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					Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                                                            1


UNIT 1 – INTRODUCTION...................................................................................................................... 6
   Canada‘s Environmental Record .......................................................................................................... 6
   What is Environmental Law? ................................................................................................................ 6
   History of Environmental Law ............................................................................................................. 6
   CANADIAN APPROACH: .................................................................................................................. 7
   Contemporary Developments (+ Canadian developments) .................................................................. 8

UNIT 2 – GOVERNMENT INSTITUTIONS & POWERS .................................................................... 9
 2.1 Federalism ......................................................................................................................................... 9
   Functional Powers ............................................................................................................................... 10
           R. v. Fowler, 1980 SCC                                              FUNCTIONAL – FISHERIES ULTRA VIRES ............. 10
           R. v. Northwest Falling Cont. Ltd. 1980 SCC                        FUNCTIONAL – FISHERIES INTRA VIRES ................... 11
       Conceptual Powers.............................................................................................................................. 11
           R v. Hydro-Quebec 1997 SCC                                     CONCEPTUAL – CEPA s. 34 & 35 INTRA VIRES.............. 11
       POGG Power ...................................................................................................................................... 12
           R v. Crown Zellerbach Canada Ltd 1988 SCC                                          POGG NATIONAL CONCERN TEST ........... 13
     Arguments for/against Federalism ...................................................................................................... 13
     In Practice ........................................................................................................................................... 14
     Obstacles to Environmental Progress re: Federalism.......................................................................... 14
   2.2 Local governments .......................................................................................................................... 14
           114957 Canada Ltée (Spraytech) v. Hudson, 2001 SCC                                         PESTICIDE BYLAW INTRA VIRES ...... 14
     SUBSIDIARITY & THE PRECAUTIONARY PRINCIPLE ............................................................ 16
   2.3 The institutional challenge of sustainability ................................................................................. 16
     Institutional Setup in Canada .............................................................................................................. 17
     Instruments .......................................................................................................................................... 17
     Criteria for Evaluating Instruments: ................................................................................................... 19
     Public Policy and Institutional Design ................................................................................................ 19
           BOX - Successful sustainability policy characteristics: ................................................................................ 20
       Sustainability In Practice (Elements & Policy problem) .................................................................... 21
       4 IMPERATIVES OF SUSTAINABILITY ....................................................................................... 22
       Learning Policy and Institutional Change ........................................................................................... 23

UNIT 3 – COMMON LAW & THE ENVIRONMENT ........................................................................ 25
 3.1 Challenges and Limitations ............................................................................................................ 25
           Palmer v Nova Scotia Forest Industries ........................................................................................................ 26
     Civil Actions 101 ................................................................................................................................ 27
   3.2 Regulatory Negligence / Public Authority Liability ..................................................................... 29
           Gauvin v. Ontario (MOE)                                                                  NEGLIGENCE CASE ........................... 29
           Ingles v. Tutkaluk Construction Ltd 2000 SCC                                            MUNICIPAL INSPECTOR LIABILITY .... 30
   3.3 Mass Torts ....................................................................................................................................... 30
     TEST FOR CERTIFICATION: (Ontario Class Proceedings Act 1992 S. 5) ................................. 31
           Hollick v. Toronto 2001 SCC ....................................................................................................................... 32
           Pearson v. Inco 2005 ONCA ......................................................................................................................... 33
           Hoffman v. Monsanto 2005 Sask QB ............................................................................................................. 34
       Policy vs. Operational Decisions ........................................................................................................ 35

UNIT 4 – ENVIRONMENTAL REGULATION: CONCEPTS & CONTROV ................................. 35
 4.1 – Command Regulation and it‟s Critics ........................................................................................ 35
   Main Features of Command Regulation ............................................................................................. 35
   Environmental Standards .................................................................................................................... 36
   Environmental Licensing: ................................................................................................................... 39
   Environmental Planning Instruments .................................................................................................. 40
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                                                                  2


   Strengths and weaknesses of C & C Reg (Theory & Practice) ......................................................... 41
     Recent developments and Future directions ....................................................................................... 42
   4.2 – Risk, Uncertainty and the Precautionary Principle .................................................................. 43
   16.3 International Trade and the Environment ................................................................................. 45
     Legal Systems and Transnational Institutions..................................................................................... 46
     Frictions Between International Trade and Environmental Protection ............................................... 46
            BOX – Causal Impacts of Trade Liberalization on the Environment ............................................................ 47
       From Friction to Synergy: Can Trade Institutions Promote Environmental Cooperation? ................ 48

UNIT 14 – ENVIRONMENTAL REGULATION BY BUSINESS ...................................................... 48
 14.1 Voluntary Environmental Codes ................................................................................................. 48
   Introduction ......................................................................................................................................... 48
   B. What Are They ............................................................................................................................... 49
   C. Where Did They Come From ......................................................................................................... 49
   D. What Forms Do They Take ............................................................................................................ 50
   F. What Drives Their Development and Implementation ................................................................... 53
   G. How Well Do They Perform .......................................................................................................... 54
   H. VEC‘s Role in Environmental Law For Sustainability .................................................................. 56
   PROBLEM WITH VECs .................................................................................................................... 56
 16.2 Environmental Law in Developing Countries ............................................................................ 57
   Basic Issues ......................................................................................................................................... 57
   Challenges:.......................................................................................................................................... 57

UNIT 5 - WATER ..................................................................................................................................... 58
 General introduction ............................................................................................................................ 58
 5.1 Water quality: Walkerton and beyond ...................................................................................... 59
   Drinking Water in the US ................................................................................................................... 61
 5.2 Water Quantity: Consumption and conservation ........................................................................ 61
   Water Use in Canada........................................................................................................................... 61
   Environmental Effects......................................................................................................................... 61
   Laws and Policies ............................................................................................................................... 61
            Dillon v. Director (MOE), 2002 Ontario ERT                                                                   PTTW .................................... 62
       New PTTW Process ............................................................................................................................ 63

UNIT 6 – AIR ............................................................................................................................................ 63
 6.1 Overview .......................................................................................................................................... 63
   Performance ........................................................................................................................................ 64
   Causes ................................................................................................................................................. 64
   Effects of Air Pollution ....................................................................................................................... 65
 6.2 Ontario‟s Air ................................................................................................................................... 67
      MAIN  Ontario Environmental Protection Act (EPA) ............................................................................... 67
            Characteristics of the EPA: ........................................................................................................................... 67
            Related Developments ................................................................................................................................... 68
            EPA Approvals Process................................................................................................................................. 69
       Ontario‘s 3-pronged Approach: .......................................................................................................... 70
       Key Recent Developments: ................................................................................................................. 70

UNIT 7 – LAND ........................................................................................................................................ 72
 7.1 Introduction ..................................................................................................................................... 72
 7.2 Contaminated Land ........................................................................................................................ 72
   INTRO – Problem, Solution and Legal Framework ........................................................................... 72
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                                                                       3


       Spills (Unplanned Releases) ............................................................................................................... 73
           SPILLS BILL - Ontario Environmental Protection Act, Part X .................................................................... 74
       LIABILITY ......................................................................................................................................... 75
           Tridan Developments Ltd. v. Shell Canada 2002 ONCA                                              CLEAN UP TO PRISTINE COND‟N ...... 75
       Other Liability Principles .................................................................................................................... 75
           Polluter pays principle .................................................................................................................................. 76
           Who is liable? ................................................................................................................................................ 76
           CNR v Ontario (ONDC) 1992                                               PAST & PRESENT OWNER LIABILITY....................... 77
           Quebec v Imperial Oil 2003 SCC                                        FORMERLY LEGAL ACTIVITY = LIABLE ................... 78
           North Fraser Harbour Comm. v BC 2005 SCC                                         NON-POLLUTING OWNER = LIABLE .............. 78
           Montague v Ontario 2005 ONDC                                         MANAGERS RESPONSIBLE FOR CONTRACTOR ........ 78
     Brownfields Redevelopment - Ontario Bill 56 (2001) ........................................................................ 78
   7.3 Toxic Substances ............................................................................................................................. 78
     Pesticides and Other Toxins ................................................................................................................ 78
     Federal Regulation of Toxic Substances under CEPA 1999............................................................... 79
        1. Risk Assessment  Is it Toxic? ................................................................................................................. 80
           2. If toxic, then what? .................................................................................................................................... 80
       Special Issue: Pollution Prevention..................................................................................................... 81
       Special Issue: Virtual Elimination ...................................................................................................... 82
       Special Issue: Community Right to Know .......................................................................................... 82
       Status: Battle Against Toxics .............................................................................................................. 82

UNIT 8 – NATURE CONSERVATION ................................................................................................. 83
 8.1 Biodiversity Conservation: Issues and Concepts ......................................................................... 83
   Canadian Performance ........................................................................................................................ 83
 8.2 Parks and Protected Areas ............................................................................................................. 84
           R. v. Tener 1985 SCC                                      CAN‟T EXPROPRIATE FOR FREE UNLESS STAT AUTH ........... 85
       Performance: Protected Areas Laws and Policies ............................................................................... 86
           PROBLEM #1: Protected areas law inadequate ........................................................................................... 86
           PROBLEM #2: Size, location of protected areas insufficient to protect biodiversity ................................... 89
           PROBLEM #3: Inadequate Resources .......................................................................................................... 89
           Protected Areas Policy Conclusion ............................................................................................................... 90
       Wood Buffalo National Park Winter Road Dispute............................................................................ 90
           CPWS v. Canada (MCH) 2001 FCTD aff‟d 2003 FCCA                                                NEW CNPA s. 4(1) & 8(2) INTERP ....... 90
           Mikisew Cree First Nation v. Canada (MCH) 2005 SCC                                          ABORIG IMPACT MORE IMPORTANT ..... 91
   8.3 Endangered Species ........................................................................................................................ 92
     Five Elements of Species Protection Law........................................................................................... 92

UNIT 10 – ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT ...................................... 93
 Basic Concepts....................................................................................................................................... 93
   Drivers of Compliance ........................................................................................................................ 93
   Importance of Enforcement ................................................................................................................ 93
   Trends in Compliance and Enforcement ............................................................................................. 93
   Strategies for Effective Compliance & Enforcement.......................................................................... 94
   Adversarial vs cooperative approach .................................................................................................. 95
   ―Traditional‖ approach........................................................................................................................ 95
 Enforcement under Ontario Environmental Protection Act ............................................................ 95
           BOX - Due Diligence Defence....................................................................................................................... 96
           R v Bata Industries 1992 ONDC        READ IT .............................................................................................. 96
   Penalties ................................................................................................................................................. 97
     Limits of Traditional Penalties Approach ........................................................................................... 97
     Penalty Innovations ............................................................................................................................. 98
           United Keno Hill Mines 1980 YTCT                                                               POLLUTION IS A CRIME ........................ 98
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                                                                        4


            Seraphim v. Sterling Newspapers 2001 BCSC                                               POLLUTION IS NOT A CRIME ...................... 98

UNIT 9 – ENVIRONMENTAL ASSESSMENT .................................................................................... 99
   Basics .................................................................................................................................................. 99
   EA & SEA – Theory: ........................................................................................................................ 100
   Characteristics of Effective EA: ....................................................................................................... 100
            Canadian Environmental Assessment Act (CEAA)...................................................................................... 101
       Provincial Environmental Assessment Law...................................................................................... 104
       Aboriginal People and Environmental Assessment .......................................................................... 106
       Environmental Assessment Litigation .............................................................................................. 106
       Conclusions ....................................................................................................................................... 107
            Hoerner 1995 NFCA                  INTERPRETATION OF ENVIRONMENTAL LAW ...................... 107
            Fr. of the West Cntry Assn. v. Canada (MFO) 1999 FCA CEAA ss. 15, 16 SCOPE IS DISCRESH .... 108

UNIT 15 – ABORIGINAL PEOPLES AND THE ENVIRONMENT ............................................... 110
 A. Introduction .................................................................................................................................... 110
   Relationship Between Indigenous Cultures and the Environment: ................................................... 110
 C. Rights in an International Context ............................................................................................... 111
 D. Rights in a National Context ......................................................................................................... 114
   Canada............................................................................................................................................... 115
            KEY ISSUES:............................................................................................................................................... 115
            Resource Co-Management, Capture and Recapture ................................................................................... 116

UNIT 13 – MARKET METHOD: ECONOMIC INSTRUMENTS .................................................. 117
   Key Questions ................................................................................................................................... 118
   Critiques: Economic of Environmental and Environmental of Economic ....................................... 118
 Assessment of Economic Instruments ............................................................................................... 119
   Price-Based Instruments ................................................................................................................... 119
   Quantity Based Instruments .............................................................................................................. 120
   Information Based Instruments ......................................................................................................... 121
   EI Summary ...................................................................................................................................... 121

UNIT 14 ................................................................................................................................................... 121
 14.2 Sustainable Finance .................................................................................................................... 121
   A. Introduction .................................................................................................................................. 121
 C. Impact of the Growth Of Institutional Investment ..................................................................... 125

UNIT 11 – PUBLIC PARTICIPATION ............................................................................................... 126
 A. Introduction: The importance of Participation ........................................................................... 126
 C. Theoretical Approaches to Public Participation ......................................................................... 127
 D. Aarhus Convention ........................................................................................................................ 128
 E. Legal Mechanisms for Public Participation ................................................................................. 129
   1. Constitutional Provisions & Environmental Rights ...................................................................... 129
   2. Participation in Administrative Decision-Making ........................................................................ 129
   3. Access to Information ................................................................................................................... 130
   4. Access to Justice ........................................................................................................................... 131
            (a) Judicial Review ...................................................................................................................................... 131
            (b) Public Interest Litigation ....................................................................................................................... 132
            Algonquin Wildlands League v. Ont (MNR) 1998 ONDC                                         SUBSTANTIVE REVIEW CONSTRAINTS . 132
            (c)Private Prosecutions ............................................................................................................................... 133
            Belle Park – The Kingston Case .................................................................................................................. 133
            (e) Standing ................................................................................................................................................. 134
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                                                             5


           Reese v. Alberta (MFLW) 1992 ABQB                                                          STANDING .............................. 134
           (f) Environmental courts and ADR process ................................................................................................. 136
           (g) Legal Aid and Intervenor Funding ........................................................................................................ 136
   Ontario EBR ........................................................................................................................................ 137
   F. Conclusions: Constraints to Public Participation & Future Reforms ....................................... 139

UNIT 16 – INT‟L ENVIRONMENTAL LAW BEYOND BORDERS .............................................. 140
           Trail Smelter Arbitration 1948 .................................................................................................................... 140

UNIT 17 –TAKING STOCK AND LOOKING FORWARD ............................................................. 140
 Reasons for Environmental Progress ................................................................................................ 140
   1) Strong social, political, and economic institutions ....................................................................... 141
   2) International Pressure ................................................................................................................... 142
   3) Effective Laws and Regulations ................................................................................................... 143
           BOX - General Characteristics of Effective Environmental Laws .............................................................. 144
     4) Federal-Provincial Cooperation .................................................................................................... 144
     5) Proactive Local Governments....................................................................................................... 144
     6) Progressive Decisions From the SCC ........................................................................................... 145
     7) Public Pressure ............................................................................................................................. 146
     8) Influence of the United States....................................................................................................... 147
   Root Causes of Environmental Degradation .................................................................................... 147
   Key Limits – Scientific Conditions for Eco Sustainability .............................................................. 148
   Consumption ....................................................................................................................................... 149
   A New Direction .................................................................................................................................. 151
     Remedying Systemic Weaknesses .................................................................................................... 151
     Addressing Root Causes – Promoting Sustainability........................................................................ 152
   A New Model ....................................................................................................................................... 153
     Canada's Sustainable Development Strategies .................................................................................. 153
     Other Approaches – Europe (Sweden).............................................................................................. 153
   Conclusion ........................................................................................................................................... 156



NON-EXAMINABLE
UNIT 12 – ENVIRONMENTAL JUSTICE
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         6


UNIT 1 – INTRODUCTION

Canada‟s Environmental Record

            a. Image – FORMERLY GOOD
                    i. Early standard setter in environmental assessment / development impact
                   ii. Virtual elimination of toxics (Great Lakes Water Quality Agreement)
                  iii. Indigenous people‘s claims (Comprehensive Land Claims Agreement Process)
                  iv. Policy innovation in the 1970‘s (eg. Dept. of Environment) – created a holistic
                       agency that would integrate environmental issues into decision making of all the
                       ministries – never happened
                   v. International environmental leadership (Stockholm Conference 1972, Montreal
                       Ozone Protocol 1986, Rio Earth Summit 1992, Biodiversity Convention 1992,
                       Stockholm convention on Persistent Organic Pollutants)
            b. Track record - BAD
                    i. 3rd largest per capita ecological footprint
                   ii. 3rd largest per capita greenhouse gas emissions
                  iii. Globally ranks 94/180 countries on 51 indicators
                  iv. Within OECD, Canada ranks 28/29 on 25 indicators
                   v. Internationally – Increasingly seen as a laggard on environmental issues (Kyoto,
                       etc)
                  vi. GOOD – See Boyd page 6, 8, 9

   Global trends equally negative, see:
            o World Summit on Sustainable Development (2002)
            o Millennium Ecosystem Assessment (2005)


What is Environmental Law?

   Many ways to define…
   “Environment” = surroundings in which humans find themselves
           o In this course ―nature‖ and the ―natural‖ systems on which life depends is emphasized
           o Physical environment not human systems (eg. work environment, built environment,
              spiritual environment)
   “Law” = system of norms governing human conduct
           o In this course—NARROW VIEW: command of a sovereign backed by the threat of force
           o BROAD VIEW: any normative system that has (a) rules about rules (how they are made,
              etc) and (b) a specialized administrative staff to interpret, administer and enforce the rules


History of Environmental Law

   Roots in antiquity:
            o Irrigation-based civilizations
            o Indigenous environmental values and practices
            o Ancient European wisdom (overshadowed later by ‗domination of nature‘)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       7


            o    Islamic principle of trusteeship of earth resources
            o    CASE: Hungary v Slovakia
                      RE: a dam
   16th – 19th Centuries:
            o Consolidation of nation state via colonial expansion
            o Unprecedented environmental change in colonies w/o regulation (except who has right to
                 exploit)
     th
    19 Century:
            o Urbanization and industrialization led to public health legislation in Europe, BUT
                 common law provided main remedy for environmental damage (via nuisance, trespass,
                 invasion of privacy, negligence, riparian rights)
                      SEE Rylands v Fletcher --- strict liability
   1880‟s – 1960‟s:
            o Intro of systematic land use planning, national parks, resource conservation laws
            o STILL continued primary reliance on common law to protect environment
                      SEE Ontario case McKie v KVP 1948 (On H. Ct)
                               Pulp mill spews toxic effluent and down stream property owners and
                                  their livestock suffer – injunction ordered, legislature passes statute
                                  excepting pulp mills from this type of regulation
   1960‟s – 1990‟s: Modern environmental law
            o INSTRUMENTALIST MODEL - Built on the assumption that law can effect social
                 change through direct and purposive intervention in the minute detail of social relations
                      Step 1 – Enunciate a specific goal
                      Step 2 – Prescribe in detail the behaviour required to achieve the goal
                      TRAITS: ‗Command and control‘ regulation – prohibits defined behaviour with
                          exceptions
                      ENFORCEMENT: Mix of civil and criminal law processes
            o Common law proved inadequate to deal with impacts of industrialization (eg. non-point
                 source pollution, widely dispersed harms)
            o Modern movement arose in response to rapid urbanization and industrial expansion, air
                 and water pollution, chemicals (books Land Ethic 1949, Silent Spring 1962)
            o New ―public law‖ model of environmental law emerged in the 70‘s bringing
                 comprehensive environmental statutes, specialized environmental agencies (eg NEPA,
                 Clean Water Act and EPA in the US)


CANADIAN APPROACH:

            o   “Consultative regulation” = environmental rules developed and enforced in a largely
                non-coercive way via closed-door, bilateral negotiations between government and
                industry (Howlett)
                     Industry supplies most knowledge – leading to info asymmetry re: basic data,
                        alternative technologies, cost/benefit analysis
                     Penalties and coercion an infrequent last resort
            o   Unlike US ―adversarial legalism‖
                     Citizens lacked ability to overturn government decisions through courts
                              VS IN US had right to bring actions against polluters or gov
                     Courts consistently deferred to governments
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                   8


                            VS IN US courts took on government
           o   RESULT: Much more administrative discretion in Canada, therefore allows details to be
               negotiated behind the scenes instead of having it be prescribed by statute


Contemporary Developments (+ Canadian developments)

   Changing character of the environmental crisis
          o 1970‘s = SENSORY PERCEIVABLE – smokestacks, visibly polluted waterways, oil
              spills, etc
          o 1980‘s = INVISIBLE, DISPERSED - acid rain, ozone depletion, climate change
                    Understanding depends on modeling and scientific extrapolation
                    Pervasisve uncertainty, causal relationships unclear
                    Cause and effect separated widely across space or time
                    Cumulative products of activities innumerable, highly dispersed, often mobile
                        actors AND operating within existing legal pollution limits

   Transformation of the role of the state in governance of society
           o The state: Rise of Neo-Conservatism
                  CHARACTERISTICS: Fiscal restraint, deregulation, regulatory reform, budget
                      cuts, New Public Management (ie – run like a business), ―good governance‖
                  Command and control regulation came under attach as everyone stressed ―limits
                      of the law‖ to interfere

   Transformation of role of corporations in their relationship with the environment
           o Business: Rise of Corporate Social Responsibility (CSR)
                  Emergence of broad consensus that business can and should be part of the
                      environmental solution
                  Win-win thesis – profitability and environmental responsibility go hand in hand

   IMPLICATIONS: ??? (questionable whether more than rhetoric)
         o Toward more reliance on scientific expertise (though trust is undermined)
         o From mitigation to prevention
                From react, control, disperse, dilute (end-of-pipe) to anticipate and prevent
                   (cradle-to-grave)
         o From ―substantive‖ to ―reflexive‖ law (rowing to steering)
                Experimentation with alternative regulatory tools
         o Toward public transparency and participation
         o From local to global
                PROBLEM: More basic ―local‖ issues are ignored (sewage treatment, etc – eg.
                   developing countries and even Canadian issues like Walkerton)
         o From zero-sum (money invested in environment protection is bad for the bottom line) to
            win-win (money invested will, in the long run, help the bottom line)

   DEVELOPMENTS IN CANADA:
         o The above has NOT resulted in substantial expansion of regulatory capacity or policy
           experimentation (partly due to the policy goals of elected governments), EXCEPT:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        9


                    1) ECONOMIC TOOLS  Flirtation with market & (environmental) tax
                       instruments, ―partnerships‖ / volunteerism, self-regulation (Mulroney
                       government)
                    2) Modest moves to formalized stakeholder consultation, public transparency and
                       participation
                    3) Increased intergovernmental harmonization (federal and provincial)
                             Designed to eliminate duplication between provincial and federal
                               environmental regulation (effectively a delegation TO the provinces)
                    4) Rhetorical embrace of ―pollution prevention‖ and ―smart regulation‖

            o   CONCLUSIONS:
                   Basic model remains = non-coercive negotiation between government and
                    industry, BUT not as closed as in past decades, PLUS some experimentation
                    with alternative policy methods




UNIT 2 – GOVERNMENT INSTITUTIONS & POWERS

2.1 Federalism
Division of Powers:
    In a federal state, power to govern is distributed between governments
    Constitution Act, 1867 enumerates powers
            o Federal: s. 91; provincial: ss. 92, 92A, 109
            o Exhaustive and exclusive
            o Allocates authority over all possible matters; one level may not legislate on a matter
               reserved to other

Overlap and conflict:
    If two levels act within their authority, both laws are valid unless impossible to comply with both,
       in which case federal law prevails
    Note: local and First Nations governments

Environmental powers:
    ―Environment‖ not explicitly assigned, RATHER cuts across many areas of constitutional
       authority; a major challenge and duty for all levels of government (Oldman River, Hydro-Quebec
       (SCC))
    Provincial powers: broad
           o Exclusive jurisdiction over property and civil rights, matters of a ―merely local or private
               nature‖, public lands, mines and minerals, non-renewable natural resources, forestry,
               electrical energy
           o Key limitations: only matters within the province; no indirect taxes; limited power to
               regulate federal undertakings (eg railways)
    Federal powers: limited, piecemeal
           o Federal powers
           o Proprietary powers
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    10


                      Has powers of ownership over federally owned lands, waters, resources, works
                       and undertakings (e.g. harbours, canals)
           o   Legislative powers
                   ―Functional‖ powers (specific subjects):
                            Navigation and shipping, fisheries, federal works and undertakings,
                              ―Indians‖ and Indian lands
                   ―Conceptual‖ powers:
                            Criminal law, taxation, spending, ―Peace, Order and Good Government,‖
                              trade and commerce

Which measures are ultra vires or intra vires federal or provincial government?...
   1. Feds prohibit the dumping and reporting of spills
   2. Feds prohibit the deposit of logging debris in any waters frequented by fish
   3. Province imposes a deposit on beverage containers to fund a recycling scheme
   4. Province prohibits use of motorboats over 10 hp in a wildlife management area


Federal Powers

   Proprietary Powers
            o Has powers of ownership over federally owned lands, waters, resources, works and
                undertakings (eg harbours and canals)
   Legislative Powers
            o “Functional” powers (specific subjects):
                    Navigation and shipping, fisheries, federal works and undertakings, ―Indians‖,
                        and Indian Lands
                             Navigable Waters – feds can order environmental assessment w/i
                                provinces because this is only ancillary to the purpose of governing
                                navigable waters (Oldman River)
            o “Conceptual” powers:
                    Criminal law, taxation, spending, POGG, trade and commerce

   Command and control legislation usually begins with PROHIBITION, and follows with
    EXCEPTIONS / LICENSING


Functional Powers

R. v. Fowler, 1980 SCC                  FUNCTIONAL – FISHERIES ULTRA VIRES
FACTS:
 As part of a (legal) logging operation the logs dragged across a small stream, depositing debris
 Two species of salmon spawned in the stream, but there was no evidence that the debris affected or
     injured either them.
 Fowler charged pursuant to s. 33(3) of the Fisheries Act
PRIORS:
 Acquitted at trial, judge found that s. 33(3) of the Fisheries Act was ultra vires feds.
 Appeal allowed
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         11


   CA appeal dismissed, held that s. 33(3) was intra vires feds b/c it was "legislation clearly in relation
    to the matter of inland fisheries and particularly to the preservation of fish".
ISSUE:
  Is Section 33(3) of the Fisheries Act, R.S.C. 1970, c. F-14, within the legislative competence of feds?
HELD:
    Fisheries Act, s. 33(3) is ultra vires federal government
    Provision prohibits deposit of logging debris period, but provides no connection to protecting fish
        or fish habitat (which is the area of federal power)


R. v. Northwest Falling Cont. Ltd. 1980 SCC               FUNCTIONAL – FISHERIES INTRA VIRES
FACTS:
     Fuel tanks resting on rotten log leak fuel into tidal waters - charged with violating subs. 33(2) of
        the Fisheries Act (equivalent to today‘s subs. 36(3)) – deleterious substance) – NFC says
        provision is ultra vires feds
PRIORS:
     Not ultra vires, and confirmed on appeal
HELD:
     Fisheries Act, s. 33(2) is intra vires federal government
     Provision prohibits deposit of deleterious substances which by definition are related to protection
        of fish / fish habitat




Conceptual Powers

R v. Hydro-Quebec 1997 SCC               CONCEPTUAL – CEPA s. 34 & 35 INTRA VIRES
BACKGROUND:
     Arose because prov took no steps to prosecute even though prov leg prohibited PCB dumping
FACTS:
     A provincial electric utility was charged under dumping PCB‘s under s. 6(a) of a federal
       regulation, which had been passed pursuant to s. 35 of CEPA (could have been passed per s. 34)
PRIORS:
     Dismissed in the Court of Quebec - leg was excessively broad, and ultra vires feds
     PLUS the enabling legislation not be constitutionally supported under Parliament's criminal law
       power by virtue of s. 91(27) of CA1867.
     Appeal to the Superior Court and further to Court of Appeal was dismissed on similar grounds
ISSUE:
     Was the fed regulation made under CEPA intra vires parliament?
     Is fed control of toxic subs valid as a federal power either via POGG or CRIM LAW POWER
HELD:
     Appeal allowed – leg is intra vires feds under CRIM LAW POWER
     STEP 1 – which head of s. 91 can this leg be brought?
        o The criminal law power of Parliament under s. 91(27) of the CA is broad and plenary
           (subject to s. 7 and colourable attempts)
        o must adapt to emerging values of Canadian society, one of which is the stewardship and
           protection of the environment, which is a valid public purpose.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         12


        o   Parliament may validly enact prohibitions under its crim law power against specific acts for
            the purpose of preventing pollution
        o   The Order could be justified as a criminal prohibition for the protection of human life and
            health alone.
                           Purpose of s. 34 is to prohibit the use of ―toxic‖ substances. This is a limited
                              prohibition applicable to a restricted number of substances.
                           The prohibitions are enforced by a penal sanction and underpinned by a
                              valid criminal objective. Thus, it is valid criminal legislation.
        o   Section 35 deals with emergency situations. It comes into play when the designated Ministers
            believe a substance is not specified in the list of toxic substances in Schedule I of the CEPA,
            or is listed but not subject to control. In such case, an interim order may be made in respect
            of such substance if the Ministers believe that immediate action is required to deal with a
            significant danger to the environment or human health. Sections 34 and 35 are intra vires
            Parliament under its criminal law powers.
        o   The Order could be attacked only on the basis that PCBs did not pose a significant threat to
            human health, and hence the Order went beyond the authority granted by s. 35.
DISSENT:
    Beyond the purview of criminal law
       o The pith and substance of Part II of the CEPA is the wholesale regulation by federal agents
           of any and all substances which may harm any aspect of the environment or may present a
           danger to human life or health. The impugned provisions were more of an attempt to regulate
           environmental pollution than to prohibit or proscribe it.
       o The CEPA provisions failed to meet the prohibitory criteria of a legitimate criminal purpose
           in that they did not prohibit, but rather regulated, environmental pollution.
                         They contained no blanket prohibitions from which certain circumscribed
                            exemptions were carved, for example.
COMMENTARY:
    Majority decision depends on the analysis of ―toxic‖ in the legislation – namely, that it applies to
      ―toxic‖ substances in the ordinary sense – ie – poisonous – the legislation is not intended to apply
      to an extremely broad range of substances (which would make it too broad to be discrete
      prohibitions with penal consequences – what is necessary for criminal power) (paras 138-47)
               o Minority says ―toxic‖ in the leg too broad
    Majority says not regulatory, but rather a carefully tailored set of criminal prohibitions with penal
      consequences – the amount of detail (which happens to resemble a regulatory scheme) is actually
      necessary to tailor the legislation to make the prohibitions discrete as is necessary
               o Minority says ―oh please‖


POGG Power

       May the federal government regulate activities wholly within a province, on provincially owned
        land, with no evidence that the substance deposited has any deleterious effects or any impact
        outside the province?
            o S. 91: ―It shall be lawful for [Parliament] to make Laws for the Peace, Order, and good
                Government of Canada, in relation to all Matters not coming within the Classes of
                Subjects by this Act assigned exclusively to the Legislatures of the Provinces‖

       Two dimensions relevant to environmental law: ―national concern‖ and ―national emergency‖
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          13


        Deemed Matters of National Concern:
            o Marine pollution
            o Capital area project
            o Ozone depletion
            o (so surely) Climate change
            o (so surely) Loss of biologicial diversity
            o (so surely) Safe drinking water
            o (so surely) ETC

R v. Crown Zellerbach Canada Ltd 1988 SCC                  POGG NATIONAL CONCERN TEST
F:      Ocean Dumping Control Act (fed) regulates marine pollution. Accused succeeds in lower courts
        having it declared ultra vires parliament.

I:       Is marine pollution prevention a POGG National Concern or within s. 91(12) – seacoast and
         federal fisheries?
             1. Does it possess a singleness, indivisibility and distinctiveness distinguishing it from
             provincial concerns?
             2. Would impact on provincial powers be reconcilable with the Constitution‘s fundamental
             distribution of powers?

H:       Not s. 91(12) – not specific enough re: pollution. BUT IS justified under POGG National
         Concern. Leg only applies to salt water, making it ―distinctive‖ enough. Due to the nature of
         oceans connectedness, etc) beyond the scope of provinces to regulate.

R:       POGG National Concern Test

D:       (LA FOREST) Invalid to distinguish between salt and fresh water pollution


Arguments for/against Federalism

Pro-Centralization:

         1) Race to the bottom (tragedy of the commons)
            o ENVIRONMENTALISTS - Provincial jurisdictions will compete for investment and
                tend to lower/not raise environmental standards
         2) Spillovers (transboundry externalities)
         3) Risk of capture by locally dominant interests
            o Law / policy making policy process might be captured by the regulated industry itself –
                less chance with a non-local, central government
         4) Disparities in effective representation?
                a. Industry has more resources for lobbying vs. environmental groups / public interest
         5) Economies of scale

Pro-Decentralization:
      1) Race to the top
      2) Geographic variation in preferences
                   o Citizen preferences can be included
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        14


       3) Democratic self-determination?


In Practice
              o   Constitutional ambiguity is an excuse for inaction at both levels (Boyd)
              o   Harmonization (1998 Harmonization Accord, CCME)
                      Reduction of inefficient duplication or abdication of federal responsibility?
              o   Reasons for federal governments narrow view of it own powers (Boyd)
                      Quebec and the National Unity question
                      Alberta and Western conservatism
                      Federal government‘s deficit-reduction agenda
                      Cyclical public attention?


Obstacles to Environmental Progress re: Federalism

      1) Constitution unclear on division of power for environmental matters – reality is overlap

      2) General consensus that federal government has more power to act than they exercise:
          a. Not fueling separatist fires in Quebec
                   Quebec opposed to the Canadian Environmental Protection Act in 1987
                   Quebec industries violate federal environmental laws and are not prosecuted
          b. Provinces oppose feds acting on environment for fear of effect on economic activities
                   Provincial opposition leads to watering down of environmental laws and the
                     absence of legally binding national standards
          c. Environmental standards reform is costly and fed trying to reduce deficit




2.2 Local governments

   What role can and should municipalities play in environmental protection?

114957 Canada Ltée (Spraytech) v. Hudson, 2001 SCC              PESTICIDE BYLAW INTRA VIRES
FACTS:
 Acting on residents longstanding concerns, the Montreal suburb of Hudson enacts a bylaw restricting
   ―cosmetic‖ use of pesticides within town limits. Hudson charges lawn care companies with violating
   the bylaw. The companies move for a declaration that the bylaw is outside the town‘s authority
ISSUES:
       1) Did the town have authority to enact the bylaw?
           o General source & scope of municipal powers
                    Specific powers (EG - section 412 ―toxic materials‖, or zoning bylaws)
                    General welfare powers (EG - s. 410)
       2) Does it conflict with federal or provincial jurisdiction?
           o Test for conflict (―Multiple Access‖): impossibility of simultaneous compliance
           o Is there a conflict here?
HELD:
    ISSUE (1)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        15


      Basis for municipal powers is to be found ONLY in the enacting legislation
      Can be express, necessarily or fairly implied and indispensable powers essential and not merely
       convenient to carry out the purposes of the municipality (R. v. Sharma, 1993 SCC)
            o A leg provision s/b construed with reference to the object of the municipality: to render
               services to a group of persons in a locality with a view to advancing their health, welfare,
               safety and good government. (Shell)
      "general welfare" powers, conferred by provisions in provincial enabling legislation,
            o Intended to circumvent, to some extent, the effect of the doctrine of ultra vires which
               puts the municipalities in the position of having to point to an express grant of authority
               to justify each corporate act"
                     NOT an unlimited power – can‘t be used as a basis for enacting by-laws that are
                        in fact related to ulterior objectives, whether mischievous or not.
      Unless clear demo that a municipal decision was beyond its powers, courts should defer
            o For implied powers, courts should adopt the "benevolent construction" (Greenbaum), and
               confer the powers by reasonable implication.
      HERE, the by-law at issue requires reading in of an implicit purpose.
            o Based on the distinction between essential and non-essential uses of pesticides, it is
               reasonable to conclude that the Town by-law's purpose is to minimize the use of
               allegedly harmful pesticides in order to promote the health of its inhabitants.
                     This purpose falls squarely within the "health" component of s. 410(1).
      Bylaw jives with PP
                     PP is codified in several pieces of domestic legislation and is customary now in
                        international agreements, etc
      ISSUE (2)
      As a general principle, the mere existence of provincial (or federal) legislation in a given field
       does not oust municipal prerogatives to regulate the subject matter.
      Conflict with FEDERAL LEG
      The bylaw is subject to the ―express contradiction test‖ (Multiple Access Ltd. v. McCutcheon,
       [1982] 2 S.C.R. 161) used to test apparently conflicting federal and provincial leg
            o No need to consider paramountcy and preclusion except where there is actual conflict in
               operation as where compliance with one is defiance of the other
            o HERE, legislation is permissive, rather than exhaustive, and there is no operational
               conflict with By-law 270.
      Conflict with PROVINCIAL LEG
      The Multiple Access test, namely "impossibility of dual compliance" was foreshadowed for
       provincial-municipal conflicts in dicta contained in this Court's decision in Arcade Amusements...
      HERE, no barrier to dual compliance with By-law 270 and the [provincial] Pesticides Act, nor
       any plausible evidence that the legislature intended to preclude municipal regulation of pesticide
       use.
            o The Pesticides Act establishes a permit and licensing system for vendors and commercial
               applicators of pesticides and thus complements the federal legislation's focus on the
               products themselves. Along with Bylaw 270, these laws establish a tri-level regulatory
               regime.

COMMENTARY:
   It is conceivable that a municipality would be more likely to use GENERAL WELFARE powers
    instead of SPECIFIC POWERS in order to circumvent the requirements (such as ministerial
    approval) required for legal enaction of specific welfare paragraphs
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           16


       Quebec has imposed a statutory province-wide ban
       Toronto bylaw upheld in Croplife v Toronto 2005 ONCA


SUBSIDIARITY & THE PRECAUTIONARY PRINCIPLE

   Q: Is local control over environmental issues a good thing or a bad thing? From whose perspective?
   Q: Should local regulation be limited to ―local‖ matters? What are suitable issues?

o   Subsidiarity
        Originated in the Catholic church
        ―Subsidiarity‖ = ‗the idea that a central authority should have a subsidiary function,
           performing only those tasks which cannot be performed effectively at a more immediate or
           local level.‟
                    Law-making and implementation best at a level of government that is not only
                       effective, but also closest to the citizens affected and thus most responsive to their
                       needs, to local distinctiveness, and to population diversity.
                    Subsidiarity means that small problems should be handled by small parts of an
                       organization (or country). Big problems by big parts or by carving the big
                       problems up into smaller ones that smaller parts can handle.
        WHY:
                Because a complex system like a society is often too complicated for one person, or
                    one bureaucracy to manage alone.

           WHEN (four criteria of when subsidiarity should be applied)
              1) „sufficiency criterion,‘ states that smaller institutions or individuals alone will not be
              able to solve the problem. Help is required from a larger body.
              2) „benefit criterion,‟ states that intervention by a higher authority should bring greater
              benefit than the smaller institutions alone could have achieved.
              3) ‗close to the citizen criterion,‟ states that action should be taken in close cooperation
              with locally affected individuals.
              4) „autonomy criterion,‟ dictates that the intervention of a higher power must secure
              greater freedom for individuals.

