1. Introduction
i.
Setting the Scene
Boyd, Unnatural Law:
o “Why is there such a striking gap between the environmental values of Canadians
and our environmental performance?
o Why are greenhouse gas emissions still soaring, numbers of endangered species
still rising, consumption of energy and water still growing, and production of
hazardous and nuclear waste increasing?
o On the other hand, how has Canada made strides in reducing the use of ozonedepleting substances and decreasing releases of certain toxic chemicals like
dioxins and furans?
The legal system is central to the answers to these difficult questions.”
What is Environmental Law?
This course takes narrow view of 2 key terms
o “Environment” = non-human “nature” and the “natural” systems on which
human life depends
o As opposed to (e.g.) the built environment, the work environment
(including OHS), the spiritual environment, the cultural environment…
o Within this, we focus on pollution of the natural environment
o “Law”: we focus on formal state and inter-state law
o Statutes, regulations, bylaws, licences, judicial decisions, international
treaties
o As opposed to “private”, informal norms
o Not as narrow as Austinian definition (command of a sovereign backed by
the threat of force), but not as broad as legal pluralist view (law = any
normative system that has rules about rules and a specialized
administrative staff)
The Continuing Chronicle of Environmental Law
Law Roots in antiquity: (Palmer Article, Ch1 woods text)
o “In the context of environmental wisdom generally, there is much to be derived
from ancient civilizations (Sri Lanka, China, Inca) and traditional legal systems”
Weeramantry J ICJ 1997
o Ancient irrigation-based civilizations’ conservation regimes
o Indigenous environmental values and practices
o Ancient European wisdom, early sustainable belief values in Europe (later
overshadowed by domination of nature; Christianity played ambivalent
role)
o Islamic principle of trusteeship of earth resources
Colonial period (16-19th centuries):
o Consolidation of nation state via colonial expansion (economic)
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o Unprecedented environmental change in colonies, little regulation except to
allocate exploitation rights
o Massive deforestation, mineralization
19th Century:
o Urbanization & industrialization led to public health legislation in Europe, but
common law provided main remedy for environmental damage
1880s to 1960s:
o Introduction of systematic land use planning, national parks, resource
conservation laws
o But continued primary reliance on common law to protect environment to get
remedy or stop pollution(nuisance, trespass, strict liability, negligence, riparian
rights) Rylands v. Fletcher
1960s-1990s: Modern environmental law
o Common law proved inadequate to deal with environmental impacts of
industrialization (e.g. non-point source pollution, widely dispersed harms)
o Zoning laws emerged 20th century
o Land use planning b local/provincial governments
o Modern environmental movement arose in response to rapid urban and industrial
expansion, air & water pollution, chemicals (Land Ethic 1949, Silent Spring 1962)
o New “public law” model of environmental law emerged in 1970s: comprehensive
environmental statutes, specialized environmental agencies (eg NEPA (US
National Environmental Policy Act), Clean Water Act and EPA in the US)
o Dominant style: “command and control” regulation (prohibitions)
o E.g. pollution control, environmental impact assessment
o Licencing to allow exceptions but detailed requirements regarding
emission limits
o Enforced through inspections
o Environmental Impact Assessment  before you do something you must
assess the positive and negative effects your activity will have on the
environment
 Look at alternatives, do benefits outweigh adverse environmental
costs
Modern environmental law - A distinctive 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)
o Industry supplies most knowledge
 Results in favoured laws for regulated company
o Penalties and coercion an infrequent last resort
 Command regulation usually criminal law w/ prohibition and
penalty
o Unlike US “adversarial legalism”
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o Citizens lacked ability to overturn government decisions through courts
o Courts consistently deferred to governments
1980s onward: Changes?
o Changing character of environmental crisis
o Transformation of the state
o Transformation of the business-environment relationship
o Changing character of environmental problems
“New” environmental problems of 1980s-onward
Common features:
o Problems such as acid rain, ozone depletion, climate change, persistent toxic
substances and hormone-disrupting chemicals
o More or less invisible, insidious processes that are not directly accessible
to the senses (hard to connect activity with resulting harm)
o Understanding depends on complex scientific extrapolation, computer
modeling
o Pervasive uncertainty; causal relationships often unclear
o Causes and effects often separated widely across space or time; often
global in scale
o Cumulative products of activities of innumerable, highly dispersed, often
mobile actors, usually operating within existing legal pollution limits
Transformation of the state and business
The state: the rise of neo-liberalism
o Fiscal restraint, “hollowing out” of state, market liberalization, deregulation,
regulatory reform, New Public Management, “good governance”…
o Command regulation under sustained attack; critics on right and left stressed
“limits of law”
o State- emphasis on trying to limit the role of the state
Business: the rise of CSR
o Emergence of broad consensus that business can and should be part of the
environmental solution, not (just) the problem
o Indispensable and possible partner in environmental protection
o The “triple bottom line,” corporate social responsibility
Implications (?): a shift
o Toward more reliance on scientific expertise
o Almost unprecedented trust in experts and political elites just when this
trust is undermined by scientific controversy, political indecision and
demands for public participation
o From mitigation to prevention
o From “react, control, disperse and dilute” to “anticipate and prevent”;
from end-of-pipe to cradle-to-grave
o From environmental protection to “sustainable development” and from “zerosum” to “win-win”
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o Sustainable development – can have economic activity while also
protecting environment
o From “substantive” to “reflexive” law (“smart reg”)
o Reflexive law  forms of regulation that prompt company’s to look at
their behaviour and get them to change their activities with incentives
o From secrecy to transparency and participation
o Transparency  public notice, access to information
o From “local” to “global”
o Global issues biodiversity loss, climate change issues take precedent
over clean drinking water and local air
Developments in Canada
o Change in understanding of environmental crisis, role of state, and CSR hasn’t
resulted in substantial expansion of regulatory capacity or policy experimentation,
but there are signs of change…
o Tentative flirtation with market & tax instruments, “partnerships”, selfregulation
o Modest moves to formalized multi-stakeholder consultation, public
transparency & participation
o Increased intergovernmental harmonization
o Rhetorical embrace of “pollution prevention” and “smart regulation”
IPCC
1. Physical
2. impact assessment
3. Mitigation
o Federal Report  International & Domestic Commitments
o Timeline P. 35
o Green Plan – Mulroney most ambitious environmental plan in Canada
o UN Framework (1992)
o Goal para 24
o Kyoto – took on timelines and specific levels for first time
o Boyd – Concluded % of companies are increasing despite being in program (p.
88)
ii.
Core Case Studies
a. Climate Change
b. Forest Management
2. Governmental Institutions
i.
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Federalism and the Environment
relationship between federal government & provinces with respect to the
environment
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We live in a federal state in which legislative powers are allocated between
federal government and provinces
o Unlike unitary state, one level is not superior to the other
o Other prominent federal states include USA, Australia, Germany, Brazil,
India, Mexico, Russia
Let’s start with an institutional snapshot of environmental law in Canada
Executive branch
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Fed., prov. & terr. Environment depts since 70s; independent enforcement
branches since 80s
Authority shared with other depts: NR, Planning, Ag, Health, Industry, Transport, Public Works
Piecemeal intra- & inter-governmental coordination
o e.g. CCME, some interdepartmental integration
National and provincial multi-stakeholder Roundtables in 90s, eg NRTEE
Given great deal of discretion in setting the detailed environmental standard
Legislative branch
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Fed., prov. & terr. legislatures pass laws, usually leave details to executive branch
Occasionally vocal Legislative committees may lock horns with executive (eg
Caccia’s House Committee on E&SD)
Environmental watchdogs since 90s, eg. CESD (sub office of auditor general,
vocally critical of government), ECO
Judicial branch
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Judicial review, prosecutions, common law actions
Growth of quasi-judicial tribunals since 80s
o Supposed to have people who are experts in environmental matters
How do federalism issues arise?
- I.e., which level of government has power to regulate these matters?
Picture this:
- The federal government regulates the use of PCBs anywhere in Canada,
prohibiting dumping and requiring reporting of spills
o Local issue, no interprovincial problems
- The federal government prohibits deposit of logging debris in any waters
frequented by fish
o Water  is it local only? Logging  industry subject to province
- A province imposes a deposit on beverage containers to fund a recycling scheme
o Deposit  taxation is federal matter
- A province prohibits use of motorboats over 10 hp in a wildlife management area
o Navigation & shipping exclusively federal
- Are these measures ultra vires or intra vires?
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Division of Powers
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In a federal state, power to govern is distributed between governments
o S. 91 Federal Power
o S. 92 Provincial Power; 92(a) renew/non-renew energy
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:
o If two levels act within their authority, both laws are valid unless
impossible to comply with both, in which case federal law prevails
Where do local and First Nations governments fit in?
Provinces can give responsibilities to local government to do some activities
Local only have powers given to them through provincial delegation
o These powers can be taken away at any time
Environmental powers
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Not explicitly assigned
o Cuts across many areas of constitutional authority; a major challenge and
duty for all levels of government (Oldman River, Hydro-Quebec (SCC))
o Not contemplated by constitution
o Navigation & shipping how it impacts environment
 Fuel consumption
 Hydro-electric dams
Provincial powers: broad Valiante
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 (eg
water taking fees); limited power to regulate federal undertakings (eg
railways)
Federal powers: limited, piecemeal
Federal powers
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Proprietary powers
o Has powers of ownership over federally owned lands, waters, resources,
works and undertakings (e.g. harbours, canals)
Legislative powers
o “Functional” powers (specific subjects):
 Navigation and shipping, fisheries, federal works and
undertakings, “Indians” and Indian lands
o “Conceptual” powers:
 Criminal law, taxation, spending, “Peace, Order and Good
Government,” trade and commerce
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Functional Powers
Oldman River Case - Navigable Waters
Navigable Waters
o A proponent builds a large hydroelectric dam with provincial government
approval. Federal law requires federal approval too because dam will
interfere with a navigable stream, and requires an environmental
assessment before approval will be issued. Is the federal law valid?
(Oldman River)
- if you want to do anything to navigable waters must get permission
- example of command & control regulation
- before issuing approval, an environmental assessment had to be conducted
(EARPGO – assess costs & benefits of projects)
- Alberta said it was out of federal jurisdiction to do environmental assessment on
project located solely in Alberta & after AB had done its own environment
assessment
SCC – no Q this is intefereing with navigation, so federal jurisdiction
- environmental assessment is simply a decision making tool, so this is within
power of federal government & can consider all environmental affects, even those
only occurring in AB
- struck down the previous federal approval
- the result of assessment is not binding on decision, so transport Canada approved
project even though costs outweighed the benefits
- court upheld federal requirement  even though environment is not their
jurisdiction
R v. Fowler; R v. Northwest Falling Contracters Cases - Fisheries Act
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The Fisheries Act: one of the most important environmental statutes in Canada?
o Broad environmental provisions centered on protection of fish. Good e.g.
of command regulation. How does it work?
o Most commonly used environmental act to protect environment
o S. 35 – prohibition re: fish habitat; (2) exception
o S. 36(3) – prohibition putting chemical in water that may flow to fish
o S. 40 – offences & punishments
Is it valid? Compare the following two cases
1. Logs are dragged across a small stream near Forbes Bay, BC, as part of a
logging operation. Debris is deposited in stream bed. Logging operator is
charged with violation of old s. 33(3), “No person shall put slash, stumps
or other debris into any water frequented by fish or that flows into such
water.” (R. v. Fowler)
i. Not valid for federal government to regulate this
ii. No necessary connection between leaving of debris & harm to fish
 government did not show evidence of this
 so legislation too broad, law was not aimed at fish farm
2. A diesel tank ruptures, spilling diesel fuel into tidal waters of Cooper
Reach, BC. Tank owner is charged with violation of old s. 33(2) (now s.
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36(3)), “No person shall deposit a deleterious substance in water
frequented by fish or in any place where it may enter such water.” (R. v.
Northwest Falling Contractors)
 Explicitly linked to harm to fish (ex: use of term
‘deleterious’
One section is valid, the other is not. Why?
- Federal government has to show environment legislation is harming to fish or first
habitats
Conceptual Powers – Hydro Quebec
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Hydro-Québec allegedly dumps PCBs into the St. Maurice river and fails to report
the spill. The provincial government does nothing. The federal government
charges Hydro-Québec with violation of a federal Order issued under the
Canadian Environmental Protection Act, 1988
P. 4 – what federal government can do
o Where substance released, and how much
o Bans on certain substances
Court Decision para 85 – unanimous
o Environment is legitimate public purpose
does it have prohibitions & punishments
o if you look hard enough, can find prohibitions & there are offences in it
o but most of act is regulatory to control making, use & disposal of toxic
substances
Is federal regulation of toxic substances valid?
- As criminal law (s. 91(27))?
- As a “national concern” (s. 91, POGG)?
- Distinction between narrowly tailored prohibitions with penalties so criminal law,
dissent saying it was wholesale regulation
CEPA and toxic substances
- Let’s look at the Act. What does it say and do?
o Does it make sense to you to call it “criminal law”?
 Doesn’t sound like criminal law
o Does it make sense to you to call toxic substances regulation a “national
concern”?
- What is “Criminal” Law?
o Two part test:
 A prohibition with penal consequences
 For a legitimate public purpose
- Is environmental protection a legitimate public purpose? (Unanimous decision)
- Does CEPA operate via discrete prohibitions with penal consequences, or via
wholesale regulation?
- What is the nub of disagreement on the court?
o Do we have here precise and well tailored prohibitions, or an extensive,
comprehensive regulatory scheme?
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o Is the majority’s assumption about the scope of “toxic substances” wellfounded?
 Majority (hydro quebec) said all on this list cause acute poisonous
reaction
 CO2 is on list  climate change chemicals included on the list
 Majority says valid criminal legislation since is not overly broad
with a specific list
o See the current Toxic Substances List
o Does the legislation trample over provincial jurisdiction?
What about the POGG Power?
o Majority: no need to consider
 Would be under national concern branch
o Dissent: this law too broad, diffuse; toxics are well within provincial
regulatory ability
RULES when determining which has power?
- look at enumerated federal powers (ex: criminal law), if cant satisfy under these,
then look at residual powers (like POGG)
Crown Zellerbach – POGG Power
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CZ dumps wood waste in Beaver Cove, a salt water inlet in BC. It has a permit
under the federal Ocean Dumping Control Act (implementing 1972 London
Dumping Convention), but the permit does not cover Beaver Cove. It is charged
with violating the ODCA (now part of CEPA) (R. v. Crown Zellerbach (SCC
1988))
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?
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”
o Two dimensions relevant to environmental law: “national concern” and
“national emergency”
o Focus: national concern
Is marine (i.e. saltwater) pollution control a national concern?
1. Does it possess a singleness, indivisibility and distinctiveness distinguishing it
from provincial concerns?
i. Deals with only salt water
ii. Distinguish between salt & fresh water
iii. Distinct interprovincial & international implications on marine life
(indivisible)
2. Would impact on provincial powers be reconcilable with the Constitution’s
fundamental distribution of powers?
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Victory for feds, so why haven’t feds relied on “national concern”
since?
Discussion
o How would you apply the above rules and principles to:
 Regulation of greenhouse gas emissions and climate change?
 Could rely on criminal law power
 Maybe need to use national concern branch
o But hard for something that affects nation so much
cannot meet the requirement of singleness
 Implementation of treaties (like Kyoto)
o Federal not necessarily able to implement it if its
not its jurisdiction, its provincial
 Regulation of activities affecting the ecological integrity of the
Boreal ecosystem?
Making Sense of Federalism: Theories and Trends
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Theoretical arguments for and against central vs. decentralized authority
o Pro-centralization:
 Race to the bottom (tragedy of the commons)
 Spillovers (transboundary externalities)
 Regulatory capture by locally dominant interests
 Disparities in effective representation
 Economies of scale
o Against centralization:
 Race to the top (and NIMBYism)
 Geographic variation in preferences
 Democratic self-determination, subsidiarity
Race to the Bottom (tragedy of the commons)
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capital is mobile
jurisdictions will compete to keep industry & jobs in their areas
jurisdictions would set environmental standards below the level accepted by
society & federal government standards
central standard setting so that you have uniform standards in country (or
internationally) & this takes away ability to race
Race to the Top
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competition between jurisdictions can lead to a strengthening of environment
standards
attract & retain cleaner industries & residents
o why would company do this  gaining goodwill, self-interest
if there is a tendency for more stringency over time your steps ahead of the
competition
o ex: California strict standards  still has large auto industry
o standards set here are followed by other car companies in the country
NIMBY  not in my backyard
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o Residents prohibit industries form locating in their area
Spillovers (transboundry externalities)
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p. 116-7 – definition of externalities
ex: tarsands  Alberta has no incentive in taking into account pollution going to
Saskatchewan
o would want central control, so the pollution from the process is taken into
account
Regulatory capture by locally dominant interests
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can happen through intense lobbying compaign donations
happens usually when an area is dominated by one industry and/or company &
high reliance on company by local residents
Geographic variation in preferences
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developing countries may want rapid economic development over clean air &
water
developed countries want environmental protection
o then would want decentralization to allow for these different preferences
Democratic self-determination, subsidiarity
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decision making should occur at the lowest level of government that is closest to
people depending on character of situation
o regional environment  provincial government
Trends
How would you characterize Canadian trends?
- Fed-prov conflict, competition, cooperation?
o Interjurisdictional regulatory competition?
o In what direction? (Bottom? Top?)
 Usually status quo
 When a public outcry, then provincial & federal have races to the
top periodically with a flurry of legislative activity
 Usually after 18 months these quiet down
- What causes these spikes?
o Public health crisis ex: Walkerton, chemical spills
o Unusual time of public consensus & awareness of a problem
  ex: climate change
- Non-competitive? How?
- A mix? Consider Olewiler thesis, pulp mills example, 1998 Harmonization
Accord. Key dates/periods?
o More likely to competition when federal gives binding regulations (p.
118) as opposed to voluntary regulations
o Spikes in public attention leads to spikes in government legislation
Pulp Mills Example p. 138
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problem of dioxins, prior 1971, no regulation for effluents from pulp mills
dioxins found in paper & in fish downstream of mill
AB imposed new technical requirement; ON & BC created harder effluent
emissions
o NB did nothing (since pulp mills are large industry there & still had a lot
of pre 1971 mills)
laws was harmonized below federal & provincial legislations on these issues
1998 Harmonization Accord
- agreement between federal & provincial (except QC) that they will try to
harmonize environmental legislation
- people complained federal government was getting rid of its responsibility to give
strong guidance to provinces regarding environment
- may not have a face to the bottom, but can have a chill
o government refrain from elevating their environmental standards
What might explain the trends in competition/cooperation?
Character of Environmental Problem Income Levels
Character of regulatory instrument  Fiscal policy
Strength of green, brown lobbies  Capital (and labour) mobility
Level of public attention  Quebec Question, regionalism?
Characteristics of industry  Ideology of governing parties?
ii.
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Local Governments and Environmental Protection
What role can and should municipalities play in environmental protection?
o Acting on residents’ longstanding concerns, the Montreal suburb of
Hudson enacts a bylaw restricting “cosmetic” use of pesticides within
town limits. Dozens of other Quebec municipalities do the same, and
others around the country look on. Hudson charges various lawn care
companies with violating the bylaw. The companies move for a
declaration that the bylaw is outside the town’s authority (Spraytech v.
Hudson)
Spraytech (SCC 2001)
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Did town have authority to enact bylaw?
o General source & scope of municipal powers
 Only have powers granted to them by provincial statute
o Specific powers (section 412 “toxic materials”)
 Can be specific powers or a general clause
 Bottom of page  what powers municipal has
 If legislation gives municipality a specific power but province puts
restriction on it, you cannot us the arg:
 Pesticides are toxic materials so municipality needed
approval from ministry of the environment
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But list corrosive, radioactive – pesticides does not fit into
this class of materials
o “General welfare” powers (s. 410)
 Broadly construed
 Main test  is municipality genuinely interested in protecting
health & welfare of citizens
 Municipality was responding to the concern of public regarding
pesticides
 Don’t have to show there is an actual health harm form pesticides
Does it conflict with federal or provincial law?
o Test for conflict (“Multiple Access”): impossibility of simultaneous (dual)
compliance.
 If you obey one you will disobey the other
o Is there a conflict here?
 Argument: Pest Control Act
 Provides for licensing of pesticides to be used in Canada
 All federal law does is say is these pesticides ‘may’ be used
o This can be complied to by not using pesticides
 Only way there would be a conflict is if you ‘must’ use
pesticides
Subsequent developments
o Quebec province-wide statutory ban
 Permit & licensing system
 Said no municipality code allowed that overlaps Provincial
management code
 But at that time, government hadn’t developed this code yet
o dozens of bylaws nationwide; Toronto bylaw upheld in Croplife v
Toronto (Ont CA 2005)
The bigger picture
- Is local control over environmental issues a good or bad thing? From whose
perspective?
- Should local regulation be limited to “local” matters?
- What kinds of issues might be suitable? Unsuitable?
- What principles or theories might help answer these questions?
o Subsidiarity? – para 2
o Precaution? – page 3
 Respects international precautionary principle
 Should not let lack of scientific evidence prevent the regulation of
material
 SCC endorses this principle as basis for decision (Dube)
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3. Environmental Regulation: Concepts and
Controversies
i.
Command Regulation and its Critics
Roadmap:
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Introduction to environmental command regulation
o Historical developments
o Environmental standards
o Environmental licensing
o Environmental planning instruments
Strengths and weaknesses of command regulation in theory and practice
Recent developments and future directions
An introduction to command regulation
Basic model of “command and control”:
 Set standards (“Command”):
o Establish environmental quality objectives and impose binding limits on
pollution sources
 Enforce them (“Control”):
o monitor and inspect pollution sources and take quasi-criminal enforcement
action when noncompliance discovered
 Typical implementation model: Licensing (Approvals)
o Pollution source must have licence to operate and must comply with terms
of licence
 A classic example of “substantive” law:
o Direct, detailed intervention in the substance of harmful social processes
(vs either “formal” or “reflexive” law)
 substantive law is an apt way of describing command regulations
 very intrusive & restrictive (view by industry)
 dictates the substance of what is done
 typical way to implement  Licencing
Formal Law
 gives certain rights & obligations & has regulations for
resolution
o but doesn’t dictate outcomes
o ex: nuisance, trespass  common law rights
Reflexive Law
 newer, kind of regulation that instead of dictating substantive
of what industry can do
o instead prompts industry to reflect & evaluate their
behaviour & modify behaviour to comply with the law
(partly autonomous)
 does not mean its voluntary to comply with law
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Historical Phases of C&C
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Blanket prohibitions (<1970)
o Crude, uneven, no independent institutions
Waste control (1970-mid 1980s)
o End of pipe, assimilative capacity, dilute & disperse
o Establishment of detailed regulatory regimes and administrative agencies
Integrated management (mid 1980s-)
o Cradle to grave, virtual elimination
Current trends and concepts:
o “Smart,” “responsive” or “reflexive” regulation; pollution prevention (P2);
precaution; ecosystem integrity; extended producer responsibility, product
stewardship; polluter pays…
Environmental Standards
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Two types of standards: target and source
o Target standards: set by reference to state of the environment being
protected
 Ambient standards: set maximum concentration of pollutant in
specific medium (eg air, water), Eg AAQCs
 Receptor standards: hold polluter liable for harm to environment
 Eg Fisheries Act s. 35 (harmful alteration of habitat)
 Advantages and disadvantages?
o Source standards: set by reference to source of harm
 Performance (emission) standards: limit discharges of pollutant
from specific source
 May limit quantity emitted over given period (e.g. SO2, CO2
caps, total ban on PCB discharges)
 Or may limit pollutant concentration or production ratios
(don’t limit total quantity)
 Process (technology) standards: specify industrial processes and
pollution control technologies to be used
 Eg factory design, specific “scrubbers” or BATNEEC
 Product standards: specify permitted or prohibited product
characteristics
 Eg catalytic converters, leaded gasoline, outright product
bans (eg DDT)
 Advantages and disadvantages?
Setting standards
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Typical model: Ambient objective, emission standard
o Identify overall objectives (political value judgment)
o Establish scientific criteria to measure objectives
o Set ambient objective (desired condition of target environment)
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 E.g. average concentration of methanol in air over given period
o Set emission standards (specific limits for sources) necessary to achieve
ambient objective
 E.g. concentration of methanol in flue gases
 Depends on accuracy of dispersion models
Another common model: risk assessment, risk management
How central is science in environmental standard-setting?
In practice:
o Closed-door bargaining; emphasis on economic feasibility, not on
receiving environment; science and politics inextricable
Implementing standards
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Implementation options:
o Negotiated licence (typical for new sources)
o Negotiated abatement program (typical for existing sources)
o Regulations
o Administrative orders
o Voluntary agreements (eg auto sector GHG MOU)
 Implementation dilemma:
o Should standards be uniform or particularized?
o Should they be subject to administrative discretion or non-discretionary?
Problems with Uniform standards
 going to achieve the same overall improvement for higher costs than if you used
particulized
Problems with Particularized standards
 undue influence can arise
 requires more reductions from those with better technology because costs less for
them, and asks less reduction for those who it will cost more to comply
Administration Discretion
 Advantage  allows for lobbying to politicians, so good for industry
 Disadvantage  for environmentalists, allows for political capture
Federal Plan  Turning the Corner
- Goal  150MT decrease by 2020 over 2006
Kyoto
- Goal  6% below 1990 by 2008-12
- Current Canada is 26% above 1990 levels in 2004
- Canada ratified Kyoto, so we are bound by it at international law
o US & Australia never ratified it, so they don’t have this problem
How would you implement targets?
- negotiated licence (like permit)
o government puts limit of how much you can pollute
- negative abatement program
16
-
o usually involving whole sector, when you have new laws & past
companies who cant comply quickly or easily
regulations
o uniform standard that applies to any industry
voluntary agreement
o auto sector memo of understanding
Environmental Licensing

