X. GLOBAL CLIMATE CHANGE

1) THE SCIENCE OF CLIMATE CHANGE

- Climate change has 2 forces:a) Natural Climate Change

- Has occurred in past due to human interaction, hence can be classified as natural climate change- Kinds of changes include:

i) Change in solar constantii) Earth's orbital parameters (Russian scientist)…changes include:

- Earth's orbit went from more elliptical to more circular- Tilt of the axis- Where the tilt is pointing

iii) Continental drift- Changes in continental position over time

iv) Volcanic eruptions- Sulphur in stratosphere forms sulphuric cloud in hemisphere, blocking the sun and creating cooling of 0.5 degrees Celsius for one hemisphere only

b) Anthropogenic/Human Induced Climate Change- Most common cause of human induced climate change is greenhouse gases, most important greenhouse gas of which is water vapour- Other gases that appear to be increasing as a direct result of human activities include:

a) Carbon dioxide- CO2 contributes more than 50% of the anomalous climate forcing- CO2 is naturally occurring atmospheric constituent that cycles between ocean, atmosphere, and land reservoirs

b) Methane- Produced in natural wetlands, rice paddies, and the guts of animals- Also release during gas drilling and coal mining

c) Chlorofluorocarbons- CFCs are produced industrially through hair spray, air conditioning…all human-made

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nitrous oxide, and halocarbonsd) Nitrous oxide

- Is produced by biological sources in soils and water, and by industry- Most of these gases have long lifetimes in the atmosphere and can remain up to 2 centuries

- Modeling started in 1960s on Mauna Loa Observatory in Hawaii observing rise in atmospheric CO2- Later, other stations measured methane and nitrous oxide as well, all 3 showing sharp spikes

- To study this, scientists started experimenting with two kinds of global climate models:a) Equilibrium Climate Model

- Goal is to calculate the equilibrium climate for present and for doubled atmospheric CO2 concentrations, and then study the differences between the two climate states- ie: shake'n'bake analogy, adding new element each time and completing a different model- Experiments with 20 different models have all produced a global surface temperature increase, varying between 1.5 to 4.5 degrees Celsius, whenever double CO2 effect takes place- Large range is due to uncertainties in the feedback processes

- Positive feedback mechanism: remove snow, more energy and radiation absorbed by the ground, more snow melts, reflectivity of snow decreases and more energy absorbed by the ground, more snow melts, ect…- This is why more warming expected at the Arctic than in the tropics

- Unfortunately, the predictions of regional climate shifts are not consistent between models, so no consensus has developed

- Scientists know about global models, but regional models don’t have enough consensus yet

b) Transient Climate Model- To battle this, scientists are trying to adopt transient climate responses- Anthropogenic climate changes occur gradually in response to steadily increasing climate forcing by increasing greenhouse gases- The transient response of the climate system to the anthropogenic climate forcing may be very different from the equilibrium response- Hence research is now focusing on transient climate simulations with models including predicted ocean currents and heat transports

- Now, models have charted a 0.8 degree Celsius warming over a 150-year period- Able with transient models to mimic past 150 years of climate change- When comparing between modeled and observed temperature rises since the year 1860, transient computer models encompassing both natural and anthropogenic forcing creates an almost perfect match…separating out anthropogenic (and especially natural) changes produces inconsistent results- Models then went back further to the past 1000 years in the Northern Hemisphere using proxy data (ie: ice cores, lake sediments, tree stumps giving estimated data) gives "hockey stick" model- Model actually presented global cooling until 1970s, then sharply rose up and keeps rising

- Models show a 2 degree Celsius warming globally by the year 2100- Massive amount of energy for Earth to dissipate naturally, can do this by increasing ferocity of storms, creating bigger gulf streams, ect…- Thus transient models also predicting on what the future climate change will be

- In conclusion, warming of the climate system is unequivocal, even amongst critics- Battle is about what is causing the warming, not that the Earth is actually warming- Most of the observed increase in global average temperatures since the mid-20th century is very likely due to the observed increase in anthropogenic greenhouse gas concentrations (IPCC)- Regional predictions of climate change still not possible- However, it has been shown that reducing pollution locally helps globally- Currently, meteorologists studying possibility of a "cold-core" tropical storm with an eye in November 2006 that hit Vancouver Island…may be released to media soon

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- Q: does this mean ocean temperature getting warm enough to sustain hurricanes?

