In St. Mary’s Cement v. Clarington (Municipality), 2011 ONSC 4631, an industrially zoned, operating cement company proposed to supplement its fuel with alternative fuel derived from recycled materials. Alternative fuels are used as fuel extensively in US and UK cement kilns, but they are not typical in Ontario. The municipality argued this would constitute operating a waste disposal area, which was not permitted by the zoning bylaw.

The court found that burning alternative fuels (within the EPA definition of waste) equalled the introduction of a new and additional landuse  i.e. disposing of industrial waste. This, it ruled, was not permissible under the doctrine of legal non-conforming use.

©2012 Environmental Law and Litigation. All Rights Reserved.

According to Natural Resources Minister Joe Oliver,

“Anyone looking at the record of approvals for certain major projects across Canada cannot help but come to the conclusion that many of these projects have been delayed too long.  In many cases, these projects would create thousands upon thousands of jobs for Canadians…Unfortunately, there are environmental and other radical groups that would seek to block this …  Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth. No forestry.  No mining.  No oil.  No gas. No more hydro-electric dams.

These groups threaten to hijack our regulatory system to achieve their radical ideological agenda.  They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects.  They use funding from foreign special interest groups to undermine Canada’s national economic interest….”

The regulatory system, he concludes, is broken. “It is time to take a look at it. It is an urgent matter of Canada’s national interest.”

What sparked Minister Oliver’s anger? The fact that more than 4,300 people signed up to make submissions to the Joint Review Panel considering the proposed Enbridge Northern Gateway Project, two giant pipelines to carry petroleum from Alberta’s oil sands through the British Columbia mountains to a port in Kitimat, BC., for shipment by tanker to Asia. The Joint Review combines Environmental Assessment (EA) with the economic and commercial issues normally decided by the National Energy Board. The public hearings are scheduled to wrap up by July 2012, but may now take longer.

What is the role of the public in the hearings?

The importance of the public in EA processes is set out in the Canadian Environmental Assessment Act (CEAA) itself. The preamble and purposes of Act set out the federal government’s commitment to facilitate public participation in EA by “any person”.  In the often quoted Supreme Court of Canada decision Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 SCR 3, Justice La Forest wrote that environmental assessment is a planning tool that has “both an information gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development.” The public contributes to the process both by providing information and by helping to define the public interest.

Public concerns from outside Canada can legitimately help with both these objectives. For one thing, one of the purposes of CEAA, set out in section 4, is “to ensure that projects … do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out”.  Who better to explain to the Panel these extra-jurisdictional effects than those who will be affected by them? And many people outside Canada will be affected by projects, like Gateway, that can materially increase climate change.

As to foreign funding, why would it be ok for foreign-owned multinationals to spend their money promoting the project, while denying foreign donors the right to give money to question the project? Since the issues to be addressed are complex and Canadian intervenor funding is limited, foreign donors may be essential to fund the research and representations that the Panel should hear.

Public interest standing before the courts: is it different?

The courts have struggled with somewhat similar issues (e.g., cost, delay, whose voices should be heard?) in assessing who should have public interest standing before them. As Justice Cory wrote in  Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 SCR 236:

It is essential that a balance be struck between ensuring access to the Courts and preserving judicial resources. It would be disastrous if the Courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases, certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.

In Shiell v. Atomic Energy Control Board, 98 F.T.R. 75, Ms. Shiell sought judicial review of an amendment to Cameco’s operating license for a uranium mine and mill.  The court  found that, despite her genuine interest and concern about radiation and radioactive waste, she lived several hundred miles from Cameco’s facility, and had no direct personal interest in their operations. The amended license would not affect her differently than any other members of the general public, and so she was denied standing.

On the other hand, in Citizens’ Mining Council of Newfoundland & Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273, the Council did get standing to challenge the Minister’s decision to assess a mine and mill proposal separately from a smelter and refinery proposal. The proponent argued that the applicant could not demonstrate “a real and continuing commitment to environmental issues raised by the developments … given that it was incorporated only three months before these proceedings were commenced, and it had less than a $100 is assets in the month following the commencement of the proceedings.” It argued that the coalition was “merely a shell company formed for the purposes of this litigation” and would not “be subject to any direct impact from the proposed projects that is distinct from the impact on the public at large.”

The Federal Court decided that the applicant raised a serious issue, and that it had a genuine interest in environmental protection. The Council was the only public group to demonstrate sufficient interest and means to mount a court challenge. It was formed “to express a communal concern and to challenge decisions that might otherwise be essentially beyond review.”

The courts can justify keeping a tight rein on intervenors, but good EA requires approval processes for major projects to be open to all.  First, hearing participants do often express a communal concern and challenge decisions that might otherwise be essentially beyond review. Second, public hearings are focussed on major aspects of the public interest, and on the proper use of public resources, not on a private dispute between litigants, whose rights should take precedence. Third, the Panel’s mandate is to come to a substantive conclusion while the Court’s role is to protect procedural fairness. Fourth, the governing laws for a public hearing (such as CEAA) are built around a broad role for the public.  Fifth, the Panel will make a better decision if provided with a full range of information and perspectives. And sixth, broad participation in the hearings is essential to the legitimacy of the ultimate decision.

Conclusions

In our view, the regulatory system for approving major projects may be broken, but not because of foreign donors or participants. There is a fundamental disconnect between governments and proponents (who usually think of EA as an obstacle, relevant only to how to build a project) and environmental, community and aboriginal groups (who often want to focus EA on whether to build a project). Everyone is frustrated:

• proponents, because the hearings take so long and cost so much, and because applications are occasionally rejected or delayed (eg Keystone XL); and
• Members of the public, because almost everything is approved, regardless of the evidence they offer.

Gateway is almost certain to end up in the courts, if for no other reason than the large number of overlapping aboriginal claims, which the government will find it hard to steamroll. But Minister Oliver has signalled that his government will do whatever it can to make resource project approvals faster, whatever the cost to the theory or practice of EA. Are allegations of foreign interference just a smokescreen for whatever is coming next?

Dianne Saxe and Meredith James

This article was originally published on SLAW

©2012 Environmental Law and Litigation. All Rights Reserved.

As climate change increases the intensity of storms, and as insurers become more reluctant to insure basements that are known to flood, we notice more and more lawsuits against municipalities for basement floods. Municipalities generally benefit from statutory immunities against lawsuits in nuisance for water escaping from lawfully operated sewage works. However, they enjoy no such protection against claims in negligence.

One key feature of negligence claims is foreseeability. In Southern Ontario, the August 2005 storm created intense flooding, which put many municipalities on notice of flaws in their drainage systems. Municipalities have responded to this threat with varying degrees of urgency. and the courts have responded with varying degrees of sympathy.