Basic model:
o Legislation requires all entities with specified characteristics to gain prior
approval (licence)
 Applicant must disclose detailed information about operations
and/or pollution discharges
 Licence authorizes operational activities or pollution discharges,
may incorporate uniform standards or be tailored to specific
circumstances
o Non-compliance with terms of licence may result in enforcement action
o The mainstay of environmental command regulation
o Advantages and disadvantages?
Environmental planning

A parallel system of command regulation requiring assessment of environmental
impacts of proposed activities, and controlling how land can be used
o Environmental impact assessment (Unit 9)
 Project-based and strategic environmental assessment
o Parks and protected areas (Unit 8)
o Official plans, zoning, subdivision controls, building codes (Land Use
Planning Law)
Strengths and weaknesses of Command Regulation



“[T]he system for regulating pollution provides all the tools needed to eliminate
pollution from the Canadian environment. All that need be done is to fund
adequately and then actually use the system we have spent thirty years putting in
place” (MacDonald)
“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, USA)
What are the key pros and cons of command regulation in your view?
Strengths and weaknesses

Carolyn Abbot:
o Environmental effectiveness: success story or nearing limits?
 Empirical evidence that shows mandatory binding standards &
limits, large majority of decreases in emissions levels of chemicals
could be directly attributed to command regulation
17


Ex: laws re: leaded gas, mining, pulp&paper mills
2 most visible impacts of early command regulation
 Waterways
 Air
 Other argument  that although beneficial it is at its limit of
effectiveness, nearing limits of its capability to exert change
 But this depends on source of pollution
 Point source pollution  command regulation works (ex:smoke
stacks)
 But small-medium size companies hard to control them by
command regulation (hard to find them, keep monitoring
them)
 But evidence smaller businesses wont do anything unless
its mandatory by law
o Efficiency and incentives: inefficient, cost-ineffective, anti-innovative and
compliance-focused, or race-to-the-top?
 Levels set not efficient, not done to get max social benefit to
society
 not maximizing the benefit by making strict limits
 cost ineffective  requiring one compliance level, get same enviro
benefit for higher cost instead of using specific sector & specific
facility info to determine individual limits
 no incentive to develop new technologies or processes  anti
innovative under command reg
 performance standards no compliance to go beyond
standard
o Administrative flexibility: unpredictability and regulatory capture, or
responsiveness?
 Regulation needs to be responsive to needs, abilities of regulated
industries
 Negative side of this  regulatory capture
 Where regulated community has undue influence over
development of regulation & how its monitored
 Issues
 Discretion
 Countervailing interests
o Created opportunities for NGO & citizen
participation
o Ex: citizen suits, notice & comment, court
challenges
 Agency ideology
o Give bodies very clear environment mandates
 What is regulatory capture? (Zinn)
 Capture theory insists that regulators are purposely
instrumental of the interests of regulated communities to
the end of lining their own pockets
18