- Reasons for optimism?a) Future Generation

- Different values on recycling, climate change importance, ect…than older generationb) Ozone Hole Solution

- In May 1985, the British Antarctic Survey published results about the ozone hole that shocked the scientific community- In 1987, Canada invited world to come to Montreal, where Montreal Protocol was signed that essentially banned the production of CFCs…only 2 years needed for world to solve the problem- CFCs today now back to 1987 levels and are still dropping, and Earth will eventually repair hole

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2) ROUGH GUIDE ON CLIMATE CHANGE – WHAT TO KNOW FOR THE EXAM

- First 10-12 pages, the "primer" are a very, very helpful summary of the rest of the text…key Q's and A's:a) Is the planet really warming up?

- Yes, due to many factors:i) Rising Temperatures

- Rise of more than 0.7C in average surface air temperature of Earth over last century- New high in 1998…intense El Nino played role in warmth…hasn't cooled down since- First 6 years of 21st century, along with 1998, were the hottest on record

ii) Melting Ice- Montana may lose glaciers by 2030, Arctic sea ice has lost nearly half its average summer thickness since 1950, ect…

iii) The growing season has lengthened- Sakura in Japan blooms 5 days earlier in Tokyo than 50 years ago

iv) Mosquitos, birds, and other creatures pushed into new territoriesb) But don't many experts claim that the science is uncertain?

- Uncertainty due to complexity and unknown on how individuals/corps/gov't will change- Unanimity that global climate is already changing and fossil fuels are at least partly to blame

c) Is a small temperature rise such a big deal?- Rise steeper in certain locations like the Arctic, where small changes amplified into bigger ones- Heat-island effect in big cities keep cities warmer at nigh (ie: 1995 Chicago or 2003 Paris)

d) How could humans change the whole world's climate?- By adding enormous quantities of CO2 and other greenhouse gases into atmosphere last 150 yrs- Gases absorb heat that's radiated by Earth, but they release only part of that heat to space, which results in a warmer atmosphere- CO2 – 30 billion metric tons per year…more than 4 metric tones per person per year- Eruption of a single major volcano (ie: 1883 Krakatoa) can throw enough material into the atmosphere to cool global climate by more than 1C for over a year

e) When did we discover the issue?- Early in 20th century, prevailing notion was that people could change climates locally only- Starting in 1958, precise measurements of CO2 confirmed steady increase in the atmosphere- First global climate models in the 1960s- Global temperatures rose sharply in 1980s, increasing media profile

f) Couldn't the changes have natural causes?- Many temperature swings on Earth in last 4.5 billion years- Tackled by Intergovernmental Panel on Climate Change (IPCC), in 4th report in 2007, said "Human-induced warming of the climate system is widespread"- To support this, results from detection (establish only that an unusual change in climate has occurred) and attribution (find likelihood that humans are involved) studies- ie: compare change to what you'd expect from non-greenhouse gases

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- ie: use more complex computer modelsg) How do rainforests fit into the picture?

- Destruction account for roughly a 5th of recent human-produced CO2 emissions- Tropical forests hold nearly ½ of the carbon present in vegetation around the world- When burned, trees, soils, and undergrowth release CO2- Even if land is allowed to regrow, it takes decades to rebalance- In addition to CO2 release, bacteria in the newly exposed soil may release more than twice the usual amount of another greenhouse gas, nitrous oxide, for at least 2 years- Also provide a local air-conditioning effect by trapping moisture and slow evaporation

h) How hot will it get?- According to the 2007 IPCC report, the global average temperature is likely to rise anywhere from 1.1C to 6.4C by 2080-2099, relative to 1980-1990- Range reflects uncertainties about quantities of gases released and how atmosphere will respond- Some parts of the planet (ie: higher latitudes) will heat up more than others

i) Is global warming necessarily a bad thing?- Sure, some species may benefit- But major sea-rise levels, increased flooding/droughts, more major hurricanes, and more species destined for extinction is bad for everybody- More important Q: whether the people and institutions responsible for producing greenhouse gases will bear the impacts of their choices, or whether others will in poor parts of the world

j) Will anyone be killed or displaced?- Hard to speculate- Low-lying areas like Bangladesh most vulnerable- Deluges and drought more serious, as well as efforts to get clean drinking water- Global agricultural productivity is predicted to go up in the next century, thanks to extra CO2 in the atmosphere and now-barren regions becoming warm enough to bear crops…yet only rich reap benefits, as subsistence tropic-farmers will see reduced crop yields- Climate change between now and 2050 may commit as many as 37% of all species to extinction

k) How big a sea-level rise?- 2007 IPCC report projects that sea level will rise anywhere from 180 to 590mm by 2090-2100- Hurricanes and coastal storms could compound this problem- Also a chance this could accelerate, as glaciers are accelerating their seaward flow in many spots in Greenland and West Antarctica….could raise sea level by more than 7m (23ft) each in a few centuries, destroying many big cities in the world