For example, In Lissack v. Toronto (City), 2008 CarswellOnt 8281 (Ont Superior Court of Justice),  the plaintiff succeeded in a negligence claim against the City following a storm sewer backup that flooded his basement. The storm sewers on the plaintiff’s property had been built around 1961 and designed, in accordance with industry standards at the time, to accommodate 2-year storms. Following the 100-year storm in August 2005, as a result of which many basements – including the plaintiff’s – were flooded, the City set up a Work Plan to alleviate the backup problem. The City divided its area into 31 chronic areas that required attention. In 2006, before the Plan was implemented, the plaintiff’s basement flooded again. The court awarded compensation for this second flood, concluding that the City had failed to implement the plan quickly enough.

However, a similar claim was rejected on appeal in

In Salamon v. Toronto,  2011 ONSC 4192, the City successfully defended a negligence claim for  basement flooding caused by a sanitary sewer backup. The claim was brought in negligence, because, like most municipalities,  the City is immune from actions in nuisance for sewer backup (see s. 393 of City of Toronto Act, 2006).

The plaintiffs had won, at trial, on the ground of duty to warn. Unfortunately, the plantiff had not pleaded this cause of action, so the appeal court overturned this part of the judgment.

In any event, positive duties to warn are exceptional, and while defendant conceded duty “to warn of harm that is foreseeable”, no basis existed to find a positive duty on the City “to warn [plaintiffs] about ways to manage storm water or avoid sewer backups”

Although the City has a duty to maintain the sewer, it had met that duty by adopting and implementing a work plan with a seven-year cycle for investigations of sewers, starting with a four-year period for assessing areas of chronic sewer flooding. The work plan was a “policy decision” and “there has been activity undertaken in compliance with the time frames for sewer inspection adopted by [City] in the body of the work plan”. As the  sewer on plaintiffs’ street was last flushed in 2005, defendant “was compliant with the policy decision in the Work Plan to investigate on a seven-year cycle”. Accordingly, the City used reasonable care in the circumstances.

©2012 Environmental Law and Litigation. All Rights Reserved.

Forty years ago, The Limits to Growth  explored what would happen if we allowed the world’s population and industry to continue to grow rapidly. They compared humanity’s use of energy and materials to the globe’s long-term, sustainable capacity, and concluded that urgent action was needed to avoid catastrophic collapses. Were they right?

A retrospective in the New Scientest concludes that they were.

Four decades ago, “few believed that there were any limits to growth – some economists still don’t. Even those who accepted that on a finite planet there must be some limits usually assumed that growth would merely level off as we approached them.” Limits to Growth showed that this was almost certainly wrong. Since that time, other work (such as Jared Diamond’s Collapse: How Societies Choose to Fail or Succeed) have given much more detail of how such collapses occur, and what changes are needed to avoid them. But The Limits to Growth was the pathbreaker.

World population growth has, indeed, slowed since 1972. This has bought us extra time, but has not changed the fundamental clash between a limited planet and our accelerating use of energy, materials and water. Like a long term smoker considering whether to quit, we can still help ourselves through better choices, but some severe consequences are now highly likely. According to the original authors, the New Scientist article:

“”Doomsday book” (7 January, p 38) is one of the very, very few critiques of our work, The Limits to Growth, which clearly states our goal was to understand the dynamics of growth in a finite world rather than simply to predict collapse or provide a litany of various limits to physical growth.

Humanity’s use of energy and materials is now so far above the globe’s long-term, sustainable capacity that collapse of some sort is inevitable. Thus I do not pay much attention these days to discussions about how one or another technology will “save” us. It is nevertheless very gratifying to see our message succinctly and accurately conveyed.”

?

©2012 Environmental Law and Litigation. All Rights Reserved.

Class actions for historic contamination: Sydney Tar Ponds and Smith v. Inco

The class action by neighbours of the notorious tar ponds in Sydney, Nova Scotia, is going ahead, although neighbours of Inco’s Port Colborne plant have lost theirs. 

The Sydney Steel plant was built in 1900, next to a creek flowing into the harbour.

Coke, made from local coal, fuelled the plant’s blast furnaces, and many coke ovens were built on land next door. Air emissions from both were hazardous to human health, and runoff from the coke ovens heavily contaminated the tidal flats, which became known as the tar ponds.

By the 1960’s, Sydney Steel was in deep trouble.  To save the jobs of steelworkers and coal miners, the Nova Scotia and federal governments took over the steel and coke works and operated them for 33 years, at the expense of taxpayers across the country. They remained both heavily polluting and unprofitable, and finally shut down in 2000.   Since then, the province and federal governments have committed another $400 million to a clean up. After a failed effort to incinerate the accumulated mess, much of it will now be entombed on site.

For seven years, neighbours of the site have been suing the federal and provincial governments in MacQueen v. Canada (Attorney General) for contamination from the tar ponds, the steel mill and the coke ovens. Their case became Nova Scotia’s first certified environmental class action in July 2011, when Mr. Justice John Murphy of the Supreme Court certified their claim. The neighbours allege that the two governments permitted emission of contaminants onto them, despite knowing of the health dangers involved.

The neighbours are seeking millions of dollars for remediation of their properties, as well as damages for nuisance and battery.  As well, they want ongoing medical monitoring, to identify health risks and illnesses resulting from their exposure to the contaminants, and to educate community and health professionals.  Of note, they are not seeking compensation for personal injury or property damage.

Justice Murphy issued a partial ruling in June 2010, indicating that he would certify the action as a class proceeding once the classes of plaintiffs were narrowed.   Ultimately, he certified two classes of claimants:

• · a Property Owners’ Class, mainly current property owners in neighbourhoods within two kilometres of the mill, whose properties are contaminated with lead in concentrations that exceed Canadian Council of Ministers of the Environment (CCME) standards.  (The plaintiffs originally proposed a six kilometre boundary). The Court accepted expert evidence that lead levels in the soil in these neighbourhoods were reliable proxies for other contaminants emitted by Sydney Steel, including arsenic and polycyclic aromatic hydrocarbons; and
• · a Residential Class, namely individuals who lived in the affected neighbourhoods for at least seven years (up from 2 years, as originally proposed by the plaintiffs).  The court accepted expert evidence that at least seven years’ exposure is required in order to assess the effects of chronic exposure to contaminants.

One aspect of the decision is novel: certification of the battery claim. Until now, Canadian courts have refused to certify class actions involving alleged damage to human health from chronic pollution. Instead of claiming that the pollution made them ill, the MacQueen plaintiffs therefore allege that they were illegally assaulted by the pollution, and seek medical monitoring instead of monetary damages.

However, their prospects of ultimate success sank when the leading Ontario environmental class action, Smith v. Inco, was dismissed by the Court of Appeal.  In that case, thousands of Port Colborne, Ontario property owners sued Inco, claiming compensation for alleged losses in their property values due to nickel oxide particles deposited during 66 years of refinery operations.

At trial, the Port Colborne neighbours had been awarded $36 million for nuisance and Rylands v. Fletcher (strict liability).  The trial judge had ruled that all nickel from Inco’s refinery in the soil became a nuisance if public concern about potential harm adversely impacted the properties’ market values years later. He also ruled that Inco was strictly liable, because its nickel refinery was a “non-natural” use of the refinery lands.