Regulators subject to myriad pressures & incentives that
push regulatory choices in the direction desired by
regulated industry
 Zinn – very problematic at level of enforcement
o Way to avoid this: separate enforcement agency
(separate from developing standard) & give them
environment mandates
o Complexity: regulatory saturation and sclerosis, or sophistication and
adaptability?
 Is system too saturated or is it adaptable
 Very rare to have old laws taken off books when a new one is
added
o “Dependability” and enforcement: clarity and stringency, or crudeness
and vulnerability?
 some argue it only has a “one size fits all” attitude
land planning form of command regulation
o that rather than dictating levels of pollution they control how land is used
David Boyd:
o Not enough command regulation, but some improvement
 It works the best, but has the following problems
 Huge areas where there are no laws at all
o Excessive discretion, but some positive signs
 Can harness discretion by having environmental groups
o Narrow choice of regulatory instruments (C&C vs. voluntarism), but
some experimentation
 Haven’t experimented w/ taxes or pollution registries
 Look at is as binary choice: command or voluntary
o Dominance of economic interests, and no sign of change
 Feels industry is too influential in a direction against environment
stringency
o How do Abbot’s and Boyd’s assessments compare?
Recent trends and the future
o Context: Budget cuts, neoliberalism, globalization
o Competing pressures: expand environmental responsibility vs. reduce
regulatory burden
o Innovations in command regulation
o EPR, product stewardship
o Pollution prevention (P2)
o Regulatory flexibility
o Improved enforcement
o Public participation, transparency
o Supplements/alternatives to command reg
o Informational regulation (CRTK, ecolabels, securities)
o Economic instruments (taxes, trading, subsidies)
19
o Negotiated agreements, co-regulation, partnership
o Voluntary programs, self-regulation
 Some examples environmental responsibility on business
 Ex: EPR, product steward, end product
o Third-party surrogate regulation
Environmental Standards
-
at heart of command regulation (p. 65)
o precise limits allowed by law…
2 kinds of standards
o Target standards
o Source Standards
1. Target Standards
- critical first step
- must determine this before trying to determine source standards
(a) ambient standards
- ambient air quality criteria
(b) receptor standards
- directed at particular actor
- ex: fisheries act – in terms of effects of fish environment but specific to a
particular actor
2. Source Standards
(a) Performance Standards
- limit from specific source
- ratios  could happen ratio decreases but total quantity of pollution increases
(b) Process Standards
(c) Product Standards
- ex: leaded gas
Setting Standards
-
ii.
combination Doug MacDonald & Carolyn Abbot readings
typical model  theory
dispersion models (ex: smoke stacks) improving it meeting ambient objective
Risk, Uncertainty and Precaution
o True or false: environmental regulation is all about risk?
o How did we come to think of environmental law in terms of “risk”?
 Ullrich  fundamental transformation of industrial society
 Beginning 1970s  goal just to produce goods
 Last 20 years, how talk about risks (bads) ex: enviro,
terrorism
 The demands of particular legal systems
 The problem of the legitimacy of administrative decision-making
 US SC decisions – started shift towards health & safety
20

New focus on risk, addresses democratic credibility 
needed with rise of government agencies
o Make agencies responsible & legitimate
o Make them act only on scientific determined risk,
instead of political influences
o What is risk? What is risk assessment?
 quantitative probabilities vs. qualitative dangers
 impacts how enviro problems defined & resolved p.115
 if risk is understood primarily in quantitative terms then
only those aspects of environmental problem that can be
measured will be subject to analysis
 What are the proper roles of “science” and “politics”?
 Do we need to separate science from politics? Better
incorporate contemporary science? Listen to other voices?
o Look at many perspectives: science, aboriginal
knowledge (but science given more weight)
 Distinction between science & politics rolesÉ
o Need risk management phase with political
judgement decision making
o Need combined effort
 What are the implications of complexity and uncertainty?
 Its anti-precautionary
 Puts burden on regulator to prove risk
 Boyd suggests – putting burdon on industry to show
absence of risk & is safe for environment & health wise
o Argument that this is not possible, cant prove
conclusively that there is no risk, cant have
certainty in that statement
 What does it matter how legal systems answer these questions?
Precaution and adaptation
o What is the precautionary principle?
o `where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation`
o Is it in tension with “risk” and “risk assessment”?
 Industry must try to prove with evidence that it likely does not
harm environment & health
o How is it put into practice?
 In the EU? In Canada? At the WTO?
 Fisher EU – hard to separate precautionary principle from
risk assessment/risk management
 Important to look at whats driving this precautionary
principle
o US – was from court cases
21
o EU – were losing trade agreements, tweak
precautions so can comply w/ WTO req
 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?
 Boyd – need holistic approach
o Give more weight to alternatives
o What is adaptive management?
o How is it put into practice? Is it the answer to uncertainty?
 Look at successes & losses & change laws as you learn
 Experiment with different way of doing things to see what works
better
 Involves perpetual learning & experimentation
 But this method susceptible to regulatory capture
4. Water
General introduction
o ‘Water will become Canada’s foremost ecological crisis early in this century’
(Prof D. Schindler)
o Abundance: Canada holds 20% of world’s fresh water, uses only 2% of its
renewable water supply per year
o But:
 ¼ of municipalities experienced water shortages, 1994-99
 We use more water than anyone but Americans (4400 L/day pp)
 We dump 100s billions litres raw sewage into water every year
 Livestock operations produce 132 billion kg manure/year
 Companies discharge 20m kg toxic chemicals into water/year
o Key challenges:
 Drinking water, water pollution, water use and conservation
(including exports)
o Theme of water
 Public Crisis & Regulatory Response
i.
Safe Drinking Water: Walkerton and Beyond
Regulating Water Quality
o ‘We have a terrible tragedy here’ (Premier Mike Harris, Walkerton, May 2000)
o Walkerton, Ontario, May 2000:
o Water supply contaminated by e.coli from manure after floods
22
o PUC operator Stan Koebel lacked training, habitually falsified records,
violated procedures, concealed adverse test results and chlorination
failures, failed to monitor chlorine daily
o Wells lacked proper monitoring equipment
o 7 dead, 2300 ill
Beyond the Koebels
o Not an isolated incident
o North Battleford, Kaschechewan, etc.:
 Widespread pathogen contamination in municipal and rural water,
100s of permanent boil water advisories
o 1b lack safe drinking water, 2b+ safe sewage trmt
o Failings of the pre-Walkerton legal regime:
o Ont drinking water quality guidelines: non-binding
o Licensing, training & qualification of operators
 Koebels “grandfathered” in
o Water testing procedures (sampling, analysis, reporting, public
notification)
 Labs privatizated without closing “reporting loophole”
o Drinking water source protection: essentially none
High level political decisions
o Harris “Common Sense Revolution”
o Privatize, download, downsize, deregulate, cut taxes and spending, make
Ontario “open for business”
o Ministry of the Environment:
 Staff cut >40% and budget 60% from 1995-2000
 Labs privatized; Drinking Water Surveillance Program slashed
 MOE knew of, but failed to correct, Walkerton problems. Why?
o Top level decisions: did Harris knowingly put environment and health at
risk?
 O’Connor concluded “not quite,” but:
 MOE warned Cabinet that cuts endangered environment, health
 Health ministers repeatedly warned of reporting loophole
 Harris threw Chief Med Officer of Health out of 1997 cabinet
meeting when he tried to express concerns
Ensuring Safe Drinking Water
o Response to Walkerton:
o Walkerton Inquiry (Hon. Dennis O’Connor)
o New legislation and regulations
o O’Connor, others called for ‘multi-barrier’ approach
o Source protection
o Water treatment, including filtration and disinfection
o Well designed and operated distribution system
23
o Comprehensive testing
o Public reporting of problems
o Adequate resources to operate and enforce
1. Source Protection
o What should be done?
o O’Connor and Clean Water Act: watershed-based source protection plans
approved by MOE, binding on province and municipalities
o Other approaches?
o What is being done?
o Clean Water Act, S.O. 2006, c. 22
 What does it require? What does it permit?
 Other acts: Nutrient Management Act, Greenbelt Act
o What still needs to be done?
2. Water Treatment
o What should be done?
o Filtration, disinfection, binding quality standards
o What is being done?
o 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
o What still needs to be done?
3. Water Distribution
o What should be done?
o Safe distribution systems that prevent contamination en route to consumer
o Repair, upgrade, replace crumbling infrastructure
o Avoid hazardous materials (eg lead)
o Municipal quality management systems, approved operational plans
o What is being done?
o Safe Drinking Water Act: approval and licensing of municipal drinking
water systems, duty of care
o What still needs to be done?
4. Comprehensive Testing
o What should be done?
o Thorough testing to identify contamination and allow preventive and
remedial action
o What is being done?
o Drinking Water Quality Regulation, 2000 and Safe Drinking Water Act,
2002:
 Detailed, binding sampling & analysis requirements
 Lab accreditation requirement
24
o What still needs to be done?
5. Public Transparency
o What should be done?
o Ensure public is promptly and fully informed about drinking water
problems
o What is being done?
o Drinking Water Quality Regulation, 2000 and Safe Drinking Water Act,
2002:
 Reporting loop finally closed (labs must notify MOH and MOE of
adverse results)
 Operators must post adverse results, quarterly reports, Certificates
of Approval, DW standards, regulations; Chief Drinking Water
Inspector’s annual reports must be public.
o What still needs to be done?
6. Resources
o What should be done?
o Devote adequate human, financial and technical resources to operate water
systems and enforce legal requirements
 O’Connor: strong and effective provincial oversight of water
systems including strict enforcement
o What is being done?
o Funding for Source Protection Plans (enough?)
o MOE hired inspectors, reinstated DWSP, lots of charges and convictions,
partly restored budget & staff
o Sustainable Water and Sewage Services Act, 2002
 Will require municipal cost recovery for water services
o What still needs to be done?
Where are the Feds?
o Does the federal government have any jurisdiction over drinking water safety?
o (Aside from Indian reservations)
o Is there a role for federal legislation?
 Nationwide drinking water quality standards?
 Proposed 1990 Drinking Water Safety Act
 Proposed 2001 Food & Drug Act amendment
 Status of current national drinking water guidelines?
 Nationwide standards for water system components (eg no lead
pipes), treatment devices, chemical additives?
 Proposed 1996 Drinking Water Materials Safety Act
 Nationwide right to clean water?
Comparative Example
o Drinking water protection in the US
o Federal law in force since 1974:
25


Safe Drinking Water Act
Minimum national standards, public participation and notification,
citizen enforcement
o Strengthened 1996
 Annual public reports by operators, greater public involvement,
greater emphasis on source protection (estimated incremental cost:
US$22b/yr)
o Key Weakness?
Special Issues
o Small drinking water systems
o O’Connor: comply with regs or post non-potability notices
o Ontario: currently considering whether to require compliance with regs or
set lower site-specific standards
o First Nations
o O’Connor: make provincial services and assistance available on request
o Ontario: implementing O’Connor recommendations
 Note: Ont. Standards can’t be applied directly to First Nations
ii.
Water Consumption and Conservation
Overview
o How much are we using and for what?
o What are the environmental impacts?
o What laws govern water use and conservation in Canada and how well are they
working?
o Case study: water taking in Ontario
 The Tay River case
 The new PTTW regime
 Briefing #2, Boreal water taking
Water Use in Canada
o Volume:
o 4400 litres (4.4 m3) per capita per day
o 47.3 billion m3 per year (1997), up 26% over 1980
o Uses:
o Thermal power generation 63%
o Manufacturing 16%
o Municipal (household use) 11%
o Agricultural 9%
o Mining 1%
o Doesn’t count hydroelectric
Environmental effects
o Lower water levels may result in:
26
-
o Aquatic and terrestrial habitat damage, increased heat (summer) and
freezing (winter), impaired assimilative capacity, changes to deltas &
estuaries, changed nutrient flow to sea, water shortages, human hardship
Dams cause:
o Altered flows, increased evaporation, higher temps downstream,
inundation, sedimentation, greenhouse gas emissions, heavy metals
release, fish kill, disrupted migration, habitat destruction, increased
turbidity, damage to deltas, estuaries & wetlands (i.e. Chats Falls Dam,
Ottawa River; Palgrave Pond fish ladder, Humber River, Ontario)
Laws and Policies
•Federal
•Fisheries Act seldom used to ensure minimum flows for fish
•Canadian EA Act used reluctantly to address water management
•Federal power over boundary waters has been exercised regarding bulk removals
but tendency to rely on provinces
•Provincial and territorial laws
•Favour withdrawal over in-stream uses
•Mostly ignore ecosystem as a ‘user’
•Incentivize consumption over conservation:
•‘Use it or lose it’ approach common; rights usually non-tradeable
•Water is ‘cheaper than dirt’: Lowest prices in industrialized world
•Flat or declining-rate pricing; only 57% houses metered;
effectively free for industry & agriculture
•Ontario moving toward fuller pricing (municipal cost recovery,
PTTW fees)
•Typically ignore demand management
•Metering, volume-based pricing, education, water audits, water efficiency
ratings, changes to plumbing & building codes
Water use law in Ontario
•The Tay River case (Dillon, ERT 2002)
o OMYA plant (calcium carbonate plant) near Perth, Ontario wants more
water
The OMYA case
•What did OMYA have?
o 1998 PTTW for 872 m3/day (872,000 L)
•What did OMYA want?
o PTTW for further 4500 m3/day (4.5 million L)
•What did they get (initially)?
o
Phased permit: 1483 m3/day until 2004, then 4500 m3
•Citizens appealed to Environmental Review Tribunal
27
o What was their central argument?
 Director failed to apply an ‘ecosystem approach’
 Where does the duty to do so come from?
 MOE’s Statement of Environmental Values: What is it? What does
it say? Does it apply to this case?
 Reg 285/99: What is it? What does it require?
o What did OMYA ultimately get?
Subsequent developments
•2002: OMYA appealed to Divisional Court
o Before appeal heard, OMYA also applied to Minister under OWRA for
order overturning ERT decision
o Feb 2003: Environment Minister overturned ERT decision, reinstated
original permit (no reasons)
•Dec 2003: new government imposed 1-year moratorium on new PTTWs, thorough
overhaul
o Jan 2004: MOE revoked OMYA’s Phase 2 permit
•2004: new water taking & transfer regulation
o O. Reg 387/04
•2005: new PTTW Manual (implementing ecosystem approach?)
Briefing #2 – Water Taking
•Aquaboreal Ltd. wants to ship 500,000 L/day of water from a lake near Hudson Bay to a
bottling plant in Southern Ontario to be sold as bottled water or incorporated into
beverages. If necessary it will bottle the water on site and ship the product directly from
there. (Picture on Slide)
•Environmental group Friends of the Boreal Wilderness wants to stop the proposal
New PTTW Process
•April 2005: MOE launches new PTTW manual
o Principles: ecosystem approach, cumulative impacts
o PTTW 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
o Evaluation factors: ecosystem functions (incl impacts, interrelationships),
water availability (incl sustainability, existing uses & low water), water
use (incl conservation)
o No out-of-basin transfers
28
5. Air **see Boyd
i.
Overview
Air and Atmosphere: a mixed bag
•Responsible for between 5k & 16k premature deaths per year in Canada, $ billions in
health care
•Key issues: regional air quality, ozone depletion, climate change
o Ozone & climate change: Canada as leader or rogue?
o Regional air quality (Acid rain, smog, haze)
 Effects: acid lakes, eutrophication, damage to plants; stroke, heart
disease, respiratory illness; damage to buildings
o Sources of regional air pollution
 US emissions a major factor in smog, acid rain
 Long-range atmospheric deposition of POPs in Arctic
 Domestic emissions among highest in OECD
Air pollution: key themes
•Theme  approvals & licensing systems
•Boyd, pp. 94-104
o Accomplishments and challenges
 SO2 (acid rain down), lead & vehicle emissions down, most AQOs
met
 But smog severe, key emissions top OECD list
 Complete phase out of leaded gasoline.
 Since early 1970s, improvement on car tailpipe emissions.
 Most emission limits are met most of the time
 But fail compared to industrialized peers
o Types and sources of air pollution?
 Criteria air contaminants (SO2, NOx, VOCs, O3, PM, CO)
 Key ones that contribute to climate change.
 O3- ground level ozone – volatile organic compounds
o When combined with particulates you get smog
o Particulates come from transportation sector, also
from dust of vehicular traffic
 Air toxics (POPs, PAHs, heavy metals)
 POP – persistant organize pollutants – like pesticides
 PAHs – produced in petro chemical processes
 Heavy metals – lead, mercury, cadiam
o Health, environmental and economic impacts?
o Basic regulatory approaches
 Emission, ambient & technology standards, P2? Binding?
 Concentration allowed in atomosphere; P2 – pollution
prevention
29