l) Will the Gulf Stream pack up, freezing the UK and northern Europe?- Gulf Stream and the North Atlantic Drift bring warm water and warm air from the tropical Atlantic to Northern Europe- This helps keep the UK several degrees warmer that it would otherwise be- This stream could be diminished by climate change, as increasing rainfall and snow-melt across the Arctic and nearby land areas could send more freshwater into the North Atlantic, pinching off part of the warm current- Best estimate: flow might weaken by 10-50% over the next century or so

m) How about the Kyoto Protocol?- UN-sponsored agreement among nations to reduce their greenhouse gas emissions- Emerged from UN Framework Convention on Climate Changed, singed by nearly all nations at the 1992 mega-meeting popularly known as the Earth Summit- Pledge: to stabilize greenhouse gas concentrations "at a level that would prevent dangerous anthropogenic interference with the climate system"- To put teeth to the pledge, new treaty was needed with binding targets for greenhouse-gas reductions, and was signed in Kyoto after years of negotiations- USA and Australia indicated early they wouldn't ratify it, citing absence of binding targets for developing nations (took 7 years for every other industrialized nation to sign)- However, protocol itself required ratification by enough industrialized countries to represent 55% of the developed world's CO2 output- After Russia voted in late 2004, Kyoto was brought into force in 2005- As of mid-2007, 172 states had ratified the treaty

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- Under Kyoto, industrialized nations have pledged to cut their yearly emissions of carbon, as measured in 6 greenhouse gases, by varying amounts, averaging 5.2%, by 2012 compared to 1990- This equates to a 29% cut in values that would have otherwise occurred- However, protocol didn't become international law until more than halfway through 1990-2012- By then, emission amounts had risen substantially in many countries (ie: up 20% in Canada)- And in some countries exempt from Kyoto (ie: China), emission levels are skyrocketing

n) Will Kyoto make any difference?- Few/non of world's big economies will meet their Kyoto targets by 2012- Century-long lifespan of atmospheric CO2 means that the planet is already committed to a substantial amount of greenhouse warming

o) Will we reach a tipping point?- Effects of climate change aren't expected to be strictly linear- A 4C warming could be more than twice as risky as a 2C warming, because of positive-feedback processes that tend to amplify change and make it worse- For most scientists, tipping point is when global temperatures climb more than 2C (3.6F), as this is when the Greenland ice sheet will begin melting uncontrollably

p) Which countries are emitting the most greenhouse gases?- USA was 1st, with 30% of all of the human-produced greenhouse emissions to date and about 20% of current yearly totals, despite only a 5% share of the global population- While China is taking the lead, its emissions are much lower per capita- However, due to rising economy and population, China will overtake the USA as the world's leading greenhouse emitter by 2008- Top risers: Turkey, Spain, Portugal, Canada, Greece, Australia- Top savers: Lithuania, Latvia, Ukraine…old Eastern Bloc- China doesn't make solution impossible, as while coal production is worrisome, it is making progress on vehicle fuel efficiency standards

q) If oil runs out, does that solve the problem?- Not really…coal replaces it, which is much worse for global warming- Even with renewables, the emission from today's stocks of oil, gas and coal would still be burned- Research has intensified on sequestration or carbon capture and storage – how carbon might be safely stored underground…while sea is a bad idea (CO2 makes the oceans more acidic), underground to depths of more than 800m makes CO2 take a liquid form that greatly reduces the chance of it rising to the surface…might use depleted oil and gas wells, or saline aquifers

- 4 different sections/topics about the book are importanta) What the Greenhouse Effect Is

- The greenhouse effect is when the atmosphere absorbs infrared radiation rising from the Earth's Sun-warmed surface

- The more greenhouse gas there is, the less radiation can escape from Earth to space, and the warmer we get

- Two kinds of radiation:a) Sunlight (shortwave radiation incoming)

- Incoming sunlight absorbed by clouds, the atmosphere, and water vapour absorbed at Earth's surface either reflect to space from clouds and dust, or reflected to space from Earth

b) Infrared (longwave radiation outgoing)- Shortwave (non-infrared) heats atmosphere some radiated from Earth to space, or absorbed by clouds and greenhouse gases, and some radiated to space by clouds and greenhouse gases (including water vapour), however some radiated back to Earth by clouds and greenhouse gases; this is increasing due to global warming

- The prevalence of human-produced greenhouse gases and their relative importance in 2005, according to the 2007 IPCC report:

a) Carbon dioxide – 380 parts per million (ppm), 63% total- The most important greenhouse gas, by far the most voluminous greenhouse gas, but because it's not as potent as other gases, it only takes up about 63%