           RESULT:
                Subsidiarity helps to electrify that connection among the levels of a system, by
                 making sure that smaller groups, starting with the individual, then families, then
                 churches, communities, local governments and so on, contribute to the strength of the
                 system as a whole.

o   Precautionary Principle

   Local government BAD for environmental protection:
           o Noxious weed bylaws


2.3 The institutional challenge of sustainability
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        17


       Policy learning is complex and rare: occurs best at policy-style and sub-program levels, but
        lessons are often sought at program level
       Rare policy windows need to be recognized and used
       Law provides fundamental underpinning of institutional systems
       Precautionary principle, policy integration, institutional pluralism, public participation

“Sustainability” = a higher order social goal or a fundamental property of natural or human systems
(akin to democracy, equity, rule of law, etc)

“Sustainable development” = the variable policy manifestatin of society‘s attempt to address the goal of
sustainability and enhance that property

   3 categories of sustainability issues:
        1. Traditional: Resource and environmental issues (EG – conservation, pollution, etc)
        2. Higher-order: Integrity of entire natural systems (EG – global climate, nutrient cycles, etc)
        3. Societal, economic and humand development issues (EG – poverty, consumption,
            urbanization, health, human rights, security, etc)

   Causes of sustainability problems
           o Systemic, located in patterns of production and consumption, settlement and governance
           o Require multiple coordinated strategies to address the underlying causes


Institutional Setup in Canada

       Environment depts in all fed, prov & terr govts since 1970s
       Enforcement increasingly separated since 80s
       More independent agencies & tribunals since 80s
       Envtl authority spread among numerous other depts too
       Piecemeal intra- & inter-governmental coordination, e.g. CCME, IJC, NACEC
       Some attempts at integration into all line departments
            o National and provincial Roundtables in 1990s
                     Consultative with experts and stakeholders
                     Actual strategies for approaching sustainability
                     Weakness:
                              Inability to institute legal changes, and avoiding PR-only lure
       Environmental watchdog agencies starting in 1990s


Instruments

   Always complicated to make informed policy choices because policy interventions
       o Enhance sustainability by changing the behaviour of individuals and group operating in
           complex social systems, interacting with complex natural systems

   No matter the dominant instrument chosen, three will always be required:
                1. Legal
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     18


                       o In our society without legal basis, instrument will be easily challenged
               2. Institutional
                       o The only way to achieve social goals
               3. Educational
                       o People intended to implement or comply must understand the logic and
                           implications

   REGULATORY:
         o Government mandated standards, targets, permits and licenses, inspections, prosecutions
           and orders
         o PROBLEM:         Empirical evidence often lacking – issue whether regulation as a policy
           is deficient or whether the problem is poor regulatory design and/or implementation
         o PROBLEM:         Roles of law and legal change as component of policy and institution
           change is not considered, for example, law offers:
                Defining agency objectives
                Mandating info gathering
                Structuring societal debate
                Guaranteeing public participation
                Ensuring transparency
                Creating new institutional forms

   OTHER solutions include:
      1. Self-regulation
             1) Industry codes of conduct, mandatory self-regulation, co-regulation, challenge
                 programs, industry-community agreements, voluntary gov-industry agreements,
                 voluntary covenants on property title (conservation covenants)
      2. Economic Instruments
             1) Provide positive or negative incentives for specified behaviour
             2) EG –property rights (tradeable pollution resource rights), taxes, effluent charges,
                 user fees, fines, grants, subsidies, liability rules and deposit-refund schemes
                      i. IDEA BEHIND TRADEABLE POLLUTION RIGHTS:
                           Right to pollute or to exploit will be transferable for value
                           Therefore, it will go to those who value it the highest
                           Those who value it most will likely either use it most efficiently OR be
                               most unable to reduce pollution
                           PROBLEM: Good in theory, but do not meet the principles due to the
                               gap between theory and practice
                                   o Ignore community concerns (EG – avoiding pollution)
                                   o Ignore community trends???
      3. Community empowerment
      4. Research and development
             1) EG – atmospheric research, monitoring of environmental quality
      5. Information & Education
             1) EG - Publicity campaigns, formal education, training programs, award schemes, state
                 of the environment reports, pollution inventories product certification (eco-labels),
                 and assessment procedures (impact assessments)
      6. Legislation and quasi-legislation
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        19


                1) EG – Statutes, delegated legislation, intergovernmental agreements, internal non-
                    binding rules, policies or guidelines issued by administrative authorities
        7. Institutional and Organization Reform
                1) EG – Removal of conflicting policies
        8. Deliberate Inaction


Criteria for Evaluating Instruments:

    1) Effectiveness Criteria
           a. Ability to achieve policy maker‘s goals including:
                    i. Efficiency (cost-benefit analysis)
                   ii. Information Requirements
                  iii. Dependability
                  iv. Corrective vs. antidotal focus (symptoms or causes addressed)
                   v. Flexibility (across time, contexts)
                  vi. Influence on other policy sectors
                 vii. Impact on equity principles
    2) Procedural Criteria
           a. Address the process by which the instruments are chosen, including:
                    i. Transparency
                   ii. Accountability
                  iii. Inter-agency coordination
                  iv. Stakeholder participation
    3) Implementation Criteria
           a. Address obstacles to implementation of the chosen criteria, including:
                    i. Costs over time
                   ii. Political and social acceptability
                  iii. Legal and constitutional constraints
                  iv. Institutional feasibility
                   v. Monitoring requirements
                  vi. Ease of enforcement/evasion
                 vii. Ease of communication to those affected (by the instrument)


Public Policy and Institutional Design

   “Policy”
           o    RATIONAL-COMPREHENSIVE APPROACH - Historically, thought of as a linear
                rational process producing optimal responses to well-defined problems
            o POLICY-CYCLE MODEL – Newer, recognizes complexity, political realities and
                imperfect information - recognizes multiple policy systems and sub-systems nested
                within complex institutional settings
   “Institutions” – EL page 24
            o Persistent, predictable arrangements, rules, norms, laws, processes or customs serving to
                structure and co-ordinate the political, social, cultural or econocim transactions or
                relationships between individuals and groups in society
   “Organizations” – EL page 24
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    20


           o    Manifestations of deeper institutions – more easily dissolved or radically changed than
                institutions
            o EG – a government department is an organization manifestation of the rules produced by
                the institutional system of parliamentary democracy
   “Public policies” – EL page 24
            o Positions taken and communicated by governments – avowals of intent that recognize
                and frame a problem in a particular way, and state what will be done about it
            o Produced through multi-component and variable policy processes
            o Having a cyclical character
   “Policy Programmes” – EL page 24
            o More specific and substantial manifestations of a policy, comprising elements of
                implementation as well as of intent
            o Programmes fund discrete projects
   “Policy Actors” – EL page 24
            o Influence and formulate policy as individuals and organized groups
            o All those involved in discussion on a particular issue are a policy community
            o Responsibility for or power within actual policy formulation and implementation are the
                policy network
   “Policy instruments” – EL page 25
            o Tools used by governments in partnership with other players to implement policies and
                achieve policy goals
            o EG – a regulation, education campaign, tax, intergovernmental agreement
   “Management” – EL page 25
            o Describes ‗on the ground‘ actions both in implementing a policy instrument and the more
                tangible physical actions required

   A policy cycle: EL page 27 for more sub-steps
           c. Problem Framing
           d. Policy Framing
           e. Policy Implementation
           f. Policy Monitoring and Evaluation

          Key elements:
                  o Policy Process
                          Coordination and integration within AND across policy fields
                          Public participation and stakeholder involvement
                          Description and communication
                          Transparency and accountability


BOX - Successful sustainability policy characteristics:
1. Persistent over time
2. Purposeful via widely recognized mandate and goals
3. Information rich and sensitive – including gathering use and ownership
4. Inclusive in policy formation and implementation; and
5. Flexible, through evaluation, experimentation and learning
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     21



Sustainability In Practice (Elements & Policy problem)

Central Elements of Sustainability:

1. A pattern of economic and human development that doesn‘t damage future generation opportunities to
use natural resources and enjoy a healthy environment while allowing for human development goals to be
met in the near term

2. Recognition that social and policy goals must include concern for:
       - bio-diversity and ecological life support systems
       - the need to treat the environment and development as integrated rather than as competing
       considerations

3. Guiding Principles for policy and decision making:
        - short and long term considerations
        - integrating environmenta, social and economic concerns
        - PRECAUTIONARY PRINCIPLE - taking precautionary measures in the face of possible
        serious environmental degradation
        - consider global implications of domestic policy directions
        - using innovative policy approaches
        - involving communities in decision making

Sustainability as a Policy Problem:

   EL PAGE 34  14 attributes of policy problems / difficulties in sustainability
       o Big sustainability problems (climate change, biodiversity, etc) evidence more policy
         problems more often and in greater combination
              THUS, sustainability problems are DIFFERENT IN KIND than other policy issues
              THEREFORE, existing policy approaches, institutional arrangements and knowledge
                 systems may have difficulty handing sustainability problems
       o The attributes mean that the only adequate policy responses must apply to a range of issues
         and problems, rather than separate concerns – inviting joint policy analysis + learning
              Whole-of-field understanding, capacities and institutional and policy settings needed

   EL PAGE 36  implications of new breed of policy problem - sustainability requires policy and
    institutional settings that…

   EL PAGE 37-8  Trends in application of sustainability policy

   Sustainability Problems are Unique:
           o What kind of institutional response do they require?

   Suggested principles for institutional change:

        A. (Re) Frame the problem:
        1. Provide institutional space for sustainability discourse
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       22


               Discourse on convergence of 3 concerns in the environmental debate – ecological
                integrity, economic efficiency and social justice
             CURRENT: Universities, NGO‘s, business, think tanks, gov dept‘s
             NEED: NCSD or other state sanctioned forum
             GOAL: Agreement on principles moving forward
        2. Ensure institutional and societal value changes are reinforcing
             Must align sustainability values with social values – this can only be done incrementally
        3. Ensure institutional and legal change are reinforcing
             Law can hinder or help innovation or institutional change
        4. Use international law as a driver of policy and institutional change

        B. (Re) Organize Government
        5. Integrate environment, society and economy concerns in policy and practice
              IMPLEMENTATION of discussion in #1 above
              Across both admin/political and spatial/geographical scales
              PRECONDITIONS: Policy process and organization structures AND techniques and
                 methods
        6. Implement subsidiarity
              Important for political, administrative and substantive reasons
        7. Allow for reiteration and learning
              Given the decades long time horizon for sustainability (convergence of institutional
                 change and social value change), long term reiterative processes should be instituted
                               Policy learning is complex and rare: occurs best at policy-style and sub-
                                  program levels, but lessons are often sought at program level
                               Rare policy windows need to be recognized and used

   NOTE: Institutional change is proceeding very slowly



4 IMPERATIVES OF SUSTAINABILITY

   The role of law underpinning significant policy change is critical

        1. Precautionary Principle
         Focus on:
         LEGAL ISSUE - It‘s incorporation into legislation and stat interp in the courts
               o Necessary to adopt the changed social value that the PP represents
               o Instructions for DM‘s on how to implement precaution in varying contexts is
                   required – frameworks such as ‗adaptive management‘ or ‗risk mgmt‘ procedures,
                   decision support techniques such as multi-criteria analysis
               o THAT IS, legal aspect of adopting the PP is critical, but only fully effective when
                   linked to organizational and management processes and to operational
                   techniques making it more than vague instruction in enabling legislation
         SOCIAL ISSUE - The broader political meaning of the PP in terms of the degree of action
           required to attend environmental degradation
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                  23


       2. Policy Integration (environmental, economic, social justice)
              o No widely accepted means for integration, but available strategies include procedures
                  (EG. SEA), institutional measures (EG. NCSDs), interdepartmental committees and
                  commissioners for sustainability and/or environment, techniques such as natural
                  resource accounting and sustainability indicators
              o If these types of measures are prescribed in legislation benefits include: less
                  discretion, more transparency, persistence and methodological consistency
              o Policy integration as a principle often expressed in law as part of PP

       3. Non-traditional and multiple scales of policy and governance
             o Key problem with sustainability policy is lack of fit between traditional political,
                 jurisdictional and admin boundaries and the characteristics of natural systems
                       DEFINED BY ATTRIBUTES # 1, 5, 11, EL PAGE 34
             o One necessary aspect is SUBSIDIARITY
             o Must construct policy and mgmt regimes on non-tradition scales, including:
                       locality, sub-national region, bioregion, catchment, etc; AND/OR
                       Issues and sectors: energy, biodiversity, transport, water quality, etc
                       BUT, these types of arrangements are not well supported by institutional or
                          legal provision

       4. Public Participation
             o MINIMUM key for environmental law is provision for citizens rights to know about,
                 comment on and/or object to policy and development proposals
             o Also happening in community-based programs and important in emerging, non-
                 traditional scale activities such as catchment and regional management, and in
                 emerging institutional experiments
                      CURRENTLY, not much participation in higher level policy process
                      Suitable institutional processes need to be developed for this – legal
                          provision beyond command-and-control would be critical


Learning Policy and Institutional Change

      Categories can structure thinking about how to maximize learning opportunities to accommodate
       different interests and needs
           o Instrumental and Government
                     FOCUS on learning how to achieve existing goals
           o Social and Political
                     FOCUS on learning to seek new ways to define goals and problems and new
                         institutional forms
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     24




      Learning from policy experience can be focused on three levels:
          1) Sub-program detail
                   Specific elements of the policy process and program
                   EG – aspects of the monitoring program, stat framework, participatory process
          2) Policy program
                   Searching for a complete policy package (EG – elements in Table 1 PAGE 27) or
                      an institutional or organization model that can be transferred to another
                      institution
          3) Policy style
                   Different broad policy ideas that can be explored and tried elsewhere

      Across contexts, style 1 and 3 most appropriate (direct transfer won‘t work usually)
      Haste and lack of resources lead to adopting style 2 – direct transfer of complete program
      RISK
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          25


           o    MUST BE CAREFUL TO ENSURE that lessons taken from another jurisdiction or
                sector are applicable in other jurisdictions
            o POLICY WINDOW = periods of opportunity or imperative for policy change, often after
                a period of reasonable stability in policy style and instruments used – TWO TYPES:
                     Predictable
                              Lead in period to a gov budget; after review of a policy program,
                                 publication of a major review (state of the environment report),
                                 finalization of international agreements, an election
                     Unpredictable
                              Scientific discoveries, unforeseen envrionemtnal changes like drought,
                                 etc, sudden realization of policy failure, rise of influence of a particular
                                 interest group, quick changes to international settings
      Little change, beyond excessive rhetoric, may be visible during times of policy change BUT
       taking a longer view of adaptive policy and institutional systems apparent policy volatility can
       become in retrospect a march of consisten underlying change
            o Key to responding to policy windows is to build familiarity and capacity in policy
                communities and the public, development of suite of policy options and maintaining a
                sophisticated understanding of the various elements that must be utitlized in policy
                interventions and institutional reform




UNIT 3 – COMMON LAW & THE ENVIRONMENT

3.1 Challenges and Limitations
Toxic Torts:
        WHAT: Any civil action to prevent or redress actual or threatened environmental damage
                   o Includes toxic substances, and also noise, odour or physical damage
        HISTORY: Main remedy for environmental damage (env = property), now a last resort
        Advantages of civil actions:
                   o Gap-filling re: incomplete regulatory scheme
                   o Compensation
                   o Prevention
                   o Agenda-forcing (test case litigation)
        Limitations of civil actions
                   o complexity (social and scientific)
                   o causation
                   o burden of proof
                   o fluky
                   o reactive
                   o adversarial
                   o expensive
                   o conservative
Typical kinds of “toxic tort” actions:
   1. To prevent threatened exposure to alleged toxins
           a. E.g. Palmer
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                 26


    2. To recover for alleged existing injury
           a. Key obstacle: establishing causal link to defendant‘s activity (e.g., A Civil Action)
    3. To recover for enhanced risk of future injury


Palmer v Nova Scotia Forest Industries
FACTS:
   o Plaintiffs, after getting an injunction stopping the spraying, seek to prevent future proposed aerial
       herbicide spraying of NS coniferous forests, part of the world-wide anti-Agent Orange campaign
ISSUES:
        Challenge in having judges decide questions of science, instead of having these questions
           answered by a board composed of experts
        Issues to consider:
       (A) a permanent injunction enjoining the defendant from spraying the phenoxy herbicides 2,4-
       D and 2,4,5-T at the sites,
       (B) a declaration that the plaintiffs have the right to be free of exposure to the phenoxy herbicides
       2,4-D and 2,4,5-T.
               HELD: the relief claimed of a declaration that the plaintiffs have the right to be free of
               exposure to the phenoxy herbicides 2,4-D and 2,4,5-T is not one within the power of this
               court to grant.
HELD:
    To obtain a permanent preventive (quia timet) injunction, plaintiffs must show:
                            1. Irreparable harm if injunction not granted;
                            2. Damages would be an inadequate remedy; and
                            3. Strong probability that the apprehended harm will occur
    Problem: enhanced burden of proof
                 Must show ―strong probability‖ that (1) TCDD poses serious risk to human health,
                    and (2) such serious risk will arise if spraying takes place
    Main causes of action
       o Trespass: Established if D permits any herbicide (noxious substance) to enter onto P‘s land
               o Seems a low threshhold; why did Plaintiffs lose on this?
                            Trespass to land, on the other hand, does not require proof of damage and is
                             actionable per se. Again there is no doubt in my mind that, if it is proved that the
                             defendant permits any of these substances on the plaintiffs' lands, it would constitute
                             a trespass and be actionable
        o   Nuisance: Established if Ps prove exposure will occur and will create serious health risk
               o The law is clear, however, that only some substantial interference with a person's enjoyment
                    of property gives rise to an action in nuisance. Turpin v. Halifax-Dartmouth Bridge
                    Commission (1960), 21 D.L.R.(2d) 623. Equally clear is the requirement that there must be
                    proof of damage. In In the present case the allegation is that these offending chemicals, if they
                    get to the plaintiffs' land, will interfere with the health of the plaintiffs thereby interfering
                    with their enjoyment of their lands. Clearly such an interference, if proved, would fall within
                    the essence of nuisance. As a serious risk of health, if proved, there is no doubt that such an
                    interference would be substantial. In other words, the grounds for the cause of action in
                    nuisance exist here provided that the plaintiffs prove the defendant will actually cause it, i.e.
                    that the chemicals will come to the plaintiffs' lands and that it will actually create a risk to
                    their health.
        o   Strict liability (Rylands): Established if Ps prove TCDD likely to do harm and likely to
            ―escape‖ to Ps‘ land:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                               27


               o    The rule in Rylands v. Fletcher (1868): The occupier of land who brings and keeps upon it
                    anything likely to do damage if it escapes is bound at his peril to prevent its escape, and is
                    liable for all the direct consequences of its escape, even if he has been guilty of no
                    negligence."      No elaboration of the rule or applications of it are necessary. It is for the
                    plaintiffs to prove the constituent elements - its likelihood to do damage, its escape and the
                    direct consequences.

       o   Other country practices are not relevant if not based on scientific evidence
       o   Accepted defense experts testimony
              o I accept the evidence of the defendant's witnesses as representing the generally accepted view
                    of responsible scientists, and also as indicative of the risks involved. Each of them
                    categorically states that neither 2,4-D nor 2,4,5-T, nor the concentration of TCDD presently in
                    2,4,5-T, nor the mixture of 2,4-D and 2,4,5-T in the concentrations to be sprayed on Nova
                    Scotia forests pose any health hazard whatsoever. I am unable to accept that the plaintiffs
                    have proved any strong probability or a sufficient degree of probability of risk to health to
                    warrant the granting of the remedy sought, a quia timet injunction.
COMMENTARY ISSUES:
  o Courts and science: when should courts judge or refuse to judge science?
  o Law vs. politics: should courts defer to regulatory agencies? When should courts enter ―broad
    social arena‖?
  o How should the problem of uncertainty be resolved?
  o Especially in a case where the alleged harm has not yet occurred?


Civil Actions 101

   The primary ―environmental torts‖ are
                   1) Negligence
                   2) Nuisance
                   3) Strict Liability (Rylands v. Fletcher)
                   4) Riparian Rights
                   5) Trespass

   Burden of proof in civil cases = BOP
   Contrast with:
        Criminal and regulatory prosecution = BARD
        Preventive injunctions: ―strong‖ probability
        Negligence
                    Most important & flexible action
                    Unintentional but ―unreasonable‖ harm caused to a person to whom you owe a
                        duty of care
                    Elements of cause of action: duty, breach, causation, damage
                    Remedy: usually monetary damages

   Nuisance
        Unreasonable interference with the use and enjoyment of land
                 Nature of act complained of (reasonable & ordinary?)
                 Nature & severity of injury suffered
                 Character of neighbourhood
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     28


                   Duration of wrong
          No actual damage or physical entry necessary
                   E.g., Bridges Bros (spruce budworm spraying) (not assigned)

          LIMITATIONS:
                 PROPERTY: P must own affected land
                          But nuisance may emanate from anywhere
                 DEFENCE: of statutory authority
                          Contoversial, confused, probably available only to gov‘t
                 REMEDIES
                          Damages, injunction, abatement

   Strict Liability
         Occupier of land who keeps anything likely to do damage if it escapes liable for reasonably
            foreseeable consequences of escape
         Rylands v. Fletcher (HL 1868)
                      PROPERTY: P doesn‘t have to own affected land, but activity must occur on
                        D‘s land
                      Substance/activity must be ―non-natural‖
                      Actual physical escape from D‘s land required
                      Actual damage required
                      REMEDIES
                                     Damages, injunction
                                     Liability limited to foreseeable damages:
                      EG - Cambridge Water Co (HL 1994) (contamination of water supply from
                        stored industrial chemicals)

   Riparian Rights
        McKie v. K.V.P. Co. (Ont. H.C. 1948) (not assigned)
                   FACTS: Riparian owners allege injury caused by pollution from upstream pulp
                    mill
                   ISSUE: Are plaintiffs entitled to damages for past harm and injunction prevent
                    future harm?
                   Riparian owner entitled to water of stream ―in its natural flow, without sensible
                    diminution or increase and without sensible alteration in its character or quality‖
                   But also entitled to ―reasonable use‖ of water
                   not necessary to prove damage (―injury‖ vs. ―damage‖)
                   no ―multiple polluters‖ defence
                   D admits discharge of injurious matter; P proved injury to riparian rights, entitled
                    to damages and injunction.

   Trespass
        Powerful remedy for localized pollution
        ELEMENTS:
                 Direct interference with another‘s property without justification
                 Requires direct physical entry on P‘s land
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       29


                    No actual damage required
           PROPERTY:
                    D need not hold land, but must invade P‘s land
           REMEDIES:
                    Damages
                    Injunction
           Airborne drift: some courts say airborne drift of pesticides is trespass, others say no




3.2 Regulatory Negligence / Public Authority Liability

   When will public authorities be liable for negligence in exercising their powers?
          o Negligence: unreasonable conduct harming someone to whom you owe a duty of care
               and for which the harm was foreseeable (type and class of people)
          o How to strike a balance between freedom to make political decisions about risk and
               responsibility for carelessly causing or permitting harm?
          o General question: When should a regulator be liable for harm suffered in a field it
               purported to be regulating (EG – negligent inspections)
          o Should government be treated differently than other parties?


Gauvin v. Ontario (MOE)                                         NEGLIGENCE CASE
FACTS:
    Contractor installs below-standard septic system
    Ontario law prohibits operation of a septic system unless the MOE first inspects and approves it.
    Contractors must certify that regs are met and provide evidence before a permit will be issued.
    MOE issues permit even though the contractor did neither of these things. The system failed.
HELD:
           o Per Just v. BC, operational (vs. policy) decisions must satisfy the SOC if applicable
           o 1) MOE owed a DOC in carrying out operational decision to issue septic system permit
                    They did not satisfy the SOC by issuing a permit without the required documents
           o 2) Once DOC is established, must consider governing legislation:
                    If leg confers power with discretion as to scale of exercise, regulator is not liable
                     for policy decision (whether or how to act), but once decides to act, liable for
                     negligent operation of the those policy
                           EG – policy decision = enact a law (say, safe water act)
                           Government could not be found negligent for not enacting a more strict
                               safe water act (policy)
                           EG – operational decisions = implement the procedures req‘d by a law
           o Why defer to policy decisions?
                    Legislature is supreme
           o Difficult to distinguish between POLICY vs OPERATIONAL decisions
                    EG – Cooper
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      30


Ingles v. Tutkaluk Construction Ltd 2000 SCC               MUNICIPAL INSPECTOR LIABILITY
FACTS:
     Ingles hires a contractor to lower his basement floor, requiring construction of foundation
        underpinnings. Contractor convinces Ingles to proceed prior to obtaining required permits. City
        permit inspector can not properly inspect underpinnings but grants permit anyway. Water damage
        to Ingles basement caused by not-to-code underpinning construction
PRIORS:
     Trial – Ingles 6% contributorily negligent for allowing work to proceed with permit, contractor
        and City of Toronto, joint and severally liable for remaining 94% of damages (100% = $50,000)
     CA – trial judgment reversed – City owed no DOC to Ingles because by allowing work to
        proceed without permit, Ingles removed himself from class of people owed a DOC by City
HELD:
     Trial judgment restored (City liable)
     Anns/Kamploops negligence test applied (PRE-COOPER)
             o Duty – harm reasonably foreseeable? YES
             o Duty – policy reason preventing private law duty? NO
                      If leg which gives discretion and the authority elects to perform the authorized
                         act, they are subject to a DOC in performing (EG – inspection schemes)
                      Only DOC if not a policy decision (= whether or how to act), but rather
                         implementation of the policy decision / operational level decision
RATIO:
     Negligent conduct of an owner/builder does not absolve a municip of duty to take
         reasonable care in exercise of discretion / non-negligently operating it‟s inspection regime
    o There are situations where choosing a policy of NO policy may be actionable against the
         government
              Where an inspection is provided by statute (BUT implementation plan at the discretion of
                 the public authority), the authority can not immunize itself from liability by making a
                 policy decision NOT TO inspect
              A policy decision whether or not to inspect by a municipality must accord with their
                 statutory purpose (health and safety, etc)




3.3 Mass Torts

   How can you redress widespread harm suffered by a large number of people?
   Public nuisance actions
        Action to protect public interest in health, environment, etc
        Historically only AG could sue for public nuisance, unless plaintiff could prove ―special
            damage‖, but Ontario EBR abolished special damage req in 1993
                Special damage = of a kind or degree that is different than most people

o   Class actions
        Where a number of plaintiff‘s bring an action on behalf of a group who are similarly situated
        Action by a representative plaintiff on behalf of all similarly situated persons
       Key Advantages:
                1. Improve access to justice
                       o By allowing plaintiff‘s to share the fixed costs of litigation)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                             31


               2. Encourage behaviour modification / cost internalization
                       o Allows the court to impose all costs on defendant‘s in order to force them to
                           internalize the costs
               3. Saves judicial resources
                       o More efficient to have one case than multiple similar cases

          Common for disasters (eg. plane crashes), product liability, securities fraud


TEST FOR CERTIFICATION:                   (Ontario Class Proceedings Act 1992 S. 5)

1) Pleadings disclose a cause of action
2) There is an (objectively) identifiable class
    Must show a rational relationship between the class and the common issues
3) The claims raise common issues
    Some issue of liability or damages shared by everybody in the class SUCH THAT avoiding
       duplication of fact finding (if litigated indiv)
    Common issues do not have to dominate over the individual issues (but this is a factor in
       evaluating #4 – preferablity of using a class action to resolve the issues)
                Cloud v. Canada (AG) 2004 at para 58.
4) A class action would be a preferable procedure for resolution of the common issues; and
        Factors from Cloud v. Canada (AG) 2004:
           1. The preferability requirement has two concepts at its core: first, whether the class action
           would be a fair, efficient and manageable method of advancing the claim; second, whether
           the class action would be preferable to other reasonably available means of resolving the
           claims of class members.

           2. The analysis must keep in mind the three principle advantages of class actions: judicial
           economy, access to justice, and behaviour modification.

           3. This determination requires an examination of the common issues in their context, taking
           into account the importance of the common issues in relation to the claim as a whole.

           4. The preferability requirement can be met even where there are substantial individual
           issues; the common issues need not predominate over the individual issues.

5) There is a representative plaintiff who would fairly and adequatley represent the class, has
   produced a workable litigation plan, and does not have a conflict of interest with other class
   members
       Factors from Western Canadian Shopping Centres v. Bennett Jones Verchere, 2000 SCC:
          the motivation of the representative, the competence of the representative's counsel, and the
           capacity of the representative to bear any costs that may be incurred by the representative in
           particular (as opposed to by counsel or by the class members generally). The proposed
           representative need not be "typical" of the class, nor the "best" possible representative. The
           court should be satisfied, however, that the proposed representative will vigorously and
           capably prosecute the interests of the class.

              Tougher issues are 2 – 4:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                             32


Hollick v. Toronto 2001 SCC
FACTS:
    Many local residents complained of loud noise, vibrations, foul odours, and emissions of toxic
        gases, smoke, dust, dirt and litter onto their land from TO‘s Keele Valley Landfill. Hollick sued
        the City on behalf of a class of around 30,000 residents living within specified boundaries during
        a specified period.
HELD:
    Class action NOT certified
            o There is a gov fund available to the parties harmed by the landfill
    Identifiable class:
            o Yes, bounded geographically and by a specific period of time so sufficiently definable
                 and has a rational connection
    Common Issues:
            o HERE, evidentiary burden is met
            o Q: is there is a rational connection between the class as defined and the asserted
                 common issues (Western Canadian Shopping Centres, at para. 38 ("the criteria [defining
                 the class] should bear a rational relationship to the common issues asserted by all class
                 members").
                       The representative need not show that everyone in the class shares the same
                          interest in the resolution of the asserted common issue.
                       However, must show that the class is not unnecessarily broad -- that is, that the
                          class could not be defined more narrowly without arbitrarily excluding some
                          people who share the same interest in the resolution of the common issue.
    Preferable procedure for resolving common issues:
            o Can only determine if preferable ("fair, efficient and manageable method of advancing
                 the claim") by looking at the common issues in their context – common issues in relation
                 to the claim as a whole
                       Judicial Economy
                               Any common issue here is negligible in relation to the individual issues.
                                        o Very likely that any pollution was NOT distributed evenly across
                                            the geographical area or time period specified in the class
                                            definition – THUS, damage amounts will vary.
                                        o HERE, once the common issue is seen in the context ofthe entire
                                            claim, it becomes difficult to say that the resolution of the
                                            common issue will significantly advance the action.
                       Access to Justice
                               The fact that no claims have been made against the Small Claims Trust
                                   Fund may suggest that the class members claims are either so small as to
                                   be non-existent or so large as to provide sufficient incentive for
                                   individual action. In either case access to justice is not a serious concern.
                       Behaviour modification
                               If individual class members have substantial claims against the
                                   respondent, we should expect that they will be willing to prosecute those
                                   claims individually; on the other hand if their claims are small, they will
                                   be able to obtain compensation through the Small Claims Trust Fund. In
                                   either case, the respondent will be forced to internalize the costs of its
                                   conduct.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         33


Pearson v. Inco 2005 ONCA
FACTS:
    Closed Inco nickel refinery in Port Colborne emitted nickel plus other pollutants and
       contaminating soil over a large area. Local residents complained for years about the problem.
    1997 government study concluded no adverse health effects. Inco initiated a voluntary cleanup
       program. A 2000 study of a neighbourhood next to the refinery found worse than expected
       contamination.
    Pearson sued for a wide variety of harms including adverse health effects and reduced property
       value, on behalf of a class of all landowners in a specified area and time
PRIORS:
    Not certified by motions judge – claim for damages too broad (included health effects from nickel
       oxide contamination)
DEF ARG:
    Effects on property evaluation must be done on a case by case basis
HELD:
    Class action IS certified
            o Appeal allowed:
                     Claim for damages has narrowed (to just property valuations)
                     Cloud v. Canada (AG) 2004 suggests a more liberal approach to certification of
                        class actions
            o Inco remedial fund not sufficient because it did not rectify the psychological damage
            o Distinguishes Hollick
    Identifiable class:
            1) Yes, geographical boundary and only property owners (with loss of property value)
                     1) ―…defined the class by objective criteria.‖
            2) Some showing that the class is not unnecessarily broad
                     HERE, some impact on property values shown – sufficient
                     INCO has contra evidence re: property values, but this is a finding of fact to
                        be determined at trial, not at certification stage – all that is required here is
                        “some showing” of a relationship between the class and the common issues
            o DEF ARG: Class too narrow – contamination obviously went beyond Port Colborne
            o ANSWER: Approach underinclusivity with caution – especially in environmental cases
                     Can‘t capture everybody affected in the identifiable class
    Common Issues:
            o Yes, Inco emitted nickel which was deposited in the surrounding area
            o Property value issues is more individual – unless characterized as property value
                problems in the surrounding area generally
    Preferable procedure:
            o Yes, without original claim for adverse health effects, etc the property value question is
                best resolved with a class action:
                     Judicial economy – YES, if harm proved, indiv. Assessments may be necessary,
                        but this is not unusual in a class action - ALTERNATIVELY, could have an
                        aggregate assessment of damage as contemplated by s. 24
                     Access to justice – YES, remedial fund not sufficient b/c does not address the
                        core issue: the alleged widespread damage to land values caused by the past
                        pollution. Remediation is limited to qualifying individual properties with
                        significant contamination. It is open to the class members to argue that it does not
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         34


                        address the injury already caused. Inco may be able to show that land values may
                        rebound after remediation, but that is an issue for the trial.
                     Behaviour Modification – YES, does not only look at the actual defendant (who
                        no longer operates there), but at similar operators as well who might end up
                        internalizing costs
       Representative Plaintiff:
           o YES
           o RESOURCES - Not necessary (as motions judge held) that the representative have
               "concrete and specific alternative funding arrangements in place and to provide the
               specifics of those arrangements in the certification material
           o LITIGATION PLAN - Motion judge took an unreasonably rigid view by requiring that
               all the details for the litigation plan be "within the four corners of the plan itself"  not
               be consistent with the generous approach required by the cases… to defeat a motion for
               certification because there are two sources for the litigation plan.
           o CONFLICT OF INTEREST – Motion judge thought rep pl would be more aggressive
               (due to the Rodney Street location of his property) put him in conflict with residents who
               had less property damage / interest. HOWEVER, only requirement is that rep pl "will
               vigorously and capably prosecute" the claim. Obviously, aggressive plaintiff is fine.
                     Also, purely speculation that the appellant's keen interest in pursuing the
                        litigation would lead to a conflict of interest. If appellant is not properly
                        representing the interests of the class, the court can take steps at that point.


Hoffman v. Monsanto 2005 Sask QB
FACTS:
    Monsanto and Bayer Cropscience developed genetically modified canola plants resistant to their
      herbicides. Many organic farmers complained that these GM plants were contaminating their
      crops via cross-fertilization and airborne seeds, making it impossible for them to market certified
      organic canola. Two sued Monsanto and Bayer, on behalf of a class of all certified organic grain
      farmers in Saskatchewan (Hoffman v. Monsanto)
PRIORS:
    Leave to appeal allowed, not yet heard by Sask CA
HELD:
    Class action NOT certified
           o None of the 5 requirements for a class action is met
    Identifiable class:
           o HERE, no identifiable class, too broad
                   No basis to say that ALL organic farmers in Saskatchewan have problem
    Common Issues:
           o Here, issues were not common, but rather require individual determinations of liability
              and calculations of damages
           o CI‘s might have been:
                   Tendency of GM canola to cross fertilize
                   Impact on property values
                   Impact on health
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          35


Policy vs. Operational Decisions

OPERATIONAL - Gauvin:
      MOE owes duty of reasonable care in carrying out operational decision to issue septic system
        permit; negligent to issue permit without required information

TEST - Anns/Kamloops/Just test (Ingles, SCC 2000):
       1. Regulator owes prima facie duty where harm to plaintiff reasonably foreseeable
       2. If governing leg confers power with discretion as to scale of exercise, regulator is not liable for
       policy decision whether or how to act, but once decides to act, liable for negligent operation




UNIT 4 – ENVIRONMENTAL REGULATION: CONCEPTS & CONTROV

4.1 – Command Regulation and it’s Critics
Main Features of Command Regulation

       Prescriptive regulation and includes environmental planning instruments such as parks and
        protected areas regulation and environmental impact assessment (EIA)
            o Gatekeeping function means they could be classified separately

1) Setting standards (“Command”)
     Establishing environmental quality objectives and impose binding limits on pollution sources

2) Enforce them (“Control”)
     Monitor and inspect pollution sources and take quasi-criminal enforcement action when
       noncompliance discovered
     Monitoring, reporting, inspection, prosecution and sanctions

Implementation Model = Licensing (Approvals)
         o Pollution source must have license to operate and must comply with terms of license

Ideals of law:

       SUBSTANTIVE (C & C) – (CURRENT)
           o Direct, detailed intervention in the substance of harmful social processes
           o legal rules are purposive, open-textured and result oriented
           o EG – Command and control regulation is a substantive law doctrine
       FORMAL (OLD)
           o NEUTRAL, UNIVERSAL RULES AND REGS, where law states what sphere of rights
             and obligations parties have and relies on courts to make substantive value judgments
           o Predominated in liberal democracies BEFORE the emergence of the welfare state as the
             20th C progressed
           o EG – nuisance, trespass, negligence law eg‟s of formal law doctrines
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      36


      REFLEXIVE (NEW)
         o where the state realizes there are limits to what it can accomplish with positive liberty /
            direct intervention, RATHER it sets goals and puts in place laws that encourage or
            require regulated entities to SELF-MODIFY their behaviour to be in line with these
            societal goals
         o Self-reflection, self-correction
         o Compliance incentives, POLICY INSTRUMENTS such as env. Mgmt systems and
            economic incentives


Historical Developments of C&C Reg:

       1. Blanket prohibitions (<1970)
               Crude, uneven, no independent institutions
       2. Waste Control (mid 1970‘s – 1980‘s)
               End of pipe, assimilative capacity  dilute & disperse (to achieve „optimal‟ level
                  of pollution)
                       In US, ―BAT‖ (Best Available Technology), so long as costs not prohibitive
                       In UK, ―BPM‖ (Best Practical Means), less strict than US
               Establishment of detailed regulatory regimes and admin agencies
                       ACTUAL STANDARDS EG‟S – EL PAGE 63
       3. Integrated Management (mid 1980‘s )
               Cradle to grave, virtual elimination
               STAGE coexists with 2, waste control and detailed regulatory regimes
       4. Current trends and Concepts
               ―Smart‖, ―responsive‖ or ―reflexive‖ regulation; pollution prevention (P2);
                  precaution; ecosystem integrity; extended producer responsibility, product
                  stewardship; polluter pays (cost internalization)


Environmental Standards

―Standard‖ = the precise limit imposed by law on the amount of permissible pollution
       SEE PAGE 65 for more comprehensive definition

Problems of Standards Regimes:

   1) Must account for future generations and since the benefits of environmental protection have
   social amenity considerations (not only health), therefore any valuation is speculative
   2) High abatement costs and uncertainty about impacts make figuring out the appropriate trade-
       off between environmental protection and industrial production difficult.
   3) Variations in environmental characteristics of different regions make tailoring standards to
       meet goals in each area difficult

The Role of Science:
    Identifying problems, determining their severity, prioritizing them and conceptualizing
      appropriate solutions
           o Scientific and technical knowledge underpin the setting of emission limits, etc
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        37


            o   More important the less visible the environmental problems become (climate, etc)
            o   QUALIFIED BY:
                   - Scientific findings only advisory - actual decisions usually quite different
                   - There is some distrust of scientific expertise and advice
                   - Industry itself often provides the scientific knowledge on which regulation is
                       based – compromises legitimacy
                   - Increasing emphasis on indigenous, traditional knowledge as inputs to regulation
                   - Understanding that often scientific certainty is unattainable, NECESSITATING
                       A PRECAUTIONARY APPROACH and meaning that courts can not rely solely
                       on objective scientific evidence

KEY Q:          UNIFORM OR VARIABLE STANDARDS?