ii.
Federal CEPA: NAAQOs, industrial emission stds, vehicle
emission stds, fuel stds, NPRI; Canada-Wide standards?
 Community right to know (CRTK)
 NPRI – national pollutant release inventory
o Limits – only applies to large, stationary emitters
o Only reports when over standards (& this usually
set high)
o Doesn’t include criteria air pollutants which is the
source of main air pollution people encounter
 Canada Wide standards
o Set by CCME
o Not binding standards
o Represent the national consensus, provinces
encouraged to implement these levels
Provincial regulation: AQOs, regulations, permits
 Ontario Environmental Protection Act 1972 (OEPA)
 Reg 419/05 – sets binding limits for over 100 air pollutants
 S. 9 loophole
o What if company did not get approval to
construction/alter, but are operating it
 Not in legislation that operating is prohibited
 Ss7, 1988 – cant operate either
 S. 14 – before had to be spill that “likely” will cause harm
o Now if its possible to harm (lower threshold)
Distinction between routine discharges & abnormal
 Routine – usually dealt with through approvals (emission
limits)
 Abnormal – unplanned discharges s. 14 applies
 Spill – defined as abnormal discharge, can be smoke
Air Pollution Regulation in Ontario
•#6 in North America in toxic air emissions, 2003
o 38.0 million kg, after OH, NC, GA, PA, TX
o Down from 45.6m kg in 2002 (#2 after Ohio)
o Down 25% (9.8m kg) over 1995 (matched chemicals)
o
Doesn’t include criteria air contaminants (SO2, NOx, VOCs, PM)
o See Taking Stock report, www.cec.org/takingstock/
•OMA: in 2005 air pollution will cost Ontarians
o 5800 premature deaths
o 16,000 hospital admissions
o 60,000 emergency room visits
o $400 million in lost workdays
o $500 million in health care costs
•Revised upward substantially in 2006 because models didn’t account for age differences
30
Regulatory Framework
•Ontario Environmental Protection Act (OEPA)
o Basic model: Command & Control
 Prohibitions:
 S. 6(1): no discharge in excess of regulations
 E.g. Reg. 419/05 air pollution limits
 S. 9(1), (7): no construction, alteration, or operation of
polluting plant, or alteration of process, unless approval has
been issued and complied with
 S. 14: no discharge that causes or may cause adverse effect
(Since 2005, approved discharges exempt)
 Approvals (ss. 9, 10)
 Spills (ss. 91 et seq.)
 Notification (ss. 13, 15, 92)
 Enforcement (inspections, orders, offences, penalties)
 Power to make regulations (ss. 175.1, 176)
•Routine vs. abnormal discharges
o Routine discharges: regulated mainly via
 Approvals for most industrial air pollution
 Regulatory emission limits and other instruments for regional
pollution (eg acid rain, smog)
 Interprovincial and international cooperation for global air
pollution (climate change, ozone depletion)
o Abnormal or unplanned discharges:
 s. 14 “adverse effect” prohibition
 Part X “spills” rules (s. 91 et seq.)
•Focus: regulation of routine (planned) discharges via Ont. EPA approvals
Air Pollution Approvals
•6-stage process
o See MOE Guide to Applying for Approval (Air & Noise)
1. Application Preparation
o Is an approval needed? (s. 9(1), (7))
 Most industrial processes and process or equipment changes since
1972 require approval in theory
o What information must be submitted?
 Scope: “contaminant,” “environment”
 Information to demonstrate compliance with EPA:
o s. 6(1) regulations, s. 14 adverse effect
o Air standards: ~200 non-binding AAQCs and ~100
legally binding Point of Impingement (POI) limits
in O. Reg. 419/05
o POI limits are a form of receptor standard
o Must also demonstrate compliance with any
applicable binding guidelines (Appendix C)
31

E.g. NOx limits for large boilers
•Ontario air quality standards
o Long recognized as outdated (most from early 1970s), too few, fail to
address long-range transport, long-term deposition, very short or long term
effects, bioaccumulation, persistence, additive & synergistic effects, fail to
reflect differences in vulnerability (eg age), fail to distinguish high & low
priority pollutants, not based on pre-stack measurements
o Numerous attempts to update since 1980s, finally overhauled in 2005 with
~40 tougher, effects-based emission standards to be phased in gradually
 Government promised 29 standards, delivered 40; dozen more in
the works via quicker development process
•Information requirements:
o How is compliance demonstrated?
o Through Emissions Summary and Dispersion Modeling (ESDM) Report
 Describing equipment and analyzing emissions
 Using prescribed dispersion models: current US EPA models being
phased in to replace 30 year old ones
 May take months of scientific study to prepare
•What kinds of approval are available?
o Individual equipment certificate of approval (CofA)
o Consolidated CofA
o Comprehensive CofA
 Advantage?
•Application submission
o Submit completed application to MOE Environmental Assessment and
Approvals Branch (EAAB) and local district office
 Along with fee (typically $1000s)
Stages 2 and 3
•Stage 2: Application processing and screening
o MOE screens for completeness
o If complete, MOE sends acknowledgement letter to applicant and posts
proposal on EBR Registry
 Note: EBR posting comes before any MOE deliberation
•Stage 3: Application Assignment
o MOE assigns application to review engineer (may take months)
Stage 4. Application Review
•Review by review engineer to determine compliance with EPA
o Relies heavily on information supplied by applicant
o Other information:
 EBR comments
 Input from local district office re existing pollution or complaints,
site-specific characteristics
32

What if there is no POI limit for the contaminant?
Stage 5. Ministry Decision
•Director’s options
o Issue certificate of approval, s 9(2)
o Impose terms and conditions, s. 9(4)
 E.g. operation and performance of equipment, maintenance of
pollution control devices, monitoring and reporting of emissions,
minimum performance standards
o Alter, revoke or suspend approval, s. 9(5)
o Decision is posted on EBR Registry
Stage 6. Appeal
•Applicant has right to appeal to Environmental Review Tribunal if Director
o Refuses to issue or renew, or cancels CofA
o Imposes terms or conditions
o Alters terms or conditions
•Members of public may apply for leave to appeal to ERT but must show
o Decision patently unreasonable and
o Significant harm to environment likely to result
Other recent developments
•Mandatory monitoring & reporting of key pollutants, 2001
o O. Reg 127/01 under the Ont EPA:
 Monitor & report emissions of 350 contaminants including SO2,
NOx, VOCs, CO, PM; phased in by industry sector
•Coal power phaseout (2007? 2009? 2012? Ever?)
o Lakeview closed 4/05 but deadlines pushed back
Mandatory
emission caps for SO2, NOx
•
o In place for electricity, some smelting since 2002; expanded to 7 large
industry sectors in May 2005 (Reg 194/05) (these are pre-stack (source)
stds, not POI)
o To be ratcheted down progressively in 2010 & 2015
6. Toxic Substances
•What’s gotten into you?
o Canada: Toxic Nation
o What’s in our newly re-elected premier? (Dalton)
o What’s in the average Canadian?
o
http://www.environmentaldefence.ca/toxicnation/home.php
“Cradle to grave”: the toxic chemicals problem
•Rachel Carson, Silent Spring, 1962
33
o Vilified by science & industry but launched modern environmental
movement in US
o Eerily contemporary ring 44 years later
•Only entered policy mainstream in 1980s when character of environmental crisis
reconceptualized (recall Unit 1)
o Silent Spring reprise, 1994 (Al Gore)
 Environmental crisis worse, not better; toxic chemical production
and use way up; law and policy have failed to respond adequately
Briefing # 3
•Regulation of GHGs as CEPA toxic substances
•You are a lawyer in the federal Department of Justice. The Minister of the
Environment, John Baird, has asked you to brief him on what steps would be involved in
regulating greenhouse gases under CEPA 1999, which (if any) of these steps have already
been taken by the current or a previous federal government, what options would be
available for managing greenhouse gases under CEPA 1999, and what the government's
CEPA s. 2 duties to “promote and reinforce enforceable pollution prevention approaches”
and apply a “precautionary approach” would mean for this case.
Federal regulation of toxic substances
•Canadian Environmental Protection Act
o Enacted 1988: A new pollution control paradigm, integrated risk
management
o Dramatically overhauled and expanded in 1999
 Struggle between Commons Environment Committee (Caccia) and
Liberal Government (Stewart)
 Final result: clear improvement, but closer to government’s (and
industry’s) wishes than Committee’s
o Statutory 5-year review began 2005
 Standing Committee on Environment and Sustainable
Development report released May 2007, government response
expected soon, possible bill phase 2008
o See http://www.ec.gc.ca/CEPARegistry
CEPA 99 Five Year Review
•Overall assessment
o Unused Powers to:
 Regulate products containing toxics: never used
 Interim orders regarding potentially dangerous substances: never
used
 Require pollution prevention plans: 7 notices (now 15)
 Virtually eliminate PBiT substances: only 1, superfluous
 Request information: limited use
34
 Why haven’t the powers been used?
o Unmet Objectives
 Can improve it by making more things mandatory & increase
stringency (reference to Pesticide act)
o “..even a cursory examination would suggest that at least some of the basic
objectives of the Act are simply not being met”
o Implication: Major overhaul or minor tune-up?
Notes
- Act is very thorough & powerful framework to regulate toxic substances
o But few have been implemented & of those that are, they haven’t been
tested by the courts
- Keystone of act
o Pollution prevention
o As of report, only 15 notices sent to industry re: pollution, prevention
- Why haven’t powers been used?
o May use other legislation to deal with issues
o Lack of political will
o Underfunding
DSL categorizing & screening
-
Putting time & money towards 2 legally mandated things in act
o Categorizing 23000 listed chemicals in 1985 list (test them) (7yrs time)
o New substance notification
 Evaluating new substances (government has 90 days to respond to
request to use new chemicals, if 90 days pass, chemical
automatically approved)
Key Issues
•Use of the term “toxic”
•Knowledge
•Precaution
•Pollution Prevention
•Virtual Elimination
•Consumer Products
•Other issues
o Public participation (Unit 11)
o Governmental coordination
o Compliance and enforcement (Unit 7)
The word “toxic”
•What does “toxic” mean?
•S. 64 “a substance is toxic if it is entering or may enter the environment in a quantity or
concentration or under conditions that:
a. have or may have an immediate or long-term harmful effect on the
environment…;
35
b. constitute or may constitute a danger to the environment on which life
depends; or
c. constitute or may constitute a danger in Canada to human life or health
-
-
whats the problem
o industry doesn’t like that everything is toxic
o should state at what amount
o ex: CO2, road salt (falls under a or b)
 leaches into water, affects vegetation & water ecosystems
remove the term?
o Has been tried but never went through
o P 47, which relied upon, why substance toxic, & what regulation
management will be used
Knowledge
•Why is it important?
•Do we have adequate knowledge?
o State of the Environment reporting (comprehensive report) p.8
 Last done 1996
 First thing cut by Chretien 90s
 How do you have systemic approach to environment protection
when don’t have knowledge
o Biomonitoring (body burden)
 No study by gov. On body burden
o Existing substances: ancient data
 Info has not been updated in 20 years
o Complex mixtures, subclinical effects and chronic toxicity
 Things other than cancer
 Canada – no current tests
o Sharing information with other governments
•I.E. “it’s bizarre that…the US and governments all over Europe have tested hundreds of
their citizens, and it falls to a Canadian charity to do this”
•Community right to know
o National Pollutants Release Inventory (NPRI)
o http://www.ec.gc.ca/pdb/npri/
 One of the main elements of CEPA 99
 Can look up postal code
 Green house gases excluded
 No effect to track changes, see effects with other data
o Compiles and publicizes releases to land, air & water of 200+ substances
from industrial & transportation facilities that meet reporting thresholds
o Theory: knowledge is power; but
 Reporting thresholds may be too high
 Tracks releases not use
 many pollutants missing (criteria air pollutants only added
recently, GHGs not covered)
36