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- Produced when fossil fuels burned, when people and animals breathe, and when plants decompose- Stays airborne for over a century…was steady until the Industrial Revolution- Been climbing by about 1-3ppm per year

b) Methane – 1.77 ppm, 18% total- Emerges from rice paddies, peat bogs, belching cows, vehicles, homes, factories- Though it stays in the air for less than a decade on average, it’s a powerhouse, as it absorbs 20-25 times more infrared energy in that time than a molecule of CO2 over a century

c) Ozone- Formed when sunlight hits other pollutants and triggers ozone-making reactions- Only survives a couple of days in the troposphere

d) Water Vapour- Isn't very strong, but makes up for weakness in sheer numbers- Increasing by about 1% per decade, much more slowly than CO2- Contributes by positive feedback process…as global temperatures rise, oceans and lakes release more water vapour, which in turns adds to the warming cycle

e) Chlorofluorocarbons (CFCs) – 1 ppb, 12% total- Under the Montreal Protocol, they've begun to level off- Destroy "good" ozone (ie: ozone hole), and are powerful long-living greenhouse gases

f) Nitrous Oxide – 0.32 ppm, 6%- Industrial byproduct, lasts for a century

b) Which Industries Are Emitting- Be able to identify 2-3 industries that are bad polluters- ie: electricity generating companies that burn coal to generate electricity- IPCC's 2001 report broke down global emissions of CO2 into 4 main sectors that account for virtually all CO2 emissions:

i) Industry – more than 40%ii) Buildings (homes, offices, ect…) – about 31%iii) Transportation – around 22%...fastest climber at about 2% increase per yeariv) Agriculture – about 4%

c) Which Countries Are Emitting- Who are the major players besides USA, China, and Canada?- China recently took over in volume, but behind per capita emissions- Top ten of percentage of global CO2 emissions:

- USA, China, Russia, India, Japan, Germany, Canada, UK, South Korea, Italy- Top ten emissions per capita: (tones of CO2 emission from fossil fuel use per person)

- Qatar, Kuwait, UAE, Aruba, Luxembourg, Trinidad/Tobago, Brunei, Bahrain, USA, Canada- Top ten carbon intensity: (tonnes of carbon emitted in CO2 per millions of dollars in GDP)

- Ukraine, Russia, Saudi Arabia, Poland, Iran, China, South Africa, Australia, SK, Canadad) Scenario of a Climate Changed Future

- ie: p.44-55 discussion on heat waves is one possible effect of climate change- What are the other potential consequences, ie: floods and droughts, water levels, ect…- More sunlight getting trapped in the Earth is trapping more energy, that energy has to express itself, and one possible effect is stronger hurricanes- Again, the "grandmother" 2-3 sentence explanation is sufficient for each possible consequence- Others include ocean circulations, ie: El Nino and La Nina- Section on effects on the eco-system and agriculture is tough, as they spend a very small time on each species (but know the mountain pine beetle)- Six big symptoms:

i) Extreme Heat- Duration of a heat wave and the warmth of night-time lows are the real killers for people, animals, and plants- Higher temperatures boost atmospheric water vapour, warming nights

ii) Floods and Droughts- Clear ramp up in precipitation intensity, as rain or snow lasts for several days

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- Intense rain produces flash floods- Also, higher temperatures not only allow for more rain-producing moisture to enter the atmosphere, but they also suck more water out of the parched terrain where it hasn't been raining, increasing drought

iii) Melting Ice- North Pole has Canada, Denmark, Finland, Iceland, Russia, Sweden, Norway, USA- Sea ice provides base for polar bears, roadbed for people, and shield for coastal towns and underwater creatures- Arctic will never lose wintertime ice cover, but summer coverage is less than 80% of what it was in the 1970s…especially rapid since 2003- Ice contracting both horizontally and getting shallower- Arctic more vulnerable because of 3 positive feedbacks:

a) Darkening surface that absorbs more sunlight, and thus warms air above itb) More direct route for warming, as evaporation rate in Arctic is lowc) Thinner atmosphere

- Permafrost – land that's been frozen for at least 2 years – is thawing…it has an active layer that typically melts and refreezes each year, but is becoming less thick every year

iv) Warming Oceans- Oceans absorb and release heat, and warming waters leads to ocean-driven storms such as strengthening tropical cyclones and rising sea levels- 2007 IPCC gave 12-22cm sea level rise during 20th century, or 1.2-2.2mm per year- Many species of coral reefs face certain destruction- El Nino: About every 2-7 years, Pacific trade winds weaken or reverse, the surface layer of warm water deepens and expands into the eastern tropical Pacific, and El Nino sets in, typically lasting 1-2 years

- Effects include increased drought in Australia/South-East Asia, mild dry winters in Canada, raises chances of hurricanes in the Atlantic, and lowers for North Pacific