UNIFORM:
    PRO:
        o       Decreased info collection and evaluation costs, greater consistency and predictability of
                results, better transparency and public participation, increased likelihood of withstanding
                judicial review, reduced opportunity for admin agency politically-motivated manipulative
                behaviour, reduced opportunity for obstructive behaviour by regulated parties
    CON:
        o Ignores variations in the cost of reducing pollution amongst plants and geographic
           variations in pollution effects
                - Harm arising from a given activity and cost of preventing that harm vary
                   depending on circumstances of the company
DIFFERENTIATED
    CON:
        o Practical, economic and political constraints might prevent the introduction of alternative
           instruments or would hamper their performance


Target-Based Standards

   Set by reference to the target being protected, not directly concerned with activity of the polluter
   Earliest type of standards introduced
        o EG – a standard requiring that a discharge of a pollutant into water is not harmful to fish or
             other aquatic animals

   BENEFITS:
      o Most cost-effective
      o Deal with inputs from ALL SOURCES and via all potential pathways
   PROBLEMS:
      o Constant monitoring of environment is difficult and impractical
      o Where target standards are being met, little incentive for polluters to improve their
         performance

    SUB: Ambient Standards
       o Set max concentration of allowable pollutant in specific medium (eg. Air, water)
              EG – Ambient Air Quality C‘s
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       38



    SUB: Receptor Standards
       o Applied directly to polluter - held liable for harm to environment
               EG – Canadian Fisheries Act s. 35 (harmful alteration of habitat)


Source-based Standards

   Set by reference to the pollution source

    SUB: Performance or Emission Standards
     Prohibitions on the discharge of certain substances or max emission limits
     Focus on the amount or concentration of a particular pollutant that may be discharged FROM A
       PARTICULAR POINT SOURCE
     The regulated company is free to use whatever technique they choose to meet the standard (unlike
       specification standards)
           o EG – vehicle emission standards

       BENEFITS:
          o relatively easy to control and monitor by sampling at point of emission – easy to enforce
             for the same reason (point source of discharge – obvious causation)
          o Easily tightened to encourage dischargers to improve the process while retaining the
             choice as to how they do it – TECHNOLOGY FORCING properties
       PROBLEMS:
          o Less cost effective
          o Not suited to controlling non-point emissions such as pesticide runoff


    SUB: Specification or Process Standards
     Control the activities which produce pollution rather then the actual quality or quantity of
       discharge
     Can exist as positive (eg. Prescriptions as to plant construction or abatement methods to be
       adopted) or negative
     Can specify permitted or prohibited product characteristics (eg. All cars must have catalytic
       converters) – or outright bans or phase outs of certain products (eg. CFC‘s or leaded gas)
     Directly interfere with manufacturer behaviour

       BENEFITS:
          o Easiest to enforce
          o Proactive and can prevent a pollution incident from occurring
          o Admin costs of enforcement are small (vs. costs on industry which are large) – only need
             to ensure that prescribed directives have been folloowed

       PROBLEMS:
          o Least cost effective
          o May act as a disincentive to producers to find more effective ways of reducing pollution
             (unless standards are made progressively stricter)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        39


           o   Implies the gov is the best one to determine the relationship between environmental harm
               and polluting activities?

   SUB: Product Standards
    Control the characteristics of a manufactured product, with the aim o fprotecting against possible
      environmental damage resulting from it‘s manufacture, use or disposal


Environmental Licensing:

DEF‟N          “Licence” = an instrument created under government authority that requires all
               businesses or individuals with specified characteristics to gain prior approval

PURPOSE        An ex ante enforcement mechanism designed primarily to prevent or minimize a
               particular type of harm

GOAL           Primary instruments through which state environmental protection agencies specify how
               individual facilities must comply with environmental regulations and laws
TACTIC
           o   Facilitates the application of environmental standards to individual entities and provides
               ex ante control of polluting activities
BENFITS:
           o   Correct information failures by providing the authority with info necessary to obtain the
               licence
                   - Allows authority to set appropriate standard
                   - Reduces enforcement costs because authority is informed of potentially polluting
                       (new) sources
                   - Access to information by consumers or other business via environmental
                       registers
           o   Only indiv/businesses that satisfy criteria get a licence – combined with licence
               conditions this allows regulator to exert much control over licensed operations
           o   ALLOWS internalization of pollution externalities
           o   ALLOWS polluter to pay for the environmental damage
           o   ALLOWS tailor-made decision making on an indiv / firm basis
           o   ALLOWS proactive approach to pollution prevention

       NOW AND IN FUTURE, licensing necessary to underpin more flexible instruments such as
        trading schemes and voluntary agreements

DETRIMENTS:
       o Not suited to situations to non-point source pollution
             - EG. Where contaminants from various riverbank polluters meet in the river
       o Relatively expensive to administer and enforce
       o Inflexible – can‘t respond to sudden changes in economic or environmental conditions

License conditions  allow the authority to have regard to the local environment (physical,
                     geographical and geological) thereby tailoring the control regime for each
                     individual applicant
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        40



Discharge Authorization licenses – authorize discharge of pollutants into the environment

Operational Activity license – authorize the holder to carry out certain processes / activities



Environmental Planning Instruments

GOAL            To minimize further environmental damage

TOOLS           EIA‘s, strategic environmental assessments (SEA), and parks and protected areas
                regulation + official plans, zoning bylaws, subdivision controls and building codes

EIA‟s and SEA‟s:
    EIA = an evaluation of the impact of a proposed development project on a natural and man-made
       environment
           o Originated with the US National Environmental Policy Act of 1969
           o Now nearly all countries and international institutions (banks and aid agencies) use them
    THEORY:
           o Better information (about impacts) will produce better informed public debates and better
              decisions about whether and if so under what conditions projects will be allowed
    INVOLVES:
           o Presentation, collection, publication and assessment of information and IDEALLY a
              systematic, integrative and iterative process where consultation / participation are integral
    PRODUCER:
           o Sometimes public authority
           o Sometimes project proponent (via third party)
    PRODUCT: An environmental statement containing:
           o Description of the proposed development
           o The data necessary to identify and assess its environmental effects
           o A description of proposed mitigation measures
           o Summary of information which is accessible to lay persons
    EVALUATION:
           o Public authority evaluates the significance of the environmental impacts of the project
              and decides whether and under what conditions to allow the project to proceed
    LEGALITY:
           o Depending on jurisdiction, authority usually retains discretion to decide progress of
              project, EIA not binding – produces recommendations, not standards/licences directly
    SCOPE:
           o Debate: Should EIA consider alternatives to the project? Should an EIA consider the
              cumulative effects of future projects alongside the current project?
    LIMITS OF PROJECT-BASED EIA‟s:
           o Cannot consider cumulative effect of small projects
           o Cannot deal with induced impacts where a project stimulates further development
           o Not suited to tackling global environmental impacts such as climate issues
                   THEREFORE limited ability to contribute to sustainable development
    BENEFITS:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                               41


            o    In addition to the obvious environmental protection benefits…
            o    Ensure that projects are open to scrutiny by all stakeholders – providing faith in public
                 authority DM and improving the quality of decision and reduce opposition

Parks and Protected Areas Regulation

       SEA‟s = address integrative issues by assessing impact at a broad level of the public policies,
        plans and programs within which discrete projects are proposed and implemented
            o EG. SEA Directive in the EU requires certain plans and programs on the environment to
                be subjected to environmental assessment procedures




Strengths and weaknesses of C & C Reg (Theory & Practice)

   Strengths:
        ―[T]he system for regulating pollution provides all the tools needed to eliminate pollution from
        the Canadian environment. All that need to be done is to fund adequalty and then actually use the
        system we have spent thirty years putting in place‖ (MacDonald)

        1. Environmental effectiveness
                Many first generation problems have been rectified, especially re: point source
                  pollution
                BUT, are we nearing limits – ie – contemporary non-point source problems
                  addressable? The more pervasive and widespread the problem, the less effective
                  command and control regulation will be
        2. Forcing costly change
                Some environmental regs may be considered against company self-interest
        3. Information asymmetry
                Knowledgeable industry is well placed for ―reflexive‖ regulation
        4. Ensuring public goods
                Individual actors may have incentive to continue to pollute if their competitors do,
                  but if everyone is forced to regulate then market share it not at risk
        5. Dependability
                Clear, stringent – are the standards met? Is the technology in place? Good
                CONTRARY: Crude

   Weaknesses:
        ―The present regulatory system wastes tens of billions of dollars every year, misdirects resources,
        stifles innovation, and spawns massive and often counterproductive litigation‖ (Ackerman &
        Stewart, re: USA)

        1. Inconsistent enforcement
        2. Insufficiently comprehensive or stringent rules
        3. Regulated industry capture of policy
                 Opacity of environmental planning makes it easier to subvert or manipulate
                 Information asymmetry
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    42


                         knowledge about environmental impacts, technologies are held mostly by the
                          regulated industries themselves – SELF INTEREST IN MINIMIZING
                          REGS
                Influence of economic interests on the political process
                Administrative discretion
                        Excerise of discretion not subject to political controls / accountability as
                          legislation is – ENABLES closed-door negotiation
       4. Inefficiency
                Inefficient
                       o Standards s/b set using cost/benefit analysis
                       o Only applies to ‗uniform emission standards‘
                Not cost-ineffective
                       o Standards not tailored to the individual needs of regulated entities
                       o Goal should be to minimize compliance costs for each regulated entity
                Anti-innovative and
                       o Only applies to ‗technological / process standards‘ (―you must use this
                          particular kind of pollution control technology)
                       o CONTRAST: Performance standards  ―you must emit no more than X kg
                          of Y pollutants‖ – NOT anti-innovative
                Compliance-focused
                       o Industry focus is always complying with the law and there is nothing (in the
                          legal system) that promotes them to achieve BEYOND regulations
       6. Complexity
                Standards are so complex that the legal system is at risk of paralysis
                OR, problem is complicated so solution must be
                OR, not really a problem – meeting environmental standards costs < 1 % of GNP


Recent developments and Future directions

   The conditions for regulatory reconfiguration
       o Budget cuts, neo-liberalism, globalization, new actors

   “Next-generation” environmental regulation
       1. Extended producer responsibility
               a. from raw materials extraction to product end-of-life, eg. Computer waste
       2. Pollution prevention;
       3. Regulatory flexibility;
               a. Programs that reward environmental leaders for going beyond existing
                   standards/guidelines (such as public inclusion, expanded targets, etc)
       4. Improved enforcement; public participation; etc.
               a. Competing tendencies: expand environmental responsibility vs. reduce regulator
                   burden
   Theories of regulatory configuration
       o “Reflexive regulation”;
                Both focus on actors other than the state as surrogate regulators
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        43


                  Instead of dictating what regulated entities much achieve for environmental
                   performance (c&c), put in place legal tools that require to reflect critically on their
                   practices
                        SEE PAGE 192, GUNNINGHAM & SINCLAIR
                                o ―Aims to establish self-reflective processes within business…‖
               EG – a law that requires company‘s to put in place management processes –
                   environmental management systems (identifying, setting goals for and monitoring
                   environmental impacts) or encourages self-audit
               EG – regulatory incentive systems
       o   Regulatory pluralism – civil regulation
       o   Environmental partnerships
               Forest stewardship
               NGO‘s and industry
       o   Participatory governance;
       o   Ecological modernization / Green-Gold Thesis
               Leading contemporary approach to modernizing environmental policy
               Emerged in Germany, spread through Europe and industrialized world
               Proposes a win-win / triple bottom line idea that business can simultaneously
                   maximize profit, environmental performance and social performance
               Rather than posing a threat to capitalist consumption, the environmental crisis offers
                   an opportunity to make business more competitive
               POLICY: Would have to maximize incentives for company‘s to improve
                   environmental performance, green technologies, fostering markets and R&D for
                   green technologies
               PROGRAMS:

   Intellectual frameworks for making sense of new developments




4.2 – Risk, Uncertainty and the Precautionary Principle
o   True or false: Environmental regulation is all about risk?
       o There‘s no necessary connection between risk and environmental regulation – need not be
            ―risk regulation‖

o   How did we come to think of environmental law in terms of “risk”?
      o During that time in the early 80‘s risk/impact assessment‘s were widely used before
          government decisions were made – in many admin/policy areas

       1) The problem of the legitimacy of admin DM
               Risk as environmental regulation emerged in the 1980‘s in the US when new
                  environmental regulatory agencies began to function fully – lead to questions of
                  legitimacy of these reg body decisions (employing appointed bureaucrats)
                       To ensure legitimacy quantitative assessments made it clear whether / what
                          particular admin decision was appropriate
                       Purports to provide an objective, scientific, quantifiable basis for admin
                          decision
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        44



       2) The demands of particular legal systems
               A court decision required that only issues that posed a ―serious risk‖ could lead to
                 admin action
               Used ―risk assessment‖ to cover their asses

What is risk? What is risk assessment?
o (DEFINITIONS OF RISK ON EL 113)
       o Quantitative probabilities vs. qualitative dangers
                Risk assessment:
                        Deliberative process to determine the nature and quality of a particular
                           danger (qualitative and quantitative)
                Risk:
                       
       o What are the proper roles of science and politics?
                Can you separate science from politics?
                Must better incorporate contemporary science (Boyd)
                Must listen to other voices more (Fisher)
       o What are the implications of complexity and uncertainty?
       o What does it matter how legal systems answer these questions?

Precaution and Adaptation
   o What is the precautionary principle?
           o When there is a threat of harm, the absence of scientific certainty should not be an
              excuse for inaction – better safe than sorry

           o   Is it in tension with ―risk‖ and ―risk assessment‖?
                     Depends how you define risk assessment – if quantitative, yes, tension – if
                         qualitative approach, they can be in harmony
           o   How is it put into practice?
                     EU?
                              Leading jurisdiction in implementing PP
                              Says PP is some modified form of already existing risk assessment
                     Canada?
                             
                     WTO?
                             
                     What drives different conceptualizations?
                              Demands of particular legal systems; need for legitimacy
                     How might it be operationalized
                              Modify risk assessment procedures? Change the burden or standard of
                                  proof regarding new substances? Take holistic rather than reductionist
                                  approach to regulation

   o   What is Adaptive Management
         o Law responds as knowledge of ecological process change/develop
         o Reiterative learning
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        45




16.3 International Trade and the Environment

       Assesses the conflict that has developed due to global economic integration
           o Explores the impact of trade liberalization on the prospects for sustainable development

International Economic Law
     WTO:
           o Coordinates the system of international agreements that facilitates trade between
               countries
                   - EG. Tariffs, etc
                   - EG. Technical Standards
                   - EG. Subsidies
     Principle of all articles of WTO:
           o Non-discrimination (no Most Favoured Nation Status)
                   - (GATT 1947 – Article 1)
                   - can not discriminate between countries
                              EG. If Canada has a particular tariff on a good, it must impose that tariff
                                 on all member countries
                   - HOWEVER, special exemptions allow regional trade agreements
           o National Treatment Principle (GATT 1947 – Article 1)
                   - No special protections (EG. Lower taxes, etc) for domestic subsidies

    Basic form of environmental disputes in the WTO context:

    o   A particular environmental measure is seen as a trade barrier inconsistent with the WTO regime
            TYPE 1 – INWARD ORIENTED – seek to protect the health/safety of the citizens in
                the regulated country
                     EG – France and Canada – France decides to deny import/distribution of asbestos
                        (both locally and asbestos from import) – Canada takes France to WTO
                     KEY Q:
                            o To what extent can the WTO interfere with what a country decides is
                                right to do to protect it‘s citizens?

               TYPE 2 – OUTWARD ORIENTED – seek to protect the health and safety of people or
                ecological systems outside the jurisdiction/country
                     EG – protection of shrimp populations?
                     KEY Q:
                            o Is it legitimate (for the US) to influence the decision making process
                                within other countries in pursuit of it‘s own goals

       PROCESS FOR ENVIRONMENTAL DISPUTES  WTO – Article 20:
          o Complaining country must first show that there is an inconsistency
          o Defending country can then show that there is an exemption under Article 20
          o Analysis: Are there measures beyond a complete denial of trade
          o ARTICLE XX:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     46


                      Exemptions includes:
                          (a) Necessary to protect public morals
                          (b) Necessary to protect human, animal or plant life or health
                          (c) Relating to importing/exporting of gold or silver
                          (d) Necessary to secure compliance with laws or regs which are not
                          inconsistent with the provisions of the Agreement
                          (e) – (g) + ?


Legal Systems and Transnational Institutions

      Global Economic Integration is a movement towards a world in which markets for goods,
       services and factors of production are perfectly integrated (D. Rodrik)

      Movement towards global integration attributable to:
         1) Technological progress – especially in transportation and telecommunication
         2) Creation of multiple legal systems that that support/facilitate international trade

      Inefficiencies hindering cross-border trade include:
           o DIRECT measures: Tariffs, quotas and export/import licensing requirements
           o INDIRECT measures: Dissimilar technical, health and environmental standards (‗non-
                tariff barriers), subsidies and anti-dumpting measures
           o LEGAL system discontinuities between countries
                      Namely, doctrinal constructions (eg. Private and corporate law) and questions of
                         contract enforcement

      Global legal frameworks aim to reduce transaction costs of transnational commerce:
          o GATT (re: trade in goods) / WTO (re: GATT + services, IP, non-tariff barriers such as
               food and health and safety standards)
          o Regional trade agreements (eg. NAFTA, EU, Mercusor of South America)
          o Technical Standards: Int‘l Organization for Standardization, Codex Alimentarius
               Commission
          o Jurisdictional discontinuity (to rectify enforcement problems): New York Convention
               on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, AND Hague
               Convention on Choice of Court Agreements, 2005


Frictions Between International Trade and Environmental Protection

      DOMESTIC environment affects:
      TRANSBOUNDARY ecological affects (eg. Acid rain):
      GLOBAL ecological resources (eg. ozone layer, fish stocks)

Underlying nature of the conflict:

1) Adverse effects of global economic integration
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      47


      Environmentalists argue that globalization leads to adverse ecological impacts that are ignored by
       the business community
      ENVIRONMENTAL CONSERVATIVES COUNTER: By promoting global efficiency, trade
       liberalization is, in effect, beneficial to the environment
           o NO DEFINITIVE PROOF, either way, but PP dictates there is sufficient ground for
                concern


   BOX – Causal Impacts of Trade Liberalization on the Environment

       1) Scale effect – measures the (negative) eco impact of the expansion in the scale of production
       2) Composition effect – change in the composition of an industry as countries specialize in
       sectors in which they have comparative advantage
        Eco effects for this factor depend on the nature of specialization (to more or less polluting
           industries)
       3) Technological effect – how tech changes associated with trade liberalization could influence
       the environment
        Thought to lead to less pollution due to cleaner production methods and improved waste
           treatment methods
        Supported because open economies have access to (expanded) foreign technologies AND
           opening of markets SHOULD lead to increased incomes which should generate demand for
           ‗clean technology‘
       4) Regulatory effect – how trade liberalization affects local environmental standards
        Conflicting trends:
           o Increase in income and exposure to foreign regulatory methods might lead to increase in
                demand for environmental control
                     VS
           o ‗Race to the bottom‘ hypothesis might lead to countries lowering their environmental
                standards to gain competitive advantage.

          Studies indicate that transition to open global trading will lead to environmental damage in
           DEVELOPING countries (EL – PAGE 387)
               o Likely because reg establishment is weaker AND the local industry is more pollution
                   intensive (compared to identical ones in developed countries say), THEREFORE
                   more economic activity will lead to more pollution
               o LIMITS: Only specific pollutants studied AND does not provide a complete
                   cost-benefit analysis due to scarcity of environmental data and difficulty in
                   translating data into monetary terms

   2) Discursive Cleavages
    Beyond adverse tangible affects of trade-induced economic growth, must evaluate the other
       ―discursive systems‖ and ideologies that underly the trade-environment debate:
        Society and Nature
               o Traditionally: Nature valuable only in it‘s value to humans/society
               o (non-Kantian) Deep Ecology: Answer to eco crises lie in a different conception of
                   nature which gives it a social role beyond a means for human well being‖.
                         SOLUTION: Complete withdrawal from industrial system and adoption of
                           pre-capitalist way of life
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     48


               o   Pragmatic Dillemas: Must take more seriously the notion that what is ‗good for
                   man‘ depends on what is good for ‗nature‘.
                       SOLUTION: Figuring out how best to utilize/exploit nature
                                Economic conservatives say: Means no need to change current
                                   fundamental ethos, trade-environment conflict is FALSE DILLEMA
                                   (because trade liberalization leads to efficiency which must be good)
               o   Eco-politics:
                       Environmental problems are the inevitable result of the failure of political
                          institutions to create mechanisms for fair deliberation which would give
                          voice to different constituents of the polity

          Non-Kantian believers feel that the economic world view can not address the trade-
           environment question because it leaves the basic paradigms and social structures that
           dominate contemporary society (and have led to our eco problems) in place

   3) Role of International Trade Law
        Deep Ecology
               o Law only useful if it can contribute to it‘s own destruction
        Eco-politics & Environmental Economics
               o Law provides a forum for nature to have a voice (much as the dead do in inheritance
                   law for example) and be a party in deals that are made re: environment and society
               o CHALLENGE: To design the institutional mechanisms to allow this happen
               o Law is the mechanism for transforming models and guidelines for balancing trade
                   and the environment into normative prescriptions
               o Law can resolve disputes between competing world-views w/o making an ideological
                   commitment – valuable due to the deep differences between schools of
                   environmental thought


From Friction to Synergy: Can Trade Institutions Promote Environmental Cooperation?

      Regime-linkage: a mechanism for comparing between trade and environmental interests by
       acknowledging the economic value of global eco assets (through the use of econ valuation
       techniques)




UNIT 14 – ENVIRONMENTAL REGULATION BY BUSINESS

14.1 Voluntary Environmental Codes
Introduction

      Voluntary agreements range from firm-specific codes of conduct to negotiated agreements
       between public authorities and polluters
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       Participants include gov, int‘l orgs, private firms, industry associations and ENGO‘s
       Regulation and law both given broad interpretation (ie – inc. self-regulation and pluralist view of
        law)
            o VEC‘s act as ―demand side interest‖ in the economy, replacing blunt techniques like
                consumer boycotts with info-rich, proactive and maybe highly effective means to
                enhance public transparency and change corporate behaviour

B. What Are They

       VEC‘s are voluntary rule making efforts - normative in character:
          o PRESCRIPTION  Prescribe how their addressees should act or results to achieve
          o STANDARDIZATION  Set standards to regulate conduct consistently over time or
               across parties
                    Best described by the word ―code‖ (a set of rules on any subject)

       VEC Definition:
          o ―Commitments undertaken by one or more polluters or resource users, in the absence of
             an express legal requirement to do so, prescribing norms to regulate their behaviour in
             relation to their interaction with the environment.‖

       VEC‘s do not necessarily requirement environmental performance improvement beyond what the
        law requires – goals could include:
            1) To implement targets set by legislation
            2) To bring polluters in compliance with existing legislation
            3) Reduce penalties for voluntarily disclosed environmental violations
            4) Offer evidentiary privilege for voluntary environmental audits
         Some gov-industry agreements even relax current legal standards for polluters who have
            difficulty complying (Ontario‘s ‗programme appovals‘)

       Broad definition of VEC is intended to avoid excessive focus on relationship between VEC and
        state regulation key is to focus on non-state normative ordering / regulation


C. Where Did They Come From

       Worldwide, many thousands of gov negotiated and non-gov negotiated VEC
           o From firm-specific, to general principles for sustainable business, to global certification
              schemes

       ORIGINS: Industry, gov, and other actors have experimented w/ VEC‘s since the 1960‘s (eg.
        Japan gov‘s agreements with power producers in the 60‘s)

       GROWTH: Took off in the 1980‘s
          o EG. Netherlands made VEC centerpiece of it‘s National Environmental Policy Plan in
            1989, and by mid-90‘s had over 100 agreements covering 90% of pollution
          o EG. US EPA‘s ―33/50 Program‖ where participating companies reduced emissions of 17
            high-priority chemicals by 33% by 1992 and 50% by 1995 (over 1988 levels)
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           o   EG. Rio Earth Summit 1992 emphasised public private partnerships and positive role of
               business in pursuit of sustainable development
           o   EG. Canada‘s chemical industry‘s ‗Responsible Care‘ programme (late 1980‘s)
               introduced proliferation of sector-based codes

      1980‘s ENGO‘s began to rethink adversarial attitude toward industry and developed VEC‘s on
       their own or in collaboration with business
           o EG. CERES Principles (after Exxon Valdez spill in 1989)
           o EG. Forest Stewardship Council (sustainable forestry certification system begun in 1993)

      Proliferation made possible by changes in:
          o Character of the state
                    C&C criticism led to budget cuts and reg regime cuts, and promotion of
                      ‗smarter‘, more flexible solutions began
          o Environmental crisis
                    Rise of the sustainable development agenda
                          Characterization of environmental protection as win-win
          o Business
                    Win-win mentality emerged
                    Corporate Social Responsibility gained momentum – business a partner, not an
                      adversary

      COMMENTARY:
         o Even most unilateral command regulation, is usually the result of negotiations began gov
           and industry designed to attract voluntary industry compliance – SUCH THAT VEC‘s
           are a variation on as opposed to a radical departure from well established patterns of
           rule making and enforcement in modern environmental regulation
         o ALSO, while clearly more VEC‘s, not clear that they have displaced other reg tools in
           practice


D. What Forms Do They Take

(1) Spectrum of Variation:
     Three overlapping circles: Polluters, Public Authorities and Third Parties (local communities,
        ENGO‘s, etc)
           o VEC‟s might be located in any of the solo or overlapping areas varying in terms of the
               PARTIES INVOLVED and the DEGREE OF JOINTNESS OF DM‟ING:

       (a) Polluter codes
            Self-regulatory codes developed by polluters, orgs representing polluters or their
               customers/creditors/insurers WITHOUT direct participation by any of these 3P‘s
                   o May be cross cultural (eg. Int‘l Ch. Of Commerce Business Charter for
                      Sustainable Development), sector specific (eg. Chem. Ind ‗Responsible Care‘,
                      fin sect ‗Equator Principles‘), or firm specific (eg. Body Shop Int‘l, The Shell
                      Group, and Interface Flooring)
                   o Often imposed by industry associations on their member firms
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          51


                   o   Often imposed by multinationals that require their supplies to adhere to VEC as a
                       condition of doing business
                   o   DISTINCTION between ‗rule-makers‘ and ‗rule-takers‘

       (b) joint polluter-public authority
            Include negotiated environmental agreements (NEA‘s) (most common) and broader
               partnerships
            Participants are any/all levels of gov and indiv polluting facility to entire industry or
               sector
            MOST of these VEC go beyond legal requirements or take action where none exist
            Broader partnerships lead to establishment and operation of eco-industrial networks,
               development of green technologies or pursuit of ‗cleaner production‘

       (c) public authority
            Two main types:
                   o Public voluntary programs – aimed at either leaders (providing recognition and
                      rewards) or laggards (encourage or reward voluntary compliance audits and
                      voluntary steps to remedy non-compliance by, eg, relaxing penalties)
                           Voluntary instrument of choice in Canada (and US)
                   o Intergovernmental negotiated agreements – used to, eg, implement int‘l
                      agreements, delegate admin of national law or harmonize national and provincial
                      environmental policy
                           SUB-SPECIES – international agreements ARE negotiated and
                              conducted voluntarily by states
                   o 3rd - Challenge programs

       (d) Joint public authority - 3P
            Between gov and ENGO‘s, include: eco-labelling schemes, private debt-for-nature swaps
               (Norther ENGO‘s purchase developing countries debt in exchange for assurances re:
               environmental projects such as more biodiversity, project funding, eco protection)

       (e) 3P
            Most developed by ‗civil society‘ actors such as environmental or human rights groups,
              religious groups, universities or VIPs and set demanding criteria that FEW POLLUTERS
              ARE ABLE OR WILLING TO MEET in the short run
            Others developed by national or int‘l standardization bodies, eg, ISO, and tend to be
              easier for businesses to adopt
            Overlap between polluter and joint polluter-3P VEC‘s b/c polluters who implement them
              may have substantial influence over their development (esp. for standards orgs such as
              ISO where interests of standards-users dominate)
            DISTINCTION between development of codes by 3P and VERIFICATION of codes by
              3P (which often results in ‗certification‘, unlike verification by polluter or second-party)
                   o Trend in recent years toward 3P verification – very expensive for small and
                       medium sized companies
            PROBLEM: 3P codes often implemented via bilateral agreements between the polluters
              and 3P (so often a mix of polluter-3P and polluter-public authority agreements)

       (f) joint polluter-3P
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           52


              Two types:
                   o Between polluters and pollutees (eg. Local residents‘ groups or their ENGO reps)
                            Include industry-community agreements
                            Industry-ENGO agreements (often national in scope)
                            Industry-organized labour ‗framework agreements‘ (usually between
                               indiv companies and national or int‘l labour unions)
                            Voluntary land or wildlife conservation agreements btwn landowners and
                               non-profit groups
                   o Between polluters and other 3P‘s
                            Include consumer contracts for ‗green electricity‘
                            Codes developed jointly by polluters, investors and others
              Often not simple NEA‘s, but rather products of complex relationships / institutions
               between business, environmental and other interest cooperate to create DM structures and
               develop and apply rules
                   o EG – Forest Stewardship Council (FSC)

       (g) all integrated
            EG – official policy making processes
            Industry-gov-ENGO collaboration replacing closed-door industry-gov negotiations
                    o EG – permit retirement agreements

(2) Other Dimensions of Variation:

       (a) Binding vs. Non-Binding
            May or may not be entered as legally binding contracts
            May be ‗gentlemen‘s agreements‘ or unilateral commitments

       (b) Process vs. Performance Orientiation
            Process oriented address management tools such as EMS‘s, life cycle analysis,
               environmental reports, audits and other env. self evaluation tools
            Performance codes set substantive targets
            Most are combination

       (c) Target vs. Implementation based
            Target-based codes – performance targets set by the parties themselves
                   o If polluter involved in setting targets, generally less ambitious
            Implementation based codes – performance targets were set elsewhere (eg. Leg) and code
               addresses implementation of targets only
            Some involve both types of codes

       (d) General vs. Specific
            From policy alone to specific codes of practice (detailed rules, indicators, targets, etc)

       (e) Regulatory Function
            What function does the code serve?
                  o Agenda-setting, rule creation, rule administration, rule enforcement, dispute
                      resolution
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     53


                   o   Many codes straddle several functions

       (f) Individual vs. Collective Character
             Applies to one or a group of entities

       (g) Geographic Scope

       (h) Policy Scope
            Range of issues addressed: protection or prevention generally OR environment in broader
               context of corporate social responsibility
            Specific industry sector or environmental issue-areas


F. What Drives Their Development and Implementation

(1) Drivers for Business
        (a) Anticipated Net Benefits:
                (i) Cost Savings
                         - may reduce cost of inputs (energy, water, etc) and waste disposal, lower
                         insurance, improve credit ratings, reduce risk, enhance profitability and
                         shareholder value
                (ii) Regulatory Gains
                      - Diffuse threat of mandatory reg, which comes with costly implementation costs,
                         improve relations with public authorities, may promote desired regulation
                         (influence in design of new regulation)
                      - very strong driver!
                (iii) Higher Revenues
                      - may allow for greater market share or per unit price increases through product
                         differentiation
                      - may be required by suppliers / req‘d for doing business
                (iv) Reputational Gains
                      - brand image, ameliorate bad publicity / consumer boycot, improve relations with
                         ENGO‘s, local communities, workers and labour unions
                      - improved asset values (eg. Trademarks and goodwill)
                      - enhanced ability to recruit and retain talented employees
                      - satisfy customer or investor demands
                      - may be necessary to meet industry association membership requirements

       (b) Ethics and Legal Compliance
                    top managers ethical commitment to environmental stewardship
                    need to comply with law – court ordered implementation of VEC
                    may be part of a legislative mandate

        (c) LIMITS
             Without compulsory regulation or credible threat of it, firms will face weak drivers to
               implement VEC‘s
             Firms have incentive to capture benefits of VEC‘s with bearing the costs – might lead to:
                  o INDIV - Misrepresenting VEC performance
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           54


                   o COLLECTIVE – Free-riding and other collective action problems
               Large firms more likely to feel the drivers to implement and so adopt VEC‘s
               Background legal frameworks may discourage VEC‘s
                   o EG - corp governance (can‘t stray too far from profit max goal), competition and
                        trade laws)
                   o EG - Environmental laws may prevent gov from offering adequate regulatory
                        incentives for voluntary action

(2) Drivers for Public Authorities
     Negative incentives:
            o Developing, implementing, monitoring and enforcing VEC‘s is less costly than official
                reg     + Move‘s costs ―off budget‖
            o Disillusionment with conventional C&C
            o Aversion to environmental taxes
     Positive incentives:
            o Enthusiasm for flexible/adaptive/reflexive regulation
            o Desire to cooperate with business, commitment to smaller gov (sometimes)
            o VEC‘s can supplement existing law
            o VEC‘s can transcend jurisdictional boundaries
            o VEC‘s with industry or NGO‘s enhance gov‘s own institutional capacity

(3) Drivers for ENGO‟s
         NEG - Frustration with official reg processes (can bypass gov and deal with industry directly)
         POS - Enthusiasm for consumer/market driven tools for environmental improvement
         OVERALL  Driven by VEC‘s superior ability to deliver improved environmental
            performance (BUT WHAT IF THE VEC‟S SUCK AND SIMPLY ALLOW INDUSTRY
            TO AVOID MORE STRINGENT OFFICIAL C&C REGS)
         DISINCENTIVES FOR ENGO:
                o Dual risk of losing their own independence and credibility while conferring
                   legitimacy on environmentally questionable firms or codes
                o Participation in a VEC is costly and may not result in commensurate returns in
                   environmental improvement



G. How Well Do They Perform

   Little actual independent empirical analysis due to lack of reliable monitoring data and consistent
    reporting

    1. KEY - Environmental effectiveness
          i. Performance improves when VEC implemented, and usually VEC goals are met
         ii. PROBLEM:
                 1. Ambitiousness of targets (polluters set the goals) and whether the improvements
                    would have occurred anyway (without VEC) in a business as usual pattern
                 2. Regulatory capture of rulemaking by polluters

    2. Efficiency
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     55


            i. TARGETS – BAD - No evidence that targets are set to maximize social welfare
           ii. COST-EFFECTIVENESS - OBVIOUS BENEFIT, but still UNIFORM standards, so
               marginal costs differ for each polluter
          iii. DEVELOPMENT AND OPERATING COSTS –
                   1. Unknown whether costs exceed value created by the code (more effective codes
                      cost more due to more participants, complexity/ambitiousness/etc of code)
          iv. FREE-RIDING – when an actor enjoys the benefits of the code without paying for its
               costs  risk of free riding leads to under-supply of codes and so environmental
               improvement actions
           v. EFFECTS ON COMPETITION – some VEC‟s have anti-competitive effects
                   1. Increases costs leading some firms to exit industry, reducing competition
                   2. VEC‟s may provide screen for collusion
                   3. VEC‟s are barriers to entry

   3. KEY - Transparency, accountability and credibility
          i. Along with environmental effectiveness (#1) this is key determinant of VEC credibility
         ii. PUBLIC PARTICIPATION – mixed record
        iii. MONITORING, REPORTING, VERIFICATION – a recent innovation…options are:
                1. self-monitoring and reporting with 3P verification of results; OR
                2. self self and 3P verification of management systems only
                3. public disclosure is now common
                4. trend toward certification (more stringent than verification, but again, may be just
                    for management systems, in which case no evidence of effectiveness)
        iv. ENFORCEMENT AND SANCTIONS – lack of enforcement = lack of credibility
                1. How accountable is business to the public when adopting these codes?
                2. Most have no sanctions for non-conformity or formal mechanisms for
                    enforcement or dispute resolution
                3. Sanctions usually termination of certification or membership, action for damages
                    or (if public auth involved) regulatory enforcement
                4. These actions rarely happen however (with the exception of decertification)

   4. Effects on polluter behaviour
           i. ECONOMIC PERFORMANCE – Evidence that implementing VEC‘s improves firms
              financial performance either by increasing profits or market value
                  1. Degree varies with level of environmental improvement actually achieved
                           a. Win-win opportunities still available
                           b. Market pressures insufficient to push firms to adopt profitable
                              environmental initiatives
                           c. Incremental gains likely to become increasingly difficult and costly – so
                              market drivers must change
          ii. LEGAL PERFORMANCE – evidence unclear
                  1. Especially difficult question re: process-based codes (EMS standards)
                  2. In theory EMS certification leads to improved compliance in 2 ways:
                           a. Reduced unintentional violations by requiring orgs to systematically
                              address the root causes of non-compliance
                           b. Reduces intentional violations by having EMS audited by a third party
         iii. STIMULATION OF INNOVATION –
                  1. most VEC‘s not ambitious, so not innovation-inspiring
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       56


                 2. BUT may facilitate diffusion of existing technologies and practices (by
                     increasing awareness of available tools, creating forums between polluters, from
                     3P‘s to polluters or from polluters to public authorities) which itself may
                     stimulate innovation and decrease costs (via sharing of abatement strategies)
                 3. NOT effective diffusion from developed to developing countries
           iv. SOFT EFFECTS – main benefits of VEC‘s are indirect and unquantifiable, including:
                 1. Increased awareness of and improved attitudes toward environmental issues
                 2. Increased generation and sharing of information
                 3. Enhanced cooperation and trust among polluters, regulators and 3P‘s
                 4. Experimentation with new policies and policy development processes
                 5. Improvement of corporate environmental management techniques (EMS)

   Evidence indicates that even ―environmental leaders‖ still lobby government for public policies that
    undermine the commitments they make in VEC‘s and the claims they make to the public


H. VEC‟s Role in Environmental Law For Sustainability

       SUSTAINABILITY REQUIRES COMMMITMENT TO ECOLOGICAL INTEGRITY AND
        SOCIAL EMANCIPATION
           o Elite‘s need and sense of entitlement to Stability of Expectations will never allow for the
             type of destabilizing transformative change that would be required to move toward
             sustainability

       LIST of what‟s needed for a VEC to be effective: EL PAGE 270

    Roles for VEC‟s in Broader Governance for Sustainability:
        Modest but important w/ respect to marginal re-design of environmental policy
     BUT
            o Drivers are wrong
            o Transformative rather than incremental innovation


PROBLEM WITH VECs
   DRIVERS:
     1) Evidence indicating that ACTUAL REGULATION necessary to improve corp env perf
     2) Credible threat of regulation is necessary for VEC‟s to succeed
         o BUT if threat works and VEC‘s are implemented, the threat of regulation is not
            maintained and business loses it‘s incentive to maintain VEC‘s or undertake new ones
         o BUT threat of regulation makes industry less likely to join VEC‘s W/O SOME
            ASSURANCE THAT GOV WILL REFRAIN FROM REGULATING FURTHER
     3) Green consumerism = insufficient (marginal impacts only)
             Must have corporate greening – and address unsustainable patterns of production and
                consumption,
                    o EG – O&G subsidies, eco-tax reform, environmental accounting, new
                         method‘s of prosperity measurement (i/o GDP)

       THEY DO NOT FOCUS ON THE MARGINALIZED
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      57


              Shift attention to the global majority and pro-poor disruptive development strategies
              Focus on bottom-up initiatives to enhance the capacity of marginalized groups to develop
               VEC‘s for their own use or in negotiations with other actors
              View is that fast movement of global capital is destructive and should be regulated i/o
               having states tailor their financical systems to take advantage of capital

       GENERATE TRANSFORMATIVE INNOVATION
         Not just technical, but in governance institutions and practices
         Certain VEC‘s create new rule-making institutions involving novel forms of collaboration
          between civil society, polluters and public authorities
              o They are used to address problems with new technologies and to address the
                  way products are produced i/o the product characteristics themselves




16.2 Environmental Law in Developing Countries
Basic Issues
    What‘s in a name?
            o Post-colonial
                    Emphasises important consequences of colonialism
                    Problem – how get away from imperialist mentalities while still using the
                       terminology
            o Developing
            o Global south
                    Problem with any single term is that environmental problems are very
                       heterogeneous
    What are the most pressing environmental issues for the ‗global majority‘? And how do these
        compare with the environmental priorities of developed countries or ‗global‘ environmental
        policy?
    What are the main characteristics of and challenges for environmental law in developing
        countries?