Inadequate aggregation and analysis
From Knowledge to Precaution
•Who should bear the burden?
PCPA: “the applicant has the burden of persuading the Minister that the health and
environmental risks…are acceptable”
o Advantages and pitfalls of relying on industry?
o Compare EU’s REACH program
o New vs. “existing” substances
 “The 200” high priority DSL substances
 The other 3,800 priority substances
 The remaining 19,000
o Does gov’t have adequate authority to demand information?
Precautionary Principle
•The “story of ozone”
o CFCs solved a serious public health problem
o No one could have predicted their impact on ozone layer
o When discovered, rapid action phased out CFCs
o So what makes the story scary? What’s the lesson?
•Precaution in CEPA 1999
o S. 2: “The Government of Canada shall…exercise its powers in a manner
that…applies the precautionary principle that, where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measures to prevent
environmental degradation”
•Implementing precaution
o Federal buck-passing, lack of leadership
o Solution: Make CEPA more mandatory?
o Mandatory timelines, especially for “The 4,000”?
 disadvantages?
o Mandatory safety margins for vulnerable populations?
o Mandatory protection for vulnerable ecosystems?
Pollution Prevention
•The cornerstone of the Act?
o Government duty to promote & reinforce “enforceable P2 approaches” s.
2 (What is P2?)
o Main approach for dealing with new toxics
o Implementation: the government
 May require P2 plans, s. 56 (15 notices so far)
 No way to assess performance
 Must issue P2 guidelines etc., s. 54
 P2 planning guidelines issued Feb 2001
37

Must prioritize P2 in developing regulations for toxic substances,
s. 90(1.1)
 May make regs respecting P2 for government operations, federal
or aboriginal lands, s. 209
o Inadequate emphasis on substitution?
Virtual Elimination
•Mandatory for persistent, bioaccumulative, man-made toxics, s. 77(4)
o Theory: incremental reduction to zero discharge
o What does VE mean in CEPA 1999?
 Reduction below lowest measurable concentration
 Does it require total phase-out?
 See ss. 65, 65.1
o I.E.“this section can only be described as an abject failure”. Why?
o Status:
 Ministers must compile Virtual Elimination List
 In mid 1990s identified 13 candidate chemicals
 How many chemicals are on the list?
 What’s the problem?
 What’s the solution?
A closer look at CEPA 1999
•Purposes
•Duties
•Scope of coverage
•Control of Toxic Substances
o Step by step overview of process
o Overview of options for managing substances determined to be toxic
Purposes and principles
•Purposes (preamble)
o New in 1999: litany of trendy environmental slogans
•Government Duties (s. 2)
o Apply precautionary approach
o Promote enforceable pollution prevention
o Implement ecosystem approach
o Consider costs and benefits of proposed measures
CEPA, 1999
•What does it cover? (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, haz waste, transboundary pollution)
38
o New 1999: virtual elimination, precaution, pollution prevention planning,
public participation (incl. citizen suit), biotech, endocrine disruptors…
Control of Toxic Substances
•CEPA 1999, Part 5
•Two-track approach (in theory):
o Track 1: virtual elimination of the worst substances (anthropogenic,
inherently toxic, persistent and bioaccumulative)
o Track 2: “life-cycle management” to prevent or minimize release of all the
rest
•Regulatory process:
o Risk assessment (determining whether “toxic”)
o Risk management (taking steps to regulate toxic substances)
 This is the litmus test: what is actually done to regulate toxic
substances?
1. Is it “Toxic”?
•Basic trigger for regulation (recall Hydro-Quebec)
o Is the substance “toxic,” i.e., entering or may enter the environment in
quantity, concentration or under conditions that
 have a harmful effect on the environment
 constitute a danger to the environment on which life depends
 constitute a danger to human life or health (s. 64)
•How are substances determined to be toxic?
o Priority substances list assessments
o Domestic substances list categorization & screening
PSL Assessments
•Priority Substances Assessment (s. 76)
o The ministers must must compile a priority substances list for assessment
(content discretionary), s. 76
 Two rounds so far: PSL 1 (1989), PSL 2 (1995)
o No mandatory timeframe, but right to require assessment after 5 years on
list, s. 78
o Long delays in completing assessments; many PSL substances are not
monitored by the government
 Assessments of 3 of 44 substances on PSL 1 still incomplete after
17 years; assessments of 2 of 25 PSL 2 substances still incomplete
after 11 years
DSL Categorization
•DSL Categorization and Screening
o To force quicker assessment of existing chemicals
o CEPA 1999 gave government 7 years to identify all substances on the
Domestic Substances List (23,000 chemicals known to exist in Canada in
39
1986) that are persistent or bioaccumulative and inherently toxic, or pose
widespread exposure risk, s. 73(1)
 Completed Sept 2006 (approx. 4000 chemicals identified for
further study )
 Gov’t identified 200 “high priority” substances Dec. 2007, to be
placed on TSL unless industry demonstrates need for further study
 Government must now conduct screening assessments of all 4000
substances (no mandatory timeframe), s. 74
2. If it’s toxic, then what?
•When assessment complete, government must propose either
o no further action, (b) add to PSL (for further in-depth assessment) or (c)
add to Schedule 1, Toxic Substances List
 Schedule 1 listing mandatory where substance may have long-term
effect on environment and is persistent, bioaccumulative,
inherently toxic and anthropogenic
o If Ministers propose adding a persistent, bioaccumulative & anthropogenic
substance to TSL, must also propose “virtual elimination”
Managing toxic substances
•The crux of the matter
o First, add substance to TSL, s. 90(1)
 Current list: 79 substances,
http://www.ec.gc.ca/CEPARegistry/subs_list/Toxicupdate.cfm
o Then decide how to manage it
40



Environment Canada, Management of Toxic Substances web site,
http://www.ec.gc.ca/toxics/en/index.cfm
In theory regulations may cover a broad scope, ss. 93, 94
 Including wide range of mandatory controls and bans
In practice, preference for non-regulatory approach (voluntary
agreements, guidelines, P2 plans)
Regulations
•Of 79 listed substances, ~12 regulations
•May be substance-specific (eg PCBs) or substance-medium-sector specific (eg
lead smelter air emissions)
•Types of controls:
o Max concentration in releases or products (eg benzene in gas),
production/import caps (eg CFCs), permitted uses (eg HCFCs), 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 & furans; led to significant
process modifications, 90% reduction in releases
 But the subject of recent CEC investigation
o Some substances banned altogether (Prohibited Substances List)
•For substance by substance details, see
o http://www.ec.gc.ca/TOXICS/EN/mainlist.cfm?par_actn=s2
7. Nature Conservation
i.
Biodiversity Conservation: Issues and Concepts

The variety of life
o Ecosystem, species & genetic diversity
o 1.75m species identified of estimated total of 5-100m
Biodiversity loss:
o 5 mass extinctions in geological record (last 65 mya), 6th in progress
o Current extinction rate 100-10,000 x background rate
o 1 in 4 mammal & 1 in 8 bird species critically endangered
o Canada: numerous ecosystems on verge of disappearing; 400+ listed
species at risk; 100s of salmon runs extirpated

Biodiversity


Why is biodiversity loss a problem?
o Moral right to exist?
o Ecological services?
o Human uses?
Biodiversity protection law takes 3 typical forms
o Parks and Protected Areas law (Unit 13.2)
41
o Endangered Species law (Unit 13.3)
o Marine Biodiversity law (not covered)
ii.


Parks and Protected Areas
A recent, North American invention
Yellowstone, 1872; Banff 1885
Current Picture in Canada

11% of total land area designated as some kind of park
o 42 national parks (up from 39 in 2003), 2 national marine conservation
areas, 1000s provincial parks, ecological reserves & conservation areas
o 4% federal (national parks, national wildlife areas, migratory bird
sanctuaries)
o 7% provincial (provincial parks, wildlife management areas, ecological
reserves, conservation areas etc.)
o But <8% of total land area meets international definition of protected area
(no resource extraction or hydroelectric generation allowed)
Key Issues





Purposes and permitted uses of parks
Who pays to create parks, and how much?
Number, size, shape and location of parks
(More) threats to parks
o Extractive activity in parks
o Extractive and polluting activity outside parks
o Other threats
Parks vs. people
o Big issue in developing world; not taken up here
Purposes and uses of parks

Ambiguous & conflicting purposes
o One of several key features of parks law
o Range from recreation, tourism and education to spiritual value, cultural
heritage, ecosystem protection for human benefit, and intrinsic
preservation
o Main tension: Parks as playgrounds vs. parks as wilderness sanctuaries
 E.g. Canada National Parks Act:
 National parks are “dedicated to the people of Canada for their
benefit, education and enjoyment, … and shall be maintained and
made use of so as to leave them unimpaired for the enjoyment of
future generations” - Canada National Parks Act (2000), s 4(1)
Conflicting purposes

Parks as playgrounds (tourism, recreation)
42

o Rationale for first national park, Banff: from 0.5m to 20m annual visitors
1947-1998
 Roads, cars, towns, facilities, sewage, garbage, ski hills, golf
courses = habitat loss, wildlife decline, water pollution
 Excessive recreational development in national parks first
successfully challenged in 1996 (Sunshine Village case)
Parks as wilderness sanctuaries (conservation)
o Federal government slow to designate wilderness areas even with new
statutory timelines
o Provincial ecological reserves cover 0.2%
o Contrast: 5% of US designated wilderness
Resolving conflicting purposes


Typically resolved by park zoning
o National parks are divided into zones:
 Most is special preservation or wilderness (primitive or no
facilities, no motors)
 Rest is “natural environment” (motors ok), recreation, or park
facilities (resorts, towns, etc.)
 Fact: 90%+ visitors never venture more than 1 km off road system
More recently, legislation specifies “ecological integrity” as first priority
o New National Parks Act, new Ontario act
 Nova Scotia, Quebec, PEI, Newfoundland & Labrador also
legislate conservation as top priority
Ecological integrity

Local First Nations and non-aboriginal groups propose 118 km winter road on an
abandoned allowance through Wood Buffalo National Park, Canada’s largest
national park, World Heritage site, a largely intact boreal plains ecosystem with
world’s largest bison herd, unique karst landscape, wildlife habitat, aboriginal
inhabitants. Parks Canada conducts EA, concludes no significant adverse effects
likely, approves road.
Wood Buffalo Park winter road dispute (CPAWS v. Canada)

Facts
o Largest national park in Canada
o Since 1958, area had been cleared of trees w/ intention of road, so not only
2nd growth forests
o 1992 – clearing for snowmobiles abandoned
 What was the purpose of new road?
 Economic development
 What were the expected impacts?
 EA – would not give that much adverse impacts
o Permanent loss of vegetation
 FN impacts
43


o W/in 200m buffer zone of road, no hunting (ends up
23km square cant hunt)
The first lawsuit: CPAWS v. Canada, FCTD 2001
o Issue -What does it mean to give ecological integrity “first priority”?
“Maintenance or restoration of ecological integrity…shall be the first priority of
the Minister when considering all aspects of” park management -- CNPA, 2000,
s.8(2)
o Did Minister do so?
 Should first priority mean determinative factor
o Could Minister approve road for “non-park management purposes”?
Federal Court of Appeal (per Evans J.)
 It was not patently unreasonable for Minister
o To decide that approving road was compatible with giving ecological
integrity first priority
o Not to refer explicity to “ecological integrity” in decision process
o To approve project designed to reduce isolation of local residents rather
than for typical park purposes
 Not court’s role to consider whether too much weight given to
social and economic factors
 Once Minister decided to approve road, “park management purposes” expanded
to include whatever was necessary to implement decision
Judge Evans talking
- Fee vs taxes
o Fees allowed if attached to a regulation
 Fee licences used to maintain Jasper Park & allowed to charge less
to use park
- Does client have standing to sue?
o Applicants were an NGO no more injured than anyone else
o Actively engaged in environment issues & in negotiations
- Judgements
o Restrained by facts of the case before them & usually to arguments
submitted (usually judges not creating new arguments)
1. Was there a breach of procedural fairness
- Should government give P an opportunity to raise issue & submit arguments
- Same as duty to consult for aboriginals
- Bias – would reasonable person think decision maker would be biased in making
decision
-
2. Did decision maker commit a mistake of fact, abuse of discretion –
Substantive grounds for Review
By what standard to decide if error of law
Correctness – what is correct answer
44
-
Court will only intervene if court satisfied that it was patentably unreasonable
based on facts before them
Facts
- Road was 118 km long & 10m wide
o Represents less than 1% of total park
- Road to be made with compacted snow & ice
- One community 7-10 cabins – extremely isolated
- Winter road
o Not to be used by commercial vehicles
o Likely 20-30 cars per day
CPAWS argument
- Minister had no right to approve a road that didn’t have purpose to manage park
Court
- Implicit powers to minister wrt control & maintenance of the park
- the road is for benefit of FN in the park
- the approval of park was to reduce isolation of communities & greater access to
resources
- people were part of the ecosystem in the park
- most appropriate review mechanism is patenably unreasonable
o applicant had to prove this
o this is a most deferential standard
- the Minister had to decide on a policy question, had competing interests so court
give deference to these decisions
- if was a Minister who made decision, who is accountable to Parliament, decision
would receive close scrutiny from Parliament
- was a broad power subject to
o activities in park don’t harm it for future generations
What does first priority mean
- its not the only factor that should be considered, should not be determinative
- it should however be a priority that is given significant attention to
o very considerable weight
What Diff between ecological integrity vs Adverse effects
- you look at same factors
- different is ecological integrity is a higher standard to meet
- cars would bring in seeks of flora that would invade parts of ecosystems
(ex:weeds)
The end of the road?…

The second lawsuit: Mikisew Cree (SCC 2005)
o Did approval violate the Mikisew’s treaty rights?
 Issue with process; gov failed its duty to consult
 What is the Treaty 8 right?
 What is the “taking up” exception?
 What was the alleged violation?
45


Did the government have a duty to consult?
 What triggers the duty?
 What does the duty entail?
Did the federal government fulfill it in this case?
 Did the 1899 Treaty 8 negotiations fulfill it?
 Did the winter road consultation process fulfill it?
 What was the outcome of the case?
Ecological Integrity /con.

See Parks Canada’s “Ecological Integrity” page,

http://www.pc.gc.ca/progs/np-pn/eco_integ/index_e.asp
Who pays, and how much?