The Court of Appeal disagreed on every front. First, they held that Port Colborne property had not actually lost any value due to the nickel contamination, despite waves of public concern and disclosure by real estate agents. Second, they dramatically cut down the potential use of the popular environmental tort Rylands v. Fletcher, by limiting it to unexpected and unintended mishaps, not intentional emissions, and by ruling that operating a refinery in a properly zoned location was not a “non-natural” land use.

Third, they greatly reduced the scope of nuisance claims that are based on historic contamination. Although Inco admitted that the nickel was there, and had come from its refinery, there was no proof of any current health risk. Inco had complied with MOE’s order to clean up 25 homes with more than 8000 ppm of nickel in their soil. According to the MOE, the 8000 ppm benchmark was low enough to prevent any risk to health. How then, asked the court, could the mere presence of nickel below this level “damage” the affected properties? It did not matter that a 200 ppm benchmark applies to residential properties in the rest of the province. Thus, they threw out the $36 million award. And instead of receiving millions for legal costs, the neighbours and their lawyers must pay legal costs to Inco.

It’s not over until it’s over. The Port Colborne neighbours have sought leave to appeal to the Supreme Court of Canada, and MacQueen may someday end up there too. But meanwhile, class action lawyers across Canada have to take a closer look at whether class actions for historic contamination still make financial sense.

Dianne Saxe

Jackie Campbell

This article was originally published in Renew Canada

©2012 Environmental Law and Litigation. All Rights Reserved.

Is spilling drinking water an offence?

Clark Builders, construction managers for a new pool building at the Royal Glenora Club in Edmonton in 2009, hired a subcontractor to dig the foundation pilings.  Clark had failed to locate underground water mains before digging began, and the subcontractor  hit a water main.  This released around 12 million litres of chlorinated water into the North Saskatchewan River, waters known to have the greatest diversity of fish species of any river in Alberta.  The chlorinated water was analysed and found to be harmful to fish.

Following a guilty plea to one count under the Fisheries Act, the company was ordered to pay a penalty of $285,000.  Of this, $15,000 represents a fine, while $270,000 will be paid to the Environmental Damages Fund (administered by Environment Canada) where it will be used to conserve and protect fish and fish habitat in Alberta.

©2012 Environmental Law and Litigation. All Rights Reserved.

Eric and Yvonne Van Boekel, Van Boekel Hog Farms Inc. and Van Boekel Holdings Inc. were fined a total of $345,000 plus 25% victim fine surcharge, for repeated hog manure spills from two pig farms, that caused adverse effects to their neighbours and impaired water quality. Mr. Van Boekel  was also sentenced to serve 30 days in jail.

in relation to six of the charges, to be served concurrently on weekends.

Although hog manure discharges frequently cause serious adverse effects on neighbours and the environment, they rarely attract commensurate penalties due to the limited financial circumstances of many farmers, and to the sympathy that many judges feel for farmers. BTW, the defendants received a grant of $45,560.51 from the federal government in 2009. Here are the details:

Sentencing – Eric W. Van Boekel was fined $20,000 and ordered to serve 30 days in jail on weekends, Yvonne B. Van Boekel was fined $5,000 and Van Boekel Holdings Inc. was fined $25,000 – between

April 21, 2007 and April 30, 2007, in the Township of East Zorra-Tavistock, did commit the offence of discharging a contaminant, namely pig manure, into the natural environment that caused or was likely to have caused an adverseeffect, contrary to Section 14(1) of the EPA. 

Sentencing – Eric W. Van Boekel was fined $20,000 and ordered to serve 30 days in jail concurrent on weekends, Yvonne B. Van Boekel was fined $5,000 and Van Boekel Holdings Inc. was fined $25,000 - between

April 21, 2007 and April 30, 2007, in the Township of East Zorra-Tavistock, did commit the offence of discharging pig manure onto landadjacent to a barn and then into the Thames River, which impaired or may have impaired the quality of the water, contrary to Section 30 (1) of the OWRA.

Sentencing – Eric W. Van Boekel was fined $20,000 and ordered to serve 30 days in jail concurrent on weekends and Yvonne B. Van Boekel was fined $5,000 - between April 21, 2007 and April 30, 2007, in the Township of East Zorra-Tavistock, did commit the offence of being a Director or Officer of Van Boekel Holdings Inc., failed in his or her duty to take all reasonable care to prevent the corporation fromcausing or permitting the discharge of a material, namely pig manure, which may impair the quality of the waters in contravention of Section 116 (1) (a) (i) of the OWRA.

 (Sentenced – Eric W. Van Boekel – fined $20,000 and ordered to serve 30 days in jail concurrent on weekends and Van Boekel Hog Farms Inc. – fined $75,000) – beginning on or about May 2, 2007, and ending on or about May 3, 2007, in the Township of Norwich, did commit the offence of discharging a contaminant, namely pig manure, into the natural environment that caused or was likely to have caused an adverse effect, contrary to Section 14(1) of the EPA.

 (Sentenced – Eric Van Boekel – fined $20,000 and ordered to serve 30 days in jail concurrent on weekends and Van Boekel Hog Farms Inc. – fined $75,000) – beginning on or about May 2, 2007, and ending on or about May 3, 2007, in the Township of Norwich, did commit the offence of discharging a material, namely pig manure, onto land adjacent to, and then into Sweets Creek, which impaired or may have impaired the quality of the water contrary to Section 30(1) of the OWRA.

 (Sentenced – Eric W. Van Boekel – fined $20,000 and ordered to serve 30 days in jail concurrent on weekends – beginning on or about

May 2, 2007, and ending on or about May 3, 2007, in the Township of Norwich, did commit the offence of being a director or officer of Van Boekel Hog Farms Inc., failed in his duty to take all reasonable care to prevent the corporation from permitting the discharge of a material, namely pig manure, which may impair the quality of the waters contrary to Section 116 (1) (a) (i) of the OWRA.

 (Sentenced – Eric W. Van Boekel – fined $5,000 and two years’ probation Van Boekel Hog Farms Inc. $5,000) – beginning on or about

May 2, 2007, and ending on or about May 3, 2007, in the Township of Norwich, did commit the offence of applying pig manure directlyfrom a storage facility to land by a direct flow application system, by failing to have two or more operators in voice or electronic contact with each other at all times or by failing to have one operator close enough to the system to shut it down within one minute after observing that a problem event has occurredthat resulted in manure escaping into the natural environment, contrary to Section 50(2) of Reg. 267/03 made under the NMA thereby committing an offence under Section 43(1)(a) of the NMA.

©2012 Environmental Law and Litigation. All Rights Reserved.

The Ministry of Natural Resources has Proposed Amendments to Conservation Authority Regulations made and approved under Section 28 of the Conservation Authorities Act. The amendments don’t seem objectionable. They are intended to streamline the permitting process for grading and filling flood plains, by extending the maximum period of a permit from 24 months to 60 months and allowing the CA’s to delegate permit approvals from their board to senior staff. 