Challenges:
   1) Lack of resources for implementation and enforcement of environmental laws
   2) Lack of capacity (eg. Leg drafting capacity, enforcement personnel training, enlist courts)
   3) Poor people DO need to increase consumption – environment must per capita and total

       What are the main obstacles?
           o Colonial legacies
           o Governance failures, lack of institutional capacity
                     Is World Bank style ‗good governance‘ a solution?
           o Global economy
           o International environmental law, including discourse of ‗sustainable development‘
       Developmentalist agendas
           o Grow now, clean up later, think big
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     58



       People vs. Parks
           o Many examples of human displacement for creation of national parks
           o Earliest environmental laws by colonialists were for creation/protection of nature
               reserves/parks
           o Creation of parks indicate that individual private property model was introduced
               (otherwise, why need to limit people from communal in which there were natural
               conservation systems/techniques)
           o Parks were often there for colonialists/tourists, not the indigenous peoples
           o Key problems:
                     Excessive centralization
                     Exclusion of community/public from DM‘ing
                     Disruption of pre-existing, informal land tenure and common resource
                       management practices
           o SAMPLE SOLUTION:
                     Uganda – neighbouring communities involved in benefits of parks (revenue
                       sharing, etc)
                            Attempts to recognize traditional rights of occupation and resource use
                     Convention on Biological Diversity – gives power to developing countries
                       (which have so much of the world‘s pristine environments)
                            On paper recognizes host country control over biological resources and
                               entitlement of local communities and indigenous people – encourages
                               local use of resources

       Trans-National Corporations (TNC‟s)
           o Countries compete to attract TNC‘s by racing to the bottom re: environment
           o Environmental effects of TNC investments in developing countries:
                  1) Increasing scales of production – BAD FOR ENVIRONMENT
                  2) Structural effects – reallocation of consumption and production - BAD
                           Production shifts to developing/cheaper countries – bad effect
                  3) Technological effects – diffusion of technology from advanced to developing
                  countries – GOOD FOR ENVIRONMENT
           o Solutions:
                   Difficult for host countries to regulate TNC‘s (due to lack of incentives,
                      disincentives) – so must have the home countries regulate the TNC‘s (not
                      working right now)




UNIT 5 - WATER

General introduction
   ‗Water will become Canada‘s foremost ecological crisis early in this century‘ (Prof D. Schindler)
   Abundance: Canada holds 20% of world‘s fresh water, uses only 2% of its renewable water supply
    per year
   But:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                 59


       o   ¼ of municipalities experienced water shortages, 1994-99
       o   We use more water than anyone but Americans (4400 L/day pp)
       o   We dump 100s billions litres raw sewage into water every year
       o   Livestock operations produce 132 billion kg manure/year
       o   Companies discharge 20m kg toxic chemicals into water/year
       o   Key challenges:
                Drinking water, water pollution, water use and conservation (including exports)


5.1 Water quality: Walkerton and beyond
Walkerton Facts:
      Water supply contaminated by e.coli from manure after floods
      PUC operator Stan Koebel lacked training, habitually falsified records, violated procedures, concealed
       adverse test results and chlorination failures, failed to monitor chlorine daily
      Wells lacked proper monitoring equipment
      7 dead, 2300 ill


Failures of the Water Legal Regime

      Legal status of drinking water quality standards
           o Non-binding guidelines
      Licensing, training & qualification of operators
           o Grandfather clauses
      Water testing procedures (sampling, analysis, reporting, public notification)
           o Labs privatizated without closing reporting loophole
      Drinking water source protection
           o Essentially none

Political Reasons – Budget Cuts

      Walkerton came 5 years into Mike Harris‘s Common Sense Revolution
      Privatize, download, downsize, deregulate, cut taxes and spending, make Ontario friendlier for
       business
      Ministry of the Environment:
           o Staff cut by >40% and budget by 60% from 1995-2000, on top of Rae‘s earlier cuts
           o Labs privatized; Drinking Water Surveillance Program slashed
           o Inspections and enforcement policies and practices: MOE knew of, but failed to correct,
               Walkerton problems. Why?

Responses and Solutions

      Approach
          o Proposed - Multi-Barrier Approach
                 Source protection
                 Water treatment, including filtration and disinfection
                 Well designed and operated distribution system
                 Comprehensive testing
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                60


                   Public reporting of problems
                   Adequate resources to operate and enforce
           o Actual
                   Nutrient Management Act, 2002
                   Greenbelt Act
                   Clean Water Act introduced December 2005
      Treatment
           o Proposed
                   Filtration, disinfection, enforceable water quality standards
           o Actual
                   Drinking Water Protection Regulation, 2000 and Safe Drinking Water Act, 2002
                          Legally binding drinking water treatment and quality standards
                          Legally binding monitoring, operation, training & certification
                             requirements and operator duty of care
      Distribution
           o Proposed
                   Safe distribution systems that prevent contamination en route to consumer
                   Repair, upgrade, replace crumbling infrastructure
                   Avoid hazardous materials (eg lead)
                   Municips should have quality management systems, approved operational plans
           o Actual
                   Safe Drinking Water Act
                          approval and licensing of municipal drinking water systems
      Testing
           o Proposed
                   Thorough testing to identify contamination and allow preventive and remedial
                     action
           o Actual
                   Drinking Water Quality Regulation, 2000 and Safe Drinking Water Act, 2002:
                          Detailed, binding sampling & analysis requirements
                          Lab accreditation requirement
      Public Notice
           o Proposed
                   Ensure public is promptly and fully informed about drinking water problems
           o Actual
                   Drinking Water Quality Regulation, 2000 and Safe Drinking Water Act, 2002:
                          Reporting loop closed (labs must notify MOH and MOE of results)
                          Operators must post results, quarterly reports, CofAs, standards, regs;
                          Chief Drinking Water Inspector‘s annual report must be public
      Adequate Resources
           o Proposed
                   Devote adequate human, financial and technical resources to operate water
                     systems and enforce legal requirements
                   O‘Connor recommendation: strong and effective provincial oversight of water
                     systems including strict enforcement
           o Actual
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       61


                       MOE hired more inspectors, reinstated surveillance program, lots of charges and
                        convictions, partly restored budget & staff
                       Sustainable Water and Sewage Services Act, 2002:
                       Will require municipal cost recovery
       Special Issues
           o Small drinking water systems
                     Comply with regs or post non-potability notices
                     Ontario: currently considering whether to require compliance with regs or set
                       lower site-specific standards
           o First Nations
                     O‘Connor: make provincial services and assistance available on request
                     Ontario: implementing O‘Connor recommendations
                           Note: Ontario standards can‘t be applied directly to First Nations


Drinking Water in the US
    Federal law in force since 1974 (strengthened 1996) - Safe Drinking Water Act
          o Minimum national standards, public participation and notification, citizen enforcement
          o Annual public reports by operators, greater public involvement, greater emphasis on
             source protection (estimated incremental cost: US$22b/yr)




5.2 Water Quantity: Consumption and conservation
Water Use in Canada
   Volume:
          o 4400 L per capita per day (doesn‘t inc. diverted for hydroelectric – + 8800 L per day)
          o 47.3 billion m3 per year (1997), up 26% over 1980
   Uses:
          o Thermal power generation 63%
          o Manufacturing 16%
          o Municipal (household use) 11%
          o Agricultural 9%
          o Mining 1%

Environmental Effects
 Lower water levels may result in:
       o Habitat damage, increased temperatures (summer) and freezing (winter), impaired
         assimilative capacity, changes to deltas & estuaries, changed nutrient flow to sea
 Hydroelectric dams cause:
       o Increased evaporation, higher temps downstream, sedimentation, greenhouse gas emissions,
         heavy metals release, fish kill, disrupted migration, habitat destruction, increased turbidity,
         damage to deltas, estuaries & wetlands.

Laws and Policies

   Federal
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     62


       o   Fisheries Act seldom used to ensure minimum flows for fish (RE: forcing damn operators to
           increase/reduce flow)
       o   CEAA used reluctantly to address water management
       o   Federal power over boundary waters has been exercised regarding bulk removals but
           tendency to rely on provinces
                Does not qualify as trade restraint that would be contrary to WTO/NAFTA, etc

   Provincial and territorial
       o Favour withdrawal over in-stream uses (boating, etc)
       o Mostly ignore ecosystem as a ‗user‘
       o Incentivize consumption over conservation:
                 ‗Use it or lose it‘ approach common; rights usually non-tradeable
                 Lowest prices in industrialized world
                        Flat or declining-rate pricing; only 57% houses metered; effectively free for
                           industry & agriculture
                        Ontario moving toward fuller pricing:
                                o Leg imposed municipal cost recovery
                                o PermitsToTakeWater (PTTW) fees
       o Typically ignore demand-side management
                 Metering (only 57%), volume-based pricing (not used), education, water audits,
                   water efficiency ratings, changes to plumbing & building codes
                 New house construction (Ontario) now must have plumbing that meets low-flow
                   appliance requirements

Water use law - Ontario

   Taking over 50,000 liters per day of water requires a Permit To Take Water (SEE SUPP MANUAL)

Dillon v. Director (MOE), 2002 Ontario ERT                             PTTW
FACTS:
        o OMYA (calcium carbonate) plant near Perth, Ontario wants more water for production use
        o 1999 submit an application for an expanded water-taking permit (4500 m3/day) to MOE
        o 283 comments from the public were posted by the local community – unheard of…
        o Phased permit granted: 1483 m3/day until 2004, then 4500 m3
                 Granted w/o any substantial environmental impact analysis
        o Local residents appeal to Environmental Review Tribunal (ERT)
ARGS:
        o Director (MOE) failed to apply the necessary ‗ecosystem approach‘ per MOE‘s own guiding
            policy  From the Statement of Environmental Values
                 Based on requirements from the Environmental Bill of Rights (EBR)
HELD:
         SEV:
                o Reg 285/99:
                        When considering a PTTW, MOE must consider the protection of the natural
                           functions of the eco-system in accordance with established procedures in the
                           PTTW manual  BUT manual has no procedures set out, not yet updated
                           (until 2005)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                  63


       ‗Eco-system‘ approach, since there are no procedures established, are questionable but
       should have (per the SEV and Reg below)
           o Water-shed is relevant unit for analysis
           o SEV does directly apply to decision making and should be considered every time an
               application for PTTW is considered
           o ‗Eco-system approach‘ means more than evaluating aquatic system, but rather flows,
               etc and all other water-taking permits for that water-shed
      Phase 1 (1453 m3/day) approved, but for any more required, must reapply for permit
DEVELOPMENTS:
      2002: OMYA appealed to Divisional Court
      Before appeal heard, OMYA also applied to Minister for order overturning ERT decision
      Feb 2003: Environment Minister overturnes ERT decision, reinstated original permit (no
       reasons)
      Dec 2003: new government imposed 1-year moratorium on new PTTWs, thorough overhaul
      Jan 2004: Environment Minister revoked OMYA Phase 2 permit
      O. Reg 387/04: new water taking & transfer reg
           o More rigourous eco-system approach

New PTTW Process
       April 2005: MOE launches new PTTW manual
           A. Principles: ecosystem approach, cumulative impacts
           B. Applications classified according to risk
                     Category 1: lowest risk, no scientific studies needed
                     Categories 2 & 3: higher risk
                            Category 2: basic study to confirm criteria & design
                            Category 3: detailed assessment of impacts and water availability
                            Evaluation factors:
                                   o ecosystem functions (incl impacts, interrelationships), water
                                       availability (incl sustainability, existing uses & low water),
                                       water use (incl conservation)
           C. No out-of-basin (watershed) transfers
           D. Imposes a moratorium on new water-taking permits in designated high-use areas




UNIT 6 – AIR

6.1 Overview
Main air pollution issues:

       1) Ozone layer depletion
              - Canada great
       2) Climate change
              - Canada terrible
       3) Regional air quality impacts (acid rain, smog, particulate matter)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                  64


                - Over 50% of acid rain caused by US activity
                - Long-range atmospheric deposition of POPs in the Artic

Performance

        Responsible for between 5 – 15 thousand premature deaths yearly in Canada
        Responsible for billions in health dollar expenditures
        PERFORMANCE:
            o BAD:
                     Canada ranks bottom 5 OECD for total emissions, per capita emissions, or
                         emissions per unit of GDP used
                               Ontario one of worst jurisdictions in all North America
                     smog bad and growing worse (esp. Golden horseshoe, southern Atlantic region,
                         and lower Fraser Valley inc. Vancouver)
                     100 million Kg of toxic substances pumped into the air ANNUALLY, inc. 13
                         million kg‘s of CARCINOGENIC POLLUTANTS
            o GOOD: Sulpher dioxide down 50% since 1970‘s, ozone depleting substances down
                95%, lead down 95%, 12% reduction in air releases from industrial sources between
                1995-1998

Causes

        CAUSES OF MEDIOCRE PERFORMANCE:
           o Lax pollution standards
           o Inconsistent enforcement of environmental laws

        UNDERLYING CAUSES OF HIGH AIR POLLUTION:
           o Among highest per capita energy consumption (because it‘s abundant and cheap)
           o Among highest dependence on fossil fuels (80% of our energy)

        Causes of Air Pollution - Energy users:
          39% industry
                o 70% in P&P, metal smelting, steel making, mining and petrochemicals
          27% transportation
                o Single largest contributor
          34% agriculture, residential, commercial and other

   Types of Air Pollutants:

         1) Criteria Air Contaminants (key polluters, precursors of acid rain and smog)
                 1) Sulfur dioxide
                 2) Nitrogen oxides
                 3) Carbon monoxide
                 4) Volatile Organic Compounds (VOCs)
                 5) Particulate matter
                  These combine and react to form other kinds of damaging air pollution (EG – NO +
                     VOC = ground level ozone  GLO + particulate matter = SMOG)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        65


       2) Hazardous Air Pollutants / Air Toxics (some CAC‘s are Air Toxics)
                      include heavy metals, benzene, asbestos, etc
                      able to travel long distances in air
               Air toxics:
                     o polycyclic aromatic hydrocarbons
                     o heavy metals (lead, mercury, etc)
                     o persistent organic pollutants (PCB‘s, pesticides)


Effects of Air Pollution

      Human health:
          o Affect respiratory system
          o Reduce immune system function
          o Cause cancer
          o Exacerbate cardiovascular disease (stroke, heart disease, etc)
      Environmental:
          o Crop, soil, forests, and other vegetation damage
          o Damage to buildings
          o Corrosion of metals
          o Degradation of rubber and fabric
          o Harm to wildlife
          o Impaired visibility
          o Acid rain damages lakes and streams (eutrophication) and their aquatic species
      Economic:
          o Costs of not avoiding the above costs (crop damage, hospital admissions, absenteeism)

Law

Basic Regulatory Approach:

                   1. Emission standards
                   2. Ambient air quality standards
                   3. Technology / Process standards
                   4. Pollution prevention (philosophy vs. approach) - they are not mutually exclusive
           o   Canada relies primarily on first two, a little bit the third – BUT typically sets objectives
               not standards

International Agreements:

      UN Economic Commission for Europe Convention on Long Range Transport of Air pollution
           o Reductions in sulpher dioxide and nitrogen oxide emissions
      Canada-United States Air Quality Agreement
           o Reductions in sulpher dioxide, nitrogen oxides and VOC‘s
      Stockholm Convention on Persistent Organic Pollutants
           o Canada first to ratify (because we‘d already eliminated use of the 12 subject pollutants)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    66


Federal Regulation:

      CEPA 1999
           o Coverage and problems UL PAGE 101
           o Authority to set:
                   National Air Quality Objectives (NAQO)
                   Toxic Substances
                           Few substances and industry sectors covered
                   Motor vehicle emissions regs
                           But went with voluntary agreements approach
                   Fuel contents
                           Eliminated lead from gasoline resulting in 95% reduction in air lead
                           More recently sulpher content reduced
                   National Pollutants Release Inventory
                           Tracks releases of 300 chemicals from couple hundred facilities
                           See UL PAGE 104 for limitations
      Canada Shipping Act
      Railway Safety Act
      Canada Transportation Act

Provincial Regulation:

MAKE NOTES UL PAGE 102 – 110
   Combination of:
       o Ambient air quality standards
       o Emission standards
       o Permitting systems (CofA‘s)
       o Product standards (eg, catalytic converters, provincial fuel content standards)
       o RECENTLY – emphasis on public participation
               Stat reqs for public notice and comment before new regs / permits are issue
               Limited opportunity for public appeals
               Opportunity for public to request alleged violations of air pollution laws

Federal-Provincial Cooperation:

      1998 Harmonization Accord intended to harmonize regulations
        Led to Canada-Wide Standards = unenforceable recommendations (farce)
        Inconsistently applied across provinces

Municipal Regulation:

      Managed mostly through zoning controls re: development patterns (eg. Limit low density sprawl
       which lengthens drive times with contributes to transport-based air pollution
      Licensing powers
      Funding / subsidy programs (Toronto Atmospheric Fund)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      67



6.2 Ontario’s Air

      2003 – Ontario ranked #6 in NA in toxic air emissions
          o 38 million kg, after OH, NC, GA, PA, TX
          o Down from 45.6 kg in 2002 (#2 after OH)
          o Down 25% (9.8m kg) over 1995
          o DOES NOT include Criteria Air Contaminants
                  Much improvement due to shifting emissions to recycling plants

      OMA: in 2005 air pollution will cost Ontarians:
         o 5800 premature deaths (from 1900 in 2001)
         o 16k hospital admissions
         o 60k emerg room visits
         o $400m in lost workdays
         o $500m in health care costs


MAIN  Ontario Environmental Protection Act (EPA)

WHAT           Establishes the regulatory framework for protection of the air, land, and water of the
               province from the emission, discharge, transportation, use, and disposal of contaminants
               and wastes
HOW            Contains a general prohibition on pollution that requires that no person discharge a
               contaminant into the natural environment that may cause an adverse effect. (s. 6(1)


Characteristics of the EPA:

       1. Establishes a Certificate of Approval (permit) program for emissions (air) and disposals
       (land) that constitutes an exception to the general pollution prohibition.
                a. Approvals for discharges to water under the Ontario Water Resources Act (OWRA)

       2. Authorizes the issuance of program approvals that may be voluntarily requested by persons
       who are a source of contaminants.

       3. Authorizes various types of non-compliance orders that may be issued to persons who are not
       in compliance with approvals under the EPA.

       4. Creates a tribunal that can hear appeals regarding the issuance of approvals and orders.

       5. Creates a regime for imposing both obligations and liabilities on those persons responsible
       for the reporting and clean-up of ―pollutant‖ spills and payment of compensation

       6. Establishes a complex set of offences and penalties, including provisions creating
       environmental liability for officers and directors of corporations.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       68


       7. Authorizes the MOE to issue regulations on a wide variety of matters regarding the control
       of the emission, discharge, transportation, use, and disposal of contaminants and wastes to protect
       air, water, and land.

      Air Contaminants (under Environmental Protection Act):

       WHAT            Establishes the regulatory framework for protecting air quality in Ontario via
                       regulations imposing point of impingement (POI) (place where air contaminants
                       pass over the facility‘s boundary line at ground level) standards

       FOCUS           Is on selected contaminants regardless of the industrial source

       o   MOE has list of more than 300 ambient air quality criteria (AAQC) including 96 POI limits.
       o   LIMITS:
               Only the 96 POI limits are legally enforceable, the OTHER 200 plus "standards" are
                 without legal effect unless incorporated specifically into a certificate of approval
               Most POI limits established in the 1970s and not revised since
               The regulations standards do not take into account long-range transport, long-term
                 deposition, very short-term effects, very long-term effects, bioaccumulation,
                 persistence, additive, and synergistic effects.


Related Developments

       o   Clean Air Program (CAP) - Major amendments proposed to control emission limits at source
           and to classify the level of contaminant hazard, with ultimate goal of virtual elimination of
           toxic air pollution from Ontario sources
                Changes in gov and limited resources led to CAP program implementation failure

       o   1992 Ministry review - approximately 80% of provinces air quality standards (both POI and
           other types) required revision.

       o   1996 Provincial Auditor report - most standards requiring revision had not been updated

       o   > 1996  attempts to update provincial air quality standards based on multi-step process:
                priority setting - risk assessment (hazard identification, exposure assessment, and risk
                  characterization) - risk management (integration of risk assessment with
                  consideration of economic and technical feasibility) - public consultation.
                RESULT  Ministry has placed air standards in two groups.
                       Group 1 = high priority candidates for air standard development.
                               o Inclusions based on toxicity, release quantities to the air as reported
                                   in the NPRI, and identification by federal and national committees
                               o New standards for Group 1 contaminants have been developed or
                                   are now under development.
                       Group 2 = lower priority substances.
                               o The Ministry has reaffirmed the air standards for many Group 2
                                   substances at their current values.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        69


        o   2001 Clean-Air Plan for Industry (CAPI) - proposed regulations to limit air emissions from
            large industrial emitters of SO2 and NO2
                 Refining continues - now called Industry Emissions Reduction Plan (IERP)

Reference
       General Air Pollution Regulations, R.R.O. 1990, Reg. 346, as am.
       Ontario Ministry of the Environment. Ontario's Industry Emissions Reduction Plan: Proposal for
   a
       Nitrogen Oxides (NOX) and Sulphur Dioxide (SO2) Regulation (2004).



EPA Approvals Process

           At company-specific level this approval‘s process is a key arena for industry-government
            bargaining over environmental standards

1) Identify need for approval (many polluting facilities don‘t have approvals)
         s. 9(1) – no construction, alteration, operation of polluting plant, or alteration of process,
            unless approval has been issued and complied with
         s. 6(1) – no discharge in excess of regulations
                o EG. Reg 346 (now 419) air pollution limits
         s. 14 – no discharge that causes or is likely to cause adverse effect
                o (s. 1) "discharge" = "addition, deposit, emission or leak."
                o (s. 1) "contaminant" = any "solid, liquid, gas, odour, heat, sound, vibration or
                    radiation or any combo" that results "directly or indirectly from human activities that
                    may cause an adverse effect."
                o (s. 1) "adverse effect" to mean one or more of the following:
                        1. Impairment of the quality of the natural environment for any use that can be
                        made of it.
                        2. Injury or damage to property or to plant or animal life.
                        3. Harm or material discomfort to any person.
                        4. Adverse effect on the health of any person.
                        5. Impairment of the safety of any person.
                        6. Rendering of any property or plant or animal life unfit for human use.
                        7. Loss or enjoyment of normal use of property.
                        8. Interference with the normal conduct of business.
                o Spills Bill – ―causes or may cause‖; approved discharges exempt
         Types of approvals:
                o New (s. 9) vs. existing polluters (who can apply for compliance program approvals, s.
                    10 – essentially grandfathering allowing for extended compliance periods)
                o Under s. 9:
                        Individual equipment / process CofA
                        Consolidated CofA (for multiple pollutant emitting pieces of equipment)
                        Comprehensive CofA (gives flexibility within a ―bubble‖ – no need to get new
                             CofA‘s for every new piece of equipment, can exceed limits for indiv
                             elements as long as not exceeded overall)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           70


2) Prepare application
        Takes approx 1 year and 10‘s thousands in consulting fees, and thousands in application fees
     Information requirements:
           o Director may require plans, specs, tests (s. 9(2))
           o Reg 419/05 sets out detailed reqs for Emissions Summary and Dispersion Modeling
               (ESDM) Report – described equipment and analyzing emissions
                    ABSURD RESULT: Could be different limits for different facilities (in same
                       business and geographical area) if dispersion modeling arguments convince
                       MOE that emissions dispersion modeling will have different effects

3) MOE review
    1) Initial screening for completeness, EBR registry posting (comment period 60 days)
    2) Technical review (by engineer in the Environmental Assessment Branch) with input from
       region/district, EBR comments (if any)

4) Director‟s decision
    1) Director has power to:
            o Issue certificate of approval (s. 9(2))
            o Impose terms and conditions (s. 9(4))
            o Alter, revoke or suspend approval (s. 9(5))
    2) Director issues or refuses CofA
             Decision posted on EBR registry

5) Appeal
               By proponent as of right; by members of public with leave from ERT



Ontario‟s 3-pronged Approach:

1) Local Air Quality
    Control industrial emitters through air standards setting, certificates of approval and enforcement

2) Regional Air Quality
        Control smog and acid rain through regional, province-wide or transboundary strategies
               o EG. DriveClean, smog alerts & action plans, mandatory air emissions monitoring and
                  reporting regs, emissions trading, cooperation or litigation with US states (eg. Ohio)

3) Global Air Quality



Key Recent Developments:

1) Mandatory monitoring and reporting of key pollutants, 2001

        o   2001 O. Reg. 127/01 entitled, "Airborne Contaminant Discharge - Monitoring and
            Reporting" (under Ontario EPA)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     71


                  Requires estimating and reporting of emissions for over 350 air contaminants.
                        The contaminants were identified from various domestic and international
                          environmental programs including the NPRI.
                  Annual reporting required if, eg, emissions exceed respective contaminant thresholds.
                  For some chemicals, such as criteria air contaminants (e.g., SO2, VOC, NOx, CO,
                   PM, PM10 and PM2.5), additional reporting required.

          Three categories of contaminants have been identified under O. Reg. 127/01:
              1. Criteria air contaminants and Greenhouse gases (11). Reporting for these
              contaminants are based on releases.
              2. Contaminants manufactured, processed, or otherwise used in a facility (76). Reporting
              and also employee and hours of employment thresholds that must be met.
              3. NPRI list of pollutants is included based on releases of these substances.
                      To avoid unnecessary duplication for reporting under O. Reg. 127/01 and the
                      NPRI, facilities that are subject to the requirements must provide the MOE
                      Director with copies of NPRI reports on air releases for NPRI pollutants.

          Limitations of the Ontario air quality program:
           1) The list of air contaminants subject to POI limits is far from exhaustive.
           2) POI limit regulations do not make the distinction between Group 1 and Group 2
           substances.
                a) Many substances of concern identified by the Ministry as Group 1 substances (e.g.
                    Arsenic, Benzene, Benzo(a)pyrene, Carbon Tetrachloride, Vinyl Chloride) are not
                    included in the POI limit regulations.
            3) Standards are based on POI measurements, not pre-stack, or source, measurement of
            contaminant emissions.
                a) This problem was to be addressed in the late 1980s-early 1990s but, with some
                exceptions, has not been pursued by the Ministry since the demise of the CAP program.

2) Coal power phaseout (2007? 2009? Ever?)
         Lakeview coal plant closed in 2005

3) Ontario‟s 5-Point Plan, 2004

       1) Mandatory emission caps (based on O Reg 127/01) for SO2 and NOx
             In place for electricity and some smelting since 2002 - expanded to 7 large industry
                 sectors in May 2005 (Reg 194/05)

       2) Ratchet down the caps progressively
              Reg 194/05: caps will decrease in 2010 and 2015 (goal to reduce to 50% below what was
                  emitted in the mid-90‘s of SO2)

       3) Update the air emission standards
              40 new standards for priority pollutants – 60 others reconfirmed at existing levels via
                  Reg 419/05, in force since NOV 2005 (to be phased in by 2020)
              12 more in progress
              Alternative risk-based approval process available to facilities unable to comply with new
                  requirements
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      72


               419/05 Basic Prohibitions (in addition to the EPA):
                       No emissions that may cause discomfort, nuisance, business interference or
                           property damage (s. 33)
                       No emissions causing >20% opacity

       4) New air dispersion models (for POI measurements)
              Also phases in (2005 – 2020) effects-based standards and air dispersion models
              30 year old models replace with new USEPA models

       5) New streamlined standards setting process

4) The „Spills Bill‟, 2005 (Bill 133)
     Lower thresholds and tougher penalties for polluters




UNIT 7 – LAND

7.1 Introduction
      Canada‟s land
          o Second largest land area behind Russia
          o Incredible wealth of renewable and non-renewable natural resources

      Demands on Canada‟s land
          o Massive conversion of forest lands for settlement since early 19th century
          o Natural resource-based economy: major producer & exporter of forest, mineral and
            agricultural products
          o Current Challenges: urban sprawl, toxic contamination, boreal forest preservation
                 Boreal forest relatively untouched in the past, but now facing logging pressure
                    from forestry industry



7.2 Contaminated Land
INTRO – Problem, Solution and Legal Framework

      ROUTINE Sources of contamination:
         o Routine air or water discharge, pesticide and nutrient application, sloppy chemical
            handling or storage, disposal of chemical waste in landfills, mine tailings, surface
            impoundment, waste piles, underground injection, incorporation in soil (‗land treatment‘)
                Often authorized by permit (may require eventual cleanup)

      ABNORMAL sources of contamination
         o Unplanned spills, leaks, etc from tailings dam breaches, leaching landfills, ruptured
            underground storage tanks, rusted barrels, train derailments, highway accidents, burst
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       73


              pipes, fire, explosion, natural disasters, equipment malfunctions, broken containers,
              sabotage, intentional dumping

      Scope of the problem
          o < 1970‟s no issue - Contaminants routinely dumped or buried in land; imprecise
              containment measurement
          o 1980‟s BIG issue
                   Understanding of impacts, finer measurement
                   Tens of thousands of contaminated sites identified
                           Many derelict or underused; many people living near or on them;
                            accelerated suburban sprawl, urban decay, lost taxes
                   Major cost to clean up, restore, compensate
                           Often exceeds market value of land
                   Government began to enact and apply cleanup laws
                           Began in US and spread to other jurisdictions

      Rectifying the Impacts
          o Three components
                   1) Clean up (remediation)
                            Remove the contamination
                   2) Restoration
                            Restore the environment to previous condition (or near or better)
                   3) Compensation
                            Provide restitution to victims of harm
          o All components are interrelated
                    The quicker and fuller the clean up and restoration, the less harm to be
                       compensated; AND the quicker and fairer the compensation, the easier the
                       complete cleanup

      Current Legal Framework
          o Hodgepodge of CL remedies and immature statutory schemes
                  Leg is a combination of narrow ―pigeon holes‖ (nuclear accidents, mine closure,
                     etc) and generic environmental protection laws (eg. Ont. EPA)
                           Seldom provides for compensation to injured parties; CL remains main
                              vehicle for compensation
          o Efforts at comprehensive schemes for remediation, restoration and compensation
                  Waste Management Act 1997 (BC) (replaced by Environmental Management Act,
                     2003)
                  Comprehensive Environmental Response, Compensation and Liability Act of
                     1980 (CERCLA) (USA)
                  Ontario passed new Brownfields legislation in 2001 to promote brownfields
                     revitalization (not comprehensive, but important step)


Spills (Unplanned Releases)

      HERE - Catalyst for Action: Sarnia‟s Chemical Alley
         o Largest concentration of petrochemical facilities in Canada
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                            74


            o   ‗03-‗04 spike in long history of spills including Imperial Oil spill of 85,700 kg of solvents
                into St. Clair River
                     Resulting Environmental SWAT team (est. following Walkerton) sweep found
                         34/35 facilities in violation (260 violations), including:
                                      o No spill contingency and/or spill prevention plans
                                      o No Certificate of Approval (for certain emissions, etc)
                                      o Violations of Certificate of Approval
                                      o Improper chemical storage, handling and identification

       2004 Spills data
           o 1062 reported industrial spills (up 24% over 2003), around 4000 spills total (inc.
               municipal operations – sewage overflow, etc)
           o 139 largest industrial emitters were responsible for
                     Average volume of liquid spills 55,000 L (up 250% yoy)
                     Average weight of solid spills >1000 kg (up 400% yoy)
                     Largest single spill: >18 million L wastewater (into Lake Ontario)
                     Dinking water intake closures up 600% yoy

            o   Spills: The Legal Response…


SPILLS BILL - Ontario Environmental Protection Act, Part X
As amended by „Spills Bill‟ (Bill 133, June 2005)

   “spill” = Discharge that is abnormal in quality or quantity in light of all the circumstances of the
    discharge
            o Discretionary wording  “ABNORMAL”
            o Release from a built structure or container into the natural environment

   s. 91.1  Prevention and Contingency Plans
            o Must develop and implement a spill contingency plan to:
                    Reduce the risk of spills
                    Plan of action for when spill occurs
                          1. Notify the ministry
                          2. Notify the public
                          3. Ensure adequate personnel and equipment to respond to the clean up
            o MISA facilities (already required to have Contingency Plans based on C of A‘s

   s. 92  Reporting:
            o Every person who has control of a pollutant OR every person who causes a spill…
                    What – a spill
                    When (2) – as soon as they know or ought to know a spill occurred

   s. 93  Spill Response:
           o Polluter’s role and duty:
                    S. 93 – to do everything practical to ameliorate the adverse effect and restore the
                       environment + ministry can issue clean up orders, etc
           o Ministry’s role and powers:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        75


                     Assess severity, decide next steps, negotiate response with polluter, decide
                      enforcement action (eg. S. 18 orders), step in if necessary, recover costs (if
                      polluter doesn‘t do the clean up themselves)
           o   Municipalities rights and powers:
                  Take action, recover costs (if polluter doesn‘t do the clean up themselves)


LIABILITY

      Increasingly dominant issue since the 1990‘s
           o Not because of it‘s environmental importance, but rather because of the costs involved
      Dominates attention of legislatures, courts, lawyers, real estate, industrial and financial
       communities
      1993: CCME recommended nationwide principles
      1990‟s: numerous provinces enacted remediation & liability legislation; to wave of litigation
      2000‟s: new focus on ‗brownfields‘ revitalization
           o Abandoned or underutilized formerly industrial contaminated sites


      KEY QUESTION FOR LIABILITY  HOW CLEAN IS CLEAN?
         o Satisfying regulatory req‘s OR for Common Law purposes?

Tridan Developments Ltd. v. Shell Canada 2002 ONCA              CLEAN UP TO PRISTINE COND‟N
FACTS:
     Ottawa gas station tank leaks to neighbours land, Shell accepts responsibility for clean up BUT
       difference in cost between MOE guidelines and to ‗pristine‘ condition (ie – as if no
       contamination) was $250 K
ARGS:
     Shell says MOE guidelines, Tridan says condition it would have been in butfor contamination
ISSUE:
     What‘s the standard - MOE guidelines OR original ‗pristine‘ condition?
HELD:
     Tridan entitled to property back to pristine condition
           o Shell must clean up in excess of MOE guidelines
     Sub issue: Should there be a compensation for stigma due to past contamination?
           o No, if cleaned to pristine condition, can‘t be any stigma
     Should it depend on the legal context? Type of land use?
           o Danger of changing land uses opening governments and polluters to liability after it was
               thought to be closed
                     IE – where conversion from industrial site to residential site
COMMENTARY:
     At the time of decision, MOE guidelines were not law (just guidelines) – NOW, they are law
       and therefore the Tridan decision may no longer be valid


Other Liability Principles
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      76


Polluter pays principle

       Whoever causes the pollution should bear the cost of remediation, restoration and compensation

       ABSOLUTE LIABILITY APPROACH – Ontario
          o Absolute, retroactive, joint & several liability of all past or present owners, operators or
             managers
                 EG - ABSOLUTE & RETROACTIVE – Ontario EPA, s. 18 (director may
                    require anyone who owns or owned, operates or operated,, manages or managed
                    etc to clean up)

       FAULT BASED APPROACH - Manitoba
          o Potentially liable parties are only responsible for their proportionate share dependent on
             statutory criteria: What they knew, what action taken, etc ---- CAUSATION

Who is liable?

       Look at BC Environmental Management Act
       Typical categories of responsible parties include:

                 Owners and operators
                    What about a landlord whose tenant causes a spill? LIABLE (In Ontario)
                    Past owners who did nothing illegal at the time? LIABLE
                    Non-polluting owners who acquire site before or after contamination? LIABLE
                    Owners of land contaminated from off-site? (eg. Tridan) LIABLE
                    Parent corporations? NOT LIABLE

                     BC: The Innocent Land Owner Defence
                         When an owner can establish that when they bought the site it was
                              o already contaminated
                              o they had no reason to know and took all reasonable inquiries re:
                                 contamination
                                      NOT LIABLE in BC (maybe in Ontario)

                 Anyone with management and control
                     What about lenders who act to protect their security (ie – by taking possession)
                             In BC, ss. 45(3) in order to be liable lender must take over active control
                              not just of the property, but of the substance
                             In Ontario, a bank that takes possession of a defaulted mortgage may be
                              liable for cleanup
                             Beginning in the late 1990‘s in Canada, govs began negotiating with
                              lenders to help them avoid liability for contaminated lands because
                              previous regulations had a chilling effect on lending activity (contrary to
                              the intention which was to promote clean up via lender pressure on
                              potential purchasers)
                     SECURED CREDITORS  Active control or active management over activities
                       that CAUSE the contamination
                             Lender participating ONLY financially = NOT LIABLE
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       77


                              Lender with the option of managing directly, but who, if fact, DON‘T
                               manage directly = NOT LIABLE
                                  o ONLY liable if actual direct management and control of the
                                      activities that cause contamination

                       Re Karge
                        Mortgagor/tenant operating a dump on the land, buries tires on the land,
                          tenant abandons, leaving the mortgagee/Karge w/ the defaulted mortgage
                        Karge tries to find a new tenant and rents and attempts to sell the land
                        Ministry orders Karge to clean up the tires buried on the property B/C as a
                          lender, he had taken management and control of the property by bringing in a
                          new tenant and taking rent, etc

               Special cases
                   Governments; producers/transporters, cleanup contractors, future use change
                            Governemnt bodies that inherit contaminated land involuntarily are not
                             liable for clean up costs
                            Municipalities are given only limited protection where they acquire
                             contaminated land involuntarily (via tax sale)
                                 o Given 5 years to assess and/or sell or cleanup the property


CNR v Ontario (ONDC) 1992                              PAST & PRESENT OWNER LIABILITY
FACTS:
    Past and continuing soil and groundwater contamination and wood treatment plant
    3 owners/operators (CNR, Abitibi Price, NWP) ordered to clean up the land
ISSUES:
    Is non-occupying land owner (CNR) liable?
HELD:
    Non-occupying landowner = NOT LIABLE
          o Act  Cleanup order to ―owner of the source of contaminant‖
          o Source = the plant itself, CNR‘s land was not the source, rather just a medium of
              transport for the contamination (that moved off the property due to underground
              migration)
    Former plant owner/operator (AP) = NOT LIABLE (BAD = see commentary below)
          o AP owned the plant (the ―source‖) when the majority of the contamination occurred
          o Look at wording of Act; rationale: Act is forward-looking, only present owner in position
              to obey the order (past owners would have to access the land, maybe a trespass, etc)
                   Principles of retroactivity can not apply – Act not explicit enough
    Present plant owner/operator (NWP) = LIABLE
          o Only party who has already acted to ameliorate the contamination is liable

COMMENTARY:
   Change to Act in 1990 (NOT CONSIDERED HERE), makes former owners (AP) liable
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      78


Quebec v Imperial Oil 2003 SCC                 FORMERLY LEGAL ACTIVITY = LIABLE
    Imperial Oil IS liable for contamination caused by its perfectly legal handling of toxic substances
       long ago, even though land was cleaned to the then-current standards


North Fraser Harbour Comm. v BC 2005 SCC           NON-POLLUTING OWNER = LIABLE
    BC Hydro IS liable for contamination its predecessor was not liable for when it happened in the
       1950‘s.