Land acquisition expensive if title not already held by relevant government
o National park creation harder since feds transferred western public lands
to provinces in 1930s
Compensating holders of resource rights inside proposed parks expensive
Teners hold a Crown grant of title to subsurface minerals and right to use surface
land to extract them. The provincial government includes the land in a new
provincial park and prohibits Teners from mining. Are they entitled to
compensation?
R. v. Tener





What is expropriation?
o Compulsory acquisition of private property by Crown
 Two elements: Taking (diminution) of private property and
corresponding acquisition (enhancement) of public property
o Was there an expropriation here?
o What was taken from Teners, what was acquired by Crown?
o Compare zoning or use restrictions on private land (eg Mariner)
May there be expropriation without compensation?
Yes, if statute governing the taking clearly says so
o Unless the owner is a US or Mexican investor (NAFTA Ch. 11)
o ``unless words of the statute clearly so demand, a statute is not to be
construed so as to take away the property of a subject without
compensation” (De Keyser’s, JCPC 1920)
What is the measure of compensation?
o Full market value of lost interest before expropriation, including future
revenue.
What do you think happened after the lawsuit?
o Teners’ claim area rezoned recreational, mining permitted
 Cheaper than compensating them for lost value
Number, size, shape & location

What’s the goal?
o Representative islands in a sea of development?
46
 If so, Canada is close to meeting its goal (39 ecozones)
o Effective biodiversity conservation?
 If so, Canada’s parks are too few, too small, too isolated
 Island effects, arbitrary boundaries, failure to encompass
viable resident populations
 Would need to protect 25-75% of land area, including parks, buffer
zones and connection corridors
 This would be far beyond the international target and Canada’s
domestic commitment to protecting 12% of land area against
development, extractive activity
 Which Canada is far from meeting anyway (<8%)
(More) threats to parks






Key threat: extractive activity
o Mining, oil & gas, logging, hunting, fishing)
o Proceeded on large scale in national parks until recently, now illegal; but
still common in provincial parks
External threats
o destruction (movement corridors, etc.), acid rain, dams and diversions,
pollution
Shrinkage and “mobile parks”
Excessive administrative discretion
Lack of transparency and accountability
o Park management plans, public participation, “state of the parks” reporting
Inadequate resources
Current Developments


iii.

Ontario’s new Provincial Parks and Conservation Reserves Act
replacing 50 year old Provincial Parks Act
o Key strengths?
 Ecological integrity = first priority
 Industrial activity banned in all parks and CRs (except…?)
 Enhanced accountability (state of the parks reporting)
o Outstanding concerns? (Ontario Nature, CPAWS)
 Ecological integrity inadequately reflected in regulations
 Logging still allowed in Algonquin
 Motorized access still allowed in many places
 Cabinet may shrink park boundaries
 No “Good Neighbour” clause re external activities
 Inadequate aboriginal consultation
Endangered Species
Protected areas are geographically limited
o How to protect biodiversity in wider ecosystems?
o Threats to non-human species
47


Human consumption captures >40% of Earth’s net primary
productivity (living matter produced by photosynthesis)
 Habitat loss, direct exploitation and pollution threaten countless
species
History of endangered species laws
o Early efforts were piecemeal, eg Canada-US Migratory Birds
Convention (1916)
o Comprehensive ES legislation began with US Endangered Species Act,
1967/73
o As controversial as it is stringent
o Early 70s: Ont & NB passed own basic ES laws
 Discretionary listing, prohibition only of “willful” harm
o Mid 70s: Canada ratified Convention on International Trade in
Endangered Species
o Late 70s: feds established fed/ prov/ territorial Committee on the Status
of Endangered Wildlife in Canada (COSEWIC) to identify ES
o 1992: Canada was first OECD country to ratify the UN Convention on
Biological Diversity
 Requires parties to develop necessary legislation for the protection
of threatened species
 Feds took position no federal law required
o 1996: Fed, prov & terr govts sign National Accord on the Protection of
Species at Risk

http://www.speciesatrisk.gc.ca/recovery/accord_e.cfm

Commitment to establish complementary laws and programs to
protect ES throughout Canada, based on 15 modest principles
o December 2002: Caving to intense pressure, feds enact Species at Risk
Act
o Today: 10 of 14 provinces and territories have stand-alone ES legislation
 2007: Ontario enacted strong new ESA,
modelled on NS ESA
and SARA
Evaluating ES laws
5 key elements/evaluative criteria
1. Independent, scientific listing of endangered & threatened species
2. Prohibition of harm to members of listed species
 Exceptions only if recovery or survival not jeopardized
3. Designation and protection of critical habitat
 Mandatory, time-limited, scientific + prohibition of harm
4. Recovery plans
a. Mandatory, time-limited development and implementation
5. Effective enforcement (incentives and penalties)
 Other issues:
o Scope of coverage: All wild species everywhere?
o Information and Transparency
48
Briefing #8
Woodland caribou inhabit large tracts of intact forest throughout the boreal region. They
are increasingly threatened by human activity. To protect them would be to protect
Ontario’s remaining boreal forest intact. The Wildlands League would like to know
whether they can use federal and Ontario endangered species legislation to achieve this
goal.
8. Environmental Impact Assessment
What is Environmental Impact Assessment?
“Environmental impact assessment is, in its simplest form, a planning tool that is now
generally regarded as an integral component of sound decision-making…. ‘The basic
concepts…are simply stated: (1) early identification and evaluation of all potential
environmental consequences of a proposed undertaking; (2) decision making that both
guarantees the adequacy of this process and reconciles…the proponent’s development
desires with environmental protection and preservation’” - Oldman River
 Evaluation of environmental impacts of a proposed project or policy
o Process of collecting, analyzing, and publishing environmental
information to assist decision-making
o Theory: EIA will improve quality of public debate and government
decisions about new developments by
 Generating information about environmental costs & benefits
 Ensuring proposals are open to public scrutiny
o Conducted by proponent or government with varying degrees of public
transparency and participation
o Output: an environmental statement or report
o Result: dictates process but not particular outcomes
 Odd variety of command regulation
History of EIA (skim)


Introduced in US in 1969 (NEPA)
o From start taken seriously by US courts
o Similar result not reached in Canada until 1989
Quickly spread worldwide
o Almost all developed countries have mandatory EIA requirements
o Numerous multilateral agreements encourage it (esp. Espoo Convention)
o Many developing countries following suit under pressure from
international development banks and aid agencies
EIA in Canada

Federal government chose policy over law
o Cabinet EA policy introduced 1973; widely ignored
o Canada earned reputation as EA leader in 1970s with Berger Inquiry into
proposed Mackenzie Valley pipeline:
49
o Conducted before irrevocable decisions made; extensive public
consultation; aboriginal knowledge, autonomy and opposition must be
respected, land claims resolved; environment is irreplaceable; consider
cumulative impacts; some areas require total preservation; serious
knowledge gaps demand precautionary ethic
o Result: 10 year moratorium, most First Nations now want pipeline






Feds introduced Environmental Assessment and Review Process Guidelines
Order 1984
o Required EA of all proposals involving federal decision-making
responsibility but understood as non-binding, routinely ignored
Refused to enact EA law until forced by courts
o 1989: to feds’ surprise, Fed Court held EARPGO legally binding, quashed
licence for Rafferty & Alameda dams in Saskatchewan
 Supreme Court agreed in 1992 in Oldman River dam case
 Stiffened federal spines
 Increased accountability of federal approvals processes
 Made Federal Court a key forum for environmental litigation
 Led to passage of CEAA in 1992
Canadian Environmental Assessment Act enacted 1992, in force 1995
o Requires self-directed assessment of projects by responsible federal
authority
 No independent oversight
o 5-year review led to substantial amendments, 2003
All provinces have own binding EA laws
Feds and provinces signed agreement to harmonize EA requirements, 1998
In sum: Is Canada a leader or laggard?
o Virtually everyone outside gov’t is critical -- industry, environmentalists,
First Nations
Key issues regarding EA








What should trigger an EA?
At what stage in a project should EA occur?
What should be the scope of an EA?
o Should EA consider the need for and alternatives to the proposed project?
o How should cumulative effects of current and future projects be
considered?
o Should EA apply only to ‘projects’ or to proposed policies and plans
(“Strategic EA”)?
How should ‘significance’ be determined?
How should adverse effects be mitigated?
What role should the public play in EA?
Should EA apply to public or private sector?
Should EA findings be binding on decision makers?
o Our focus: Evaluation of the federal environmental assessment framework
under the Canadian Environmental Assessment Act
50
o GEQ –Boyd suggests evaluative criteria, 149-150
Note: Forms of EA

CEAA contemplates four forms of EA:
o Screenings (over 95% of EAs, 25,000 from 1995-2000)
 responsible authority conducts study, often relying on proponent;
public comment discretionary
 Lowest level of scrutiny
 either project-specific or covering entire class of projects
o Comprehensive studies (<5%, 46 from 1995-2000)
 Medium scrutiny; required only for projects listed in regulations;
some public consultation mandatory
o Panel reviews (<1%, 10 from 1995-2000)
 Maximum scrutiny, full public hearings
o Mediation
 Alternative to panel review
Triggers and timing: overview

When will the requirement to conduct an EA be triggered?
o What government actions trigger an EA?
o What ‘projects’ are subject to an EA?
o At what stage in decision process should EA be conducted?
o Sidebar: should EA apply to activities outside Canada?
What actions trigger an EA?

Basic trigger provision: s. 5(1)
o An EA of a project is required before any ‘federal authority’:
a) does anything committing itself to the project, where it is the
proponent
b) provides financial assistance to the proponent
c) leases or disposes of federal land for the project, or
d) issues an approval, licence or other decision enabling the
project to go ahead, under any of the dozens of legal provisions
designated in the “Law List Regulations” - Most common
o Decision-driven, not proponent-driven
 Since trigger driven by fed gov. Decision making
 May mean requirements for EA be triggered late in project
process
o Who or what is a ‘federal authority’?
 Ministers (clearly)
 Agencies, departments
 Departmental corporations
 Any other bodies that are designated
o Who is not included
 Band councils
 Territorial legislations (Nunavut, Yukon, NWT)
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
Crown corporations
 2003 amendment so sort of covered by this (but most not)
Federal approvals


Most common trigger: decision under “Law List” Regulations, s. 5(1)(d)
E.g. approvals under
o Fish habitat provisions of Fisheries Act
o Navigable Waters Protection Act
o Or a long list of other federal Acts and Regulations including Aeronautics
Act, Canada National Parks Act, Canada Transportation Act, Canadian
Environmental Protection Act, 1999, Indian Act, Migratory Birds
Convention Act, Nuclear Safety and Control Act, Railway Safety Act,
Ammonium Nitrate Storage Facilities regs, Chlorine Tank Car Unloading
Facilities regs, Mobile PCB Treatment and Destruction regs, and
Dominion Water Power regs
What projects trigger an EA?
What is a “project”? (s. 2)
(a) any proposed construction, operation, modification, decommissioning,
abandonment or other undertaking in relation to a physical work
(b) any physical activity not relating to a physical work, designated in the
Inclusion List Regulations
- Problem: “physical work” not defined -- eg gravel extraction, golf course or ski
hill expansion; which category do they fall into?
- built structures usually refer to “physical work” ex – ski hill – can be physical
work due to ski lift
Timing of EA

When should EA occur?
o Tension: Before alternatives are foreclosed vs. after complete information
is available about project and its effects
o What does the Act require?
o s. 11(1): “the federal authority … shall ensure that the environmental
assessment is conducted as early as practicable in the planning stages
of the project and before irrevocable decisions are made”
Timing – Hamilton –Wentworth v Canada
Over more than 30 years starting in the late 50s, Hamilton-Wentworth took steps to
create a north-south expressway connecting Hwy 403 and the QEW, including official
plan amendments, zoning changes, expropriations, demolition, and financing. A
provincial environmental assessment approved the project in 1985. Ground was broken
in 1990. Two segments of the highway were completed in the 90s. In 1996 the federal
DFO began a federal EA of the last segment, along the Red Hill Creek. The highway
would damage or destroy rare species habitat, significant wetlands and a primary wildlife
52
corridor. The Region went to court to stop the EA. Hamilton-Wentworth v. Canada (FC
2001)
Scope of the EA: 2 issues


Scope of the project:
o Which activities/operations are included in the project?
 s. 15 (1) RA(responsible authority) determines scope of project
 (2) RA may determine that 2 projects are so closely related that
they can be considered a single project
Scope of the assessment:
o Which activities/operations must be included in EA aside from the project
itself?
 15(3) RA must assess environmental impacts of “every
construction, operation, modification, … or other undertaking in
relation to the physical work” that is “likely to be carried out”
The Sunpine case



Sunpine proposes major expansion of logging in Alberta Rockies, a new logging
road and 2 bridges to transport logs to its mill. Alberta approves the road.
Sunpine applies for federal approval of the bridges, triggering federal EAs
(Friends of the West Country, Fed. C.A. 1999)
Feds involved since 2 bridges trigger federal EA since affects navigable waters
act
At same time coast guard had authority to decide
o Issue - Should logging roads & forestry operations be included in EA of
logging road bridges? What has to be included in scope of analysis?
 How did the Coast Guard “scope” the project?
 The project is the “bridges”, each bridge is separate project
 Trial judge held that the road and logging operations must be
included as undertakings “in relation to” the bridges
 Friends appealed to Federal CA
Sunpine reasoning


Scoping the project, s. 15(1)
o 15(1) gives RA discretion to determine scope of project; no error to
exclude road and forestry ops
o No reviewable recourse to RA discretionary decision
Scoping the assessment, s. 15(3)
o What did the trial judge say?
 15(3) incorporates an “independent utility test”: might proponent
reasonably construct the bridges alone?
 Shall – mandatory duty (no discretion)
 Any activities or undertakings that are functionally integral
to the project “independent utility test’
 Only way to exclude it if you can reasonably say proponent
would have built the bridge without the road
53
o What did the Fed CA say?
 Does 15(3) expand the scope beyond s. 15(1)?
 Only look at factors that relate to the physical life cycle of
the project (ex – bridge –construction, people, heavy
trucks)
 If you interpret s.15(3) as wide application if would
render s. 16 (cumulative effects) redundant
 Does it incorporate the “independent utility” test?
 What does “undertakings in relation to” the physical work mean?
 Do the mainline road and logging operations qualify?
 If not, what does?
Other scoping scenarios



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Should EA of addition of 7 storey meeting facility to Chateau Lake Louise
include hotel’s long range expansion plan? (Bow Valley Naturalists, FCA 2001)
Should EA of winter road through national park include proposed conversion to
all season road? (CPAWS v. Canada, FCTD 2001)
Should EA of Quebec’s contract to export electricity to NY & VT include future
James Bay hydro projects anticipated to fulfill export contract? (Que. v. Can, SCC
1994)
o SCC – we can put in K that EA of future project is required
o Que lost
Should EA of Voiseys Bay nickel smelter/refinery project include proposed
mine/mill 1000 km away ? (Citizens’ Mining Council, FCTD 1999)
o Smelter in nfld was not an undertaking (nfld gov had wanted inco to do
this)
Cumulative effects etcetera