The Conservation Authorities (CAs) are corporate bodies created through the Conservation Authorities Act at the request of two or more municipalities. Their purpose is to establish and undertake programs to further conservation, restoration, development and management of natural resources other than gas, oil and minerals. There are currently 36 CAs in Ontario, each with its own geographic jurisdiction.

In their role as a regulatory authority, they may make regulations to prohibit, restrict regulate or give required permissions for certain activities in and adjacent to watercourses, wetlands, and shorelines. This power is set out in section 28(1) of the Act:

28.  (1)  Subject to the approval of the Minister, an authority may make regulations applicable in the area under its jurisdiction…

(b) prohibiting, regulating or requiring the permission of the authority for straightening, changing, diverting or interfering in any way with the existing channel of a river, creek, stream or watercourse, or for changing or interfering in any way with a wetland;

(c) prohibiting, regulating or requiring the permission of the authority for development if, in the opinion of the authority, the control of flooding, erosion, dynamic beaches or pollution or the conservation of land may be affected by the development;

These powers are exercised in accordance with Ontario Regulation 97/04, Content Of Conservation Authority Regulations Under Subsection 28 (1) Of The Act: Development, Interference With Wetlands And Alterations To Shorelines And Watercourses.

In the document Policies and Procedures for Conservation Authority Plan Review and Permitting Activities, prepared by the Ministry of Natural Resources with input from the public and an interministerial working group, provides a helpful flow chart to explain the process that applicants, usually a landowner (or her agent) or an infrastructure manager and owner such as a municipality, must follow.

Under the Regulations, a permit cannot be extended. If works covered by the application are not completed within the legislated timeframe, the applicant must reapply and, according to the Policies and Procedures document,  delays in approval may result. The Policies and Procedures document, also notes that the policies in place at the time of re-application will apply (see page 21).

By extending the length that a permit can remain in effect to five years, major infrastructure projects that require multiple levels of approval or environmental assessment, will be allowed more time to get through the processes before they must reapply. Under the current Regulation, the maximum period for a permit may be 60 months where it is granted for a project that, in the opinion of the authority, either cannot be reasonably completed within 24 months or requires permits or approvals that cannot reasonably be obtained within 24 months (see s. 7.1).

Comments on the proposed amendments must be submitted by February 2, 2012.

By Meredith James and Dianne Saxe

©2012 Environmental Law and Litigation. All Rights Reserved.

The World Economic Forum’s Risk Response Network has published a fascinating, if sobering, overview of major risks that face the world in the next decade: Global Risks 2012, 7th edition. They predict that economic and societal factors are the most likely to cause major problems, but these will be exacerbated by climate change, water shortages and resulting agricultural challenges.

“Three distinct constellations of risks that present a very serious threat to our future prosperity and security emerged from a review of this year’s set of risks.

“Case 1: Seeds of Dystopia Dystopia, the opposite of a utopia, describes a place where life is full of hardship and devoid of hope. Analysis of linkages across various global risks reveals a constellation of fiscal, demographic and societal risks signalling a dystopian future for much of humanity. The interplay among these risks could result in a world where a large youth population contends with chronic, high levels of unemployment, while concurrently, the largest population of retirees in history becomes dependent upon already heavily indebted governments. Both young and old could face an income gap, as well as a skills gap so wide as to threaten social and political stability…

Case 2: How Safe are our Safeguards? As the world grows increasingly complex and interdependent, the capacity to manage the systems that underpin our prosperity and safety is diminishing. The constellation of risks arising from emerging technologies, financial interdependence, resource depletion and climate change exposes the weak and brittle nature of existing safeguards – the policies, norms, regulations or institutions which serve as a protective system. Our safeguards may no longer be fit to manage vital resources and ensure orderly markets and public safety….

Case 3: The Dark Side of Connectivity. The impacts of crime, terrorism and war in the virtual world have yet to equal that of the physical world, but there is fear that this could change. …”

The top-five risks in terms of impact are expected to be:

“Major systemic financial failure

Water supply crises

Food shortage crises

Chronic fiscal imbalances, and

Extreme volatility in energy and agriculture prices.”

The World Economic Forum calls for more flexible, more effective regulations: “To improve management of uncertainty in a complex world, it is necessary to accept that we will not get safeguards right the first time. Regulations have often been viewed as a way for authorities to signal to the public that they are in control of a situation, but in a complex system this control is often an illusion. While we should start by considering counterfactuals in order to anticipate possible outcomes of regulations, it is even more important to define broader system safeguards. Such safeguards need to be flexible and dynamic enough to adapt to changing information and should closely involve stakeholders in the co-production of new types of regulation…

Such a dynamic process of iteration between regulators and practitioners at the cutting edge of knowledge exemplifies how safeguards should ideally be defined. At the heart of this process is a necessary understanding of who bears the risks and who reaps potential benefits, so that incentives can be aligned in an appropriate manner…”

The report also includes a study of the Japanese earthquake, and a snapshot of companies that proved most resilient. For example, “Lawson stores continued to serve their communities, make vital supplies available and minimize financial losses to the company. This response has been attributed to the networked managerial structure put in place as a result of lessons learned from the 1995 Kobe earthquake disaster (see Figure 25). Each branch office was required to assess emerging risks and draft detailed disaster recovery plans twice a year; this will increase to three times a year in 2012. For example, bicycles were stationed in branch offices because they were the only functional means of transport in the 1995 earthquake. It became mandatory to keep stocks of emergency goods in branch offices, and the concentration of distribution hubs was reassessed to allow for more effective catering to disaster-struck evacuees. As the nature of crises can never be fully anticipated, a network of employees who have access to real-time coordinating mechanisms and the authority to make decisions can be more valuable than teams of highly-trained, specialized risk managers…”

©2012 Environmental Law and Litigation. All Rights Reserved.

On August 10, 2008, a propane explosion occurred at the Sunrise Propane distribution plant located on Murray Road in Toronto, Ontario. The explosion forced the evacuation of approximately 12,500 residents and caused widespread damage and injury. Sunrise employee Parminder Singh Saini, 25, was killed in the explosion, and firefighter Bob Leek died of a heart attack while battling the fire.

The Office of the Fire Marshal concluded the blast was caused by a tank-to-tank transfer and a gas hose leak.

A $300 million class action has been launched against numerous defendants:

(a) Sunrise Propane Energy Group Inc., 1367229 Ontario Inc., 1186728 Ontario Limited, 1452049 Ontario Inc. (the operators of the propane distribution facility);

(b) Valery Belahov, Shay Ben Moshe, Leonid Belahov, Arie Belahov (the officers and directors of some of these companies);

(c) 2094528 Ontario Inc. (the owner of 54, 63 and 20 Murray Road);

(d) HGT Holdings Ltd. (the owner of 48 Murray Road); and

(e) Teskey Construction Co. Ltd., and Teskey Concrete (corporations which lease the propane distribution facility).

©2012 Environmental Law and Litigation. All Rights Reserved.

Do you have any old wooden sash windows sitting in the garage? The wonderful Toronto Atmospheric Fund wants about 30 of them to make a new dividing wall that lets more light into their offices. If you can help, please e-mail Lyle Jones, ljones@tafund.org –they will pick them up!