- La Nina: Occurs when trade winds are stronger than average, pushing cooler-than-usual water westward into the central tropical Pacific....opposite effects of El Nino- About ½ the time, neither El Nino or La Nina is in progress and the Pacific is netural

v) Hurricanes and Other Storms- 2005 brought North America 3 of the 6 most powerful Atlantic hurricanes ever recorded- No reason to think violent tornadoes and thunderstorms more intense due to warming- Warm ocean waters help give birth to tropical cyclones and provide fuel

vi) Ecosystems and Agriculture- Insects, which are very adaptable, may take best advantage of global warming, and thus parasitic diseases are likely to become more widespread as the planet warms/moistens

- ie: mosquitoes bringing malaria and dengue fever into central-highland Africa- For BC, biggest effect is one of the world's largest forest die-offs

- In 2002, BC lost 100,000 square km of pines to fire and disease from pine beetle- Mountain pine beetle, once limited to lower elevation tree species such as lodgepole, have moved uphill as temperatures warm- Drought weakens the ability of trees to fight off these aggressive bugs, because the dryness means a weaker sap flow that's easier for beetles to push through

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3) COMPARISON OF THE CARBON TAX AND CAP AND TRADE

Carbon Tax Cap and TradeWhat is it? - Government charges polluters a set price

for each tonne of greenhouse gases emitted- Government sets a legal limit on how much greenhouse gas polluters are allowed to emit (the cap)- If some polluters greatly reduce their emissions and so have excess pollution

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permits, they can sell these to other polluters (the trade)

How Does It Work?

- Can be applied throughout entire economy- For industries, tax is applied based on measured emissions- For individuals, tax is applied based on carbon content of fuel purchased- Based on simple economic theory: individuals and companies will reduce their emissions-intensive behaviour in order to avoid paying the tax- Can exempt certain areas of the economy from paying the tax

- Can only be applied to large industrial emissions sources (only 50% of GHGs)- Phases of implementation:a) Gov't determines 'cap'b) Gov't creates quantity of emissions 'permits' that correspond to the 'cap'c) Gov't allocates these permits to industry, either free-of-charge or auctiond) Companies buy/sell/trade permitse) Gov't ratchets 'cap' down each year, so long-term emissions reduction targets met

Price of Carbon

- Gov't directly sets the price on carbon - Gov't does not directly set the price- Gov't sets 'cap' and market determines 'price"…however, gov't can ensure price remains high by keeping 'cap' low and allocating permits by auction

Certainty of Emissions Reduction

- Provides less certainty- However, will inevitably 'cap' emissions as long as gov't is willing to adjust tax until desired reduction occurs

- Provides more certainty- However, this is only for emissions from industry, and only achieves reduction if harsh penalties for non-compliance

Economic Incentives

- Provides clearer economic signal- Gov't must lay out schedule of intended future carbon tax levels so investors can make decisions based on future price

- Provides less clear economic signals, as price of carbon is relatively unpredictable and will vary according to market conditions- Creates bias towards short-term solutions, as if industry is unsure carbon price will be higher in the future, they won't be motivated to make long-term investments in new green technology

Administrative Cost and Ease

- Less administrative costly and complex- Easier and faster for gov't implementation- Gov't has lots of experience 'taxing'- Far more transparent

- More costly and complex, requiring negotiation between gov't and industry on set-up and permit trading market- More potential for corruption- Will take 2-3 years to set up at first

Carbon Offsets

- Less flexible for industry - Gives industry more flexibility in how it meets the 'cap- May give wrong incentive to industry, which may simply purchase cheap offsets instead of making long-term investments in new green technology

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4) SUMMARY ON CLIMATE CHANGE FOR THE EXAM

- IPCC 4th Assessment (group of 400 scientists) on different language:- “Virtually certain” > 99% probability - “Very likely” > 90% - “Likely” > 66% - “About as likely as not” 33 to 66% - “Unlikely” < 33%

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- “Very unlikely” < 10% - “Exceptionally unlikely” < 1%

- IPCC 4th Assessment conclusions:- Very likely: cold days & nights less frequent, hot days & nights more freq - Likely: heat waves more frequent - Likely: heavy precipitation events more frequent - Likely: more extreme high sea level incidents - Likely: human influences contributed to sea level rise during 20 century - Likely: human influences contributed to extreme hot nights, cold nights/days - Likely: human influences contributed to changes in wind patterns - More likely than not: increased risk of heat waves (ie: around 50%)- More likely than not: increased areas affected by drought - “Unequivocal”: climate system is warming - Very likely: average Northern hemisphere temperatures 1950-2000 higher than any 50-year period since 1500 - Likely: average Northern hemisphere temps 1950-2000 higher than any 50-year period since 700 Human-cause increase in temperature over last 100 years is + 0.74 degrees C ±0.18

- 4 big issues in climate change:a) Who's Emitting?