CEAA, Section 16
Every EA must consider
(a) Environmental effects, including cumulative effects
(b) Significance of the effects
(c) Public comments received
(d) Mitigation measures
Every CS (comprehensive study) or panel review must also consider
o The purpose of the project, alternative means for carrying it out, follow-up
programs, sustainability of renewable resources
Every EA may consider
o Any other relevant matter such as need for project and alternatives to
project
o Community knowledge and aboriginal traditional knowledge
Who decides scope of factors to be considered?
Cumulative effects - Sunpine
54



Every EA must consider the cumulative environmental effects likely to result
from the project in combination with other projects or activities that have been or
will be carried out, s. 16(1)(a)
In Sunpine, the Coast Guard limited the cumulative effects analysis to in-river
effects of bridges; refused to consider road and logging operations because
outside scope of project and federal jurisdiction. Was this ok?
What is the nature of the s. 16 duty?
o RA must consider each s. 16(1) factor, but has discretion to determine
scope of factors to be considered, including what to consider under
cumulative effects analysis
 S. 16(3) – responsible authority has discretion to determine factors
in cumulative effects
o May RA exclude mainline road and logging ops?
o So how did the Friends win?
 Because Coast guard ignored other factors because outside Fed
Jurisdiction
 This was the reviewable error
 But this doesn’t mean they now have to include the factor,
just have to show they considered it & rejected it
Other cumulative effects scenarios



Must EA of Chateau Lake Louise expansion consider cumulative effects of 3rd
party developments likely to follow the project but for which no specific
proposals have yet been made? (Bow Valley Naturalists)
Held: RA need not consider “fanciful projects by imagined parties producing
purely hypothetical effects”
Demonstrates limits of project-based EA
Strategic EA

Another way to address cumulative effects
o Should EA be limited to discrete projects or extended to broader plans,
programs and policies?
o Strategic EA = EA of proposed government plans, policies, programs in
context of which individual projects arise
o Required in EU, US, Ontario (seldom done in latter 2)
o Conscious decision to exclude it from CEAA
 Non-binding Cabinet policy introduced 1990, renewed 1999
 General, vague, discretionary
 Developed and implemented secretly, seldom used
 No change in latest overhaul of CEAA
Significance and Mitigation


Once all environmental effects are identified:
o RA must determine whether, considering implementation of mitigation
measures, any significant adverse environmental effects are likely
Significance: lack of clear guidelines
55

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 CS or panel
review
Consideration of alternatives

Should an EA consider:
o Alternative means to carry out the project (e.g. single- vs. dual-span
bridge)? Alternative projects that would achieve same goal (e.g. solar vs.
nuclear)? Whether there is a need for the project at all (e.g. reduce
consumption)?
o What does the CEAA say?
 RA may consider “need for project” and “alternatives to the
project” (16(1)(e))
 Alternatives to projects don’t have to be considered
 Ex bridge vs ferry (did not have to be considered)
 Comprehensive study and panel review must consider “alternative
means of carrying out the project” (16(2))
 What’s the difference between ‘alternative means’ and
‘alternatives to the project’? What are the proponent’s incentives?
o Is choice of bridge, tunnel or ferry to PEI an alternative “means” or
“alternative to the project”?
Public Participation


Is public notice required?
o Does CEAA require EA files to be publicly accessible?
 Mandatory req - RA must establish registry with “convenient
public access,” s. 55
 In Sunpine, RA established registry 3200km away in Sarnia,
provided some copies locally, suggested FOI requests for others.
Did this comply with the Act?
 Fed. CA: Completely inappropriate & patently unreasonable
 Result: CEA Agency established web-based EA registry
o Do files have to be posted on the Web?
 Web-based registry mandatory since 2003. Maintained by
Agency, not RA
 Purpose: facilitate public access to records and give timely public
notice of assessments
Is public consultation required?
o Project screenings: at RA’s discretion (s 18)
o “Class” screenings: Agency must solicit, consider and publish public
comments on Registry (s 19)
o Comprehensive studies
56

RA must ensure public consultation re scope of project, factors to
be considered and ability of CS to address issues relating to the
project (s 21)
 Must ensure public opportunity to participate if Minister refers
project back to RA to continue CS (s 21.2)
 Public may comment on CS report (s 22)
 Minister may require further action to address public concerns (s
23)
o Public Panel Reviews: yes, defining feature
Role of Public - Panel reviews


Hearings must be public, and must afford public opportunity to participate, but
may be secret it disclosure would harm witness or the environment (ss 34-35)
But: no public role in selecting panel or setting terms; time limits for hearings and
questioning witnesses often very short
Binding or non-binding?

What are RA’s options when all is said and done?
o If, considering implementation of mitigation measures, project not likely
to cause significant adverse environmental effects, or likely to cause
SAEE that can be justified, RA may allow project to proceed
o If, considering implementation of mitigation measures, project likely to
cause SAEE that can’t be justified, RA shall not allow project to proceed
and all other federal authorities are prohibited from allowing it to proceed
 (Section 37)
o So: are the findings of a screening, comprehensive study or panel review
binding on the decision-maker?
 can project with harm be justified
Last words


“Environmental assessment is potentially the most powerful tool in the hands of
governments, citizens and the private sector to protect the environment and
achieve sustainable development. It provokes all of us to understand how
proposed development projects and government policies can damage the
environment, and how such damage can be mitigated or avoided.” Stephen
Hazell, ED, Sierra Club of Canada
“Environmental assessment has become a cynical, irrational and highly
discretionary process in Canada. What should be a coherent democratic filter for
ensuring that ecological and economic follies do not destroy the country’s natural
riches or burden taxpayers…has become a labyrinth of political intrigue,
bureaucratic vagueness and legal wrangling that neither saves money nor
guarantees prudent resource use.” Andrew Nikiforuk, journalist
57
9. Environmental Compliance and Enforcement
Overview
•Definitions, trends and strategies
•The “traditional” approach to compliance and enforcement
o Focus: Air pollution violations under the Ontario Environmental
Protection Act
o Sidebar: Is pollution a crime?
•Innovations in environmental enforcement
o Targeted enforcement (environmental SWAT team)
o On the spot fines (“environmental penalties”)
o Creative sentencing (eg EMS orders)
o Self-reporting
o Shaming
1. Definitions, trends, and strategies
•Definitions: what are compliance and enforcement?
o Compliance = the END: observation of a rule or standard imposed by law
o Enforcement = the MEANS to this end: any action taken to identify or
respond to non-compliance, or promote compliance
 Investigation, prosecution, orders, etc.
 Consultation, education, technical assistance, rewards for
voluntary action, etc
What determines whether a person complies with the law?
•Knowledge or ignorance of rules
•Ability to comply
o Financial/human resources, management systems
•Expected costs and benefits
o Including risk of being caught and punished, and expected magnitude of
penalty (deterrence)
•Perceived legitimacy of rules
•Organizational culture & incentives
o Habit, routine, reward, ethical commitment, etc.
•Social conventions, peer pressure
Does enforcement matter?
•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
 The motivation to enforce laws effectively, and
 A sufficient variety of enforcement tools to target responses to the
circumstances.
58
Trends in OECD countries
•Non-compliance is (increasingly?) common
o Widespread and increasing in some places or sectors
•Dramatic budget cuts in 1980s & 90s
o Corresponding drop in enforcement
o “Chasm” between law on books and law in action
•Canada:
o Widely criticized for inadequate implementation and enforcement (Boyd
237-39)
o Causes? (Boyd 239-45)
 Downsizing (federal and provincial budget cuts)
 Downloading (to provinces, towns and third parties)
 Excessive reliance on voluntary action
Trends in Ontario
•Air and water pollution violations
o Sources of data:
 1994-2001: SLDF, Cracking Down on Polluters

2001-2005: MOE Environmental Compliance Reports,
http://www.ene.gov.on.ca/envision/compliance/compliance.htm
o What are the trends in compliance (violations)?
 Air: how much do we know about actual compliance levels?
 2001: MOE reported 203 air violations from 27 facilities,
but SLDF estimated >1000 violations from 43 facilities
o What are the trends in enforcement?
o What do you think might account for these trends?
Unfortunate coincidences
•Ontario’s ‘Dirty Dozen’ (SLDF report, 6-7)
o #2 wastewater violator: Stepan Canada
 Global manufacturer of specialty chemicals (esp surfactants)
 Orillia plant had 301 wastewater violations in 2001, in violation
continuously 1998-2002
 ‘At Stepan, protecting people and the environment is part of
everything we do and every decision that is made’
Public (non-)disclosure
•From transparency to secrecy and back
o Before 1995, violations data released annually
o Harris government suspended detailed reporting in 1995
o SLDF (Elaine MacDonald, scientist) waged long battle for transparency
 Government resisted (eg. $20k bill for 1996 data), released partial
info, eventually bowed to pressure, reinstating reports in 2002
 Environmental Compliance Reports include data for 2001 forward
 Step in right direction, but
59


1996-1999 still missing,
2000-forward data still incomplete (esp. re air violations)
Strategies
•Brainstorm: what are the elements of an effective compliance and enforcement strategy?
o Political commitment
o Public enforcement and compliance policy
 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 (eg CEPA 1999 policy)
o Internal (non-public) enforcement and compliance strategy
 Typical considerations: compliance capacity; priority targets; role
of public; enforcement and compliance costs, degree of reliance on
industry
o Monitoring, reporting and inspection
o Independent enforcement branch?
o Clear, binding legal standards
o Incentives and disincentives (credible threat)
o Array of alternative sanctions and penalties
 Eg orders, fines/prison, administrative penalties, negotiated
compliance plans, shaming
o Evaluation process
•How do you measure success?
o Enforcement stats? Compliance stats? Environmental effectiveness
indicators?
•Adversarial vs cooperative approach
o Adversarial: emphasis on formal sanctions
o Cooperative: emphasis on bargaining, consensus
o 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
o The “traditional” enforcement model in Canada is a combination of quasicriminal sanctions (last resort) and voluntarism (the norm)
2. The “traditional” approach
•Formal orders and sanctions (in theory)
o Heavy reliance on negotiation & voluntarism in practice, but we will focus
on formal enforcement
o Formal enforcement  reserved for multiple repeat offenders, large
environmental consequences need to be evidenced before they are used
•Limited menu of enforcement tools
60
 Pollution abatement: administrative orders
 Sanctions: prosecution, fines and imprisonment
•Focus: Ontario Environmental Protection Act
A. Abatement Orders
- to bring pollution under control
•Directors’ orders
o Control orders
 S. 7: Director may issue where inspection finds discharge contrary
to s. 14 (adverse effect) or Regs
 Content: control, stop, monitor, study or report, s. 124
o Emergency stop orders
 S. 8: Director may issue where discharge constitutes immediate
danger to human life, health or property
 Content: stop discharge permanently or for period, s. 128
o Remedial measures (s. 17)
o Preventive measures (s. 18)
 now includes pollution/spill prevention plans
o Main drawbacks:
 inadequate field powers, procedural delays
•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
o Process: NO EBR posting; order may be issued on spot; 7 day “appeal”
period, thereafter automatically confirmed
 Popular at MOE, unpopular with industry
B. Sanctions: prosecution, fines and imprisonment
•It is an offence:
To contravene Act, regs, order or approval with pollution, s. 186

Approval – don’t comply with terms & conditions of approval
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
•Recall: similar duty imposed on drinking water system operators after Walkerton
o
What is Due Diligence?
•Strict Liability Offences
61
o No mental element to offence
o Defence of due diligence, on balance of probabilities
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 (Ont Prov Ct 1992)
Bata falls on hard times in 1980s as domestic footwear manufacturing industry declines.
It stores hundreds of drums of hazardous waste in its factory yard instead of arranging for
proper disposal. The drums rust, leak and contaminate the ground with nasty chemicals.
Ont MOE officers find the leaking drums by accident. The company and three directors
(the plant manager, the national president and the global CEO) are charged with
discharging liquid industrial waste which may impair water quality
•What’s required to show due diligence? Good Corporate System
o A “system to prevent commission of the offence”
 What would such a system look like? Did Bata have one?
 Supervision (from top of company to bottom)
 Inspection (all levels)
 Reporting – from bottom to top of co.; board is highest
level
o Accountability – drawing the line
 Corporate policies & standards - (created by top &
communicated to bottom of co.; Bata had TAC 298 Global)
 Reacting
o If you find out somethings wrong, do something to
fix it
•When will directors and officers be convicted?
o World CEO Thomas Bata?
 Will not be convicted
 He had done everything possible
 Put policy in place TAC 298
 Hired people & gave them authority to employees
 He could rely on environmental reports provided to him
 Previously when they knew of environment problems he
cleaned up & spent alot of $$ to do so
 Had visited the site (just happened he didn’t see it) so
cannot say a case of wilful blindness
62
Reacting – how manager & national president reacted when they became aware of
problem
o Got estimate of clean up, but though it was too much & sat on it
o Both president & manager found guilty
- Difference from CEO, manager & president  ACTUAL KNOWLEDGE
o Canadian president Douglas Marchant?
 Overloaded subordinates & didn’t follow through to see if things
were done
 First estimate to cleanup $58K, 2nd was 28K
 Did not know anything about 2nd estimate except that is
was cheaper
o Local plant manager Keith Weston?
 In 4 years hadn’t looked at site closely, & did not do walk around
inspections
 Court sees this as negligent
•Can directors be required to pay their fines personally?
-
Penalties
•In theory: dramatic increases over past decade
o Before 1998:
 Max penalties $25k/day and 1yr prison for individuals, $400k/day
for corporations
o 2000 (post-Walkerton)
 “Toughest Environmental Penalties in Canada Act”: max.
corporate fines increased to $6m/day for 1st offence and $10m/day
for subsequent; max. prison term to 5 years
o 2005 (“Spills Bill”)
 Introduced minimum fines for certain offences, s 187
 $25k/day for corporations, $5k/day for individuals
 Introduced “aggravating factors” that judges must follow or give
reasons, s 188.1
 Toughened D & O liability
In practice - penalties
•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
 But Environmental Commissioner of Ontario reported (2006) that
MOE is still “chronically underfunded,” needs tripling of budget
Sidebar: is pollution a crime?
•Yes: United Keno Hill Mines (YT Ct 1980)
63
o Chief Justice Stuart: “Pollution is a crime… pollution offences must be
approached as crimes, not as morally blameless technical breaches of a
regulatory standard.”
•No: Seraphim v Sterling Newspapers, BCSC 2001)
o Calling environmental conviction a “crime” is defamatory
•Maybe: “Westray” amendments to Criminal Code
o Legal duty on every person who supervises or directs workers, to take
reasonable steps to prevent bodily harm to workers or the public
o i.e. Westray coal mine disaster, Cape Breton 1992 (Westray Boss: Clifford
Frame)
o this case step to criminalizing corporate conduct
Limits of Traditional approach
•Expense (especially in era of fiscal restraint)
•Effectiveness varies with nature of regulated community and activity
o Enforcement problems are worse when regulated actors are small,
numerous, transient
•May not compel firms to examine management procedures and practices
o So says Abbot, but “due diligence” may do this
•Does not promote “beyond compliance”
•Danger of regulatory capture (Zinn)
o Or tension with regulated community (Abbot)
3. Innovations
•Targeted enforcement
•On the spot fines
•Creative sentencing
•Self-reporting
•Shaming
Targeted enforcement
•Target enforcement effort at problem actors or sectors, based on risk assessment (Abbot,
92)
o Extreme example: Ontario’s environmental SWAT team
 Created by Harris government after Walkerton