Montague v Ontario 2005 ONDC               MANAGERS RESPONSIBLE FOR CONTRACTOR
   Person in charge of 1978 cleanup IS liable for contractors secret burial of chemical drums
          o Paint company contracted with company who, instead of removing the hazardous waste,
             simply buried on the site in the 1970‘s


Brownfields Redevelopment - Ontario Bill 56 (2001)

       Amended various acts and regs to encourage brownfields redevelopment:
        1. Cleanup standards now have force of law
               a. May be uniform or site specific risk-based
               b. Site specific may allow lower than regulatory standards for industrial users, etc
        2. Clearer rules on site assessments: when, how and by whom
        3. Site assessment and cleanup to reg stds mandatory for change to „more sensitive use‟
               a. Must file Record of Site Condition documenting clean up
                        i. Qualified clean up expert issues to the property owner at the end of the
                           cleanup process that the site meets the general OR site-specific standards
                       ii. RSC is a title document
        4. MOE may impose conditions on site-specific cleanups
        5. Limited liability protection for owners after RSC filed
               a. Protected against certain kinds of clean up orders
               b. NOT protected against orders re: new contamination, or if new
                   exposure/contamination discovered, not covered during cleanup process
                        i. Not covered during cleanup is disincentive to potential purchasers – could
                           result in clean up orders putting them on the hook in case standards change,
                           or they wish to sell i/o finishing cleanup or any other UNCERTAINTY
        6. Limited liability protection for municipalities, lenders




7.3 Toxic Substances
Pesticides and Other Toxins

“Cradle to grave: The Toxic Chemicals Problem”
    Rachel Carson, Silent Spring, 1962
           o Vilified by science and industry but launched modern environmental movement in US
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      79


           o Eerily contemporary ring 44 years later
      Only entered policy mainstream in 1980‘s when character of environmental crisis
       reconceptualized (recall Unit 1)
           o Silent Spring redux, 1994 (Al Gore)
                   Environmental crisis worse, not better; toxic chemical production and use way
                       up; law and policy have failed to respond adequately


Federal Regulation of Toxic Substances under CEPA 1999

      1988 – enacted - A new pollution control paradigm, integrated risk management
      1999 – not-so-dramatic overhaul
          o ―The bill of a thousand cuts‖ resulted in a clear improvement, but closer to the Liberal
               Gov‘t and industry‘s wishes than the recco‘s of the Commons Environment Committee
          o Regular 5-year review began 2005
                    Parliamentary review by Committee on Environmental and Sustainable
                       Development underway, to be followed by gov response (2007) and possible bill
                       phase (2008)

      Scope: (SEE TABLE OF CONTENTS)
          o Collection of environmental information
          o Regulation of toxics, fuels engine emissions, nutrients
          o Implementation of international agreements (ocean dumping, marine pollution, hazardous
               waste, transboundary pollution)
          o New 1999: Virtual elimination, precaution, pollution, prevention planning, public
               participation (inc. right of notice and comment and right to court action ―citizen suit‖),
               biotech, endocrine disruptors…

      Preamble - Purposes
          o Includes ―Sustainable development‖, ―pollution prevention‖, ―virtual elimination‖,
             ―ecosystem approach‖
                   Decision Criteria = Science AND aboriginal AND social, economic and technical
                     knowledge

      s. 2 - Government duties (s. 2)
            (a) Apply PP
            (b) Promote enforceable pollution prevention
            (c) Implement ecosystem approach
            (d) Consider the human and ecological benefits of (any proposed) regulation
                     IE – federal policy already requires a cost impact assessment when proposing
                        new regulations, so now must also quantify the cost benefits of new regulations
            o Etc etc etc

      Control of toxic Substances
          o Two-track approach
                    Track 1: Virtual elimination of the worst substances (anthropogenic, inherently
                       toxic, persistent and bio-accumulative)
                    Track 2: “life cycle management” to prevent or minimize release of all the rest
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      80


            o   Regulatory process:
                   1) Risk Assessment (determining whether ―toxic‖)
                   2) Risk Management (taking steps to regulate toxic substances)
                            This is the litmus test: What is actually done to regulate toxic substances
                            Risk Assessment gets all the focus, but risk management is the key (and
                               the one usually not done well)


1. Risk Assessment  Is it Toxic?

       Basic trigger for regulation (see Hydro-Quebec)
           o Is the substance ―toxic‖ IE – entering or may enter the environment in quantity,
                concentration or under conditions that
                    1) Have a harmful effect on the environment
                    2) Constitute a danger to the environment on which life depends
                    3) Constitute a dander to human life or health (s. 64)

       How are substances determined to be toxic?

                1) Priority Substances List assessments (s. 76)
                     Ministers (MOE and MOH) must compile list (content discretionary)
                             o CURRENTLY: PSL 1 (1989), PSL 2 (1995) approx. 44 + 33 subs
                     No mandatory timeframe, but can require assessment after 5 years on list (s. 78)
                     Long delays in completing assessments; many PSL substances are not monitored
                        by the government
                             o 3 of 44 on PSL 1 still not assessed, etc – led to…

                2) Domestic Substances List categorization & screening
                      o To force quicker assessment of existing chemicals
                      o CEPA 1999 gave government 7 years to identify all substances on DSL
                           (23,000 known to exist in Canada in 1986) that are persistent or
                           bioaccumulative and inherently toxic, or pose widespread exposure risk,
                           (s. 73(1))
                                 Completed Sept 06 (approx. 4000 chemicals must be further studied)
                      o Government must now conduct screening assessment of those substances
                           (no mandatory timeframe) (s. 74)

                3) Reviews of decisions of other jurisdictions (EG – US EPA)


2. If toxic, then what?

       When assessment complete, government must propose either:
              (a) no further action (only if not toxic)
              (b) add to Priority Substances List (for further assessment)
              (c) add to Schedule 1, Toxic Substances List
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    81


                      Schedule 1 listing mandatory for NASTIES = may have long term effect on
                       environment and is persistent, bioaccumulative, inherently toxic and
                       anthropogenic
           o   If Ministers propose adding a NASTY to TSL must also propose ―virtual elimination‖
                    No requirement to actually DO anything once a substance on the TSL – virtual
                       elimination is all hype (see Special Issue below)

      Managing Toxic Substances
         1) Add substance to TSL, s. 90(1)
                  See www.ec.gc.ca/CEPARegistry/subs_list/toxicupdate.cfm
         2) Decide how to manage it
                  Environment Canada, Mgmt of Toxic Substances website
                    www.ec.gc.ca/toxics/en/index.cfm
                         How toxic substances are actually managed
                  In theory, regulations may cover a broad scope, ss. 93, 94
                         Ind. Wide range of mandatory controls and bans
                  In practice, preference for non-regulatory approach (voluntary agreements,
                    guidelines, P2 –pollution prevention- plans)

      Regulations
          o Of 79 listed toxic substances, about 12 are regulated
                   May be substance specific (eg. PCB‘s) or substance-medium-sector specific (eg.
                    Lead smelter air emissions)
                   Types of controls:
                          Max concentration in releases or products (eg. Benzene in gas),
                          Production/import caps (eg. CFC‘s)
                          Permitted uses (eg. HCFC‘s)
                          Complete bans on production, use, sale, import/export (eg. Mirex)
                                 o Eg. 1992 Pulp & Paper Mill Effluent Chlorinated Dioxins and
                                     Furans Regulations
                                          Prohibit releases of dioxins and furans; led to significant
                                             process modifications, 90% reduction in releases
                          Complete substance ban (Prohibited Substances List)


Special Issue: Pollution Prevention

      s. 2  Government duty to promote and reinforce ―enforceable pollution prevention approaches‖
            o Main approach for dealing with new toxics

      Implementation:
          o s. 54  Goal: contribute to toxics management, develop situation-specific solutions,
             encourage P2 (per guidelines issued Feb 2001)
          o s. 56  May require P2 plans of firms (15 notices so far as of 2005)
          o s. 90(1.1)  Must prioritize P2 in developing regulations for toxic substances
          o s. 209  May make regs re: P2 for government operations, federal or aboriginal lands
          o PROBLEM:
                  Most regulation still targeted at limiting pollutants, not preventing them
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                   82


                      No data on how effective the P2 plans are in actually reducing pollution

Special Issue: Virtual Elimination

      “virtual elimination”= Reduction of the contaminant in the environment below the lowest
       measurable concentration
      Mandatory for NASTIES (persistent, bioaccumulative and anthropogenic)
          o What does the Act actually require?
                    See ss. 65, 65.1
                    s. 65 – def‘n – below level of quantification of Ministers
                    s. 65.1 – lowest level measurable with sensitive but standard normal
                    s. 65(3) – once level of quantification specified in the List, THEN the Ministers
                      “shall prescribe the quantity or concentration of the substance that may be
                      released into the environment …and in doing so, shall take into account any
                      factor or information provided for in section 91, including but not limited to,
                      environmental or health risks and any other relevant social, economic or
                      technical matters”
          o Status:
                    Ministers must compile Virtual Elimination List
                    In mid 1990‘s identified 13 candidate chemicals
                    Currently 0 on the VEL
                           Recently a proposal to add hexachlorobutadien

Special Issue: Community Right to Know

      Implemented by requiring PRTR – Pollutant Release and Transfer …)

      National Pollutant Release Inventory (NPRI) established by CEPA 1988
          o Compiles and publicizes releases to land, air and water of 200+ substances from
              industrial & transportation facilities that meet reporting thresholds
          o LIMITS:
                   Reporting thresholds very high (thousands of kg, etc)
                   Cover releases only, not us
                   Until recently did not cover criteria air pollutants (SO2, NOx, CO, PM)
                   Doesn‘t cover greenhouse gases
                   Doesn‘t cover all CEPA-toxic or under assessment substances
                   Covers only a fraction of pollutants
          o North American Commission for Environmental Cooperation (CEC)  ―Taking Stock‖ –
              report on pollution releases
                           www.cec.org or www.nec.org

Status: Battle Against Toxics

      Paul Muldoon (former) CELA exec director:
          o CHALLENGES: pervasiveness, regulatory paralysis
          o HOPE: POP‘s treaty, PP, transparency, public engagement
          o PROPOSAL: Toxics Use Reduction Law
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          83


                       Set national toxics use and emission reduction target - review/change industrial
                        processes to avoid use/generation of targeted substances - implement P2 and
                        TUR plans - phase out toxic processes, materials and products - develop
                        institutional capacity to assist industry - monitor effectively




UNIT 8 – NATURE CONSERVATION

8.1 Biodiversity Conservation: Issues and Concepts
   Biological diversity = the variety of life
         The genetic, species and ecosystem variability that differentiates Earth from every other
            planet in our solar system
                 i. Genetic diversity – refers to the variety and variability of genes in a population, and
                     enables organisms to adapt to changes in their surroundings and evolve in response
                ii. Species diversity – a measure of the total number of species (richness) and a measure
                     of the relative abundance of species in an area (evenness)
               iii. Ecosystem diversity – the range of different biological communities, such as forests,
                     wetlands and prairies, which constitute the overall landscape

   Ecological processes are vital aspect of biodiversity
        The mechanisms by which life functions, inc. photosynthesis, nitrogen fixation, wildfire and
           predation

   Species richness estimates range from 5 – 100 million species; only 1.75 million identified so far
   Current extinction rate is very high, estimated at 100 – 10,000 times greater than the normal rate

   ―extirpation‖ = extinction in a particular region/country only (surviving elsewhere)

   Why Biodiversity is Important

    a) Moral obligation not to cause the extinction of other species
    b) Nature provides irreplaceable ecological services
          a. EG - photosynthesis, the water cycle, carbon storage, pollination, and soil creation
    c) Nature provides materials necessary for human survival
          a. EG – food, clothing, shelter and raw materials for medical, industrial and commerc uses
    d) Economic benefits of nature/wildife-related tourism
    e) Recreational and aesthetic benefits of wildlife/nature-related activity



Canadian Performance

   Data that ecosystem, species and genetic biodiversity suffering
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                              84


   ECOSYSTEMS:
       EG – Coastal Douglas fir forest covers <1% of original area
       EG - <1% of tall grass prairie still in native state
       EG – Ontario‘s Carolinian forest covers <3% of original range
       EG – BC‘s Garry oak meadoews <5% of historic area
       EG – Wetlands:
             i. Atlantic coastal marshes – 65% disappeared
            ii. Southern Ontario wetlands – 70% disappeared
           iii. Prairie wetlands – 71% disappeared
           iv. Fraser River delta – 80% disappeared

   SPECIES:
        72,000 identified species and similar number unidentified
        431 species-at-risk

Endangered Species
    Federal endangered species leg only passed in 2002, and Species at Risk Act still not implemented
    Different protection depending on jurisdiction (federal vs. provincial)

Marine Biodiversity
       Collapse of cod stocks on the east coast ended view that seas could be endlessly exploited
       GENETIC:
              o Extirpation of hundred‘s of salmon runs on both coasts – weakens overall salmon
                  gene pool

Parks & Protected Areas
          1) Haven‘t met the international threshold of protecting minimum of 12% of land and waters
              - 60 other nations have larger % protected
          2) Panel on Ecological Integrity in Canada‘s National Parks (2000) reports that 38/39 national
          parks are suffereing from severe ecological stress
          3) Hundreds of exotic species displace native species from Canadian parks
          4) Mining, logging and oil and gas development are permitted in many parks
          5) Governments tamper with park boundries (shrinking or eliminating parks)
          6) UN says several World Heritage Sites may have status revoked in development continues
          in an around the national parks within these sites


8.2 Parks and Protected Areas
       Idea originated with Yellowstone in 1872, first in Canada was Banff in 1885

       Include national parks, provincial parks, wilderness areas, ecological reserves, territorial parks
        and wildlife sanctuaries

       Canada‘s network of protected areas covers 9 - 11% of the country
           o 39 national parks, 2 national marine parks, 1000+ provincial parks
           o BUT ONLY 7% - 8% of land area prohibits logging, mining or hydro dams
           o Amount of protected land area in Canada has doubled since 1989
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       85


                       More than 1000 new parks, eco reserves and wilderness areas covering more than
                        40 million hectares added in the 1990‘s
                       BUT, all gov‘s (except BC, which enacted mandatory legislation) have failed
                        broader 1992 commitment to ―complete Canada‘s network of protected areas
                        representative of Canada‘s land-based natural regions by the year 2000‖

WHY PARKS:
      FOR: Recreation, profit (tourism), education, spiritual value, cultural heritage, ecosystem
       protection for humans, intrinsic preservation
      AGAINST: Resource extraction (mining, O & G, logging, hunting, fishing)

HOW MUCH LAND SHOULD BE PROTECTED:
   Minimum 12% of land area (international norm, repeatedly agreed to by Canada) should be
    protected from all industrial development

WHAT SIZE AND SHAPE:
   Depends on purposes, but if one of them is biological diversity, must design them with this
    consideration
        o Encompass viable resident populations, follow ‗natural‘ boundaries
   IN PRACTICE:
        o Designed based on where property can be bought, used, based on economic factors
        o Most are too small, arbitrary boundaries, shrinkage

WHERE LOCATED:
   As of 2003, 13 of 39 national eco-regions still lack national parks (mostly symbolic)

COST:
   Land acquisition is expensive (expropriation w/o compensation never done in practice)
   National park creation harder in the West since feds transferred public lands to provs in 1930‘s
   Compensation for resource rights holders can be very expensive


R. v. Tener 1985 SCC                     CAN‟T EXPROPRIATE FOR FREE UNLESS STAT AUTH
FACTS:
     Guys‘ mineral grant land area was expropriated by the province for a park
HELD:
     General Rule: Unless words of a statute clearly so demand, a statute is not to be construed so as to
        take away the property of a subject without compensation
     Prov‘s decision reduced Tener‘s property rights, amounted to an acquisition of part of the
        property by the Crown, took value from T and added it to the park; this is a taking for which
        compensation must flow
     Amount of compensation: full market value of licence, including future foregone revenue
POST:
     Tener‘s claim area rezoned ―recreational‖ so mining was permitted

EXPROPRIATION NOTE:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          86


      Not all resource or extraction rights will be subject to compensation for expropriation, though in
       practice they are unless the statute explicitly denies compensation (for expropriation or reduction
       in value of rights)



Performance: Protected Areas Laws and Policies
    4 categories:
          o Parks
                  Policy  Dual mandate of conservation and recreation
          o Wilderness areas
                  Policy  Similar to parks, but more restrictions on commercial development and
                     focus on non-motorized recreation
          o Ecological reserves
                  Smaller areas, that conserve unique natural features or landscapes
                  Policy  Strict rules on permissible activities
          o Wildlife management areas
                  Policy  Protect specific species or ecosystems, but often allow a broader range
                     of activities believed to be compatible with protecting wildlife

      1/3 of protected land under federal jurisdiction
           o Primarily national parks, and some national wildlife areas and migratory bird sanctuaries
           o National Parks Act – best, most progressive, parks legislation in Canada

      2/3‟s under provincial and territorial jurisdiction
           o Recent report gave passing grades only to Nova Scotia and Newfoundland and Labrador
                   Rest got F, except Alberta and Ontario which were given F-minus
           o Problem = lack of clear legislation and policy with respect to parks and protected areas
                   Result is chaotic stream of ad hoc decisions and actions – great variance between
                      provinces

      KEY PROBLEM: Economics dominates the process of identifying and selecting protected areas

      Legal system ISSUES:
          1) Protected areas laws are inadequate for the job
          2) Canada‘s parks are too few, too small and too isolated to be able to protect biodiversity
          3) Parks do not have sufficient funding to ensure proper management


PROBLEM #1: Protected areas law inadequate

      Ontario‘s Provincial Parks Act and Wilderness Areas Act mostly unchanged from original 1954
       and 1959 versions respectively
           o They have not kept pace with emphasis on preserving the eco value of protected areas
           o Only NFLD, NS, MB legislation even refers to conserving biodiversity
           o Only the federal Ocean‟s Act refers to PP
           o Recent Yukon Parks and Land Certainty Act allows industrial activity in parks
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     87


General weaknesses of Canada‟s protected areas legislation:

   1) PURPOSES are ambiguous
        Original primary purpose of parks (and governing laws) was recreation, not conservation
        GOOD LAWS:
             o Canada National Parks Act s. 4(1) ―national parks … dedicated to the people of
                 Canada for their benefit, education and enjoyment … and parks shall be maintained
                 and made use of so as to leave them unimpaired for the enjoyment of future
                 generations.‖
             o Only NS QC, PEI and NFLD parks/wilderness acts make clear that conservation is
                 top priority
        BAD LAWS:
             o In other jurisdictions either no explicit purpose, recreation purpose or dual purpose
             o EG – In BC, general provincial policy is explicit that conservation takes precedence
                 over recreation in parks, but the Park Act is ambiguous – nothing stops the gov from
                 breaking their own policy…THE LAWS MUST BE CHANGED
        RESULTS OF AMBIGUOUS PURPOSE (RECREATION):
             o Vast numbers of visitors who require infrastructure and leave behind sewage, etc
             o Leads to habitat loss, wildlife decline, water pollution
        COMMENTARY:
             o ―wilderness area‖ = no industrial OR excessive recreation activity allowed
                      In US, 5% designated as wilderness area, in Canada 0.2% designated
                      1988, CNPA authorized officials to designate (―may‖) wilderness areas
             o CATEOGRIES  National Park zoning allows areas in existing parks:
                  i. ―wilderness‖
                 ii. ―special preservation‖ areas
                         1. where none or only very basic human imprint allowed (non-heated
                              cabins, etc)
                iii. Natural environment (undeveloped but motorized facilities allowed)
                iv. Recreation
                 v. Park facilities (campgrounds, resorts, mgmt buildings, etc)

   2) INDUSTRIAL resource activities (logging and mining) are not prohibited
        Canada National Parks Act – prohibits industrial resource extraction indirectly via language
         requiring that eco integrity be given top priority and through a reg limiting use of natural
         resources within parks
        Despite National Parks Policy statements about no industrial activity in national parks, there
         was clear-cut logging until the early 1990‘s (EG. Canadian Forest Products Ltd was logging
         in Wood Buffalo National Park – a UN World Heritage Site)
        GOOD JURISDICTIONS: Only QC and PEI‘s protected areas legislation and regs
         explicitly prohibit industrial resource extraction
             o PERVERSE EFFECT: It is possible that this leg discourages creation of parks
                  (as these two jurisdictions have the lowest % of protected land in Canada)
             o NS and NFLD prohibit NEW industrial activities, but allow some existing ones to
                  continue
                       NFLD court banned logging trucks from using roads through parks on the
                          basis that transporting timber was part of logging (which is prohibited in
                          parks)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       88


          BAD JURISDICTIONS: ALTA, SK, MB, ON, YKT, NWT, NUN allow industrial resource
           activity in some protected areas
               o ON Provincial Parks Act allows mining in 23 parks (via Mining in Provincial Parks
                    Regulation)
                         NOW considering overhauling old Provincial Parks Act banning industrial
                            activity and adopting eco integrity as principle for decision making

   3) Too easy to alter PARK BOUNDARIES
        KEY is whether park boundaries can be modified only by an act of the legislature (via
           legislation) or by closed door fed or prov cabinets (regulation)
               o National Parks can be created by regulation, but boundaries can only be modified
                    through legislation = GOOD
               o GOOD JURISDICTIONS: BC, NS, SASk require an act of the legislature to
                    eliminate or diminish the size of a park or wilderness area
               o BAD JURISDICTIONS: QC, NFLD, MB – parks can be eliminated or reduced in
                    size by regulation, BUT only after meeting stat public notice requirements
               o WORST JURISDITIONS: ALTA, ON, PEI, NB, YKT, NWT, NUN parks can be
                    reduced or eliminated through regulations
               o EG - ON in 1999 created “mobile” parks, 378 new parks that could be eliminated
                    if valuable mineral deposits are found, and made into parks again after mining is
                    complete
               o EG - “Press Release Parks” – parks that are announced and created, but are not
                    covered by the relevant legislation, leaving them open to industrial activity
                          EG – certain national parks not yet protected by the Canada National Parks
                             Act
                          EG – BC created parks on Vancouver Island that were publicized years ago,
                             but still do not legally exist
                          EG – ON same thing with parks announced in 1999 but not yet legally
                             protected
               o Best legal protection if included in treaty or land claim settlements with Aboriginals
                    (b/c treaties enjoy constitutional protection)
                          On the other hand, Aboriginal claims can hinder park creation if it is over an
                             area they claim as their own – court has held there is a duty to consult with
                             Aboriginals, in a meaningful way, before making decisions about new parks
                          Final resolution of land claims agreements could potentially result in the
                             removal of land from parks

   4) PUBLIC PARTICIPATION in the development of Management Plans is NOT required
        GOOD JURISDICTIONS: ONLY NFLD, NS, YKT leg requires management planning for
         protected areas and public participation in the development of these plans
        OK JURISDICTION: MB requires management plans but not public participation
        BAD JURISDICTIONS: All other provinces and territories require neither plans nor
         participation

   5) Regular reports on state of protected areas NOT required
        Required under the Canada National Parks Act but NOT REQUIRED under provincial or
          territorial legislation

   6) Bureaucrats and politicians have unfettered DISCRETION in park management
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      89


          Powers exercised in secret - leads to 2 problems:
              1) Refusal to exercise discretion
                       EG – Canada National Parks Act 1988 amended to enable formal
                           designation of wilderness areas, but none designated for 10 years
                                NOW however (per CNPA 2000 amendment), there is a stat deadline
                                    for designation once areas are identified in park management plans
              2) Improper exercise of discretion
                      - allowing ecologically destructive activities in parks – discretionary language
                      means gov not prevented from approving these activities
                               - no effective mechanisms in leg to ensure accountability
                               - courts are deferential to park bureaucrats, only overturn gov decisions
                               that are ―patently unreasonable‖ or involve a significant legal error



PROBLEM #2: Size, location of protected areas insufficient to protect biodiversity

          Proof is that species are disappearing from protected areas
               o STUDY: All of the national parks in western North America, including Banff and
                    Jasper are losing species
                         EG – Point Pelee National has lost 23 species in past century (Parks Canada)
                         EG – Fundy National Park has lost 12 species
                         EG – PEI National Park has lost 9 species
          Nature of protected areas (ie – islands in a sea of highly modified landscapes) make them
           particularly vulnerable to biodiversity losses
               o The smaller and more isolated the greater the vulnerability of species on that island to
                    extinction
                         Development within parks only exacerbates the problem

          Panel on Ecological Integrity of Canada’s National Parks says Parks Canada‘s ability to
           maintain the eco integrity of national parks ―is uncertain due to compromises in parks size,
           boundary configuration and adjacent land uses.”
              o Need more and larger parks, buffer zones around parks and greater connectivity
                   between parks
              o Scientists say even 12% goal is not enough in Canada to protect biodiversity or eco-
                   processes – estimates of sufficient amount range from 25 – 75%

          WRONG PLACES PROTECTED:
             o Decisions too often based on economic factors rather than ecological factors
                   EG – BC gov study found that 61% of area newly protected between 1991-96
                      were alpine and sub-alpine (aka ―rock and ice‖)
                   Throughout Canada, biologically rich areas – old growth forests, wetlands,
                      estuaries and prairies tend to be underrepresented by parks



PROBLEM #3: Inadequate Resources
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                   90


      Parks Canada downsized since the 1980‘s, by approx 40% while park area up and changes to
       Canada National Parks Act emphasizing eco-integrity
           o Downsizing a challenge to enforcement, research and education
           o 2003 BUDGET increases Parks Canada budget

      AG 1996 report says further cuts to Parks Canada would ―seriously challenge‖ the agency‘s
       ability to preserve eco integrity and ensure sustainable park use
           o Fed gov response was to reorganize Parks Canada with a corporate philosophy and
                structure
                      Could be more efficient
                      Could lead to revenue and profit being placed ahead of protecting eco-integrity

      Provincial parks departments bigger challenge
          o EG – BC manages almost ½ the area of protected lands as Parks Canada, but has 1/10 the
              budget (has one field person for every 5 parks)
          o EG – ON parks have increased by 50% over the past 15 years (and visits increased by
              60%) while budget has declined by 62%



Protected Areas Policy Conclusion

      Canada a Parks & Protected Areas laggard
      Legislation sucks except for NFLD Wilderness and Ecological Reserves Act, NS Wilderness
       Areas Protection Act and the recently amended (2000) Canada National Parks Act
      KEY: Must end industrial resource extraction and entrench ecological integrity as the top priority
       for all park management decisions



Wood Buffalo National Park Winter Road Dispute


CPWS v. Canada (MCH) 2001 FCTD aff’d 2003 FCCA                NEW CNPA s. 4(1) & 8(2) INTERP
FACTS:
    Wood Buffalo National Park is largest in country and a UN World Heritage Site
    Group of towns and first Nations bands applied to Parks Canada for 118 km winter road to
      connect northern communities and connect them to Alberta highway system to promote tourism
    EA concludes road not likely to cause significant adverse environmental impacts
    Canadian Parks & Wildlife Society applies for judicial review of the minister's decision to
      authorize road construction
PL ARG:
    Approval of the road contravenes s. 4(1) and 8(2) of the Canada National Parks Act (CNPA)
       4(1)    The National Parks of Canada are hereby dedicated to the people of Canada for their benefit,
               education and enjoyment, subject to this act and the regulations, and the national Park shall be
               maintained and made use of so as to leave them unimpaired for the enjoyment of future
               generations.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                 91


        8(2)    Maintenance or restoration of ecological integrity, through the protection of natural resources and
                natural processes, shall be the first priority of the minister when considering all aspects of the
                management of Parks.
HELD:
   4(1) requires balancing of conflicting interests -- ecological integrity need not be the sole priority
      in the record indicates it is the first priority in the decision
       Parks dedicated to Canada as a whole but not unreasonable to give special consideration to
           the limited number of people of Canada who are most directly affected by the management or
           development decisions affecting this particular Park
       Open to the Minister to conclude the interest of those people overrode the first priority
           given to ecological integrity where impairment of such integrity can be minimized to a
           degree that the Minister concludes is consistent with the maintenance of the park for the
           enjoyment of future generations
            DEFERENCE TO GOV TO CONCLUDE MINIMAL IMPAIRMENT
   8(2) does not require that eco-integrity be the "determinative factor", simply "first" priority
       the fact that the decision did not use the phrase "ecological integrity" is not determinative that
           eco-integrity was not considered or was not given a first priority


Mikisew Cree First Nation v. Canada (MCH) 2005 SCC ABORIG IMPACT MORE IMPORTANT
FACTS:
    the Wood Buffalo National Park Winter Road goes along the boundary of the Mikisew reserve,
       interrupting trap lines of 14 families and 100 other hunters
    Mikisew had treaty rights to hunt, fish, trap (with the exception of lands ―taken up‖ by the Crown
       for mining, logging, or whatever) under Treaty 8
PL ARG:
    Minister owes quote a fiduciary constitutional duty to adequately consult with Mikisew with
       regard to the construction of the road DUE TO treaty rights
    Mikisew objection goes to difficulty maintaining traditional lifestyle central to their culture --
       detrimental impact of road would be one more incentive for young people to abandon traditional
       lifestyle
CROWN ARG:
    1) Mikisew declined to participate in public consultation process
    2) Only small amount of vast national park ruined for Mikisew hunting
    3) Whatever Mikisew could do had to be done at time of treaty in 1899
HELD:
    For the plaintiffs, Appeal allowed
                 o Note: Winter road was permissible purpose
    1) NOT SO, Inadequate consultation
                 o Duty of consultation which flows from the honor of the crown, and its obligation to
                    respect the existing treaty rights of aboriginal peoples (entrenched in s. 35 of the
                    Constitution Act 1982) was breached.
                 o Consultations included providing the Mikisew with standard information about the
                    proposed road -- same info went to general public
    2) NOT SO, Context area is not entire national Park but rather territory over which first
       nation traditionally hunted, fished, and trapped, and continues to do so today.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    92


      3) NOT SO, Crown has treaty right to "take up" surrendered lands for regional
       transportation purposes BUT under obligation to inform itself of impact on Mikisew of
       their hunting and trapping rights and to communicate this to them
               o Crown must attempt to deal with Mikisew ―in good faith, and with the intention of
                   substantially addressing" their concerns (Delgamuukw v BC 1997 SCC)
               o Duty to consult is triggered at a low threshold but adverse impact as a matter of
                   degree, add to the extent of the Crown's duty.
               o HERE, the impacts were clear and established and demonstrably adverse to the
                   continued exercise of the Mikisew hunting and trapping rights.
                Honor of the Crown infuses every treaty and the performance of every treaty
                   obligation, THEREFORE Mikisew have procedural rights ( IE - consultation) as well
                   as substantive rights ( e.g. -- hunting, fishing and trapping)
      SUFFICIENT PROCESS?
        Consultation varies with the seriousness of the infringement:
            Crown duty minimal given that fairly minor winter road on surrendered lands where
               are Mikisew rights expressly subject to the "taking up" limitation
        Crown must provide notice to Mikisew and engage directly with them (not as an
           afterthought to general public consultation)
            engagement = provision of information about the Project addressing Mikisew interests +
               solicit and listen to Mikisew concerns and attempt to minimize adverse impacts on rights
                unilateral declaration of road realignment around reserves instead of through reserve
                   does not discharge this obligation




8.3 Endangered Species
Five Elements of Species Protection Law

       1) Listing of endangered or threatened species
       2) Designation and protection of critical wildlife habitat
       3) Prohibition against harm to listed species
       4) Recovery plans for threatened species
       5) Resources - effective enforcement through incentives and penalties


The Species at Risk Act SC 2002

3) Prohibition against harm to listed species
STRENGTHS:
       1) strong protection from direct harm from threatened and endangered species

WEAKNESSES:
    1) No species ―of special concern‖
    2) Only extends to aquatic species, migratory bird and species on federal lands
    3) EXCEPTION - permits obtainable for scientific research ( if ―all reasonable alternatives
    explored‖ – last resort)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                  93




UNIT 10 – ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT

Basic Concepts
      Compliance = the END: observation of a rule or standard imposed by law
      Enforcement = the MEANS: any action taken to identify or respond to non-compliance, or
       promote compliance
          o Investigation, prosecution, orders, etc; AND
          o Consultation, education, technical assistances, rewards for voluntary actions, etc


Drivers of Compliance

      Social conventions, public pressure, peer pressure - inc. shaming
      Cost of compliance & ease of compliance
      Likelihood and magnitude of penalties
           o Business benefit / threat
      Ethics/commitment to environmental responsibility
           o Commitment to comply with the legal regime
           o Depends on perceived legitimacy of the law
      Knowledge of the law
      Organization culture and incentives
           o Mgmt processes: habit, routine, reward, ethical commitment, etc
           o What is most highly valued? Profit only (might disincentify compliance) or other (might
               incentify compliance)


Importance of Enforcement

      An effective command and control system must be underpinned by credible enforcement
          o Regulators must have sufficient resources to monitor compliance and respond to breaches
          o Must have the motivation to enforce law effectively, and
          o A sufficient variety of enforcement tools to target responses to particular circumstances

Trends in Compliance and Enforcement

      (recently) Non-compliance is (increasingly?) common
           o Widespread and increasing in some places or sectors
      Dramatic budget cuts in 1980‘s and 90‘s
           o Corresponding drop in enforcement efforts
           o ―Chasm‖ between law on books and law in action
      Canada:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                   94


             o  Widely criticized for inadequate implementation and enforcement (Boyd 237-39)
             o  Causes? (Boyd 239-45)
                            1) Downsizing - Lack of resources due to budget cuts trends in the 90‘s
                            2) Downloading – under the guise of harmonization
                                      i. In 1998, feds and provs signed harmonization accord and sub-
                                         agreements (inc. enforcement agreement)
                                     ii. Downloaded to quasi-gov admin agencies
                            3) Excessive reliance on voluntary action
                            4) Environment fell of public agenda in late 90‘s
        Trends in Ontario:
                 Air and water pollution violations
                 1994-2001: Sierra Legal Defense Fund, Cracking Down on Polluters
                 2001-2004: Ont. MOE Environmental Compliance Reports
                 What are the trends in violations?
                       o Air: how much do we know about actual compliance levels?
                 What are the trends in enforcement?
                 What might account for these trends?
                 Ontario ‗Dirty Dozen‘ (SLDF report, 6-7)
                       o #2 wastewater violator: Stepan Canada
                                 Global manufacturer of specialty chemicals
                                 Orillia plant had 301 wastewater violations in 2001, in violation
                                     continuously 1998-2002


Public (non-)disclosure:
   From transparency to secrecy and back
   Before 1995, violations data released annually
   Harris government suspended detailed reporting in 1995
   SLDF waged long battle for transparency
                       o Government resisted (eg. $20k bill for 1996 data), released partial info,
                          eventually bowed to pressure, reinstating reports in 2002
   Environmental Compliance Reports website, www.ene.gov.on.ca/envision/compliance/compliance.htm
                       o Data for 2000 forward
                       o Big step in right direction, but 1996-1999 still missing, 2000-forward data still incomplete
                                (esp. re air violations)



Strategies for Effective Compliance & Enforcement

    1) Political commitment
    2) Public enforcement and compliance policy
           o Typical elements: statement of intent to enforce law fairly, predictably and consistently;
                general principles, clarification of powers and criteria; actors and roles; voluntary
                compliance measures (SEE eg CEPA 1999 policy)
                     Must have a publicly availalbe, comprehensive document
    3) Internal (non-public) enforcement and compliance strategy
           o Typical considerations: compliance capacity; priority targets; role of public;
                enforcement and compliance costs, degree of reliance on industry
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    95


   4) Monitoring, reporting and inspection
   5) Independent enforcement branch?
   6) Clear, binding legal standards
   7) Incentives and disincentives (credible threat)
   8) Array of alternative sanctions and penalties
          a. Eg orders, fines/prison, administrative penalties, negotiated compliance plans, shaming
   9) Evaluation process


Adversarial vs cooperative approach
 Adversarial: emphasis on formal sanctions
 Cooperative: emphasis on bargaining, consensus
    Canada emphasizes latter, but getting more sophisticated
           Increased emphasis on ―old-generation‖ flexible tools, esp negotiated compliance plans
               (eg Ont EPA s. 10 program approvals), industry self-reporting, voluntary agreements;
           Introduction of several new ones, eg alternative sentencing, on the spot fines
           The ―traditional‖ enforcement model in Canada is a combination of quasi-criminal
               sanctions (last resort) and voluntarism (the norm)


“Traditional” approach
    Formal orders and sanctions (in theory)
           o In practice: Heavy reliance on negotiation & voluntarism in practice, but we will focus
               on formal enforcement

      ―Traditional‖ enforcement tools
           1) Pollution abatement: administrative orders
           2) Sanctions: prosecution, fines and imprisonment



Enforcement under Ontario Environmental Protection Act

1. Abatement Orders
     Directors‟ orders
          a) Control orders
                   s. 7: Director may issue where inspection finds discharge contrary to s. 14
                      (adverse effect) or Regs
                   Content: control emission, stop emission, monitor emission, study and/or report,
                      s. 124
          b) Emergency stop orders
                   s. 8: Director may issue where discharge constitutes immediate danger to human
                      life, health or property
                            Can be issued to an owner or a previous owner, or person who has
                               management or control – typically used for spills
                   Content: stop discharge permanently or for period, s. 128
          c) Remedial measures (s. 17)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         96


                     Provide water supplies where risk of water contamination
            d) Preventive measures (s. 18)
                     now includes development or implementation of pollution/spill prevention plans

            o   LIMITS:
                    Inadequate field powers (field staff has to make report), procedural delays
                     (usually takes 60 days to put in order)

       Field orders
            o To avoid some pitfalls of Directors‘ orders, provincial officers (inspectors) may issue:
                    Contraventions: Inspector may issue order where person has contravened Act,
                     Regs, order or C of A; wide range of compliance, control, clean-up, monitoring
                     or preventive measures s. 157
                    Preventive orders, s. 157.1
                    Process: NO EBR posting; order may be issued on the spot; 7 day ―appeal‖
                     period, thereafter automatically confirmed (eg. if MOE doesn‘t have time to hear
                     appeal, the order is put in place after 7 days anyway)

            o   Popular at MOE, unpopular with industry


2. Quasi-criminal sanctions from CEPA
     It is an offence:
            o To contravene Act (ie – discharge in excess of regulations), regs, order, approval, s. 186
            o To give (or keep) false or misleading information, s. 184
                     Also refusal or obstruction
            o For director or officer to fail to take all reasonable care to prevent corporation from
                causing or permitting unlawful discharge, s. 194
            o Subject to ―due diligence‖ defence…


BOX - Due Diligence Defence

Strict Liability Offences  R. v. Sault Ste. Marie (SCC 1978)
 City contracted out garbage disposal, contractor dumped next to creek, causing pollution; City
    charged & convicted
 Court created ―strict liability‖ offence: crown need only prove the acts, then onus on defendant to
    prove it took all reasonable steps to avoid the event (―due diligence‖)
 Almost all environmental offences are SL offences



R v Bata Industries 1992 ONDC                          READ IT
FACTS:
     Hazardous waste drums improperly stored on-site contaminate the ground.
     MOE officers find leaking drums. Company and three directors are charged with discharging
       liquid industrial waste which may inmpair water quality (under the Water Resources Act)
HELD & COMMENTARY:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    97


      Strict liability offence, so DD defence
            Due diligence requires ―system to prevent commission of the offence‖
            Any system that is REASONABLY DESIGNED to prevent the commission of the
                 offence
                       IE - SOP for chemicals and monitoring to ensure disposal is done properly
                       IE – usually industry standard (important, but not decisive)
      World CEO Thomas Bata? – NOT GUILTY
            Not personally aware of plant problem
            Had promulgated environmental alert policy (TAC 298) to apply to all Bata plants
                 worldwide – entitled to rely on underlings to report problems
      Canadian president Douglas Marchant? – GUILTY ($12 k)
            Was aware of the problem, but never personally inspected to assess problem, or take any
                 actual action to remedy the problem
      Plant manager Keith Weston? – GUILTY ($12 k)
            Rejected an initial clean up quote, and accepted a lower quote
            Responsible for taking detailed action – if was going to delegate the responsibility was
                 required to ensure it was delegated to someone with training and ensuring the job was
                 done properly
      At trial, company held not to be able to indemnify directors
            ON APPEAL, company can not be prevented from indemnifying them, company pays


Penalties

      Before 1998  Max penalties $25k/day and 1 yr prison for indivs, $400k/day for corps

      2000 (post-Walkerton)  ―Toughest Environmental Penalties in Canada Act‖: max. corp fines
       increased to $6m/day for 1st offence and $10m/day for subsequent; max. prison term to 5 years