i) Industries- 25% transportation- 20% fossil fuel industries…emissions from extracting and refining oil, not oil burning itself- 17% electricity- 11% buildings (mostly heating)- 11% agriculture, waste and other- 9% other combustion industries- 7% process

ii) Countries- USA China EU Japan and South Korea Russia India Canada Other

b) International and Other Law- 3 splits:

i) Developed v. Developing- China, India, Brazil, South-East Asia, Africa v. North America, Europe- Developing countries insist that developed countries take the first step- Most developing countries would be "shooting themselves in the first" by holding up climate change progress, as they'd benefit most from changes- Additionally, absence of developing countries has been a pretense for developed countries for avoiding accepting binding targets- Main target is China, as every year they add more coal power plants than the UK has ever had in it's history

ii) EU v. USAiii) Low lying states v. Oil producing countries

- Original 1992, in Rio De Janiero, produced the UNFCC, with meetings every year- Main Conference of Party years included Berlin (1995), Kyoto (1997), and Montreal (2006)- The Kyoto Protocol has several key pillars:

i) Emissions trading among within, among Annex I countries - Includes CO2 as well as 5 other serious gases…know what they are

ii) Joint Implementation among Annex I countries –project-based iii) Clean Development Mechanism –projects in developing countries

- A country gets credits for making environmentally-friendly projects- Baseline problem: by saving emissions by building a structure such as a dam, you never know what the baseline is- This expands cap-and-trade program by expanding the baseline too broadly, thus possibly destroying the concept of a cap

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- ie: China builds a power plant to get the credits which are worth more than the chemicals the plant produced, so plant wouldn't have been produced without system

iv) Land Use, Land Use Change, and Forestry – Canadian specialty - Canada has an abundance of trees, so they came up with a way of receiving payment for growing trees, which sequesters CO2- Baseline problem again, as a country gets credit for having tress that would be there anyways…also, we don't know how long the trees will live for

- 2008-2012 reporting period.... sanctions? None…future conferences of parties may address it- In conclusion, implementation under Kyoto has been terrible- As a response, in "Kahlifornia", Arnold Schwartzenneger did some big things, including:

- 2004 CARB motor vehicle greenhouse gas emissions standards (effective 2009)- This remains under litigation, as 6 of big 7 auto makers are suing California for suing standards that should be implemented by the federal government- BC has a similar program with AirCare

- 2007 California Global Warming Solution Act of 2006- This will be a cap-and-trade program that caps emissions from California- CARB will write regulations - Caps begin 2012 - Goal is to reduce GHG by 25% by 2020 (to 1990 levels) - Another goal is to reduce GHG by 80% below 1990 levels by 2050

- 2002 California greenhouse gas registry- Main success of Arnold is to drag others along, including Gordon Campbell, so that BC emitters can trade emissions with California and 7 other US states/4 provinces under the Western Regional Climate Action Initiative- Other sub-national initiatives include:

i) Regional Greenhouse Gas Initiative – CT, DE, ME, NH, NJ, NY, VT, MD observers: DC, MA, PA, RI, and QU, PEI, NB, NS, NL ii) Midwest Greenhouse Gas Reduction Program – WI, MN, IL, IN, IO, MI, KS, OH, SD,MB iii) US Mayors Climate Protection Agmt – 600 cities iv) New South Wales, Australia, has it's own program as well

- Private initiatives, in the name of good citizenry, improving reputation, and getting ready for adapting to eventual climate change regulation, are doing things as well…examples:

- BP –reduce GHG levels to 10% below 1990 –2001 - Chicago Climate Exchange –160 firms, gov’ts, unis... voluntary program

- Companies trade carbon credits so that firms can adapt to learning curve- U.S. Climate Action Partnership –Alcan, Alcoa, Boston Sci, Caterpillar, BP, Chrysler, Dow, Duke Energy, Dupont, Ford, GE, GM, J&J, Pepsi, Rio Tinto, Shell, Siemens, Xerox - “Caring for Climate –Airbus, Coca-Cola, Ikea, Novartis, Pfizer.... (cynically)

c) Canadian Legal Context- Big current cases include:

- Connecticut v. American Electric Power - California v. GM - Massachusetts v. US Environmental Protection Agency - Environmental assessment cases - Comer v. Murphy Oil - Inuit Circumpolar Conference v. US - Inuit v. American Electric Power? - ON & QU & Nunavut v. American Electric Power?