©2012 Environmental Law and Litigation. All Rights Reserved.

The Obama administration announced today they will reject the permit on the controversial 1,700-mile oil sands pipeline project, Keystone XL, because the US Congress forced an immediate decision before the proposed route revision through Nebraska could be studied. Transcanada will reapply, shifting the final decision until after the fall election, just as President Obama planned.

As the State Department put it:

“he Department of State recommended to President Obama that the presidential permit for the proposed Keystone XL pipeline be denied and that at this time the TransCanada Keystone XL pipeline be determined to not serve the national interest. The President agreed with the Department’s recommendation. This recommendation was predicated on the fact that the Temporary Payroll Tax Cut Continuation Act that was passed in December does not provide sufficient time to obtain the information that we think is necessary to assess whether the project, in its current state, is in the national interest….”

When Transcanada reapplies, how much of the review process will have to be repeated? The State Department said, not all of it, but they wouldn’t commit themselves:

“if TransCanada comes in with a new application, it will trigger a new review process, a completely new review process. We cannot state that anything would be expedited …. It would just have to go through all of the requirements that are needed for this kind of application review….

However, I could mention that we do have guidelines that would allow us to use information …. from the process we’ve been through, but we would also have to look at this as a completely new application, and that’s how it would be treated….The body of information that was out there would inform a new application, but there are certain specific guidelines that have to be used. And beyond that, I can’t comment, because it would be a completely new application and a new review process…

For reference, the Canadian decision approving Keystone XL pipeline is found here.

©2012 Environmental Law and Litigation. All Rights Reserved.

The Ministry of the Environment is moving into the second phase of its long-awaited comprehensive approval reforms. The first part of the new approvals framework became operational on October 31, 2011.Two more parts of this initiative are now open for public consultation. The first is

EBR Notice – Guide to Applying for an Environmental Compliance Approval – EBR #011-5022

The Ministry is developing a risk-based approach to environmental approvals that focuses on environmental protection and outcomes while providing enhanced services for business.

Comment period:  90 days: Submissions may be made between January 11, 2012 and April 10, 2012

http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE0Nzky&statusId=MTcyMTIw&language=en

The second is a proposed set of rules for registration (permit by rule) in four new lower-risk sectors:

• Waste Collection and Transportation (not disposal)
• Ready-Mix Concrete Manufacturing
•  Lithographic, Screen and Digital Printing
• Concrete Product Manufacturing

The Ministry  calls this process an Environmental Activity and Sector Registry (EASR) that allows businesses to register certain activities with the Ministry. The EASR is a public, web-based system where people engaging in selected activities will be required to register the activity and to meet eligibility and operating requirements set out in regulation rather than seeking an approval through the normal application submission and review process. These requirements could be comprised of, but not limited to, design requirements, pollution control measures and best management practices.

Once the new rules come into effect, individual environmental compliance approvals (formerly called certificates of approval) would no longer be necessary for these activities. Instead, each person operating one of these activities will eventually be required to register and comply with the new standard rules. For more details on each Technical Report on Proposed Environmental Activity and Sector Registry (EASR) Requirements, see EBR Notice – Environmental Activity and Sector Registry Group 2 Activities and Sectors Technical Discussion Papers – EBR #011-4926 Comment period:  45 days: Submissions may be made between January 11, 2012 and February 25, 2012.

http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE0Njc4&statusId=MTcyMDA1&language=en

The MOE also published some administrative amendments to various guidance documents incorporated by reference in regulations made under the Environmental Protection Act, 1990 (EPA) and Ontario Water Resources Act, 1990 (OWRA). The revisions to these guidance documents reflect amendments to the EPA and the OWRA as a result of the amendments made to those Acts pursuant to Schedule 7 to the Open for Business Act, 2010 that came into effect on October 31, 2011. See  EBR Notice – Administrative amendments to guidance documents incorporated by reference in regulations to reflect amendments made pursuant to Schedule 7 to the Open for Business Act, 2010 – EBR #011-4493

http://www.ebr.gov.on.ca/ERS-WEB-External/displaynoticecontent.do?noticeId=MTE0MjQ4&statusId=MTcxMTY2&language=en

©2012 Environmental Law and Litigation. All Rights Reserved.

Dianne is quoted in this week’s Lawyers Weekly about the hard-won “special review” of glyphosate, a weed-control product that contains the pesticide polyoxyethylene tallow amines, and is also known as Roundup. The case is: Wier v. Canada (Minister of Health), [2011] F.C.J. No. 1583.  The article is written by Donalee Moulton.

©2012 Environmental Law and Litigation. All Rights Reserved.

In Getting Tough on Environmental Crime?, Ecojustice collates fragmentary, publicly available information to show the marked decline in federal environmental inspections and convictions since 2004. This includes important federal environmental laws, such as the Canadian Environmental Protection Act (CEPA), Fisheries Act, Species at Risk Act, Canadian Wildlife Act, Wild Animal and Plant Protection Regulation of International and Interprovincial Trade Act ,  Canada Shipping Act, and Migratory Birds Convention Act.

Ecojustice sums up its findings in two interesting graphs, found at pages 62 and 63 of the full report, which show a marked decline in the total number of inspections and convictions since 2004:

At page 69, Ecojustice highlights the discrepancy between the low number of convictions under CEPA and the Fisheries Act in relation to the number of inspections, warnings and investigations. They ask, correctly, how effective warnings can be, when successful prosecutions are rare. They also ask  why enforcement activity has declined, or at least not shown a corresponding increase, despite increases in the number of enforcement officers in some areas.

They conclude that the government should do much more to make its enforcement activities transparent to the public, and should do more to enforce environmental laws generally:

“Although the annual reports, Enforcement Notifications and news releases provide a fragmented, incomplete picture of enforcement (and no picture at all of compliance and facility performance), our analysis has uncovered some key findings.

First, there are very few successful prosecutions under federal environmental legislation in Canada. In particular, under the Canadian Environmental ProtectionAct, the total number of convictions (approximately 20 of each per year) is still extremely small in relation to the number of inspections, warnings, and investiga- tions. The same critique may be levelled  as regards Fisheries Act prosecutions and convictions.

Although we recognize that prosecutions are only one component of Environment Canada’s enforcement arsenal, its threat remains a major factor in ensuring compliance. Since the threat of a success- ful prosecution is crucial to the deterrent effect, these low absolute numbers give rise to concern regarding the overall effec- tiveness of the cepa enforcement regime. Ecojustice believes that the available data raises serious doubts about whether pros- ecution has been employed as an effective deterrent when just 23 convictions have been obtained over three past years, with an average fine of $10,524 per conviction.

Second, the important increases in cepa enforcement officers, which began in 2004-05, have only led to a slight increase in inspections from 2000-10. More importantly, neither of the increases in officers or inspections has been matched with a correspond- ing increase in investigations, written warnings, prosecutions or convictions. Over 10 years, the federal government has added more officers and completed more inspections, yet the numbers of investigations and prosecutions have failed to reach levels achieved earlier in the decade. Warnings remain the most frequently used enforcement tool. It is highly doubtful that this is a result of the full compliance achieved by industry and other regulated entities.