      2005 (Spills Bill)  Introduced minimum fines for certain offences, s. 187
          o $25k/day for corporations, $5k/day for individuals
          o Introduced ―aggravating factors‖ (lengthen the sentence) that judges must follow or give
              reasons, s 188.1
          o Toughened D & O liability

In practice:
     Fines low, prison exceedingly rare
            o Largest fine: ~$1 million, Aqua-tech blue (insolvent)
            o Longest prison term: E Perilli, 18 months (convicted in absentia, will never serve)
            o Budgets, inspections, prosecutions, convictions, fines way down in Harris years, back up
              under McGuinty
            o But Environmental Commissioner of Ontario reports (2006) that MOE is still
              ―chronically underfunded,‖ needs tripling of budget


Limits of Traditional Penalties Approach
   1) Expense (especially in era of fiscal restraint)
   2) Effectiveness varies with nature of regulated community and activity
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      98


         o Enforcement problems are worse when regulated actors are small, numerous, transient
   3) Does not promote ―beyond compliance‖
          May lead to hostility, tension with regulated community


Penalty Innovations

   1) Targeted enforcement – ENVIRONMENTAL SWAT TEAM
    Target enforcement effort at problem actors or sectors, based on risk assessment (Abbot, 92)

   2) On-the-spot fines (better than Field Officer Orders …allows monetary fines)
    Numerous jurisdictions allow officials to levy on-the-spot penalties (Abbot, 93)
          o Quick, inexpensive (cheaper than prosecution for both parties)
          o Re-enacted by Spills Bill, 2005, s. 182.1
                   “Environmental Penalties”: On-the-spot fines for most EPA violations, up to
                      $100k/day (issued by Director though, not field officer)
                   Features and controversies of “Environmental Penalties”:
                                Absolute liability (due diligence not a defence)
                                No need to prove elements of offence
                                Who will they apply to? (MISA facilities only at first)
                                May only be issued by Director (not inspector)
                                Double jeopardy? EP doesn‘t bar prosecution
                                How will they be calculated (complex, discretionary)
                                Slight reduction (5%) for firms with EMSs
                                Where will the money go? (Community groups, towns, etc. in
                                   affected area for compensation, remediation, not necessarily related
                                   to the specific spill)

   3) Creative sentencing
          Remediation, prevention, community service, mandatory EMSs, etc.
                  Ont. EPA, s. 190: court may sentence offender to do anything to prevent,
                     eliminate or mitigate damage
                  CEPA is much broader, incl. implementation of an EMS

   4) Self-reporting
          a. reward polluters who discover and disclose their own violations
                  i. Reduced penalties, evidentiary privilege for environmental self-audits

   5) Shaming


United Keno Hill Mines 1980 YTCT                        POLLUTION IS A CRIME
       YES - Chief Justice Stuart: ―Pollution is a crime… pollution offences must be approached as
          crimes, not as morally blameless technical breaches of a regulatory standard.‖

Seraphim v. Sterling Newspapers 2001 BCSC            POLLUTION IS NOT A CRIME
       NO - Calling environmental conviction a ―crime‖ is defamatory
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        99




UNIT 9 – ENVIRONMENTAL ASSESSMENT
Basics

WHAT:           EA is an evaluation of the impact of a proposed development project on the natural and
                human made environment
                 involves presentation, collection, publication and assessment of information and is
                   ideally ―a systematic, integrative and iterative process in which consultation and
                   participation are integral to any project evaluation"

PRODUCT:        An environmental statement containing description of the proposed development, the
                data necessary to identify and assess its environmental effects, a description of proposed
                mitigation measures and a summary of information which is accessible to laypersons

THEORY:         better information about environmental impacts produce better informed public debate
                and better decisions about whether and under what conditions projects should be allowed
                to proceed
                 restores faith in public authority decision making, it improves decision quality and
                    reduces opposition

WHERE:          nearly all developed countries have mandatory EIA procedures and some developing and
                transitional countries embracing EIA philosophy driven by use of EIA by international
                development banks and a aid agencies

KEY CONTROVERSY:
     1) Should in EIA consider the need for or alternatives to the proposed project
     2) Should in EIA consider the cumulative effects of future projects alongside the current project

LIMITATIONS OF EA (REQUIRES SEA):
     1) project-based EA unable to consider cumulative effects of small projects
     2) cannot deal adequately with induced impacts where project stimulates further development
     3) not suited to tackling global environmental impacts such as climate change
     4) DM‘S not bound to act based on EA findings


Two views of EA process:

         1) environmentalists and aboriginals  EA = forum determining whether a particular project
         should proceed
         2) government and industry  EA = a process to determine how a project will proceed
         in a manner that minimizes environmental impacts
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         100


EA & SEA – Theory:

        SEC: ―a planning tool that is now generally regarded as an integral component of sound decision
         making."
        SEE unit 4.1 for Environmental Impact Assessment details
        EIA is important because it is one of few institutionalize processes developed to prevent
         environmental degradation
        originally project based EA, is now understood to be necessary for individual insignificant actions
         that can be cumulatively significant
        for proposed gov plans, policies and programs in the context of which individual projects arise =
         Strategic Environmental Assessment (SEA)
          Best for assessing cumulative effects
          EU, US, Ontario require SEA (if seldom used)
          Excluded intentionally from CEAA
               Only mention is vague, discretionary non-binding Cabinet policy – seldom used


Characteristics of Effective EA:

    1. endorse sustainability as the primary purpose
    2. apply to all plans comment decisions, and actions that may result in environmental impacts
    3. assess all potential impacts (environmental, economic, and social), including cumulative effects
    4. identify the best option, by evaluating needs and alternatives
    5. involve the public in an open and transparent process
    6. assign decision-making power to an independent agency or ensure that decisions are subject to
       review by an independent tribunal
    7. require monitoring of effects and provide effective enforcement options

KEY: EA must form part of a broader land-use and planning regime

   without land-use planning EAE required to address land-use issues that should be addressed on a
    broader geographic scale and with a longer timeline


Performance: EA Laws in Canada

   Historically: EA in Canada was policy rather than law resulting in sporadic and the end
    unpredictable process (1970s)
                o Canada seen as early leader in EA due to (the excellent) Berger inquiry into
                    proposed Mackenzie Valley pipeline
                         Conducted long before DM happened
                         Included extensive on-site visits
                         Consultation with aboriginals and respect for their autonomy (―no pipeline
                            until all land claims resolved‖)
                         Many statements of principle (―environment an irreplaceable heritage‖ ―must
                            adopt a precautionary ethic‖ due to serious gaps in knowledge of impacts of
                            human activities on environment
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          101


   1984: Environmental Assessment and Review Process Guidelines Order turned out to be legally
    binding
   1992: CEAA was passed
   1998: Harmonization agreements between Feds and each province (except Quebec) in place to avoid
    duplication and overlap in assessment processes – „one project, one assessment‟

CRITISISMS OF EA IN CANADA:
       industry thinks overly complex and burdensome
       provinces resent paternalistic federal EA process as an intrusion into provincial jurisdiction
       scientists say the project oriented prediction-based approach is ecologically naïve and
         inappropriate for the arm and so sustainable development

   Federal EA is required for projects involving federal land, federal funding, federal proponents or
    certain federal permits

   Provincial EA‘s target major industrial developments occurring on provincial land or involving
    provincially manage natural resources.

   Occasionally a project will trigger both province and Fed EA laws in which case harmonization
    procedures are implemented
     Despite Canada Wide Accord on Environmental Harmonization, provincial governments and
        industry continue to complain about duplication and overlap between EA processes
     B.C., ALTA, SASK, and MAN have bilateral agreements with Feds to harmonize EA
                 remaining provinces rely on in formal arrangements to avoid duplication
     NOTE: allegations of overlap and duplication not supported by evidence
     approximately 80 to 100 projects per year subject to both provincial and federal EA



Canadian Environmental Assessment Act (CEAA)

   Canadian Environmental Assessment Act (CEAA) came into effect in 1995 amended in 2003
        Lead to Canadian Environmental Assessment Agency
        goal is to help achieve sustainable development through the promotion of sound economic
           development while reducing adverse impacts on our environment
        NOTE: In 1998

CEAA Purpose:
   1) ensure that environmental impacts are considered before actions are taken
   2) encourage actions that promote sustainable development
   3) avoid duplication
   4) provide opportunities for public participation

CEAA Application:
 Btwn 1995 and 2000, 99.9% of proposed projects were approved (development over sustainability)
 Applies when a physical projects or an activity is on federal land, receives federal funds, is carried out
  by the federal government, or requires certain federal permits
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       102


       permits that require or application of C. EAA are listed in regulation
       other regs list specific physical activities that are covered by the Act
   GOOD:
       Act is clear when CEAA applies to a given project
   BAD:
       Act does not apply to government policies, plans, and programs
             feds have a separate unenforceable policy for reviewing their environmental effects
       limited application to crown corporations (still true?)

CEAA Scope:
   4 EA levels possible under the act:

       1) Screenings
                PUBLIC CONSULTATION = Discretionary (up to Feds) – written comments if any
                REQUIRES: assessment of the environmental and cumulative effects of a project
                FEATURES: Can be for individual or class projects
                FACTS:
                   >95% of 25,000 federal EA‘s between 1995 and 2000
                   projects never stopped because of screening and follow programs required for
                     only 5% of screened projects

       2) Comprehensive Studies
              PUBLIC CONSULTATION = mandatory (limited to receiving notice and being given
                 an opportunity to provide written comments)
              REQUIRES: assessment of environmental and cumulative effects + additional factors
                 including the project‘s purpose, alternative means of carrying it out, and the need for
                 a follow-up monitoring program
                       projects requiring comprehensive study are listed in regulation
              RESULTS: where comprehensive study concludes impacts require further study or
                 that the project will cause significant adverse effects, or where there is public concern
                 = the Minister must refer to the project to a panel or mediator for further study
                  2003 amendment might eliminate opportunity to upgrade to a panel review
              FACTS:
                  46 projects between 1995 and 2000

       3) Panel Reviews
               PUBLIC CONSULTATION = mandatory (public can present evidence and question
                  experts)
               REQUIRES: appointment of independent experts to hold public hearings and make
                  recommendations to government
               FACTS:
                   10 projects between 1995 and 2000

       4) Mediation
               available as an alternative to a review panel and must involve all interested parties in
                  negotiating the outcome of an environmental assessment
               FACTS:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                103


                      zero projects between 1995 and 2000

CEAA: When Should EA Occur:
      Before alternatives are foreclosed
      When full details are known
      In practice  s. 11(1):
               o   ―As early as practicable in the planning stages of the project and before irrevocable decisions
                   are made‖
               o   Hamilton-Wentworth v. Canada 2001 FCA
                        “irrevocable decisions” = by the province when they issue approvals OR
                           by the proponents when they commit to the project
                        COMMENTARY:
                                Following, MOE says, NO!! ―irrevocable decisions‖ refers to feds
                                   making decisions, not others.
               o   In 2003 amendment, section added that MOE can prohibit proponent from doing
                   anything that carries out the project until the EA conducted


CEAA: Strengths & Weaknesses:

WEAKNESSES
   STRUCTURE:
        Discretionary nature of statute (in particular re: transboundary projects)
               Can approve projects even if EA predicts significant adverse impacts if "justified
                  in the circumstances"
               Limited opportunities for public input
        Lack of enforcement or offense provisions
        Failure to require mandatory follow-up monitoring
        Potential conflict of interest created by self-assessment
        Lack of independent decision-making
   IMPLEMENTATION  SCOPE:
        Not all projects assessed
        Important portions of projects are being excluded
        Crown corporations not required to conduct EA
        Policy requiring review of departmental programs and policies not implemented
   IMPLEMENTATION  READABILITY
         Existing environmental information may left out or too sketchy to allow reader of
          screening report to assess the assessment – result is overlooked consequences
   IMPLEMENTATION  LEVELS:
        Mediation promising but never used
        Class screenings (efficient means of dealing with small projects) only used twice

STRENGTHS:
    Review panels provide most comprehensive EA in Canada (though quality varies from panel to
     panel)
      only 10 panels appointed in first six years that C. EAA was in force
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      104



CEAA: Significance and Mitigation
   Once all environmental effects are identified:
         o Responsible authority determines whether (considering implementation of mitigation
              measures) any significant adverse environmental effects are likely
   Significance: lack of clear guidelines - DISCRETION
   Mitigation and follow-up:
         o One of biggest problems with CEAA
         o Mitigation measures must be available and actually implemented, not just theoretical
         o Since 2003, RA must ensure mitigation measures are implemented, and follow-up
              program mandatory for projects approved after comprehensive study or panel review

CEAA: What does “Consideration of Alternatives” Mean?
  1. Alternative means to carry out the project (eg. single vs. double span bridge)
  2. Alternative projects that would achieve the same goal (eg. solar vs nuclear)
  3. Whether there is a need for the project at all
          CEAA:
                  i. RA MAY consider ―need for project‖ and ―alternatives to the project‖ (16(1)(e))
                 ii. Comprehensive study and panel review MUST consider ―alternative means of
                      carrying out the project‖ (16(2))
          THEREFORE, proponent incentive is to define the project as NARROWLY as possible
             so that ―alternatives‖ assessment is narrow
                  i. EG – if project is ―the bridge‖ then alternative means of carrying out = different
                      ways of building the bridge VS if project is ―transportation from A to B‖ then
                      alternative means of carrying out = different ways of transporting

CEAA: Public Participation
   s. 55  requires creation of a ―convenient‖ public registry to provide access to EA documents
         o Sunpine: RA established registry 3200 km away from the project = INAPPROPRIATE
   2003: CEA Agency established and made mandatory web-based EA registry
   SEE CONSULTATION IN „CEAA SCOPE‟ ABOVE

CEAA: Binding or Non-Binding
   s. 20  RA must take one of the following courses of action (s. 20?)
         o If, considering implementation of mitigation measures, project not likely to cause
            significant adverse environmental effects, or likely to cause ,SAEE that can be justifiecd,
            RA may allow project to proceed; or
         o If, considering implementation of mitigation measures, project likely to cause SAEE that
            cannot be justified, RA shall not allow project to proceed and all other federal authorities
            are prohibited from allowing it to procced (s. 37)


Provincial Environmental Assessment Law

       All provinces have legislated EA processes
         much variability - many weaker than CEAA – some more innovative
         Most have same flaws as CEAA (see weaknesses above)
         Some have legally binding timelines for the completion of EA
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      105


                   in practice timelines regularly extended

   Purpose of Provincial Environmental Assessment Laws vary by province
     Alberta, Manitoba, and Nova Scotia prescribe sustainable development as one of the purposes of
       EA legislation
     Nova Scotia‘s Environment Act endorses the precautionary principle, the polluter pays principle,
       and pollution prevention
        Like federal process few projects are ever turn down as a result of provincial EA processes
            in B.C. Every project approved

   Application of Provincial Environmental Assessment Laws
     Far fewer EA assessments at provincial level than federal
     High triggering thresholds encourage gov or industry to design projects slightly below the
       threshold and so avoid an EA
        e.g. -- in Alberta oil and gas exploration exempt from EA
        e.g. -- in B.C. logging is exempt
        e.g. -- across Prairies agriculture is exempt
        e.g. in Ontario only government undertakings are subject to EA (and can be exempted)
            private sector can be ordered to undergo EA, but rarely occurs

   Some have provisions authorizing SEA and class screenings, but they are discretionary and use is rare
        EG - Ontario conducted province wide review of forest management and review of Ontario
           Hydro's 25 Year Energy Supply Plan
        e.g. – in Sask 20-year forest management plans subject to the mandatory EA


PEA Laws: Scope
   Narrower in scope than CEAA in terms of impacts examined
       Some only examine environmental impacts, ignoring social, economic, and cultural impacts
       EG - Québec, NWT and Alberta requires a review of cumulative effects
       EG - Alberta, Ontario, Québec, NFLD, and PEI require examination of alternatives
       EG - Alberta, Ontario, and Nova Scotia analyze the need for a project
       EG - Nova Scotia requires consideration of alternatives only for larger projects
          FAILURE to require assessment of needs an alternative is major weakness

PEA Laws: Public Participation
   Weaker than under CEAA
   Some provinces depend on discretionary decision by Minister
   Most provinces participation is limited to being notified and given opportunity to comment
             Hearings held only at ministers discretion with several exceptions
             EG - In Ontario hearings may be held by the Environmental Review Tribunal

PEA Laws: Decision Making
   Project approvals generally made by the Minister of the environment
              For larger projects cabinet may make decision
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                            106


           EG - Independent tribunal following public hearings makes decisions SOMETIMES in
            Ontario, Nova Scotia, and all Burda
           NOTE: Minister retains right to override recommendations of panel

PEA Laws: Recent Changes
   Former EA leaders Ontario and B.C. weakened by recent amendments to EA laws
       EG - Ontario EA Act changed to give more discretion to minister = creates uncertainty
       EG - BC EA Act rewritten in 2002 giving discretion to admin DM


   EA costs generally less than 1% of total project cost



Aboriginal People and Environmental Assessment

   Distinct EA mechanisms created through treaty settlements with aboriginal people
         EG - Nisga‘a allowed to create own EA process (though federal or provincial laws will
            prevail in case of conflict)
         EG - Nunavut Impact Review Board is responsible for reviewing projects and making
            recommendations to the appropriate territorial or Federal Minister regarding approval
         EG - Mackenzie Valley Resource Management Act establishes a local EA board to assess
            development proposals (overrides CEAA)
             could be good could be bad, as yet unknown
     Aboriginal peoples often legally challenge on sustainable resource activities and projects



Environmental Assessment Litigation

       30 lawsuits arose from first 25,000 EA‘s conducted under CEAA and smaller number of lawsuits
        under provincial EA legislation
         NOTE: litigation due to mandatory obligations on government with regard to EAs

           e.g. – 1989: Rafferty-Alameda Dam on Saskatchewan's Souris River had licensed quashed due to
            failure to conduct an EA
           e.g. -- 1992: SCC ruled that feds failed legal obligation to conduct an EA regarding Oldman River
            Dam in Alberta  Experts who conducted the court ordered EA recommended damn not be
            completed -- recommendations were ignored
           e.g. -- 1993: lawsuit forced Parks Canada to conduct full EA (instead of piecemeal) regarding
            expansion of the Sunshine Village Ski Resort in Banff National Park lead the Sunshine Village
            Corporation to abandon its expansion plans
           e.g. -- 1994: SCC held against feds for failing to conduct a complete EA re the Great Whale
            hydroelectric megaproject in Québec  project cancelled
           e.g. -- 1995: federal court decided 1898 Yukon Mining Law overruled the Canadian EA regime (IE --
            mineral exploration on public land in the Yukon could proceed without EA)
           e.g. 1996: lawsuit lost regarding EA of an oil pipeline in Alberta
           e.g. -- 1996: Sierra Club sues feds for refusing to conduct EA on sale of nuclear reactor to China
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                              107


          e.g. – 1997: NFCA quashes permit for parts of Voisey's Bay nickel project because company carrying
           out EA in piecemeal fashion
          e.g. -- 1998: Alberta group wins lawsuit arguing that federal EA of bridge was unduly narrow in scope
           (should've considered road to which bridge was attached and possibly the logging activities for which
           the road was built)
          e.g. -- 1999: FCA cancels permit for an open pit coal mine on the edge of Jasper national Park because
           of inadequacies in the EA (fail to consider alternatives to open pit mining and cumulative effects of
           mining and logging)
          e.g. -- 2000: Canadian Environmental Law Association failed to have courts strike down national
           harmonization agreement on environmental protection
          e.g. -- 2001: BCSC overturned the EA of a mine and access road ruling that the government had failed
           to get clique address the issue of sustainability and other concerns raised by aboriginals



Success of EA Litigation:

      Litigations ability to stop environmentally damaging projects is limited because mandatory
       requirements in EA statutes are procedural, not substantive
        THEREFORE, lawsuits succeed where government refuses to conduct an EA despite a
           legal obligation to do so AND where legally required factors, such as cumulative effects
           are completely ignored
        rarely does judicial review extend to substantive merits of project

      Where issue is whether government correctly defined project scope, this gives court opportunity
       to evaluate semi-substantive issues of the proposed project
        in US, courts are more activist and make substantial decisions regarding EAs


Conclusions

      Main weakness of EA in Canada is at implementation stage
      Contradiction between the stated goals of improving EA quality and action AND weakening EA
       legislation and reducing budgets
      Too many project activities, plans, and policies with significant potential environmental impacts
       excluded from EA requirements
      Substantive quality of EAs is inadequate and EA process is applied too narrowly
      DISCRETIONARY NATURE OF PROCESS IS BIGGEST PROBLEM



Hoerner 1995 NFCA                INTERPRETATION OF ENVIRONMENTAL LAW
   “The regimes created by the statutes represent a public attempt to develop an appropriate response
   that takes account of the forces which threaten the existence of the environment. If the rights of
   future generations to the protection of the present integrity of the natural world are to be taken
   seriously, and not to be regarded as mere empty rhetoric, care must be taken in the interpretation
   and application of the legislation. Environmental laws must be construed against their commitment
   to future generations and against our recognition that, in addressing environmental issues, we often
   have imperfect knowledge as to the potential impact of activities on the environment. One must also
   be alert to the fact that governments, even strongly pro-environmental ones, are subject to many
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                108


    countervailing social and economic forces, sometimes legitimate and sometimes not. Their agendas
    are often influenced by non-environmental considerations.

    The legislation, if it is to do its job, must therefore be applied in a manner that will counteract the
    ability of immediate collective economic and social forces to set their own environmental agenda. It
    must be regarded as something more than a mere statement of lofty intent. It must he a blueprint
    for protective action.


Friends of the West Country Assn. v. Canada (MFO) 1999 FCA CEAA ss. 15, 16 SCOPE IS DISCRESH
BUT MUST EXERCISE DISCRETION, CAN‟T PUT ON BLINDERS
FACTS:
     following approval for permanent road from logging area to mill, logging company seeks
       approval for bridge via the Navigable Waters Protection Act, triggering CEAA 5(1)
     Coast Guard conducts EA and issues Screening Report indicating that, accounting for the
       inclusion of certain mitigating factors, bridges are "not likely to cause significant environmental
       adverse impacts"
     MFO seeks judicial review in FCTD, requesting that approvals issued under NWPA be quashed
     At trial judicial review allowed, approvals set aside and matter referred back to MFO or other
       appropriate Minister for reconsideration in a manner consistent with CEAA
ISSUE:
     Interpretation and application of sections 15, 16 and 55 of the CEAA
CEAA PROVISIONS:
        15. (1) The scope of the project in relation to which an environmental assessment is to be
        conducted shall be determined by
                (a) the responsible authority; or
                (b) where the project is referred to a mediator or a review panel, the Minister, after
                consulting with the responsible authority.
        (3) Where a project is in relation to a physical work, an environmental assessment shall part be
        conducted in respect of every construction, operation, modification, decommissioning,
        abandonment or other undertaking in relation to that physical work that is proposed by the
        proponent or that is, in the opinion of
                (a) the responsible authority, or
                (b) where the project is referred to a mediator or a review panel, the Minister, after
                consulting with the responsible authority, likely to be carried out in relation to that
                physical work.

        16. (1) Every screening or comprehensive study of a project and every mediation or assessment
        by a review panel shall include a consideration of the following factors:
                 (a) the environmental effects of the project, including the environmental effects of
                 malfunctions or accidents that may occur in connection with the project and any
                 cumulative environmental effects that are likely to result from the project in
                 combination with other projects or activities that have been or will be carried out;
                 (b) the significance of the effects referred to in paragraph (a);
                 (c) comments from the public that are received in accordance with this Act and the
                 regulations;
                 (d) measures that are technically and economically feasible and that would mitigate any
                 significant adverse environmental effects of the project; and
                 (e) any other matter relevant to the screening, comprehensive study, mediation or
                 assessment by a review panel, such as the need for the project and alternatives to the
                 project, that the responsible authority or, except in the case of a screening, the Minister
                 after consulting with the responsible authority, may require to be considered.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                             109


       (3) The scope of the factors to be taken into consideration pursuant to paragraphs (1)(a), (b) and
       (d) and (2)(b), (c) and (d) shall be determined
                (a) by the responsible authority; or
                (b) where a project is referred to a mediator or a review panel, by the Minister, after
                consulting the responsible authority, when fixing the terms of reference of the mediation
                or review panel.
HELD:
   Appeal dismissed, approvals still quashed
REASONS:
   S. 15 (no help here)
         o s. 15(3) does not impose a mandatory duty on the responsible authority to conduct an
            environmental assessment of other physical works outside the scope of the projects (as
            defined by s. 15(1)), simply because the other physical works are somehow "in relation
            to" the projects
                  THAT IS, s. 15(3) does not impose an obligation on the responsible authority
                     to conduct an environmental assessment outside the scope of the project as
                     determined under subsection 15(1).
         o The responsible authority first determines the scope of a project under subsection 15(1).
            Subsection 15(3) is subsidiary to subsection 15(1). Subsection 15(3) requires the
            responsible authority to conduct its environmental assessment in respect of various
            aspects of the project.
         o Independent Utility Principle is not applied to interpreting subsection 15(3) of the
            CEAA.
                  The intent and meaning of subsection 15(3) may be adequately discerned from a
                     consideration of the context of sections 15 and 16.

      S. 16 (help here)
           o s. 16(1) requires consideration of the factors enumerated in paragraphs 16(1)(a) to (e)
               (including cumulative effects) OUTSIDE THE PROJECT SCOPE ALONE
           o s. 16(3) gives discretion to responsible authority to determine the scope of the factors to
               be taken into consideration, provided the responsible authority does not decline to
               exercise its discretion in error
           o Coast Guard erred in declining to exercise its discretion under 16(3) by not considering
               projects or activities simply because they were outside scope of project (15(1)) or outside
               federal jurisdiction re: cumulative effects (16(1)(a))
                    Nature of a cumulative effects assessment under 16(1)(a) expressly broadens the
                        considerations beyond the project as scoped.
                    Once engaged (via CEAA reqs), the federally responsible authority is to
                        exercise its cumulative effects discretion unrestrained by its perception of
                        constitutional jurisdiction.  UNLAWFUL FETTERING OF OWN
                        DISCRETION
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          110


UNIT 15 – ABORIGINAL PEOPLES AND THE ENVIRONMENT

       Recognized and self-identified as the descendants of the original human inhabitants of an area
       300 million indigenous people in more than 70 countries comprising approximately 75% of
        worldwide cultural diversity (based on language indicators)


A. Introduction
WIDESPREAD AGREEMENT THAT INDIGENOUS COMMUNITIES MORE LIKELY TO
CONTINUE ENVIRONMENTALLY SUSTAINABLE PRACTICES AND TO MAINTAIN THEIR
CULTURAL INTEGRITY WHEN THEY ENJOY TERRITORIAL SECURITY AND THE
ECONOMY

   Oldest examples of environmentally sustainable cultures found among indigenous peoples
     VIEW: humans are part of the community of nature and THEREFORE harm to nature could be
       harm to their culture customary laws help ensure that they live by the laws of nature

   Concept of sustainability extends to sustaining varied human cultures


Relationship Between Indigenous Cultures and the Environment:

1) Environment underpins indigenous culture
       o Spirituality, respect, inter-connection, self-sufficiency, proximity, knowledge
       a) physically closest nature
       b) most likely to feel economic effects of environmental management policies and practices
       c) hold extensive eco knowledge and wisdom, emphasizing food self-sufficiency and resource
       conservation – knowledge an incalculable asset

Cultural Distinctiveness of Indigenous Peoples Includes:
    Language
    Social organization
    Religion and spiritual values
    Modes of production
    Laws and institutions

Generally Shared Experiences:
    subjugation, dispossession, exclusion, assimilation, extermination, discrimination

Resource Rights and Self-government:
 LEGAL CLAIMS: invariably tied to the cultural and economic relationships held with the
   environment

SEEKING
     1) ownership of land and resources traditionally utilized (harvesting rights and land tenure)
     2) control over or participation in resource management decisions
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     111


       3) an equitable share of benefits arising from the use of environmental resources


"Cultural landscapes" = recognized under the UN World Heritage Convention = natural areas
evolved and shaped by indigenous use over thousands of years - hold spiritual significance
        e.g. -- New Zealand's Tongariro National Park, a sacred region to Maori

Features of indigenous livelihoods systems:
   1. Cooperation
   2. Concern for the Well-Being of Future Generations
   3. Local Scale Self-Sufficiency
   4. Restraint in Resource Exploitation
           o Also a commonly held strong spiritual base to traditional livelihoods systems --
               aboriginals view themselves as guardians and stewards of nature

PROBLEM:
     1) General traits of aboriginal societies relevant to sustainability are not helpful in guiding
        decisions in specific communities or particular environmental contexts
     2) Nexus between nature and indigenous culture often romanticized  not all indigenous
        lifestyles are always compatible with contemporary environmental challenges
             a. arguable whether recent environmental problems associated with indigenous peoples
                 have arisen due to their colonization leading to perpetuation of the environmentally
                 destructive habits of the colonizer society OR whether historically inhabited areas
                 suffered from ecological transformation as a result of indigenous practices OR
                 SOME OF BOTH
             b. integrity of environmental values affected by member members living in urban areas

      THEREFORE, because indigenous self-determination and environmental protection are
       not always mutually reinforcing, institutions are needed to reconcile aboriginal rights with
       overarching collective responsibilities for environmental protection to ensure development
       is sustainable

      Indigenous peoples worldwide subject to External Development Pressure



C. Rights in an International Context
1) General International Law Developments

      Emergence of indigenous peoples subject of international law, has helped attenuate the old
       absolutist notions of state sovereignty

   1957: ILO Convention 107
            first treaty to address the plight of indigenous peoples
            eventually condemned for its assimilationist philosophy

   1989: ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        112


               states should ―respect the special importance for the cultures and spiritual values of the
                peoples concerned of their relationship with the lands or territories ... and in particular
                the collective aspects of this relationship‖
               requires states to respect indigenous rights of ownership and possession of lands
                traditionally occupied/accessed for subsistence and traditional activities
               to secure those rights Article 15(1) gives right to "participate in the use, management and
                conservation" of their natural resources
               PRACTICE: fewer than 20 states have ratified it, and ratification does not guarantee
                implementation
                      e.g. -- Bolivia legislated to incorporate the I tell oaken invention and amended its
                         constitution, BUT government has opened up "protected" tribal lands to foreign
                         oil companies

    1990s: UN circulates draft Declaration on the Rights of Indigenous Peoples
           o proclaim this rights to own common develop and control the use of their traditional lands
           o the right to restitution of traditional lands on lawfully confiscated or damaged
           o need for consent for the improvable any development project affecting their lands
           o PRACTICE: declaration not endorsed by the UN General Assembly

    1995: Inter-American Commission on Human Rights drafts Inter-American Declaration on
          the Rights of Indigenous Peoples

    2002: UN Creates Permanent Forum on Indigenous Issues

    RESULT: Indigenous peoples increasingly viewed as separate from the states they reside in,
            with their own voice in international decision-making process

LIMITATION:
 Few international forms for hearing complaints from aggrieved indigenous persons or tribes
     o EG - UN Economic and Social Council has ‗1235 procedure‘ to investigate HR violations,
         operating under the Optional Protocol to the 1966 International Covenant on Civil and
         Political Rights
     o EG -- 2001 Inter-American Court of Human Rights found against the Nicaraguan
         government and ordered compensation for breaching international HR when it failed to
         protect the traditional lands of the Awas Tingni community by allowing a foreign company to
         log forests  the Court required Nicaragua to adopt legislative, administrative and other
         measures (aimed at certain activities) within 15 months with "full participation by the
         community"
              RESULT: far-reaching case as it is the first legally binding decision by an
                  international tribunal to uphold the collective land and resource rights of indigenous
                  peoples in the face of the state's failure to do so".


2) International Environmental Law & Aboriginals

   States don‘t want to concede rights which may restrict national economic prospects/options
         Support confined to general and vague policy statements rather than specific legal standards
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          113


   References to indigenous peoples now common in international environmental declarations,
    resolutions and policies
     e.g. – Rio Declaration on Environment and Development declared, ―indigenous people... have
        a vital role in environmental management and development because of their knowledge and
        traditional practices. States should recognize and duly support their identity, culture and
        interests and enable their effective participation in the achievement of sustainable development.‖
     e.g. -- Agenda 21 calls for empowering indigenous peoples through "recognition of their values,
        traditional knowledge and resource management practices", as well as traditional indirect
        dependence on renewable resources and ecosystems; strengthening their active participation in
        the national formulation of policies and laws; and involving them in resource management and
        conservation strategies.
                  The Barbados Programme of Action in 1994 was first realization at the global level
                      of this post-Agenda 21 plan for indigenous peoples
                  international community reaffirms the same sentiments at the World Summit on
                      Sustainable Development in Johannesburg

International Environmental Treaties and Aboriginals:
 International Convention for the Regulation of Whaling (1989) provides a small aboriginal
    subsistence whaling quota
 Agreement on Polar Bears (1973) prohibition on hunting polar bears does not apply in relation to
    hunting for "local people when using traditional methods in the exercise of their traditional rights"
 Convention on Conservation of North Pacific First Seals (1976) removes indigenous groups
    inhabiting certain coastal areas from the ban on sealing when not using specified modern technologies
         despite positive intentions requirement for traditional hunting methods seen as patronizing
             and discriminatory, denying them the right to technological and economic development
 Convention on the Biological Diversity (1992) (CBD) -- Article 8(j) obliges state parties to "respect,
    preserve and maintain knowledge, innovations and practices of indigenous and local communities
    embodying traditional lifestyles relevant for the conservation and sustainable use of biological
    diversity and promote their wider application with the approval and involvement of the holders of
    such knowledge, innovations and practices and encourage the equitable sharing of benefits arising on
    the utilization of such knowledge, innovations and practices."
     BUT SOFT, b/c language does not use ‗rights‘ and ‗peoples‘, leaving tremendous discretion,
        using the phrases "as far as possible and appropriate" and "subject to its national legislation"

Self-Styled Indigenous Peoples Agenda Regarding Land and Environment
     Kari-Oca Declaration adopted the 1992 Earth Summit
     Charter of the Indigenous and Tribal Peoples of the Tropical Forests adopted at an
        international meeting in Malaysia

Institutional Policy Changes:
 World Bank's Operational Directive 4.20 -- "to ensure that indigenous people do not suffer adverse
    effects during the development process, particularly from bank financed projects, and that they
    receive culturally compatible social and economic benefits"
         controversial classification of indigenous peoples as directive identifies a set of criteria that
             excludes individuals who migrate and adopt a different lifestyle from that of their
             communities
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       114


3) Intellectual Property Rights and Aboriginal Culture

   IP law can protect environmental knowledge and practices, and benefit commercial exploitation
         e.g. – Maori of the Waitangi Tribunal filed a claim for control of knowledge-based uses of
            New Zealand's entire panoply of indigenous flora and fauna
         RISK: some say IP are may amount to a new form of colonization links to indigenous
            knowledge piracy

   Currently, no international legal instruments that create specific IP standards tailored to indigenous
    knowledge or cultural practices
     HOWEVER some national governments have adopted measures to protect indigenous intellectual
       property
        e.g. -- Venezuela and Brazil
        e.g. -- Organization of African Union has developed model law on community rights and
            access to biological resources
        e.g. -- UNESCO's proposed Model Provisions for the Protection of Folklore is a community
            integrated IP rights model in development

   POTENTIAL BENEFIT: can create effective incentives for innovative use of biodiversity, which
    creates profits on which innovators can draw in negotiating in a fit sharing agreements with the
    holders of traditional knowledge and biodiversity (aboriginals)
         is this a new form of colonization?

   PROBLEM: standard intellectual property rights (IPRs) such as copyright, trademarks and patents
    not easily adapted to indigenous knowledge
     IPR requirement of authorship also difficult where traditional knowledge has evolved over time
        and is owned collectively - indigenous knowledge not 'new' in terms of novelty criteria



D. Rights in a National Context
   Aboriginals increasingly involved in environmental decision-making through:
        legislation
        customary rights recognized by courts
        treaties
        negotiated political settlements
                 increased involvement reflects a shift towards a more pluralistic legal order

   Legal Pluralism = where two or more legal systems coexist in the same social field
        IN REALITY societies contain both formal state and informal non-state forms of normative
           ordering (eg – those generated by a market and civil society)
        e.g. -- formal separate space in state law for an alternate legal order such as in Britain --
           Scotland and Canada – Québec, and Australia -- aboriginal customary laws (re: family Law,
           land tenure, and criminal Justice)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      115


   Legal Centrism = the accommodation of a new legal system (eg – aboriginal customary laws) into
    the existing hierarchy of normative ordering, with nation state regulation at the apex

   TREATIES IN PRACTICE:
       Disputes persist either because
          court judgments declared them nullities (e.g. the Wi Parata judgment in 1877 dismissed
            the Treaty of Waitangi ―as a simple nullity)
          because many agreements assert the loss of lands and resources to which aboriginal
            people say their forbearers never consented
       substantial advances in the recognition of indigenous traditional hunting and fishing rights
         have been made in most countries since the 1970s, as a result of:
          government legislation
          court cases
          new treaty negotiations

Latin America – constitutional reform?
Asia – intolerance?
Scandanavia – as good as it gets?
Canada – some judicial and political recognition
Australia – grudging process
New Zealand – national prominence
US – inherent sovereignty, judicial backtracking


Canada

Main elements of the Canadian legal system (re: aboriginal peoples)

    1) Federal Indian Act
        o Main instrument of cultural assimilation, colonialism

    2) Constitution Act, 1982, s. 35 (ABORIG LITIGATION STRATEGY)
        o Entrenches existing aboriginal and treaty rights, including resource rights and CL aboriginal
           title, but permits infringement for wide range of purposes including conservation
        o Operationalized mainly through aboriginal rights litigation

    3) Land Claims Agreements (ABORIG NEGOTIATION STRATEGY)
         Typically provide for land title, compensation, limited self-governance or co-management
         Products of lengthy, often acrimonious negotiations

KEY ISSUES:
      1) Do First Nations constitute a third level of government with jurisdiction to engage
      environmental resource management? What source?....
                i.  Delegated authority
               ii.  Aboriginal and treaty rights to hunt, fish, exploit resources
             iii.   Aboriginal title to land
              iv.   INHERENT right arising from pre-existing occupation and legal systems
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       116


       1a) If so, what would be the nature and scope?
            Generic/unlimited OR case specific/limited?
            What aspects of environmental DM‘ing should fall within an aboriginal sphere?
                   o ―Traditional‖ and ―distinctive‖ activities? Commercial exploitation vs ―moderate
                       livelihood‖? ―Internal‖ and ―cultural‖ matters only, OR resource management
                       and environmental protection?

       1b) To what extent, if any, would aboriginal self-governance be “infringeable”?
            For what purposes, subject to what conditions?
            Which government should have management priority?