- Here, Alberta leads the resistance, with BC and Ontario pushing for reduced emissions- "Wedge theory": since it's too daunting to reduce greenhouse emissions, different strategies needed…ie: increase wind energy 15-20%, reduce 20% of coal plants with nuclear power, do carbon caption and storage technology underground…and once you start adding up all of these wedges, the problem doesn't look so daunting anymore- Wedge strategies include: (Wedge and Emissions Reductions Relative to Baseline (Mt CO2e per year)

- Carbon capture & sequestration 190

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- Renewable electricity 160 - Nuclear electricity 45 - Energy efficiency and conservation 615 (ie: better insulation, vehicles, tires, ect…)- Urban form 105 - Biofuels and alternative fuels 195 - Co-generation 115 - Changes in energy intensity of the economy 165

- Provincial plans include:i) Alberta plan (2002)

- “Target:”reduce carbon intensity (C per GDP) 50% by 2020 - At current rate of Alberta GDP growth (5.1% per year), absolute - GHG emissions could be 60% higher than 1990 levels - 2007 amendment: large (>100k tons) emitters must reduce intensity by 12% by Dec 2010

ii) Quebec carbon tax (2007) - Sale of fossil fuels

iii) BC carbon tax (2008) - Sale of fossil fuels ≈$9.50/ton CO2up to $30/ton (2.4-7.4 ¢/litre) - Revenue neutrality- See handout…carbon tax can get over federalism issues

iv) Federal plan (2008) - 2010: “large”facilities in existence in 2004 must reduce emissions intensity to 18% below 2006 levels - Facilities coming online 2004 or later must reduce emissions intensity 2% per year - Oil sands facilities must install “carbon capture” technology by 2012…not law, but Harper plans it, and oil companies are mad at him for it

- Still, no carbon tax??? Could avoid all federalism issues with cap-and-traded) Future Legal Issues

- Questions include:i) How to use forestry or agriculture as carbon sinks to gain carbon credits? ii) How to draft a plan to reduce emissions from “large” emitters that would survive constitutional challenge? POGG, criminal law, emergency powers?iii) How to draft a CDM agreement for your client wishing to build a project in a developing country to gain carbon credits?iv) How to craft agreements for carbon capture and storage?

- Oil sands should implement "carbon capture" technology by 2012- What happens if carbon gets released from underground? Who owns the carbon?

v) How to sue or defend climate change litigation – - ie: Inuit v. KearlOil Sands? V. AEP?

vi) How does government create incentives to undertake carbon reduction projects? - ie: how to trap landfill gases, especially methane, that could be either burned for more fuel or stored?

viii) What are the implications of a carbon tax?

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5) KYOTO PROTOCOL PROVISIONS

The targets cover emissions of the six main greenhouse gases, namely:• Carbon dioxide (CO2);• Methane (CH4);• Nitrous oxide (N2O);• Hydrofluorocarbons (HFCs);• Perfluorocarbons (PFCs); and• Sulphur hexafluoride (SF6)

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The maximum amount of emissions (measured as the equivalent in carbon dioxide) that a Party may emit over the commitment period in order to comply with its emissions target is known as a Party’s assigned amount.

The Protocol includes provisions for the review of its commitments, so that these can be strengthened over time. Negotiations on targets for the second commitment period are due to start in 2005, by which time Annex I Parties must have made “demonstrable progress” in meeting their commitments under the Protocol. The whole Protocol will be reviewed at the second session of the COP, which will serve as the “meeting of the Parties” to the Protocol (the so-called COP/MOP), after the Protocol has entered into force.

To achieve their targets, Annex I Parties must put in place domestic policies and measures. The Protocol provides an indicative list of policies and measures that might help mitigate climate change and promote sustainable development.

Parties may offset their emissions by increasing the amount of greenhouse gases removed from the atmosphere by so-called carbon “sinks” in the land use, land-use change and forestry (LULUCF) sector. However, only certain activities in this sector are eligible. These are afforestation, reforestation and deforestation (defined as eligible by the Kyoto Protocol) and forest management, cropland management, grazing land management and revegetation (added to the list of eligible activities by the Marrakesh Accords). Greenhouse gases removed from the atmosphere through eligible sink activities generate credits known as removal units (RMUs). Any greenhouse gas emissions from eligible activities, in turn, must be offset by greater emission cuts or removals elsewhere.

Additional detailed rules govern the extent to which emissions and removals from the LULUCF sector can be counted under the Protocol. The amount of credit that can be claimed through forest management, for example, is subject to an individual cap for each Party, which is listed in the Marrakesh Accords.

The Protocol also establishes three innovative “mechanisms” known as joint implementation, the clean development mechanism and emissions trading. These are designed to help Annex I Parties cut the cost of meeting their emissions targets by taking advantage of opportunities to reduce emissions, or increase greenhouse gas removals, that cost less in other countries than at home.

Any Annex I Party that has ratified the Protocol may use the mechanisms to help meet its emissions target, provided that it is complying with its methodological and reporting obligations under the Protocol. However, Parties must provide evidence that their use of the mechanisms is “supplemental to domestic action”, which must constitute “a significant element” of their efforts in meeting their commitments.