Finally, it appears that there has been a relatively consistent decline in these enforcement activities (warnings, orders, etc.) since 2005- 06—the year the Conservative government came to power—despite an increase in the number of inspector personnel dedicated to specific statutes, particularly under CEPA.

Canadians should be concerned by these findings.”

We congratulate Ecojustice for this very useful report. Its dispiriting conclusions dovetail with the report of the federal Environmental Commissioner, and our own experience, and backs them all up with carefully researched facts and figures, despite major obstacles. We agree: Canadians should be concerned by Ecojustice’s findings. We are.

©2012 Environmental Law and Litigation. All Rights Reserved.

Just as the Ministries of Environment and Natural Resources brace for cuts, the Environmental Commissioner of Ontario has released another timely special report on the grave threats to biodiversity in Ontario.

“The Ontario government did adopt a Biodiversity Strategy in 2005,” says Gord Miller. “Unfortunately, it expired in 2010, and the government has so far chosen not to adopt an updated plan.”

In 2010, Canada met with almost 200 nations in Nagoya, Japan and agreed on 20 biodiversity conservation targets that should be achieved by 2020. But the Commissioner says most of the constitutional responsibility for meeting these targets lies with Ontario and the other provincial governments. In Ontario, the most significant threats to the province’s species and natural spaces are habitat degradation, climate change, invasive species, overexploitation and pollution.

Federal efforts to protect species at risk have also been weak, even when permits are required. If species at risk are in the way of something a government department wants (the Detroit Bridge, the Kearl oil sands mine), the species at risk always seem to lose.

©2012 Environmental Law and Litigation. All Rights Reserved.

While federal environmental enforcement is less frequent these days, the fines imposed are getting larger. The small town of Ponoka, Alberta (population about 7000) was fined $70,000 after pleading guilty to one count under the Fisheries Act. The Town was releasing effluent from their wastewater lagoon in the Battle River, as permitted by the Province, but was charged for doing so by the federal department of Fisheries and Oceans. Town officials felt they were caught between inconsistent regulations of the two levels of government.

As frequently happens with federal environmental enforcement, I’ve seen no evidence that DFO warned the Town before charging it, or made any effort to coordinate its regulations with the provincial ones. This makes poor enforcement policy, especially with public bodies like municipalities. Prosecute deliberate defiance, by all means, but why not first make the rules clear and consistent, and give organizations a reasonable opportunity to comply with them?

©2012 Environmental Law and Litigation. All Rights Reserved.

We’ve twice mentioned the BC case, refusing to compensate business owners severely impacted during subway construction: Susan Heyes Inc. v. South Coast BC Transportation Authority. See April and March, 2011. The Supreme Court refused leave to appeal on October 20, 2011.

The current issue of the Journal of Environmental Law and Practice contains Meredith James‘ case comment on Heyes v. BC, focussing on its importance for limiting nuisance claims against governments across the country. She shows how the British Columbia Court of Appeal’s acceptance of the traditional defence of statutory authority limits the applicability of Barrette c. Ciment du St-Laurent inc. outside Quebec, and she analyses the implications of a “common sense” approach to assessing alternatives that includes consideration of cost.

Congratulations, Meredith!

©2012 Environmental Law and Litigation. All Rights Reserved.

I am late in congratulating both the Ontario and the federal Environmental Commissioners for their invaluable annual reports, and will try to look more closely at their findings as time permits.

The Ontario Commissioner emphasizes how much the Ontario Ministry of the Environment is doing with a steadily declining share of government revenues- now half what it was a generation ago. Environment Canada has also been slashed. Although the challenges continue to grow, with ever more evidence of the links between pollution and adverse effects on human health and the environment,  both Ministries of the Environment seem bound to shrink further in the face of Ontario and Canada’s massive deficits.

Nevertheless, morale among Ministry of the Environment staff seems to remain high- they know that their overall task is important, and has the Premier’s support. While some important things don’t get done, and the MOE response to citizen requests is often disappointing, the MOE is active on many important files.

Perhaps unsurprisingly, I hear much less enthusiasm among federal environmental staff. Many of those who can retire, or find other jobs, seem to be doing so. Federal environmental enforcement (never robust by Ontario standards, although occasionally prone to making examples of the wrong people) has sagged again. My observations match the critical comments made by Commissioner Vaughan in his December 2011 report about current federal environmental enforcement:

“The second theme of this report is the enforcement of key federal laws and regulations intended to protect Canadians and the environment. We present the results of two audits: one on the transportation of dangerous products, and the other on the enforcement of the Canadian Environmental Protection Act, 1999 (CEPA 1999).

The government has established legislative and regulatory frameworks to protect human health and the environment. Transport Canada, the National Energy Board, and Environment Canada have programs intended to identify those who violate the law and have the authority to make violators take corrective action.

As discussed in Chapter 1, the Transportation of Dangerous Goods Act, 1992 regulates the everyday shipment of goods considered to be dangerous if mishandled. It covers transport systems and substances regulated by Transport Canada, such as industrial acids and petroleum products. The National Energy Board Act governs the shipment of petroleum products through the roughly 71,000 kilometres of oil and gas pipelines that are regulated by the National Energy Board.

Weaknesses in the management practices of Transport Canada’s transportation of dangerous goods program are long-standing. An internal audit conducted in 2006 identified a number of weaknesses in management practices that have yet to be addressed. These include the need for a consistent approach to planning and carrying out Transport Canada’s enforcement activities.

The National Energy Board has developed a sound risk-based approach for monitoring the adherence of regulated companies to established regulations and standards. Of concern is that the Board has yet to review many of the emergency response procedures manuals submitted by regulated companies.

In Chapter 3, Enforcing the Canadian Environmental Protection Act, 1999, we examined the enforcement of the Canadian Environmental Protection Act, 1999, and 45 of its 53 regulations that govern a wide variety of substances and activities in the Canadian economy—from hazardous wastes to contaminated fuels, asbestos, and the disposal of waste at sea. CEPA 1999 is enforced by Environment Canada.

We found that Environment Canada’s enforcement program is not well managed to adequately enforce compliance with CEPA 1999. The Department’s ability to adequately manage the enforcement program is limited by an incomplete knowledge of the regulated community. We noted that some of the regulations are not enforced at all due to a lack of training for enforcement officers or inadequate laboratory tests.

I am concerned that these three organizations have not been diligent in verifying that regulated companies have taken action to correct identified instances of non-compliance.”

All of these problems seem likely to worsen as further budget cuts bite. Am I too pessimistic? Please comment and tell me why.

©2012 Environmental Law and Litigation. All Rights Reserved.

For those interested, here is a copy of Trillium Power vs. The Queen (Ontario), Trillium’s Statement of Claim against the province of Ontario over Ontario’s on-again, off-again policy of encouraging offshore wind development, which is currently under a moratorium again. The allegations are, of course, unproved, but they make fascinating reading all the same, for those interested in how energy policy is actually made.