       1c) How should self-governance be implemented?
            Via negotiation, litigation, confrontation, co-management
            Via exercise of Aboriginal lawmaking institutions and practices
                 o Discover, interpret and codify traditional laws
                 o Enact and amend new laws, create institutions
                 o Enforce laws ―internally‖ or ―externally‖ (eg. through co-management regimes or
                     courts)


Resource Co-Management, Capture and Recapture
EG – Nunavut – created via land claims agreement in 1993
 What is capture by settler society?
       o Whaling, turbot; actual taking/harvesting of the indigenous resources

   Nunavut Land Claims Agreement of 1993
       o Does not refer to aboriginal-based governance structure, rather creates public governance
          structure managing land for all residents
       o Self-governance tool ONLY due to numerical majority of aboriginals in Nunavut

       o   Resulted in creation of Nunavut Wildlife Management Board
               Composition
                        9 members (4 appointed by Inuit, 3 by Feds, 1 by Nunavut gov, 1 chair
                           nominated by the other 8)
               Authority
                        All previous territorial laws grandfathered in
                        NLCA gives NWMB authority to set quotas and non-quota limitations
                        HOWEVER, not absolute – fed or territorial ministers can veto NWMB
                           decisions based on particular reasons (to effect a valid conservation purpose,
                           to give effect to the NLCA, or for public health/safety), and written reasons
                           must be given
               Rule-making procedures
               Relation to other authorities
                        Quasi-independent status

Recapturing resources (via NLCA and NWMB):

1) EG - Polar bear hunt via traditional method
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       117


     NWMB approved, territorial Minister veto‘s for health/safety reasons, NWMB re-affirms
      approval, territorial Minister re-veto‘s, NWMB appeals to Nunavut Territorial Court for judicial
      review, and court affirms NWMB decision to allow hunt
    HELD:
       Standard of correctness (for Minister‘s decision)
       It was open for Minister to have a broad view of public safety, but failed to demonstrate that
          there would be only minimal interference with aboriginal rights
    COMMENTARY:
       Minister then reaffirmed decision to deny the hunt PROBABLY based on new consideration /
          attempt to minimize interference with aboriginal rights

2) Bowhead whale vs. narwhal hunt
        Traditional fisheries for aboriginals
        At the time there was a zero harvest level federally

        WHALE HUNT FACTS:
             o NLCA requires NWMB to set a quota for the hunt
             o At the time there was a zero harvest level federally – so license required from Dep‘t
                of Fisheries and Oceans (DFO)
                     Granted by DFO based on authority granted in the NLCA

        NARWHAL HUNT FACTS:
         Very variable year to year based on environmental factors (weather, migration patterns, etc)
         Beginning in 1970‘s very limited community based quotas imposed by DFO
         In NLCA says NWMB will establish narwhal harvest quotas (and notes that current quotas do
           not reflect needs)
               o NWMB decides on community based management hunt/harvest bylaws, within a
                    framework of ground-rules
               o Feds approve because communities would gather detailed info on harvest (# killed, #
                    injured, # lost)
               o RESULT: Quota‘s doubled, very high injured # - DFO closes fishery in one
                    community (via provision in the NLCA allowing feds to make interim decisions)
         MFO must consider ADJACENCY & ECONOMIC DEPENDENCY:

3) Davis Strait turbot fishery
        A new commercial fishery for aboriginals and non
        Around 1990 cod fishery collapses – feds give non-aborig fishers quotas to fish turbot in
            northern zones (and not given to aborig fishers) and aborig fishers not given quota for
            southern fishery areas




UNIT 13 – MARKET METHOD: ECONOMIC INSTRUMENTS
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                   118


      “Economic Instruments” = instruments that change polluters financial incentives, correct
       market failure by forcing internalization of externalities (polluter pays / user pays)
          o Externalities – arise where one persons actions impose a cost/benefit on others for which
               they are not reimbursed
          o Not necessarily market-based mechanism – don‘t have to operate based on the free
               market

      Leading contemporary alternative to command and control regulation

      BOYD: optimistic about ability of econ instruments to spur transformation toward
       DEMATERIALIZATION (reduction of material production/consumption in the economy) and
       SUBSTITUTION (replacing more harmful materials with less harmful ones)
      DRIESEN: skeptical about ability of economic interests to spur transformative technological
       innovation

Key Questions

   1) Can economic instruments stimulate the transformative changes needed for sustainability?

   2) Is the economic critique of environmental regulation well founded?
                   What about the environmental critique of economics?

   3) What kinds of economic instruments are there and what can we expect from them?



Critiques: Economic of Environmental and Environmental of Economic

Economic criticism of environmental regulation:

   1. Economic instruments are the opposite of command regulation
          o C&C imposes specific compliance techniques (direct), vs EI‘s which provide incentives
             (indirect)
          o FAULTY DICHOTOMY – lines are blurred
                   C&C reg is not just techonology (work practice) standards
                   C&C reg can create significant economic incentives

   2. EFFICIENCY - Costs of C&c often grossly outweigh its benefits (cost of ends)
         o Why? Because targets are not set to maximize social benefit
         o Solution: SHOULD do cost-benefit to set targets (stupid – impossible)
         o Response: Nothing to do with choice of instrument, but rather is choice of goals

   3. EFFICACY – C&C is not cost effective at achieving given targets (cost of means)
         o Control costs vary, and C&C fails to adjust for this, UNIFORM STANDARDS = overall
           targets achieved, but at higher cost than could be
         o Solution: Choose instruments to minimize total cost of pollution control by getting more
           abatement from facilities with lower costs, less from high cost facilities
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     119


                     Use instruments that give polluters incentive to abate in cost-effective manner
                      and degree, eg – taxes, tradeable permits
           o   Response: CORRECT (vs. uniform C&C reg)

   4. Command regulation hinders innovation
        o Because it either dictates technology OR leads firms to adopt technology they think
           government prefers
        o Response: CORRECT (w/ technology standards), INCORRECT (w/ performance
           standards)

   5. Command regulation is too slow, adversarial and cumbersome
        o Invites adversarial legalism and intense lobbying
        o Reponse: FALSE – a function of political culture, not instrument choice


Environment criticism of economics:

      Redesign economy to reflect ecological ―realities‖
           Replace narrow focus on GDP/GNP with holistic measure of human progress
                   EG – include environmental, social and economic indicators
           Recognize economy as closed, finite system, minimize material-energy flows
                   IE – environment is NOT infinite source of raw materials or receptacle for waste
           Put proper value on natural capital & ecosystem services
                   BOYD – true value is infinite
           Internalize costs of environmental damage
           Tax materials production, not work and investment



Assessment of Economic Instruments
Price-Based Instruments
     Change the price of pollution or resource use

       1) Negative – increase the price of pollution or resource use
            Taxes
                   Theory: All firms have incentive to abate to point where control costs equals the
                       tax cost, achieving overall abatement target cost-effectively
                   Efficacy: Depends on level of tax – set too low will lead to zero abatement
                   Practice: Direct pollution taxes uncommon (waste disposal), indirect used widely
                       (fuel, cars, etc) – inconsistent and w/ too many exemptions for worst polluters
                       due to lobbying – may be regressive (energy tax may effect low income more
                       than high income / companies)
                   Note: Traditional fines and environmental penalties are like taxes (litigation
                       awards also, etc)
            Legal liability rules
                   Theory: provide incentives to alter conduct
                   Practice: not certain enough to change behaviour
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       120



       2) Positive – decrease the private costs of certain activities (smart, and perverse)
            Subsidies (grants, loans, tax incentives, loan guarantees, etc)
                    Goal: incentivize socially beneficial behaviour by compensating undertakers
                            EG – renewable energy, green technology
                    Practice: Often allocated based on lobbying power, not environmental
                       friendliness – outweighed by perverse subsidies
                    Problem: Creates ‗polluter pays less‘ principles
                            Arguable whether ANY subsidy is smart

       3) Mixed – one scheme gives both positive and negative price incentives
            Fee-bate schemes
                   Combines a tax and a subsidy: tax on environmentally unfriendly products,
                      rebates for friendly ones
                   EG – Sweden - Co‘s charged a fee based on volume of emissions and then given
                      a rebate based on the amount of energy produced from those emissions
            Deposit-refund schemes
                   EG – beer
                   Practice: Deposit usually too small to be significant negative incentive to reduce
                      consumption; BUT even tiny refunds provide powerful incentive to reduce litter,
                      encourage recycling
                   WHY? Apparently because homeless people collect and return then – pscyh
                      perspective as well (reducing consumption harder than recycling)


Quantity Based Instruments
    Quantitatively defined resource or pollution rights

      Tradeable environmental rights – EG – emissions trading, transferable fishing quotas
          o 2 Key elements: Performance standards (overall cap divided into individual quotas) plus
               right to buy/sell quotas
          o Theory: by capping total amount of pollution/resource use, dividing rights among users
               and allowing them to trade, firms that can cheaply go green will do so and then sell their
               credits to firms that can‘t go green cheaply, achieving overall targets cost-effectively
      How differ from price-based?
          o Price based = price of pollution set, not total allowable quantity – calculation of total
               quantity w/ price based is difficult / uncertain
          o Quantity based = fix the quantity and leave price to be determined by market
      How differ from performance standards?
          o Very similar – performance standards must be set for quantity based instrument to work
          o Differ from performance by creating a market in which quotas can be traded = COST
               EFFECTIVE PERFORMANCE STANDARDS
      Violate polluter pays principle?
          o Not really, rather an overall (as opposed to individual) polluter pays principle
      Success factors: Tough caps, monitoring, geography equivalence
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    121




Information Based Instruments

       Instruments that change economic incentives by providing information to consumers or polluters
       Theory: information translates into market pressure and ‗green‘ market advantage

       TYPE 1  Instruments that inform consumers about pollution or environmental superiority:
                  PRTRs, voluntary certification programs, eco-labelling

       TYPE 2  EI‘s that inform polluters about cost-saving environmental improvement options:
                  Environmental audits, EMSs, education

       In practice: impacts on economic incentives and behaviour mixed


EI Summary

       Command regulation VS economic instrument dichotomy breaks down
           o Many instruments blur line between command and incentives

       LESSONS:
           o Examine carefully how incentives really operate
           o C&C can offer powerful (sometimes superior) incentives and cost-effectiveness
           o A ―smart‖ mix of C&C and EI is needed

       Conclusion: transformation toward sustainability
           o Which instruments will deliver the transformative technological innovation required for
               sustainable development?
                    Not just a matter of cost-effectiveness
                    What are the key factors driving innovation?
                    Can trading drive ‗high cost‘ innovation?
                    Are taxes potentially superior to both trading and traditional regulation?




UNIT 14

14.2 Sustainable Finance
A. Introduction

   EI‘s and VEC‘s not only market-related methods of environmental safeguarding, also:
         Promotion of ethical investment and sustainable financing in capital markets
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           122


           Financial orgs ideally positioned for channeling environmental norms to industry
             KEY regs must focus on making corporate environmental performance relevant to
               financial institutions evaluation of corporate economic performance

   EU‘s Fifth Environment Action Programme 1992 - first acknowledged the notion that environmental
    regulation is a shared responsibility with financial institutions

   Socially Responsible Investment = a financing process that considers the social, environmental and
    ethical consequences of a financial investment

   Theory: Target not just polluters, but their financial sponsors (banks, pension funds and mut funds)
        Decisions regarding future development made by financial services sector players
        Focus on private financiers who hold the majority of financial resources and capital markets
           (versus public financial and development institutions)

   Examples of Adverse Environmental Impacts of Financial Investment:
        Speculative investments in real estate projects that blight urban landscapes
        Financing of pesticides in farming
        Loans and investments in companies uninterested in pollution control

   Financial Institution Relevance:
        Provider of capital -- supply the resources for development initiatives
        Stakeholders (shareholders/lenders) -- exercise influence over corporate management
        Valuers -- price risks and predict the income of companies

   Defining ethical environmental financing:
        Substantive content = rules or guidelines regarding approved industries and developments
        Procedural requirements = positing mechanisms for assessing the environmental impacts of
           investment and lending decisions


BASIC ARGUMENT: Current finance reforms (mainly incentive and informational policy tools) are
insufficient --- they do not provide a sufficient counterweight to other capital markets pressures that
adversely affect the capacity and willingness of financiers to be environmentally sensitive
 Complexity of economic activity / transactions makes addressing environmental harms via
    environmental law difficult

DRIVERS FOR SUSTAINABLE FINANCE
    Failure to respect eco constraints can undermine development and influence financial returns
    Consumers and public opinion on green issues.
    Pressure on the financial sector from NGOs, churches and other civil society institutions.
    The precedent effect of earlier reforms to public development finance
    ‗business case‘ for behaving responsibly
    Pressure from insurance industry
    Government regulation

OBSTACLES TO SUSTAINABLE FINANCE
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    123


       1. Investors‘ weak economy-wide view (spatial aspect)
       2. Investors‘ short-term horizons (temporal aspect)
       3. Investors‘ lack of access to information about corporate environmental performance, and weak
       incorporation of environmental issues into financial analyses
       4. Financial sector‘s tragedy of the commons
       5. Investment intermediaries (fund managers and financial advisers) (short term, narrow view)
       6. Legal obstacles, eg:
               - fiduciary duties of institutional investors (invest ―prudently‖, invest ―loyally‖)
               - undemocratic governance of corporations
               - undemocratic governance of financial institutions
        Policy incoherence if state strategically unable to direct decision-making
        Policy failure if private institutions capture and distort regulatory programs
                Given the political strength of the financial sector, this is very likely UNLESS:
                         "effective systems of democratic supervision" and "chains of regulatory
                             control that are readily traceable to the primary government authorities"
                         Ability of government to intervene where private-sector motivation or
                             expertise are lacking

TOOLS FOR SUSTAINABLE FINANCE
     1) Ethical Screening = including shares in investment portfolios based on the environmental
     performance of companies AND shareholder activism to change corporate policy and practice

       2) Ethical investment funds = take account of ecological and social concerns
                EU = 250+ specialist ethical investment funds
                Ethical investment indices = Dow Jones Sustainability Group Index, and UK's
                   Financial Times Stock Exchange's Ethical Index
                        In UK, ethical investment (at Sept 2001) = 3.5% of the investment market
                        In US, ethical investment (at Sept 2001) = 13%

HOW TO REGULATE:
     1) Direct (like many manufacturing company's)
              Direct regulatory commands on financiers would be politically controversial, likely
                  inefficient, and THEREFORE very vulnerable to implementation failure
     2) Indirect (through incentive based and informational policy instruments)
              Adoption of flexible, collaborative mechanisms, in which traditional governmental
                  functions are shared with private interests
              A combination of rules, incentives and informational mechanisms by which the state
                  seeks to steer and coordinate, or collaborate with, the finance sector
                   EG - NEGOTIATED RELATIONSHIPS - SHARED REGULATORY
                      SPACES - ROUNDTABLE POLICY DIALOGUES
              OTHER EXAMPLES:
                   Pension leg gives ―unless prohibited‖ discretionary auth to consider non-financial
                      criterion in forming investment policy (Manitoba)
                   Oblige occupational pension funds to disclose their policies on ethic investment
                      (OZ, Austria, Begium, Germany, UK since 2000)
                   Force state pension funds to disclose SRI policies (US, Sweden, NZ, France)
                   Include financial sector in eco-labeling program
                   Include financial sector in mandatory environmental audit systems
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      124


                       Incentive-based (tax relief for eco investments)
                       Corporate governance reforms
                       LENDER LIABILTY FOR ENVIRONMENTAL DAMAGE

        3) Reflexive Environmental Regulation:
             Corporate environmental reporting -- facilitates the scrutiny of environmental
                behavior affirms, THEREBY promoting reflection and change within reporting firms
             Economic instruments such as pollution taxes and tradable emission permits
             Harness financiers into chain of regulatory controls
                 IE - provide organizational spaces for assessing and pricing environmental risks and
                    advising clients on risk management
                 IE - vehicles for legal communication, transmitting information about correct
                    corporate environmental behavior


In Practice

Canada:
    1975 – establishment of the Taskforce on the Churches and Corporate Responsibility (TCCR) to
      stop investment in South Africa
    1986 – first SRI mutual fund (set up by Vancouver City Savings Credit Union)
    1990s – public sector pension funds start applying SRI screens (eg OTPP)
    2004 – Social Investment Organisation study estimates some C$65 billion of assets subject to SRI
      criteria (3% of capital market).

International Programs:
        EG -- United Nations Environment Programme (UNEP) (1992) - Financial Institutions
           Initiative = banks, etc pledged themselves to specified sustainable development practices
        EG - International Finance Corporation (Equator Principles) (2003) -- ratified by 30 banks
           by 06/05 = must develop individual policies, procedures and practices to ensure projects are
           assessed and carried out according to specific social and environmental considerations

   Ethical investment more likely to focus on certain environmental issues than others
        Q: Are specialist policy instruments required for each type of environmental challenge OR
            our generic approaches tolerable?
        Q: Does the complexity of some environmental problems (EG -- climate change) mean that a
            certain class of problems requires more state intervention?

   LIMITATIONS:
       1) Market blind spots include:
               Undervaluation of ecological properties
               Failure to internalize third-party environmental costs
               Discounting of future environmental costs and benefits
               Inability to address the problem of scale or aggregate resource use in biosphere limits
       2) De-centralized nature of financial markets means gov direction necessary to achieve specific
           environmental goals
       3) Privacy concerns limit public participation and informational transparency that are integral to
           environmental policy regimes
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        125


        4) Lacking the specialist functions required of typical environmental agencies (ie – in gov)
        5) Short-term fund manager investment horizons
        6) Speculative, perhaps unproductive investments

   RESULT: institutions useful for financial leverage to make corporate management and policy
    greener, BUT unable to implement independent environmental policies


Using Government Capital to Influence Decisions

   IDEA 1: Socialization of the process of capital investment as a way to promote sustainable common
    democratic development  CRAZY!
        Via harnessing the resources of state pension funds
        Problem: Institutional domestic and foreign-sourced investment would balk – capital flees

   IDEA 2: State and commercial financiers co-finance development and state uses leverage to insure
    social and environmental goals not ignored
         Problem: deregulation theory considers state involvement in capital allocation likely to
            produce inefficiency – capital flees

   IDEA 3: State cooperation on an international level to regulate financial markets
        Good idea only if all key players on board (NA, EU, Japan, SEA)



C. Impact of the Growth Of Institutional Investment

   Within OECD group, largest investors are:
        Insurance companies, then Pension funds (public and private)
                Both heavily invest in corporate equities, real estate and bonds
        COMMERCIAL - mutual funds (retail), university foundations, bank-managed funds
           (institutional)
        COMMUNITY - credit unions, building societies, industrial associations, public charities

   Theory of Fiduciary Capitalism:
        Institutional Investor As a Voice for Promoting Corporate Social and Environmental
           Responsibility
        Institutional Investors = ―Universal Owner's‖
            Hold a broad portfolio of stocks, and THEREFORE interested in the health and long-term
               sustainability of the entire economy rather than the profitability of individual businesses
            As Fiduciaries, institutional investors have reason to favour long-term performance to
               meet the needs of their present and future beneficiaries
            Universal investors can afford to take a long-term view, and a diversified view, giving
               institutional investors an interest in a broad array of public policy governance issues
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        126




UNIT 11 – PUBLIC PARTICIPATION
UPDATE FROM CLASS SLIDES

A. Introduction: The importance of Participation

   Tactics / Mechanisms of Public Participation:
        Education
        Information dissemination
        Advisory or review boards
        Public advocacy
        Public hearings and submissions
        Litigation

   STRATEGIES:
        Empowerment of community-based civil societies
        ‗Good governance‘ rhetoric
        Financial institution cooperation

   Goals of Public Participation:
        Integration of ecological and social considerations into governmental decisions
        Enhance accountability, and thus acceptability of environmental decisions
                Resulting in less litigation, fewer delays and better decision implementation

   Rationale‟s for Public Participation:
        Sustainability depends on the way economic, social and environmental considerations are
           integrated in decision making
        Implementation of PP also depends on public input into the assessment of acceptable risks
                Environmental threats often characterized by significant scientific uncertainty and
                    risks – public participation can help assess and weight risk against perceived benefits

   Drivers of Public Participation:
        Increased awareness and concern about the relationships btwn eco health and human health
        Growth of human rights in legal and political systems has heightened expecations of
           participation in policy making
        International community‘s prevailing concerns about ‗good governance‘ and strengthening of
           civil societies
        Lack of trust in governments has fueld popular demand for increased direct involvement in
           decision making

   Models defining public participation
       Arnstein‟s Ladder – a spectrum of participation opportunities
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         127


                From notification to consultation to join decision-making power
           Top-down vs. Bottom-up
                Top down – government initiates participation
                Bottom up – communities initiate participation
           Substantive vs. Procedural participation
                Participatory rights may derive from Substantive human righs (right to live in a
                   healthy environment) and may be enshrined in a constitution or statute
                Procedural rights concerned with the methods of decision making (including public
                   consultation, information provision and access to the courts)
                        Typically a substantive right will have procedural elements intertwined

   Role of LAW in Public Participation:
        1) Through decision rules and procedures it can enable democratic will to emerge???
        2) Through its ability to codify norms and structure institutions, it can channel this political
            power throughout society, as a force for social coordination – IE – law creates a structure for
            participation that helps crystallize and protect society‘s environmental goals

   Historical Perspective on public participation:
        o In developing countries – push toward bottom-up participation
        o In developed countries – most participation typically confined to policy mechanisms
                 Administrative-based consultation, information and review mechanism established
                   pursuant to environmental and planning laws

   Limits of public participation in Canada
    1) Usually restricted to notice and comment
    2) Governments routinely ignore public input
    3) Enthusiasm for new citizen involvement initiatives like Ont EBR waned in late 1990‘s


C. Theoretical Approaches to Public Participation
    Broad theories:
           1) Process perspective – public participation bolsters the democratic legitimacy of
           governmental decisions

            2) Substantive perspective – public participation improves the outcomes of the decision
            making process

    Specific theories:

        1) Rational Elitism – environmental policy is complex and technical and therefore requires
        primarily technical and adminsistrative expertise – pub part should be limited to where they hold
        information that mae assist the experts
            o Favoured for: EA‘s and economic cost-benefit analysis of development proposals
            o Problem: Assumes science is all objective and apolitical – ignores that social values
                influence decision making
            o Similar = Corporatism – offers only a ‗functional representation‘ to reps of large
                strategic public groups (trade unions, industry and business councils, large NGO‘s)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       128


                      Often used in policy round-tables in Canada

       2) Liberal Democratic – stresses procedural rights for individuals and NGO‘s to be consulted
       and hear in decision making (procedural fairness, etc)
           o More important when electoral legitimacy is weak (eg. minority gov)
           o Includes rights of access to information, to make submissions and to use the courts to
               enforce both PF and statutes (env. laws)
           o Implications of an open / fair process are improved decision making
           o Problems:
                    Procedural reforms, generally, do not challenge the political elite‘s governing
                       structure – citizens views are often given weight in discretionary decisions only
                       where they toe the line
                    The mechanism does not provide a strong institutional framework for allowing
                       citizen interaction, learning and ethical transformation

       3) Deliberative Democracy – dovetail with the ‗deep‘ and ‗radical‘ eco schools of though – goal
       is to empower citizens in the actual making of decisions and to reorient decision processes to
       fundamental ethical and social values
            o Stress the value of egalitarian, community-based means of decision making
            o Whether deliberative depends, in part, on whether all sectors of community are
               represented


D. Aarhus Convention
      Only international environmental treaty dedicated exclusively to participation
          o Product of the UNEC for Europe but open to any UN member state if approved
          o Canada not a party to the convention

      WHAT:
         o Framework for pub part adhering to the Liberal Democratic model
         o Imposes participation statndards for decision-making by public authorities re: large
            projects, policies, programs and plans relating to the environment
         o
      HOW:
         o Article 6 – requires public notice be given when ‗all options are open‘ to allow public
            comment and input and requires public authorities to take feedback into account in
            decision making
         o Article 4 – govs must make info available to the public when requested – requests can
            only be denied if on the basis of listed grounds of refusal (or if disclosure would inhibit a
            fair trial or would adversely affect national defense or public security)
         o Article 9(1) and (2) – access to justice – allows appeals based on substantive decisions
            or info request refusals
         o Article 9(3) – access to admin or judicial procedures to challenge acts and omissions by
            private and public bodies that contravene national law relating to the environment
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       129


E. Legal Mechanisms for Public Participation
1. Constitutional Provisions & Environmental Rights

      Existence, form content, substantive vs. procedural

      Constitutionally based environmental rights not a suitable framework for prescribing in detail
       environmental standards and rules including participation provisions – better through legislation

      Outside of constitutional entrenchment, environmental rights may be provided in a statutory
       environmental bill of rights (EBR) (eg. Ontario and Michigan)
           o EG – Ontario EBR in 1994 established and Environmental Registry as part of
              framework for notifying and consulting the public with regard to proposed legislation,
              policies, regulations and other legal instruments
                    HOWEVER, does not provide a substantive right to a healthy environment –
                       simply expands procedural rights

   Basic Questions:

           1) Is there a right to a healthy environment? Why or why not? Justifications?
                An extension of basic human right to life VS a free-standing human right
                A right to not have harm done to you (tort-type)
                Instrumentalist – environmental rights are instrumental to enjoying other civil rights

           2) What is the character of the right?
                Individual vs collective, positive vs negative, substantive vs procedural,
                 corresponding duties
                Human vs non-human, bio-centric vs eco-centric

           3) How can it be operationalized?
                Statute vs constitution, enforceable against whom (gov‘t vs private persons),
                  remedies, conflicts with other rights


2. Participation in Administrative Decision-Making

      Context: Concerning specific development proposals, plans and policies and in regulation-
       making processes

      Pros:
          o Increasing democratic legitimacy of DM‘ing
          o more and better info to DM‘ers
          o stimulating communities to get involved with implementing environmental laws

      Cons:
          o May be illusory – and not truly pose any challenge to the existing elite‘s structure
          o Apathy – people don‘t use them and when they do it‘s often just NIMBY‘ism
                Could result in environmentally sub-optimal decisions
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     130


      Drivers:
          o Increasing recognition of human rights generally
          o Increasing disillusionment, distrust of state institutions – demand for openness and
              accountability
          o International push toward good governance
          o Increased public protest against development

      Obstacles:
          o Obstructive laws, heterogeneity, diffusion, resources, admin discretion, deferential courts,
              impenetrable bureaucracies, risks to whistleblowers, SLAPP suits
                   Claims by protested companies that protestors etc are defaming them, etc – done
                     to intimidate and deter protestors

      Rights:
          o Usually entail right to make written submissions and to be involved in public inquiries,
               with concomitant obligations on DM‘ers to take into account public opinion
                    EG – ‗Notice and Comment‘ provisions – oldest, in place since 1960‘s
                    EG – modern legislation often makes participation a central agency function
                           EG – EIA regulation – moved from mostly experts to having extensive
                              public input HOWEVER, weight of public input limited by authority
                              which decides on the SCOPE to be considered


3. Access to Information

      Advantages of AtoI:
          o Easier for public to participate in admin and judicial process
          o Helps promote more rational, informed DM‘ing
          o Fosters transparent accountable DM‘ing
                   Helps regulators, consumers, financial sponsors and the co‘s themselves to better
                      understand the environmental impacts
                   Through education, awareness and pressure, companies may improve their
                      environmental behaviour

      Effective AtoI laws should include:
           o A broad range of information
           o Obligations on agencies to collect and maintain relevant information
           o Obligations to meet information requests in a timely manner
           o Obligation to keep information applications fees low priced

      Limitations:
          o Most requirements target only the public sector, not engouh for the private sector

      General areas of use:
          o Public inventories of uses and releases of toxic chemicals
          o Enviornmental auditing of business operations
          o Eco-labelling programs
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        131


4. Access to Justice


(a) Judicial Review
     Challenge the legality of admin decisions (by government officials or administrative tribunals)
        made pursuant to legislation

       JD vs Appeal
            o Appeals must be statutorily authorized, right of JD automatic
            o Appeals available on broad range of grounds, JD typically available only for process
            o Appeals reviewed on correctness standard, JD generally on PU standard

       JD orders:
            o Certiorari (quashing)
            o Prohibition (prohibit the gov actor to do something)
            o Mandamus (require the gov actor to do something)
            o Declaration (of rights, obligations or state of affairs)

       Grounds for JD:
           o Alleging that the gov official or tribunal violates a statutory or common law duty, EG
                    Public notice and comment requirements
                    Environmental assessment or other planning process
                    Time limits for taking action
                    Limits on statutory power (jurisdiction)
                    Factors or evidence to be considered
                    Fairness and due process (bias, bad faith, etc)
                    Limits on delegation of powers
                    Substantive constraints on decisions
                          EG – Reese v Alberta – Approval of clear-cut logging doesn‘t violate
                              requirement to manage Crown forests for ―perpetual sustained yield‖
                          EG – Green (Sandbanks Prov Park) ONHC 1973 – ―maintain for future
                              generations‖ imposes no substantive duty
                          EG – CPAWS (Wood Buffalo) 2003 FCA – Approval of winter road
                              through national park doesn‘t contravene duty to give ―ecological
                              integrity‖ first priority … based party on def‘n of ―first‖

       PROBLEM: Agency may have to reconsider their decision as a result of judicial, but may
        nevertheless arrive at the same decision

       PROBLEM: Judicial forum not conducive to the deliberative model of democratic DM‘ing (for
        environmental or any other area) – arguments are re: rights, duties, procedures, etc, and broader
        policy matters or nuanced ethical matters are lost in decision made on as narrow as possible
        grounds

       General rules for Judicial Review (Pezim, SCC 1994)
           o Courts highly deferential, especially where
                    ‗expert‘ tribunals
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                            132


                      privative clause (courts can not be involved) & no stat right of appeal (for
                       example to the minister)
                   Standard is patent unreasonablness
           o   Less deferential where a matter of ‗jurisdiction‘ (eg. Algonquin Wildlands League)
                   Standard is correctness


(b) Public Interest Litigation
      Widely used to uphold environmental laws

       Redress is sought in respect of injury to the public in general – may be no direct injury to any
        individual member of the public, rather to the collective rights of the public

       Various types of suits:
           o Class action (see advantages in section well above)

       Public interest litigation is very expensive – esp. if you lose
       Public funding to challenge government action may alleviate costs
           o EG – legal aid, intervenor funding (typically inadequate and precarious)

Algonquin Wildlands League v. Ont (MNR) 1998 ONDC            SUBSTANTIVE REVIEW CONSTRAINTS
FACTS:
    Minister approved forest management plans for 7 million acres of land under the new Crown
      Forest Sustainability Act 1994, but without following its provisions that plans be made in
      accordance with the (at the time uncompleted) Forest Management Planning Manual
    Ministry brought in Reg providing that CFSA-compliant plans would be phased in over course of
      7 years
    Plaintiffs brought application for judicial review
ISSUES:
    Were the forest management plans valid?
    What level of standard of review could be applied to the Ministers decision?
HELD:
    Plans invalid, order they be quashed and plans must be in compliance with CFSA (and the
      Manual) within one year
REASONS:
    Phase-in REG not valid because CFSA doesn‘t provide for it
    Plans were approved before the Manual was even written (in contravention of the CFSA which
      requires plans adhere to the Manual)
    Plans were not valid due to being substantially in-line w/ Manual req‘s – they did not even
      consider the Manual, and were lacking key elements of what is required in the manual:
          o Assessment and monitoring aspects for the forestry management units to ensure
              compliance with sustainability objectives/goals
    Standard of review:
          o Correctness B/C the question was one of jurisdiction – Minister was acting outside of
              jurisdiction in approving the Plans
                    CFSA makes it a jurisdictional CP that Plans comply with the Manual
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         133


            o      DEFERENCE – very little since not the Minister‟s subjective notion of sustainability
                   that matters, rather an objective measure is required (Manual‘s measure) – Minister
                   so far exceeded his ―jurisdiction that the court cannot accord deference to his opinion‖
                        Minister‘s role gives him little discretion and so little deference is appropriate
ON APPEAL:
    ONCA supported the judgment re: application of sustainability requirement (ie – mandatory
      nature of complying w/ the Manual), Plans clearly fell short of sustainability standards
    ONCA overruled the phasing-in of appropriate plans – said the phase-in REG was legit 
      nothing in the Act PREVENTED the Minister from phasing in the Act  turned on how broad the
      Regulation provision was in the empowering legislation (ie – was broad enough)


(c)Private Prosecutions
     Anyone can lay charges against a person who alledgedly commits an offense
     Obstacles:
            o Criminal standard of proof (BARD)
            o No ‗discovery‘ of defendant
            o AG may take over and drop the charges (rare in Ontario)
                     Refuse to enforce laws, then block public efforts to do so
            o Courts may resist private prosecutions
            o Due diligence defense usually available
                     DD puts onus on defendant to prove DD
            o Very costly
     Benefits:
            o Effective way to put public pressure on gov‘t and polluter
            o Initiator gets to keep 50% of the fine

Belle Park – The Kingston Case
FACTS:
     Former dump turned into park / golf course – toxic leachate enters neighbouring river
     Charges laid under Fisheries Act by Ontario MOE in addition to private suit – tried together
HELD:
     ONGD – City convicted, fined $120,000 on Fisheries Act charges, $30,000 on OEPA and ordered
        to develop site cap plan
     ONDC – Convictions overturned on basis that Fisheries Act required proof of ACTUAL harm
        (OWRA test)
     ONCA – Restored convictions: proof of actual harm NOT required for Fisheries Act, only must
        show that the substance is deleterious to fish not that it was actually harmful in the receiving
        waters
NOTE
     Private prosecutions thrown out due to ineligible sample-taking measures – must mix the leachate
        with some water, can‘t test the pure leachate


(d) Citizen Suit

       ORIG: Limits of private prosecutions led to desire for new citizen enforcement tool: citizen suits
       MECHANISM: Stat provisions enable citizens to bring private action to enforce laws
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        134


          o Civil standard (BOP) and damages may be available
      WHERE: Virtually all US federal environmental statutes – recently introduced in Canada
          o EG - CERCLA or RCRA (US) – any person can sue any person alleged to be in
             violation…
          o EG – Ontario EBR, CEPA 1999
      APPLICATION: Rarely used due to difficulty initiating

Deloro Mine
    Ontario took over abandoned mine north of Belleville in 1979


(e) Standing
      Public interest and other types of litigation only possible if applicant is given standing to sue
      Traditionally, only given standing if have suffered a direct injury by reason of a violation or
        threatened violation of a right or interest
            o EG – in Australian Conservation Foundation v. Commonwealth, NGO applicant was
                required to show a ‗special interest‘ in the proceedings, rather than a mere ‗intellectual‘
                or ‗emotional‘ concern
            o EG – In US, test is 1) Injury in fact (to the person!), 2) Causation, 3) Redressability – all
                must be met  NOTE: orgs representing the injured individuals may bring suit
      REASONING:
            o Floodgates argument:
                    1) Flood of applications = agencies spend more time/money preparing a defence
                    2) Further delays in determining cases
                    3) Burden on court resources – detract from judgment quality
                    4) Fear that judiciary will engage in settling disputes better resolved through
                    political process
      Recently, courts have been willing to grant standing to environmental groups and concerned
        individuals with no direct economic or concrete interests at stake (often occurs due to stat
        reforms)
            o EG – Australia (Environmental Planning and Assessment Act 1979 (NSW) and New
                Zealand (Resource Management Act 1991) give standing to ―any person‖ to challenge a
                decision made under the legislation


Reese v. Alberta (MFLW) 1992 ABQB                                                     STANDING
FACTS:
    APPLICATION FOR JUDICIAL REVIEW
    Farmer alleges that Miniser approved logging operations contrary to s. 16 of the provincial
        Forests Act which required that all Crown forest lands be managed on a ―perpetual sustained
        yield‖ basis.
CROWN ARG
    Farmer lacks standing because has no direct interest in the management of Crown forest lands
HELD:
    RE: TEST for PUBLIC INTEREST STANDING (Finlay)
                (a) issue is justiciable
                (b) issue is serious
                (c) applicant is directly affected or has a genuine interest in the issue
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                                135


               (d) no other reasonable and effective manner for the issue to be brought before the court

      POLICY CONCERNS:
            (1) allocation of scarce judicial resources (screening out the mere busybody)
                      addressed if the issue is serious and the applicant has a genuine interest
                      genuine interest must balance scarcity of resources and access to justice
                     via suits by well meaning organizations, esp. where there are reasonable and
                     effective means to get to the court (Canadian Council of Churches)
            (2) determination of the issue should have contending points of view of those most
            directly affected by the issues
                      addressed if there are no other reasonable means of bringing the issue to court
            (3) proper role of the courts and their constitutional relationship to the other branches of
            government
                      addressed by the requirement of justiciability

   o   RE: GENUINE INTEREST (Re Individuals)  REESE EXPANSION
          o COULD find (c) genuine interest EVEN IF there is no direct, personal interest (in
             the sense that the administrative act operates to the applicant‟s personal
             disadvantage OR a contemplated role in the legislation)
                  SO LONG AS finding so would not be inconsistent with the inherent nature of
                     the statutory process
                          EG – income tax process, where assessments are confidential
          o FACTORS in determining (c) genuine interest (where applicant has no right that is
             affected and the statute contemplates no role):
                 1. Character and ambit of the legislation
                 2. Weighing the degree to which the intervention of the applicant may lead to
                     keeping the public authority within the law
          o REQUIREMENT for determining (c) genuine interest
                      ―the applicant has a sufficient interest in the matter, such that he or she is likely to use
                       scarce judicial resources efficiently by placing before the court evidence and argument as
                       to fact and law in such a manner and with the degree of preparation that the court would
                       expect of a party whose rights would be affected by the adjudication. The applicant
                       should be more than a mere busybody.‖
           o   HERE, genuine concern was that the Minister‘s plans to allow clear cut logging could
               not lead to ‖perpetual sustained yield‖

   oFINDING GENUINE INTEREST (Re Environmental Groups)
        o To determine whether genuine interest, look to:
                Mission statement / objectives of the group
                Lobby activities (ie – for creation of additional areas)
                Education activities (ie – to promote appreciation of wild areas)
                Actual activities:
                         EG – history of responsible involvement in forest issues in the area
                Group members activities – actual members engaged in recreational activities in
                   the area
COMMENTARY:
   Unclear whether INDIVIDUAL genuine interest is satisfied where there is no direct impact and
    not contemplated in the legislation – other issues include geographic proximity,
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     136


      Unclear whether GROUP genuine interest is satisfied where someone directly affected can bring
       the suit (ie – that position from SCC in Canadian Council of Churches)



(f) Environmental courts and ADR process
      Special environmental courts and ADR mechanisms facilitate public access to justice

      Environmental Court:
          o RATIONALE: Complexity of environmental issues require specialized institutions for
              evaluations of claims and evidence
          o KEY ISSUE: Appropriate jurisdiction and structure of a separate environmental forum
          o KEY QUESTION: Some theories of public participation are critical of expert, elite
              decision making bodies that work to exclude lay people (IE – fit within Rational Elitist
              model more than community involvement ones)
      ADR:
          o Includes negotiation, arbitration and mediation
          o BENEFITS: Cheaper, less adversarial, create a DM milieu more capable of
              accommodating policy, ethical and non-legal arguments
          o RATIONALE: Mediation (and the others) emphasise a win-win solution for everyone
              which helps create a stronger commitment among participants to respect decisions
          o PROBLEMS:
                   If judicial oversight removed, reg agencies become less accountable
                   Some parties might be omitted from the process,
                   Mediation might fail due to imbalance of power between parties, cost
                   Costs may be prohibitive to smaller groups
                   ***Developers might use ADR process for tactical delay reasons (since ADR
                      often unenforceable in court)


(g) Legal Aid and Intervenor Funding
     Given importance of money in the process, provision of legal aid and intervenor funding are vital
        complements to participation reforms
     Legal aid considerations:
            1. Applicants disposable income and capital
            2. Subject matter and merits of the case (inc. presence of public interest issues)
            3. Lack of other funding

      Criticisms of Legal Aid:
           1) Bias towards expensive, court-based solutions
           2) Does not cover entire costs and so fails to attract legal talent
           3) Means testing may exclude deserving sections of the community
           4) Not effective as an instrument for systemic social change

      Canada is pioneer of intervenor funding model – giving money to people who otherwise could
       not afford the necessary legal or expert consultant fees and who have no alternative fundting
       sources
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       137


            o   Funds to go individuals, NGO‘s or Aboriginal orgs seeking to contribute to
                environmental assessments
            o   Eligible to parties if: Local direct interest, community knowledge or Aboriginal
                tradictional knowledge or expert information relevant to the likely environmental affects
                of the project
            o   CEAA designates 8 ares to which participant funding may apply


Ontario EBR
       s. 2 – PURPOSE  To protect environmental integrity, provide environmental sustainability and
        ―protect the right to a healthful environment … ―by the means provided in this act‖
             o Doesn‘t cover anything beyond the scope of the Act – limited to the mechanisms
                provided in the Act (which are procedural, not substantive re: environmental outcomes)

Basic elements:
    Public participation
           o Participation in DM = public notice (Environmental Registry), comment and appeal
           o Citizen law reform = application for review
           o Citizen law enforcement = applications for investigations, citizen suits
           o Whistleblower protection
    Political Accountability
           o Statement of Environmental Values
                  Intended to be enforceable against political appointees
           o Environmental Commissioner
                  Monitor implementation of EBR and activity of the various ministry‘s
           o Conscious choice of political, not judicial accountability

Participation in Decision Making
        o s. 5, 6 – NOTICE  the Environmental Registry – proposals for Acts, Regulations, Policies
            or Instruments must be posted to the Registry
                  WHO – 13 prescribed ministries plus Management Board
                  WHAT – 2 kinds of posting:
                         1) Proposed Acts, Regs, and Policies that ―could have a significant effect on the
                         environment‖
                              5% of postings, 30 day notice period, posting adherence mixed
                         2) Proposed Instruments (CofAs, PTTWs, orders, etc)
                              95% of postings, 5 ministries must prepare ―classification regulations‖
                                 (divides instruments into 3 classes)
                                     o Class 1 (default) – 30 days notice
                                     o Class II – extra notice time, discretionary hearing
                                     o Class III – mandatory public hearing
         COMMENT POSTING:
               o Any Ontario resident may comment in writing to the gov contact person
         s. 35 – REQUIRED ACTION – ―shall take every reasonable step to ensure all comments
             relevant to the proposal …shall be considered…‖
         NOTICE OF DECISION
               o Must post notice of decision on the Registry, INCLUDING an explanation of the
                   effect of any public comments
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       138


         s. 38-46 – APPEAL RE: INSTRUMENTS (ONLY)
          o Any Ontario resident with ‗an interest in the decision‘ may apply to appeal body (usually
              ERT) for leave to appeal (generally restricted to directly affected parties)
                       For leave to appeal, must show that there is good reason to believe that no
                          reasonable person…could have made the decision, and that the decision
                          could result in significant harm to the environment (s. 41)
         s. 37 – NO EFFECT ON VALIDITY if governmental does not comply with EBR

             Citizen law reform
           Part IV – APPLICATION FOR REVIEW – Any 2 Ontario residents may apply for review
            of an existing polcy, Act, reg or instrument or the NEED for a new law/policy
                 o Minister must decide within 60 days whether review warranted & if so, must conduct
                     review within a ―reasonable time‖
                 o Subject to oversight by ECO
                 o Used regularly by ENGO‘s to advance law reform proposal
                          EG – to develop a plan for Boreal region
             Citizen law enforcement
         Part V – APPLICATION FOR INVESTIGATION
                 o Any 2 ontario resident may apply for investigation alleged violation of specified acts,
                     regs, instruments
                 o ECO must forward to ministry; Minister must investage ―to extent minister consider
                     necessary‖ (s. 77)
                 o Subject to ECO oversight
                 o Used regularly by ENGOs to advance political agendas by individuals to enforce
                     laws against specific violators
                          EG – SLDF allegation that Ontario gov is violating s. 14 of the EPA by
                              allowing air pollution (period); car buyers allegation that dealer illegally
                              recharging A/C unit with ozone-depleting substances
         Whistleblower‟s
                 o Protected against retaliation, but no content to the protection
         s. 84 – CITIZEN SUITS
                 o For violation causing harm to ―public resource‖
                 o Prerequisite: must have applied for investigation and have gotten no response or
                     unreasonable response
                                   Defences: DD, compliance with gov permit
                                   Court powers: Injunction, declaration, order negotiation of
                                      restoration plan, but no damages
                                          o If want damages, use s. 103 (any person suffering direct
                                               economic or personal loss due to a public nuisance may sue
                                               for damages)
Political Accountability
         EBR sets out requirements (notice, comment, values statements, consider applications for
            review, investigation) and rather than have courts oversee this process, it is politically
            overlooked – by the ECO
         ECO – has no ability to engage in substantive policy review, no sanctions for ministries non-
            compliance
         Ministry Statement of Environmental Values
                 o Generally vague, little impact – BUT SEE OMYA case
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     139


          s. 118 – JUDICIAL REVIEW EXCLUDED – unless fundamental failure to comply with
           requirements re: proposal for an instrument




F. Conclusions: Constraints to Public Participation & Future Reforms

      Practice does not conform to theory – legal provision of opportunity does not ensure meaningful
       participation

      Barriers to effective public participation:
          o Deliberative democracy criticized as unrealistic in contemporary mass societies –
              collective decisions may reflect conformity i/o unanimity
          o Unequal opportunities for individuals and groups to use participatory forums
                    Rich vs. poor
                    What is represented vs. who (minorities, etc) is represented
          o Flaw in the laws
                    EG – term of reference / scope can be drafted narrowly to exclude certain
                       contentious issues OR exercises a complete charade (to legitimage already
                       approved policies)
          o Flaw in the administration of public participation
                    Excessively technical and bureaucratic procedures for public involvement
                    Voluminous reports hinder public participation
                    Large and growing costs to the participants, governments and developers

      Possible SOLUTION to barriers:
          o Shift onus from citizens to governments to initiate and ensure participation
          o Oblige agencies to initiate consultation with stakeholders
          o Establish public participation watchdog to monitor and verify that DM processes are in
               fact transparent, participatory and accountable
                     EG – Environmental Ombudsman position in Canada (and New Zealand)

      Long term solutions:
          o With de-regulation more policy functions delegated to the market THEREFORE must
              consider how corporate governance, financial institutions and other features of modern
              markets can be made more transparent and open to participation and control by civil
              society
          o Beware global capitalisms apathy-creating effect on social values and public participation
                   Decentralized consumer society leads to much advertising, but little normative
                      guidance – leading to moral indeterminacy and nihilism which emasculate
                      attempts to motivate citizens to participate in their public governance.
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          140


UNIT 16 – INT‟L ENVIRONMENTAL LAW BEYOND BORDERS

Q: Is transboundary pollution illegal in international law?