Businesses, environmental NGOs and other “legal entities” may participate in the mechanisms, albeit under the responsibility of their governments.

Under joint implementation, an Annex I Party may implement a project that reduces emissions (e.g. an energy efficiency scheme) or increases removals by sinks (e.g. a reforestation project) in the territory of another Annex I Party, and count the resulting emission reduction units (ERUs) against its own target. While the term “joint implementation” does not appear in Article 6 of the Protocol where this mechanism is defined, it is often used as convenient shorthand. In practice, joint implementation projects are most likely to take place in EITs, where there tends to be more scope for cutting emissions at low cost.

An Article 6 supervisory committee will be set up by the COP/MOP when it meets for the first time. This committee will oversee a verification procedure for joint implementation projects hosted by Parties that do not meet all the eligibility requirements related to the Protocol’s methodological and reporting obligations.

Under the clean development mechanism (CDM), Annex I Parties may implement projects in non-Annex I Parties that reduce emissions and use the resulting certified emission reductions (CERs) to help meet their own targets. The CDM also aims to help non-Annex I Parties achieve sustainable development and contribute to the ultimate objective of the Convention.

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The rulebook for the CDM set forth in the Marrakesh Accords focuses on projects that reduce emissions. Rules are being developed, however, for adoption at COP 9 in 2003, for including afforestation and reforestation activities in the CDM for the first commitment period. These rules include a limit on the extent to which Annex I Parties may use CERs from such sink projects towards their targets.

Accredited independent organizations, known as operational entities, will play an important role in the CDM project cycle, including in the validation of proposed projects and certification of emission reductions and removals. A levy from each CDM project – known as a “share of the proceeds” – will help finance adaptation activities in particularly vulnerable developing countries and cover administrative expenses.

The Protocol envisages a prompt start to the CDM, allowing CERs to accrue from projects from the year 2000 onwards. This prompt start was put into effect at COP 7, with the establishment of the CDM’s executive board.Under emissions trading, an Annex I Party may transfer some of the emissions under its assigned amount, known as assigned amount units (AAUs), to another Annex I Party that finds it relatively more difficult to meet its emissions target. It may also transfer CERs, ERUs or RMUs that it has acquired through the CDM, joint implementation or sink activities in the same way. In order to address the concern that some countries could “over-sell” and then be unable to meet their own targets, the Protocol rulebook requires Annex I Parties to hold a minimum level of AAUs, CERs, ERUs and/or RMUs in a commitment period reserve that cannot be traded.

The Protocol mirrors the Convention in recognizing the specific needs and concerns of developing countries, especially the most vulnerable among them. Annex I Parties must thus provide information on how they are striving to meet their emissions targets while minimizing adverse impacts on developing countries. The Marrakesh Accords list a series of measures that industrialized countries should prioritize in order to reduce such impacts, such as removing subsidies associated with environmentally-unfriendly technologies, and technological development of nonenergy uses of fossil fuels.

A new adaptation fund was also established by the Marrakesh Accords to manage the funds raised by the adaptation levy on the CDM, as well as contributions from other sources. The fund will be administered by the GEF, as the operating entity of the Convention and Kyoto Protocol’s financial mechanism.

Annex I Parties will submit annual emission inventories and regular national communications under the Protocol, both of which will be subject to in-depth review by expert review teams. Expert review teams have the mandate to highlight potential compliance problems – known as questions of implementation – that they find, and to refer these to the Compliance Committee if Parties fail to address them. Parties must also establish and maintain a national registry to track and record transactions under the mechanisms. As an added monitoring tool, the secretariat will keep an independent transaction log to ensure that accurate records are maintained. It will also publish an annual compilation and accounting report of each Party’s emissions and its transactions over the year. All information, except that designated as confidential, will be made available to the public. (There are safeguards in place to limit what type of information may be designated as confidential.)

The Protocol’s compliance system, agreed as part of the Marrakesh Accords, gives “teeth” to its commitments. It consists of a Compliance Committee, composed of a plenary, a bureau, and two branches: a facilitative branch and an enforcement branch. As their names suggest, the facilitative branch aims to provide advice and assistance to Parties, including “early-warning” that a Party may be in danger of not complying, whereas the enforcement branch has the power to apply certain consequences on Parties not meeting their commitments.

If a Party fails to meet its emissions target, it must make up the difference in the second commitment period, plus a penalty of 30%. It must also develop a compliance action plan, and its eligibility to “sell” under emissions trading will be suspended.

The Protocol rulebook sets out detailed procedures for considering cases of potential non-compliance,

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along with an expedited procedure for reviewing cases concerning eligibility to participate in the mechanisms.

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