©2012 Environmental Law and Litigation. All Rights Reserved.

When a municipality expropriates contaminated land, can it deduct the full cost of remediating the contamination from the amount paid to the reluctant seller?  Surprisingly, the answer is still not clear.

The basic principles on valuing expropriated land come from decisions like the Alberta Court of Appeal in Thompson v. Alberta (Minister of Environment), 2007 ABCA 411. The goal of compensating those whose lands have been expropriated “is to place the owner in the same economic position after the taking as he would have been had it not occurred.” Fair compensation is generally calculated based on the land’s highest and best use at the moment of expropriation. (Per the British Columbia Court of Appeal in Devick v. British Columbia (Minister of Transportation & Highways) (1998), 63 L.C.R. 193, the highest and best use is not limited to historical use where there is evidence of interest in redevelopment prior to expropriation.)

But what if the land is contaminated? We know of only two reported decisions in Canada. In 1992, the Ontario Municipal Board (OMB)  addressed the issue for the first time in Masae Ltd. v. Toronto (Metropolitan), (1992) 49 L.C.R. 1. Masae was a developer, planning to build a commercial building, and seeking compensation for the loss of that perspective building. The OMB agreed with the city that the contamination affected the land’s highest and best use, and therefore its value. Since converting the land to its highest and best use (building the building) required a building permit, and since the soil would have to be remediated to secure the building permit, the cost of the soil cleanup should be deducted from the overall market value. The OMB permitted the city to deduct the cost of a more expensive “dig and dump/backfill” cleanup because there was evidence that the Ministry of Environment would not allow a less expensive phased cleanup in that location.

This makes good sense, and is consistent with other case law. But what if the property owner had no intention of changing the use of the property, and was happily making money on it despite the contamination? There may be thousands of contaminated sites in Canada that do not require cleanup to support their current uses. The property might not have to be cleaned up for many years, if not for the expropriation.

This issue was considered, but not decided, in Toronto (City) v. Bernardo, (2004) 9 C.E.L.R. (3d) 146. The City expropriated a scrapyard, over the vehement and prolonged opposition of the owners and occupants. The owners appraised the property at $242,500; the City estimated the clean-up costs to be between $250,000 and $750,000. Since clean-up costs exceeded the value of the land, the City offered the property owners $1. The owners indignantly rejected this offer, and refused to give up possession of the scrapyard.

Justice Wilton-Siegel upheld the expropriation and awarded the City possession of the land. For this purpose, he only had to decide whether the City had made a reasonable good faith offer for the expropriated land, not its actual value.

He agreed that the City’s $1 offer was made reasonably and in good faith. However, he left open the question whether, and if so when, cleanup costs should be deducted from the amount paid: “I am not convinced that, in the absence of orders or other proceedings under the Environmental Protection Act, the Act permits clean up costs to be deducted in all circumstances, although I acknowledge that is a possible outcome under Masae.”

In two other cases, the OMB has forced landowners to allow municipalities to test lands that may be expropriated, in order to investigate suspected contamination before making an initial offer. In Markham (Town) v. 690346 Ontario Inc. (2002) 78 L.C.R. 284, the OMB granted the Town’s request for an order giving them access to the property to assess the contamination before preparing their offer. The Board accepted that the Town couldn’t determine whether, or in what amounts, any contaminants might affect the valuation of the lands until it found out what contaminants, if any, existed on the site. The Board reached a similar decision in Owen Sound (City) v. Melancthon Investments Ltd., 2005 CarswellOnt 5168.

Thus, cleanup costs are relevant in determining compensation for a contaminated site. They can reasonably be deducted, in full, if the original owner would have had to incur those expenses anyway, regardless of the expropriation. But if not, the amount that should be deducted is unclear. Ignoring the cleanup costs gives the former owner an undeserved windfall, especially if he or she was the polluter. On the other hand, an owner who would not otherwise have had to pay for a cleanup is undoubtedly left worse off by expropriation if the full cleanup costs are deducted. Perhaps the solution is to deduct a portion of the costs, determined by:

1.  The present value of the cleanup costs that the owner would have had to incur on sale or redevelopment;
2. Whether the owner was the polluter, or merely an innocent subsequent purchaser;
3.  Whether the municipality did or must pay for the cleanup after expropriation; and
4.  Whether the cleanup was necessary in the public interest, e.g. to protect human health, neighbouring properties, water resources, or wildlife.

Dianne Saxe and Meredith James

This article was originally published in the environmental zone column of Municipal World

©2012 Environmental Law and Litigation. All Rights Reserved.

A dinner guest recently grumbled about municipal requirements that he disconnect his downspouts. Why are they making us do such a stupid thing, he complained. What’s the point? Do we really have to do it?

Yes, we told him, and it’s about time! But why?

Most downspouts move stormwater from roofs and other hard surfaces directly into municipal sewer systems (storm, combined, or sanitary sewers). This puts huge volumes of water into sewer systems that, generally, were not designed to handle them. Those old pipes simply don’t have the capacity to deal with the volume of wastewater that now courses through them.

In combined sewer areas, such as the older parts of Toronto, stormwater so overwhelms the sewers that huge amounts of raw sanitary sewage (including toilet wastes) are washed directly into rivers and lakes. This is the major reason for beach closings, and also causes substantial pollution of fish and other wildlife. The Department of Fisheries and Oceans is pressing municipalities across the country to get serious about eliminating sewer overflows. This would likely be impossible without widespread downspout disconnections.

Sewer overload is also a frequent cause of basement flooding, which is hugely expensive and disruptive for those affected. In addition to the initial filth and stink, basement flooding can trigger mould growth, and can interfere with owners’ and tenants’ ability to obtain future insurance. Several factors contribute to increased flood risk, but one of the worst is rapidly moving stormwater from large areas of hard surfaces into aging sewers.

Climate change is making storms, and flooding, much worse. The expected frequency of a storm, known as the return period, is an indication of storm intensity. For example, a 100 year storm is a big storm that is expected to occur no more than once every 100 years. From 2000 to 2005, Ontario had 10 severe storms greater than the “100-year storm”, causing hundreds of millions in damages. Experts predict that today’s 50-year storms will become 20-year storms by mid-century.

Municipal attempts to prevent flooding and sewer overflows can be enormously expensive. One of our municipal clients is looking at $100 million in capital costs to reduce flooding in a single low-lying area, work that could take 20 years. Downspout disconnection, in comparison, is inexpensive, helps immediately, and even reduces operating costs for wastewater treatment plants. The Canada Mortgage and Housing Corporation calculates that disconnecting a downspout on an average Toronto home with a 140 square metres (1500 square feet) roof would divert close to 100,000 litres of stormwater from the sewer system every year. In one pilot area of Markham, downspout disconnection reduced the volume of wastewater requiring expensive treatment by almost 50%. This should help keep taxes down too.

For all these reasons, many municipalities ban downspouts from connecting to municipal sewers. Toronto has made it mandatory to disconnect existing downspouts, starting in the central, combined sewer area. Other areas will follow over the next five years.