       Stockholm Declaration – Principle 21 (1972)
            o ―States have sovereign right to exploit their resources pursuant to their own policies, and
               the responsibility to ensure that activities within their jurisdiction do not cause damage to
               environment of other State‖
       A: Uncertain – likely that states must do SOMETHING to mitigate transboundary pollution
       Problem: Can not attribute actions of private individuals (Teck-Cominco) to those of the state –
        which would be necessary for international


Trail Smelter Arbitration 1948
FACTS:
    BC town on border with Washington state – dispute from 1914 – 1924 (intra prov), alleviated by
        building two tall stacks, led to dispute 1927 – 1941 (int‘l)
    Emissions of SO2 caused damage to farms, forests, etc locally, and then later in Washington
HELD:
    Prov – compensation alone
    Int‘l Joint Committee – compensation alone
    Binding Int‘l Arbitration Tribunal (1937-1941):
            o ―No state has the right to use or permit the use of its territory in such a manner as to cause
                 injury by fumes in or to the territory of another or the properties or persons therein, when
                 the case is of serious consequence and the injury is established by clear and convincing
                 evidence‖
            o Remedy is compensation + regulation (monitoring and measurement of emissions
                 combined with weather conditions to alter production if conditions would take emissions
                 in quantity down to Washington state)
COMMENTARY:
    US unilateralism – US EPA is trying to force Teck-Cominco (through US legal mechanism) to
        clean up historic contamination under federal Superfund law, and a Native American tribe is
        trying to do same via citizen suit (in the US)

       CURRENT- Unresolved transboundary water pollution issues




UNIT 17 –TAKING STOCK AND LOOKING FORWARD
PAGE 219 – 5 FACTORS FOR SUCCESS

Reasons for Environmental Progress

   Environmental law is a relatively new field
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        141


           EG - No federal environment Department until 1970

   ENVIRONMENTAL PROGRESS:
       Decline in chemical emissions (SO2, NO, VOC‘s, CO) 10% - 50%
       Production and use of ozone depleting chemicals down 95%
       Lead emissions down 95%
       Decline in water pollution from industrial sources
             Dioxins and furans from pulp and paper mills down 99%
       Better sewage treatment and greater connectedness
       modest improvements in forest practices
       Municipal waste quantities down by up to 50%
       Recycling rates up significantly
       Increase in protected areas by more than 40,000,000 ha during the 1990s

   NOTE: PROBLEMS PERSIST
       Greenhouse gas or gas emissions
       Increasing foreign aid
       Exporting asbestos
       Care of national parks
       Protection of transboundary endangered species
       Unfulfilled international agreements
              Convention on Biological Diversity
              Kyoto Protocol
       New laws to protect marine biodiversity and reduce toxic pollution have been largely
         ineffective
       Plans for Federal provincial cooperation have produced little concrete action
       municipalities failure to restrain urban sprawl and develop effective public transit systems


1) Strong social, political, and economic institutions

           RIGHT TO SPEAK OUT
               o As a result of democratically elected governments and civil and political liberties
                  ranging from freedom of expression to Constitution section 7 rights
           STRONG CIVIL SOCIETY
               o high levels of education and increasing access to information
           INDEPENDENT MEDIA
           INDEPENDENT JUDICIARY

        = high ranking on UN Human Development Index
        = high ranking on the World Economic Forum's Environmental Sustainability Index (potential for
        sustainability)

           ENVIRONMENTAL INSTITUTIONS
              o Commissioner of the environment and sustainable development
              o Standing Committee on Environment and Sustainable Development
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     142


               o   National Roundtable on the Environment and the Economy
               o   International Joint Commission
               o   similar provincial institutions (E.G. -- Ontario's environmental commissioner)

          ECONOMIC WEALTH
             o facilitates increased efforts to protect the environment
             o ACCEPTS some environmental problems worsen with rising affluence (EG --
                greenhouse gas emissions)
             o NOTE: studies indicate policy choices, not economic wealth, our key factor in
                determining environmental performance


2) International Pressure
         Canada's response to global environmental problems shaped by the international response

       International Environmental Agreements
        Canada is a party to over 230 international agreements
               EG – WELL KNOWN  UN Convention on Biological Diversity
               EG – OBSCURE  North Pacific Fur Seal Treaty of 1911
        PROBLEM:
              1) No one to police international agreements, compliance relies on peer pressure among
                  the nations, public opinion, and fear tarnishing the country's reputation
              2) International environmental laws characterized by weak language (e.g. -- "as far as
                  possible and appropriate‖)
                      a. NOTE: Canadian courts have ruled that the values enshrined in international
                           law should be used to guide government decision-making

          Canadian leadership:
              o Montréal Protocol on Substances That Deplete the Ozone Layer
              o Stockholm Convention on Persistent Organic Pollutants
              o UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks
              o 1979 convention on long-range transboundary air pollution
                       Canada pushed the agenda and took steps to ensure consistency between its
                          words and actions
              o role in negotiating global landmine treaties and Jubilee 2000 campaign of debt
                  forgiveness for developing nations

       NAFTA – North American Commission for Environmental Cooperation (CEC)
        Pressure generated by participation
             o Citizen groups make submissions regarding failures to enforce environmental laws
                 (e.g. -- pulp and paper mills, B.C. Hydro, Ontario power generation, mining
                 companies, logging companies, and industrial fog farms)
        CEC has very limited powers (conducting investigation and reporting facts about non-
         enforcement)
             o CEC cannot make recommendations or impose penalties
        PROBLEM:
             o Investigation discretion held by national environment ministers THEREFORE CEC
                 subject to political manipulation, and no appeals process
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      143


               o   Canada has been the subject of the highest number of investigations for
                   nonenforcement

       International Market Pressures
        Market campaigns organized by inventor of environmental groups generated concerns among
           buyers are of Canadian forest products in Europe, the United States and Japan
               Led to force companies supporting the designation of new protected areas and
                   excepting provincial regulatory improvements
        Need to maintain access to American markets contributed to strengthening of Canada's Pest
           Control Products Act


3) Effective Laws and Regulations

          regulatory offenses gaining importance, and supported by Canadians
          Substantial progress on certain environmental issues proof that command-and-control
           regulation can be effective

       Ozone Depletion:
        Combination of strong federal and provincial regulations cut production of ozone depleting
          substances by 95% within a decade
        Regulations were comprehensive in scope, mandatory in nature, and strengthened
          regularly to reflect the progressive tightening of timelines (based on the Montréal Protocol)

       Energy Efficiency
        Canada's overall record on climate change is very poor
        BRIGHT spot: Energy Efficiency Act - regulations targeting household appliances and lights
          (effective step toward reducing greenhouse gas emissions)
               Leg lanuage is mandatory, with clear requirements that must be achieved by a
                   specific date

       Industrial Air and Water Pollution
        Long term Canadian priority
              o Lead from smelters and gasoline
              o Effluent from petro refineries, pulp and paer, mines, smelters
              o Emissions from vehicles
              o Fuel contents
        Generally a result of point-source regulations

       Laws Governing Forest Practices
        Recently unenforceable guidelines, converted into legally binding laws and regulations in
          many provinces

       Affordable Costs of Effective Regulation
        Targeted industries always object, saying C&C too costly and achieve little
        HOWEVER, little evidence supports that C&C hinders competitiveness – sometimes may
          spur productivity increases, efficiency and competitiveness
        Total economic cost of progress over 30 years approx 1 – 2 % of GDP
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          144


            Even critics admit that what once seemed costly (at initiation) have proven to be reasonable
             (even bargains)


BOX - General Characteristics of Effective Environmental Laws
1)   Clear jurisdiction of cooperation between levels of government
2)   Clear, measurable and enforceable standards
3)   Mandatory language
4)   Effective compliance and enforcement mechanisms (inc. incentives and penalties)
5)   Adequate resources for implementation and enforcement


4) Federal-Provincial Cooperation

            Too often the levels conflict, but when they join forces progress of difficult issues possible
                 o EG – Acid rain in Eastern Canada led to combined action that reduced SO2
                     emissions by 43% between 1985 and 1996
                 o EG – Ozone depletion (feds = manufacture, use, sale and import --- provs = release,
                     recycling and disposal)
            Failures common
                 o EG - Smog, endangered species, drinking water and climate change


5) Proactive Local Governments

        Notable accomplishments:
            o Sewage treatment:
                     Municipalities united under Federation of Canadian Municipalities (FCM) to
                       pressure provincial and federal governments to provide financial support for
                       sewage infrastructure
            o Recycling:
                     Blue box programs proliferated during 1980s and 1990s
                            Nova municipal waste per capita down more than 50% during the 1990s
                            B.C.E. decreased venous voice per capita by 42%
                            Best municipalities = Edmonton, Ottawa, Nova Scotia communities
            o Climate change:
                     Toronto implemented program to reduce greenhouse gas emissions by 20% from
                       1990 levels cannot afford it to 67% decrease in greenhouse gas emissions in 2002
                     FCM operates program called Partners for Climate Protection – assists
                       communities interested in greenhouse gas reduction initiatives
            o Pesticides:
                     Toronto, Halifax, and 37 Québec municipalities have bylaws restricting the use
                       of pesticides
                     Halifax, Toronto and Victoria have reduced pesticide used by 95
            o Water:
                     Municipalities with water shortages have implemented innovative conservation
                       programs saving both water and money
        PROBLEM:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        145


            o   Municipalities limited by legal limits on powers
            o   Powers expressly conferred by statute, necessarily or fairly implied by the express power,
                and those indispensable powers essential to the effectuation of the purposes of the
                municipality
            o   Hudson SCC 2001 – upheld a municipal role in pesticide regulation, suggesting a local
                governments may have larger or future role in protecting the environment
                     SCC noted that local governments are better equipped with local knowledge and
                        better able to reflect local environmental conditions and more accessible to
                        citizens


6) Progressive Decisions From the SCC

   Six environmental cases between 1988 and 2001 resulted in six precedents emphasizing the
    importance of environmental protection
        1) 1988 – Ocean Dumping Control Act – constitutionality upheld because marine pollution is a
            matter of national concern and THEREFORE a federal regulatory role is appropriate (even
            for pollution in provincial waters)
        2) 1992 – Old Man River Dam – feds had a legal obligation to conduct an environmental
            assessment
                     1. lead to the enactment of the Canadian Environmental Assessment Act
        3) 1994 – Great Whale hydroelectric megaproject – overruled lower court ruling that
            environmental assessment of impact of the transmission lines (not the dam itself) was
            sufficient – ―overall environmental costs‖ must be examined via comprehensive EA
        4) 1995 – Canadian Pacific Ltd. & Ontario‟s EPA – upheld the constitutionality of the law,
            which CEP argued was too vague, noting that environmental protection is a ―fundamental
            value in Canadian society.‖
        5) 1997 – Hydro-Québec and PCB dumping – rejected argument that local pollution solely
            within provincial jurisdiction on the basis that the feds have the constitutional authority to
            enact laws to protect public health under its criminal law power
        6) 2001 – Hudson Québec pesticide bylaw – validity upheld, precautionary principle endorsed
        7) 1990s – Marshall decision et al. – declared conservation must be the overriding priority in all
            fisheries management decisions

   Consequences:
        Binding precedent
               EG – NFCA - Voisey‘s Bay nickel mine – quoted from SCC environmental decisions
               EG – MBCA – ―damages will not compensate for a destroyed forest‖
        Beacon of leadership and moral authority

   Limits:
        Environmental cases rarely make it to the courts docket (partly due to the weaknesses in
            Canadian environmental laws)
        Determined governments can find means to circumvent the court‘s decisions
             EG - Alberta‘s Old Man Dam was built despite the fact that the court ordered EA
               recommended cancellation
        Feds continue to interpret their jurisdiction very narrowly
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    146


7) Public Pressure

   Major waves of public concern about the environment:
        First, early 1970s
        Second, late 1980s and early 1990s
        Third wave begins with Walkerton, record smog in southern Ontario, I need about climate
           change
               Has lead to rebuilding of Environment Canada enactment of the Species at Risk Act,
                   new pesticide legislation, and now the hated Clean Air Act

           First two waves resulted in more aggressive governmental approach to environmental issues
            including new law enactment that were followed by years of government backsliding and
            failure to follow through on promises

       EG – WATER EXPORT - public anxiety about bulk water exports led to prohibiting laws
       EG – FOREST MGMT - widespread concern about the loss of old-growth forests, climaxed in
        protest that Clayquot Sound and Temagami drove the enactment of legislation in BC and Ontario
       EG – GARBAGE - inspired municipalities to implement recycling programs and adopt strategies
        to reduce municipal waste
       EG - PROTECTED AREAS – WWF and Canadian Parks and Wilderness Society via
        Endangered Species campaign led to public support and government endorsement of goal of
        protecting representative examples of all Canadian ecosystems by the year 2000

   Government often responds quickly to environmental crises that generate intense public and media
    pressure
         EG – PCB regulations passed after THE St-Basile-le-Grand CBs fire in Québec
         EG - rapid response to the discovery of the hole in the ozone layer
         EG -- enactment of the Transportation of Dangerous Goods Act following the Mississauga
            train to rail meant in 1979
         EG -- renewal of offshore drilling moratorium following the Exxon Valdez oil spill
         EG - Strengthening of provincial drinking water laws in response to the Walkerton disaster

   Problem with reactive environmental responses:
       1) extensive environmental damage are you done
       2) public confidence in government shaken
       3) costs of restoration and recovery often greater than the cost of prevention

   Public interest organizations with policy making influence:
        Canadian Environmental Law Association
        Canadian Institute for Environmental Law and Policy
        Sierra Legal Defense Fund
        West Coast Environmental Law Association
        Environmental Defense Canada
        Alberta's Environmental Law Centre

   Public pressure FAILS SOMETIMES:
     cleanup of contaminated sites (eg - Sydney Tar Ponds)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                       147




8) Influence of the United States

       A double-edged sword
       Leg lag is often decades long
       Free trade and NAFTA have reinforced the trend towards convergence of Canadian and
        American environmental laws
       Transboundary issues (eg acid rain) also lead to convergence



Root Causes of Environmental Degradation
US = Strict Regulation Does Not Solve The Problem

   US has the most comprehensive command and control regulation framework for environmental
    regulation of any country in the world but is 143/180 on the Ecosystem Wellbeing Index
     While some environmental damage has been reduced or even reversed the larger national and
        global forces of population growth, landscape transformation, natural resource use, and waste
        generation that define modern human history are only marginally mitigated
                 An innovator in the 1970s, the country is now plagued by "institutional rigidities", a
                    "lack of political will", and a "refusal to take steps to solve global problems" like
                    climate change and population growth
                 US environmental law is immensely costly and technically confusing AND takes a
                    scientifically outdated pollutant by pollutant, medium by medium, species by species
                    approach
         SAME CRITICISMS APPLICABLE TO CANADA
                 Legislation and court decisions emulate US models
                 94/180 on Ecosystem Well-Being Index
                 Ranks 2nd last on OECD rankings (performance deteriorated in 15 of 25 indicators
                    over to the past two decades)
                 third largest per capita environmental impact

   KEY PROBLEM:
     ROOT CAUSES OF ENVIRONMENTAL DEGRADATION ARE NEVER ADDRESSED
     ROOT PROBLEM = the dominant paradigm of endless economic growth based on ever-
      increasing consumption of energy and resources
           Laws and policies intended to protect the environment must directly address consumption
              and population, NOT merely their impacts
       COUNTER: By by addressing the impacts, cost of consumption rises which should reduce
          demand for consumption
           EG - forest management practices that mitigate the damage of over cutting and reduce
              timber yields will drive prices up leading to reduced demand for what

Human environmental impact = Human population x Consumption of energy and resources per capita
              Consumption = energy and materials consumed + waste or pollution generated
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                            148




Key Limits – Scientific Conditions for Eco Sustainability
   Three basic principles that must be respected in order to achieve an ecologically sustainable future
    and avoid era verso ball and our mental degradation

1) Nature cannot withstand a systematic buildup of materials extracted from the Earth's crust

           Natural cycle = substances flow from crust to ecosphere and are then re-absorbed into the
            crust
                 EG – OUT = processes like erosion and volcanic eruptions
                 EG – IN = sedimentation

           PROBLEM: Natural flow + Human-generated flow must not exceed the planet's ability to
            assimilate/absorb
                 Accumulation has environmental consequences
                     E.g. -- increasing carbon dioxide disrupts carbon cycle leads to climate change
                     E.g. -- increasing sulfur in the atmosphere contributes to acid rain
                     EG -- increasing heavy metals contaminate soil, poison wildlife, and threaten
                        human health

           SOLUTION:
               Reduce dependence on fossil fuels
               Replace nonrenewable resources with the renewable resources
               Substitute abundant minerals for scarce minerals
               Use all mined materials efficiently

           IN PRACTICE:
             NEW UNDERSTANDING – ASSIMILATION CAPACITY IS KEY
                   for most elements, the assimilation capacity of the ecosphere is a more restrictive
                    constraints on the use of these elements than the amount of resources available in
                    a little sphere (crusts)

                       OECD, the UN, World Resources Institute, the Union of Concerned Scientists
                        agrees we are overloading the waste absorption capacity of the planet and
                        approaching critical thresholds in regenerative capability of renewable resources

                   Anthropogenic emissions of many substances extracted from the Earth's crust are
                    already substantially higher than natural flows
                         EG - In 200 years the level of carbon dioxide in the atmosphere up by more
                            than 40%
                         EG - volume of lead extracted is roughly 300x nature‘s capacity to absorb it


2) Nature cannot withstand a systematic buildup of anthropogenic substances
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         149



           Natural cycle = must not emit new substances at a rate faster than they are degraded into
            substances that can be assimilated

           PROBLEM:
               Must avoid emitting substances that are persistent, bioaccumulative, or toxic at very
                 low levels
                      EG -- CFC's, PCBs, pesticides, and endocrine disrupting chemicals)
                      This
               Complexity of interactions of new substances leads to long period of time between
                 release and recognition of negative impacts

           SOLUTION:
               Extreme caution in using human made chemicals that do not break down in nature or
                 break down very slowly
               substitute abundant, natural, and biodegradable substances for persistent, unnatural
                 substances -- and use all efficiently


3) Nature cannot withstand a systematic deterioration of its diversity, productivity, or capacity for
renewable

           Natural cycle / PROBLEM = the rate at which renewable resources are consumed must not
            exceed their rate of regeneration – CONSUMED VIA…
                 EG -- harvesting = fishing, logging, hunting, groundwater extraction
                 EG -- manipulation = displacing a natural ecosystems (cities or roads), reshaping
                    structures of nature (dams or logging), and modifying natural processes (breeding /
                    genetic engineering)

           SOLUTION:
               Using land, water, and all natural resources as efficiently as possible, in minutes
                 minimizing modification of natural ecosystems

           IN PRACTICE:
                EG -- global biodiversity crisis, the depletion of fisheries, poor condition of many
                  freshwater ecosystems, the loss of natural forests



Consumption
   Greatest impacts arrive through the broad economic activity required to meet our collective demands,
    AND not through individual impacts on the environment
        E.g. -- water consumption -- individual use = 343 L per day... total per capita use = 4400 L
            (all non-hydro electric) + 8800 L (hydro electric) = 13200 L per day
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                          150


   Accurate measurement of human consumption of energy/resources requires measurement of energy
    and resources consumed at:
        1) Resource extraction
        2) Industrial production
        3) Consumer behavior
        4) Waste generation

        = “TOTAL MATERIAL REQUIREMENT” (TMR)

           > ½ TMR = “hidden flows” = materials removed or disturbed in order to obtain natural
            resources or build infrastructure (materials are never bought or sold, so measures such as
            GDP do not include them)
           EG – TMR‟s:
                o Japan = 45,000 kg (of energy and resources materials) per person per year
                o USA = 85,000 kg
                o Canada = USA
                         = 232 kg PER DAY

                o   SEE UL p 281 FOR VARIOUS LIFETIME CONSUMPTION STATISTICS

       Canadian consumption and consumes resources from other countries (in addition to polluting the
        atmosphere in the sea's)
         Cutting back on Canadian production of natural resources ( e.g. timber) puts pressure on
           other nations (e.g. tropical and subtropical one's) to satisfy our consumption patters
                RESULT: Canadian forests helped, Brazilian forests hurt

   Consumption Conundrum:
       1)   As long as economic growth continues increases in energy efficiency are overwhelmed by
            absolute uses of energy
             a. THAT IS, although per capita energy use in Canada is declining, TOTAL energy use
                 continues to rise
       2)   Law of entropy says that whenever energy is used disorder increases
             a. THEREFORE the cost of continuous economic growth is the increasing entropy or
                 disorder in the ecosphere
             b. THAT IS, as society uses more energy and resources, waste, pollution, and
                 environmental degradation increase
       3)   RESULT - current economic policies based on ever greater consumption of energy and
            resources will inevitably lead to worsening environmental degradation despite proliferation
            of well-intentioned environmental laws leading to better energy efficiency

           SOLUTION:
             Economic growth must he detached from higher levels of resource use
               EG -- renewable energy
               EG -- expansion of services is less resource intensive
               EG -- pollution reduction technologies
               EG -- solution of cleaner products for more toxic products
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                        151




A New Direction
   Sustainability requires:
        STEP 1 - Remedying the systemic weaknesses in environmental Law and policy
        STEP 2 - Addressing the root causes of environmental degradation

   METHOD (using crim law comparison):
       STEP 1 – Fix the system … crim law (vs. env law) has:
         Comprehensive national law, consistent throughout the nation
         Written in mandatory, legally binding language (vs. predominantly discretionary)
         Rigorously enforced (vs. lax enforcement)
         Evolves to keep pace with contemporary Canadian values (vs. lags behind values)
         Prescribes punishment for violators
         Deters undesirable behavior
            BUT THIS IS NOT ENOUGH… understood now that eliminating crime requires
               addressing root causes:

          STEP 2 – Address root causes:
            Social and economic factors such as poverty, lack of education, and child abuse – only
              effectively addressed through policy changes


Remedying Systemic Weaknesses

Status:
 Canadian laws (either at federal and/or provincial level) need improvement in:
         Safe drinking water - Water pollution - Water use - Climate change - Air pollution –
          Pesticides - Forest management - Environmental assessment - Parks and protected areas -
          Endangered species - Restoration of contaminated sites - Energy efficiency - Protection of
          marine mammals - Hazardous-waste - Invasive species

   Reccos for new and improved laws to address most of these issues already been published
        EG - safe drinking water (federal) -- Sierra legal Defense fund
            EG - safe drinking water (provincial) – many inc. Canadian environmental Law
               Association, Walkerton Inquiry, West Coast Environmental Law Association
            EG - Sustainable Development Action Plan law reform initiatives from the CBA still
               await implementation
            PROBLEM: Failure to enact, implement, and enforce environmental laws and policies
   GOOD NEWS (Federal):
        Revamped Pest Control Products Act drew extensively from recommendations by interested
           groups (inc. the Law Reform Commission of Canada, commissioner of the environment and
           sustainable development, CELA, OCFP, etc)
            Enactment of the Species At Risk Act
            Announcement of the Clean Air Act (crap act)
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         152


   GOOD NEWS (Provincial):
          New or improved in to endangered species legislation
          Stricter regulation of drinking water
          Stronger standards for hazardous waste disposal (ON and QC)
          New laws prohibiting the bulk export of water

To Do:

    1) KEY  GOOD LAWS
       1. Cooperation between governments
       2. Clear, measurable, enforceable standards (/ targets and timelines)
       3. Mandatory language
       4. Effective compliance and enforcement mechanisms (includes incentives and penalties)
       5. Adequate resources for implementation and enforcement

         + should incorporate the precautionary principle as a key consideration in all DM‘ing
         + establish independent advisory boards to monitor and report on the effectiveness of legislation
         + embody principles such as:
                  intergenerational equity, polluter pays, user pays, pollution prevention, full-cost
                      accounting, life-cycle analysis, ecological design, and adaptive management

    2) Increase budgets so that funds and staff are adequate to implement and enforce laws and policies
           a. Reverse budget cuts the past 15 years
           b. by applying the polluter pays and user pays principle, Canadian governments could
              generate more than enough revenue to cover increased environmental expenditures
           c. WHY SPEND SPEND SPEND:
                  i. Increased spending on environmental protection will pay social, economic, and
                      environmental dividends in the long run -- save money for the health care system,
                      spur innovation, and increase people's quality of life

    3) Increase public participation:
           a. Entrench a constitutional right to a clean, safe, and healthy environment
           b. Change laws and policies to enable citizens to enforce environmental laws
                   i. Reaffirm right to conduct private prosecutions
                  ii. Add citizen enforcement provisions (―citizen suits‖) to all laws


Addressing Root Causes – Promoting Sustainability

        Challenge is to improve the quality of life will consuming fewer resources

        Requires a paradigm shift from taking increased consumption of resources as a given, necessary
         in a to provide further economic growth, and striving to mitigate the consequences of this growth

        PARADIGM QUESTIONS:
         1) Is economic growth and appropriate indicator for measuring human progress?
         2) Does economic growth necessarily require ever higher levels of resource consumption?
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                    153


        3) What kind of laws and policies will lead to economic growth and improvement in quality of
           life, while concurrently reducing resource consumption and environmental damage?

        4) What is Canada's role in addressing population growth in the developing world?
        5) How can Canada contribute to sustainable development and reducing poverty in the world's
           poorest countries




A New Model
       Sustainable development has three imperatives:

        1) Ecological imperative -- living within the Earth's physical limits
        2) Social comparative -- developing democratic systems of governance that enshrine and respect
        basic human rights
        3) Economic imperative -- ensuring that human needs and aspirations can be met worldwide


Canada's Sustainable Development Strategies

   Canada has no strategy – current approach will fail due to lack of coherence and integration
     Above point made by Canada's environment commissioner, and two key points…
       1) Failure to establish clear and measurable targets
       2) Many strategies appear to be a restatement of the status quo, not a commitment to change in
       order to promote sustainable development
                 Some departments view their sustainable development activities as a paper exercise

   Current sustainable development practices:
        Each federal department and agencies (24) must + 4 Crown Corps do so voluntarily
                Each have different interpretation of what sustainable development means and how it
                   should be achieved
        Ontario, Alberta, Manitoba, the Yukon, and Newfoundland have sustainable development
          strategies
        National Forest Strategy
        Canadian Biodiversity Strategy
        Federal Water Policy
        Canada's Ocean Strategy
        several plans for climate change


Other Approaches – Europe (Sweden)

   Compared to Canada Europe has adopted a more holistic inspiring approach to sustainable
    development (Sweden and the Netherlands in particular)

   NOTE: Swedish and Canadian economies “very similar” (Boyd) to a:
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                      154


       Similar climates
       Both = 27% of GDP from industry, 70% from services, and 2% from agriculture
       Canada dependent on the US economy -- suite in dependent on European economy

   Sweden and Netherlands goal is to attain ecological sustainability by 2025
        Both have national sustainability strategies that establish measurable objectives and specific
          timelines
        Both evaluate the extent to which sustainability objectives are being met, and adjust laws and
          policies accordingly
           Dutch National Environmental Policy Plan targets over-consumption of resources, and
              emphasizes decoupling economic growth from resource use and pollution

   Sweden's definition of ecological sustainability:
     Environmental protection -- emissions of pollutants must not exceed nature's capacity to
       observed them
     Sustainable supplies -- guaranteed a long-term productive capacity of ecosystems by not using
       resources faster than nature can regenerate them AND finding renewable substitutes for
       nonrenewable resources
     Efficient resource use -- in order to reduce overall level of consumption

   Sweden in action:
     1998 outline of 15 general environmental quality goals (including air, water, wetlands, forests,
       toxics, ozone, etc.)
     2001 law sets concrete, measurable targets and timelines for each goal

   Government must recognize the Earth's limits B/C:
        Critical for rethinking societal goals
        Vital to educating the public about the need for substantial changes to laws, policies,
          institutions, societal priorities, and individual behavior

   Sweden vs Canada:
     On a total and per capita basis – Sweden has less air pollution, superior sewage treatment, use
       less what are in energy, use energy more efficiently, produce fewer greenhouse gas emissions,
       use a lower volume of pesticides, create less garbage, and donate a higher percentage of GDP as
       aid to promote sustainable development in poor countries
     GDP  Sweden spends > 3% on environmental protection, Canada spends < 1%
     Difference in Approaches
                 Canada -- reliance on command and control laws and regulations, and ineffective
                   voluntary programs to mitigate the environment impacts of an industrial economy
                   consuming ever increasing amounts of energy and resources
                 Sweden -- adopts more holistic approach, using a variety of social, economic, and
                   environmental tools designed to restructure its economy to place less pressure on the
                   environment

   SWEDEN‟S INNOVATIVE INSTRUMENTS:
       Move toward full cost pricing of environmental goods and services by removing subsidies
        and implementing environmental taxes
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                         155


                Waste, the sulfur content of fuels, pesticides and artificial fertilizers, motor vehicles,
                 carbon dioxide emissions, energy, and electricity
          Combination of penalties and financial incentives to pursue production efficiencies

          Greenhouse Gas Emissions:
               Uses energy and carbon taxes
                      formulated to reflect the amount of damage caused by different energy
                         sources and phased in gradually
               Funds innovative local programs
                      EG – Lund uses waste collected from the food processing industry generate
                         methane, powering city buses  lead to law prohibiting disposal of food
                         waste and other organic matter that can be collected and recycled into energy
                          RESULT  reduce CO2 emissions and garbage, cleaner energy
                             generation, and therefore reduced air pollution
               RESULTS:
                  Emissions stabilized between 1990 and 1999, versus Canada where emissions
                     have increased by 20% in the same time
                  $10 billion per year raised and invested in public transit, R&D, and promoting
                     renewable energy
                  15% of Sweden's energy generated by renewable sources

          Air Pollution:
                FACTS:
                        Per capita Canada produces 8x the Swedish level of SO2 emissions and 2x
                          the Swedish level of NO2 emissions (acid rain chemicals)
                NO2  Uses fee-bate SYSTEM to reduce emissions from the energy industry
                        Co‘s charged a fee based on the volume of their emissions and then given a
                          rebate based on the amount of energy produced from those emissions
                        RESULT  NO2 emissions fell 35% in two years following program
                          implementation
                S02  come on and regulations on the sulfur content in fuel with attacks on sulfur
                        RESULT  reduction in sulfur content of fuels to 40% below legal standard

          Water Use:
              FACTS:
                       Canada uses approximately 5x more water per person per year than Sweden)
                       Total use up by > 26% since 1980, down in Sweden by 34%)
              Uses full cost pricing by eliminating subsidies for water use
                  Price in Sweden is 4x more than in Canada

          Municipal Sewage Treatment:
              FACTS:
                      Sweden = 87% tertiary treatment, Canada = 40/38/19%
                        tertiary/secondary/primary
                      Canada = per capita levels of wastes declining, total up by 17%
                      Sweden = per capita levels and total levels declining
              Uses extended producer responsibility/lifecycle responsibility
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                     156


                          producers must either reused or recycled their goods
                          RESULT  producer incentive to make products more durable and more
                           easily recycled
                  Uses ecocycle program - regulations to minimize the use of natural resources in the
                   production of waste at all stages of her product life

          Pesticide Use:
                FACTS:
                       Canada uses 5x the volume of pesticides per person (same % of GDP from
                          agriculture) – would need to know levels of GDP per person for accurate
                          comparison
                       Sweden decreased volume of pesticide used by more than 80% since 1980
                Uses:
                       A national special tax on pesticides
                       Requirement that the society straight only where there is an observed need
                       Use prohibited in sensitive areas
                       Mandatory education programs for users of pesticides
                       Economic support for organic agriculture
                       Funding research on alternatives to pesticide use
                       Reevaluating pesticides regularly
                           Substitution Principle = mandates the elimination of older products
                              when less hazardous substitutes are approved

          Official Development Assistance:
                On a per capita basis, Sweden provides 2x more
                Sweden = > 0.7% of GDP, Canada = approx 0.3% of GDP

          Impacts of Sweden’s Environmental Laws/Policy on the Economy:
            Apparently ―negligible‖




Conclusion
Environmental bads & goods in Canada – UL p 349

Canadian system of environmental law:
    Weak – Inconsistent – Narrow – Unscientific – Discretionary – Underfunded - Under-enforced -
      Insufficient checks and balances - Subject to manipulation by powerful interests

Obstacles to progress:
    Priority given to economic growth over environmental protection
    Difficulties created by international trade liberalization
    Structural flaws in the political system
    Barriers limiting the effectiveness of judicial intervention
Environmental Law – Prof. S. Wood – Fall 2006  Jeremy D. Burke                                           157


       FAILURE TO ACKNOWLEDGE THAT THERE ARE PHYSICAL LIMITS TO THE
        AMOUNT OF RESOURCES THE EARTH CAN PROVIDE AND THE AMOUNT OF
        WASTE IT CAN ASSIMILATE (making continued economic growth baswed on ever-
        increasing flow of energy and resources, ecologically unsustainable)

Policy Vision:
     Achieve dematerialization and substitution
     Maximize efficiency and productivity
     Substitute renewable resources for non-renewable ones
     Replace unnatural, persistent, environmentally harmful substances with natural, biodegradable,
        safe substances
     Substitute knowledge and services for raw materials and commodities
     + narrowing income gap between developed and non-developed nations, increasing ODA,
        forgiving debts, reforming harmful trade policies + reverse the priority of free trade over
        environmental protection

Strategy Solution:
     A national strategy containing targets, timelines, and tactics aimed at achieving sustainability
     A new wave of social, economic and environmental laws and plicies designed to ensure Canada
       complies with the three scientific conditions of eco sustainability (see ‗Key Limits‘ above)must
       be drafted and implemented
     Stop single mindedly striving for economic growth and start pursuing more holistic, balanced
       societal goals (measured by such indexes as the Genuine Progess Index)
     Individuals must focus on improving quality of life rather than accumulating more material
       possessions

Urgency – certain that we can not predict the exact thresholds that must be crossed before causing
irreversible or catastrophic eco effects – must act quickly and abide by the precautionary principle

Priorities – yes, duty to keep our own air, water, etc clean, but 2 billion people lack safe sanitation and 1
billion lack safe drinking water – Canada has an ethical duty to be a global leader in developing,
promoting and implementing solutions to these problems

				
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