In a typical downspout process, the downspout is cut off around 9 to 12 inches above the ground; an elbow and pipe extension are added to divert water onto soft ground. A splash pad may also be added to prevent soil erosion and assist in directing water flow. The sewer pipe is capped so that no more water (or debris) can enter the sewer system. Downspouts can also drain into soakaway pits or other devices that direct water underground, where it can infiltrate into the soil. This will help to keep local trees healthier.

Most municipalities allow property owners to apply for an exemption, where disconnection is technically difficult, and/or would create a hazard. Owners must first make reasonable efforts to disconnect the downspouts, for example by relocating or regrading them.

Toronto’s Mandatory Downspout Disconnection Exemption Application form requires information about each downspout the property owner wishes to have considered for exemption. This includes proximity of the downspout to the grass and garden, walkways, parking pads, the City sidewalk, depressions, and the neighbour’s property. As well, they want details about whether any corrective measures can be taken to avoid or lessen any hazard the disconnected downspout presents.

Homeowners who intend to apply for an exemption should do sooner rather than later. Once an exemption application is submitted to the City, a homeowner are not subject to a fine for breaching the by-law. However, if the City rejects the exemption application, it has been put on notice that the property has a downspout that is out of compliance – and you can expect an inspection.

Some tips when you disconnect your downspout:

• · Direct the water onto a permeable area of your property (e.g., soil, grass or your garden), not onto a sidewalk or driveway, where it can pool and freeze.
• · Don’t direct the water on to your neighbour’s property, or the road.
• · Rain barrels are wonderful for garden use during warm weather, but have to have an alternative during the winter, when they could freeze and break.
• · Keep the water away from the foundation of your house- you don’t want it in the basement!

Dianne Saxe

Jackie Campbell

©2012 Environmental Law and Litigation. All Rights Reserved.

A U.S. biodiversity group has petitioned the Commission for Environmental Cooperation, alleging that Canada has failed to enforce its species at risk law by failing to list and protect polar bears as endangered species. Such petitions can lead to a full scale investigation, and possibly an embarrassing report on a country’s failures.

Young polar bear, Seal River

Does Canada obey our own laws on polar bears?

It is well known that sea ice, critical habitat to the polar bear, is shrinking – in large part due to climate change.  This is a particular threat to pregnant and nursing females, and their cubs. Of the 20,000 to 25,000 polar bears in the world, approximately 15,500 live in Canada or in territory shared by Canada, in 13 subpopulations.

A  petition filed with the Commission for Environmental Cooperation in late November suggests that Canada is not doing enough to protect its polar bears.  The U.S. Center for Biological Diversity (CBD) seeks a finding that Canada is not effectively enforcing the Species At Risk Act (SARA) by failing to list and protect the polar bear as an endangered or threatened species.

The SARA established the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), which assesses the status of wildlife species and identifies potential threats to the species, classifying each into the categories of extinct, extirpated (i.e., no longer exists in the wild in Canada), threatened (likely to become an endangered species if nothing is done), of special concern (may become threatened or endangered because of biological characteristics and identified threats), or not currently at risk. Polar bears are classified as species “of special concern”.

Under the SARA, species that are extirpated, endangered or threatened have special protections: for example, it is forbidden to kill, harm or capture them, or to buy, sell or trade them (or any part of them). The Minister (of the Environment, Parks Canada or Fisheries & Oceans, depending on the species) must prepare a recovery strategy for the species, which must address threats to species survival, including loss of habitat, and must identify critical habitat; the strategy must be published on a public registry within specified timelines.

In contrast, there is much less stringent protection for species “of special concern”, where the Minister must only prepare a management plan that includes how the species will be conserved.

COSEWIC reviewed the status of polar bears in Canada in 2008, yet despite noting that “the species cannot persist without seasonal sea ice” the bears remain in the “of special concern” category, where they have been listed since April 1991. COSEWIC noted that there is uncertainty about the overall impact of climate change on polar bears. It projected that bears in 4  (of 13) bear subpopulations are at high risk of declining by 30% or more over 36 years (three bear generations).  Seven subpopulations were considered stable or increasing, and COSEWIC could not predict trends for two of the subpopulations.

The CBD alleges that, in its review, COSEWIC failed to consider best available information, as required under the SARA – particularly by ignoring the critical impact that climate change will have on polar bears, an approach that directly conflicts with expert opinions.  The CBD challenges COSEWIC’s methodology in that it used the Canadian polar bear population as a whole to evaluate the animal’s status; they should have used units below the species level (called “designatable units”). The CBD concludes that COSEWIC’s assessment of the bear as a species “of special concern” was wrong: it should be considered an endangered species.

The CBD also asserts that the federal Environment Minister failed to meet the deadline to respond to COSEWIC’s recommendation regarding classification of the bears – the government only acknowledged receipt of COSEWIC’s assessment in February 2011, almost three years after the report was completed, instead of within the required 9 months.  The government explained that it delayed receipt of the assessment to permit consultation with the Nunavut government and Nunavut Wildlife Management Board. The CBD argues that had the polar bear been listed as endangered when it should have been, a recovery strategy would already be underway.

Is Canada paying attention to what other jurisdictions are doing about polar bears? In 2006, in large part because of the threat from global warming, the animal was moved to the International Union for Conservation of Nature (IUCN) red list of threatened species, a category that corresponds to the threatened category under the SARA.

Similarly, in 2008, the United States listed the animal as a threatened species under the Endangered Species Act of 1973.  Endangered species are defined under that Act as those in danger of extinction, and threatened species means any species likely to become an endangered species in the foreseeable future.

Next, the CEC Council will determine whether the submission should be examined further.

©2012 Environmental Law and Litigation. All Rights Reserved.

What are the safe ways to reuse grey water on site? On site water reuse promises many economic and environmental benefits, but could cause health problems if done badly. The American standards agency, NSF, therefore released a useful standard for comprehensive evaluation of water reuse technologies, whether residential or commercial: NSF/ANSI 350.According to NSF, “ the standard establishes minimum material, design and construction, and performance requirements for onsite graywater, residential and commercial water treatment systems. This innovative standard:

Assures water is treated to safe level for specific reuse, non-potable applications like surface or subsurface irrigation, toilet/urinal flushing, decorative fountains, etc.
Applies to any technology type capable of meeting the requirements, without limitations on system design or treatment capacity
Includes physical, chemical and microbiological reduction requirements to assure public health safety and suitable reuse.”

©2012 Environmental Law and Litigation. All Rights Reserved.

Congratulations to the Village of Cumberland, BC, for adopting an ambitious Water Conservation Plan, including universal metering and pay-per-use. The Village hopes to reduce per capita summer water use to 700 L/c/day, about a 30% reduction. The plan was a condition of a provincial Towns for Tomorrow grant.

Our Environmental Commissioner has repeatedly pointed out the serious economic and environmental consequences of severely underpricing water, as most Canadian jurisdictions do.

©2012 Environmental Law and Litigation. All Rights Reserved.