Renamed “Sector Compliance Branch” by McGuinty
On-the-spot fines
•Numerous jurisdictions allow officials to levy on-the-spot penalties (Abbot, 93)
o Quick, inexpensive (cheaper than prosecution for both parties)
o Introduced 1998 in Ontario, never brought into force
o Re-enacted by Spills Bill, 2005, s. 182.1
64


“Environmental Penalties”: On-the-spot fines for most EPA
violations, up to $100k/day
In force 2007 when implementing regs came out
Enviro penalties - Features and controversies
•Absolute liability (due diligence not a defence)
•No need to prove elements of offence
•Who will they apply to? (largest facilities 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)
Other innovations
•Self-reporting: reward polluters who discover and disclose their own violations
o Reduced penalties, evidentiary privilege for environmental self-audits
•Creative sentencing: remediation, prevention, community service, mandatory EMSs, etc.
o 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
o But post-Walkerton policy against creative sentencing
•Shaming (adverse publicity orders)
10.
Environmental Legal Activism
i. Overview
-
-
11.1 Public Participation and Environmental Rights
o Environmental rights: basic issues
o Public participation in environmental decision-making
o The Ontario Environmental Bill of Rights
11.2 Public Interest Environmental Litigation I: Citizen Law Enforcement
o Judicial review, private prosecution, citizen suits
11.3 Public Interest Environmental Litigation II: Common Law Actions
o Suits against private and government defendants
ii. Public Participation and Environmental Rights
-
Environmental rights
o Existence, character, operationalization, legal implications
Public participation in environmental decision-making
o Pros and cons, drivers, obstacles, pillars, trends
The Ontario Environmental Bill of Rights
65
Environmental rights: basic issues
-
-
Is there a “right to a healthful environment”?
o Why or why not?
o Supplicant – state is on indulgence
o Right holder – have state vindicate right; self oriented, individualistic
 Changes interaction between individuals & the state
Approaches
o Rights Utility – Societal benefit
o Holistic – Deep ecology; oneness with environment
Constitutional rights
-
-
Many constitutions, esp. in developing states, guarantee a right to a healthy
environment
o Not found in Canada and most developed states
Do the plaintiffs have a cause of action?
o South Africa s. 24 litigated
 Owner wanted to open petrol station
 Approval quashed based on this right since environment
assessment hadn’t been done well
The Minors Oposa case – Philippines
-
-
-
-
Do plaintiffs have standing to represent future generations?
o No problem regarding standing
 Are there intergenerational rights and responsibilities?
 What about non-humans: should trees have standing?
What is the source of the right to a balanced and healthful ecology?
o What is the significance of constitutionalization?
 Source of right : natural law to self-preservation & continuation
 Refer to constitution as a source
 Such a right belongs
 Changes hierarchy of rights
Is there a correlative duty and liability on the state?  YES
o Does violation of right give rise to a cause of action? Is the constitutional
right specific and self-executing?
 Right specific enough to be enforceable?
 One judge finds this hard to swallow
Do the facts, if proved, constitute a violation?
Does the claim raise a political question that is inappropriate for judicial
resolution?
Public participation
-
Increasing trend toward public consultation, transparency and accountability in
envt’l law
o This is the main way environmental rights are operationalized
 Freedom of information
66
o
o
o
o
 Advisory committees – national roundtable
Pros?
Cons?
Drivers?
Obstacles?
 Obstructive laws, heterogeneity & diffuseness of public interest,
technical complexity, limited resources, marginalization of
vulnerable & oppressed people, impenetrable bureaucracies,
administrative discretion, deferential courts, risks for
whistleblowers, SLAPP suits
Forms of public participation
-
-
Wide range of mechanisms
o Notice & comment rules; right-to-know/pollution inventories; FOI;
education; advisory committees; public hearings; litigation; statutory or
constitutional bills of rights; Green parties
Wide range of public empowerment
From mere notice (no real participation) to joint decision-making or veto
(Arnstein’s ladder)
Aarhus Convention, 1998
-
Leading international expression of legal norms of public participation in
environmental matters
Closest legal principle re: participation
Not best practices, represents floor of minimum public participation
1. Participation in gov’t decision-making
 Notice, comment, consideration
2. Access to information
 Disclosure on request
3. Access to justice
 Review of decisions under previous 2
 Right to challenge public or private environmental law violations
 Fair, equitable, affordable proceedings
 Adequate and effective remedies
Public Participation in practice
-
How radical is Aarhus?
Typical legal mechanisms
1. Participation in administrative decision-making
 Specific development proposals (eg EIA (Environmental Impact
Assessment), public inquiries)
 Policy-making (plans, programs) (eg SEA)
 Regulation-making and licensing (eg Ont EBR (environmental bill
of rights)
2. Access to information
67

Government info: constitutional and statutory FOI rights, specific
environmental disclosure laws
 Private info: voluntary corporate reporting; mandatory disclosure
via public inventories (eg NPRI); environmental audits; eco-labels
3. Access to justice
 Judicial review, public interest litigation (class actions, citizen
suits), public interest standing, specialized environmental courts &
ADR, legal aid, intervenor funding
Lingering Public Participation issues
-
How to ensure government accountability?
o E.g. environmental commissioners?
Who benefits?
Who remains marginalized?
Who should bear onus of ensuring adequate participation?
Should public participation be extended beyond government?
o E.g. to corporate governance?
Case Study: Canada
-
-
Public participation: one of the key weaknesses in Canadian environmental law?
o Usually restricted to notice and comment
o Governments routinely ignore public input
o Enthusiasm for new citizen involvement initiatives like Ont EBR waned
quickly in late 1990s
A Closer Look:
o The Ontario Environmental Bill of Rights (EBR)
 Enacted 1993, in force 1994
Ontario EBR
-
What rights does the EBR establish?
o What are the purposes of the EBR?
 Protect environmental integrity, provide environmental
sustainability and ‘protect the right to a healthful environment’ (s
2)
o How?
 ‘By the means provided in this Act’, including
 Participation in environmentally significant decision-making by
Government of Ontario
 Increased gov’t accountability for envtl decision-making
 Increased access to court for environmental protection
 Enhanced whistleblower protection for employees
o Are EBR rights substantive or procedural?
 Rights are procedural not substantive
 No right to any particular outcome
68
Basic elements of the EBR
-
-
Public Participation
o Citizen participation in decision-making: public notice via the
Environmental Registry, comment and appeal
o Citizen law reform: Applications for Review
o Citizen law enforcement: applications for Investigation, citizen suits
o Whistleblower protection
Political Accountability
o Statements of Environmental Values
o The Environmental Commissioner
o Conscious choice of political vs judicial accountability
 Political accountability over judicial accountability
Participation in decision-making
1. Notice and comment
- Notice: the Environmental Registry (s. 5, 6)
o Proposals for Acts, Regulations, Policies or “instruments” must be posted
on Registry
- Who must post? 13 prescribed ministries plus Management Board
o Government did not post many environmental policies
- Two basic kinds of postings:
o Proposed Acts, Regulations and Policies that “could have a significant
effect on the environment”
 5% of postings
 Notice period: usually 30 days or more
 Track record: mixed
o Proposed ‘Instruments’ (CoAs, PTTWs, orders etc)
 95% of postings
 Basic idea: the more important the decision, the more public
consultation
 Certificates of approval, permission to take water
 5 prescribed Ministries must prepare “classification regulations”
dividing instruments into 3 classes:
 Class I (default): 30 days’ notice
 Class II: extra notice time, discretionary hearing
 Class III: mandatory public hearing
 Track record: mixed; MNR dragged kicking and screaming into
compliance
- What happens after posting?
o Right to Comment
 Who may comment?
 Any Ontario resident
 How?
 In writing, to government contact person
 What must government do with the comments?
 S. 35 – minister must consider the comments
69
-
-
o Not an absolute duty
o What happens next?
 S. 36 requirement - Government must post notice of decision on
Registry, including explanation of effect of public comments on
decision
Appeal:
o Which decisions may be appealed?
 Decisions on instruments only (ss. 38-46)
 Hard to get, so doesn’t happen often
 Almost none have gone to final decision
o Who may appeal?
 Traditionally only “directly affected” parties, e.g. proponent
 Now any Ontario resident with an interest in the decision may
apply for leave to appeal (usually to ERT)
o What’s the test for leave to appeal?
 Must show that no reasonable decision maker could have made the
decision, and significant harm to the environment could result (s
41)
 Do you think appeals are common?
What if government violates the EBR?
o Does this affect validity of resulting Act, policy, regulation or instrument?
 S. 37 – no affect on validity when government violates EBR
o Check out the notice-comment-decision-appeal process on the EBR
Registry,
o http://www.eco.on.ca/english/registry/index.htm
Citizen law reform
o Applications for Review (Part IV)
o Any 2 Ontario residents may apply for review of:
 Existing policy, Act, regulation or instrument
 Need for new policy, Act or regulation
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 ENGOs to advance law reform proposals
 e.g., to develop a plan for the Boreal region; prescribe Ministries of
Education and Transportation under EBR; make Algonquin Park
logging subject to the EBR
Citizen law enforcement
1. Applications for Investigation (Part V)
o Any 2 Ontario residents may apply for investigation of alleged violation of
specified acts, regs, instruments
 ECO must forward to ministry; Minister must investigate “to
extent minister considers necessary” (s. 77)
70

If minister decides to investigate, must do so & give notice within
set time frame
 Subject to ECO oversight
 Used regularly by ENGOs to advance political agendas and by
individuals to enforce law against specific violators
 10-15 filed per year
2. Citizen suits: “Section 84” actions
o For violation causing harm to “public resource” (See Unit 11.2)
Political Accountability

EBR reflects a conscious choice of political accountability over judicial review
o Environmental Commissioner
 Lots of bark; but how much bite?
 Repeated harsh criticism of government
 But no ability to engage in substantive policy review, no sanctions
for ministries’ non-compliance
o Ministry Statements of Environmental Values
 Generally vague, little impact; but see OMYA case
o Judicial Review of government decisions under EBR is expressly
excluded except for “fundamental failure” (s. 118)
ii Public Interest Environmental Litigation I: Citizen Law
Enforcement

Can Lawyers Save the World?
o What can citizen legal actions accomplish?
o How do they fit into environmental activist strategy?
o What is Thornton’s agenda?
PIEL I: Citizens as law enforcers

-
If the government doesn’t enforce environmental laws, can citizens?
o Two main categories of citizen enforcement action:
 Challenging government officials or tribunals that take
administrative action (e.g. issuing permits, making regulations):
Judicial Review
 Going after environmental law violators directly (government or
private actors): Private prosecutions and statutory citizen suits
What they share in common: Citizen response to government’s failure to fulfill
statutory duties or enforce environmental laws
Judicial Review
-
What is Judicial Review?
Subset of administrative law
o Administrative law: law governing government officials and
administrative tribunals in discharge of their duties and powers to take
administrative action
71
-
o Judicial review: Review (as opposed to appeal) of administrative action by
a court
Typical remedies: certiorari (quashing decision), prohibition (prohibiting action),
mandamus (requiring action), declaration (declaring legal situation)
Key Issues: grounds for and obstacles to judicial review
Grounds for Judicial Review
-
-
Acting without or beyond jurisdiction, or refusing to exercise jurisdiction
o E.g. violating substantive constraints upon or mandatory deadlines for
action
Failing to consider relevant factors or considering irrelevant ones
Unlawfully fettering discretion
Procedural unfairness or violation
o E.g. violation of notice and comment requirements
Unlawful delegation of power
Errors of law or fact, in some circumstances
Bias, bad faith, improper purpose, fraud, perjury
o See Federal Courts Act s. 18.1 for grounds for JR in fed court
o When can you seek JR in Federal Court?
o What is a “federal board, commission or other tribunal?”
Focus: substantive constraints
-
Rare and very difficult to challenge
o Usually nonexistent or excessively broad, vague
 E.g. duty to manage for “sustained yield,” “ecological integrity,”
“benefit of future generations,” “sustainability,” or duty to apply
“precautionary principle,” “ecosystem approach”
o JR rarely succeeds:
 Green (Sandbanks Prov Park) (Ont HC 1973) (Requirement to
“maintain” parks “for the benefit of future generations” imposes no
substantive constraint on decision making)
 CPAWS (Wood Buffalo) (FCA 2003) (Approval of winter road
through national park doesn’t contravene duty to give “ecological
integrity” first priority) (See Unit 13)
 Reese v. Alberta (Alta QB 1992) (approval of clear-cut logging doesn’t
violate requirement to manage Crown forests for “perpetual
sustained yield”)
But there are rare victories(?)
-
The Crown Forest Sustainability Act requires forest manage-ment plans to
provide for “sustainability” as determined by the Forest Management Planning
Manual. MNR approves FMPs without regard to, and before publication of, the
Manual. Algonquin Wildlands League (Ont. Div. Ct. 1998)
o Did the MNR violate a substantive constraint on administrative action?
 Is Reese distinguishable?
o What was the remedy?
72
o What happened on appeal?
Legal Briefing #6a
-
Advising the federal government on how to defend FOE Canada’s climate change
lawsuits
Obstacles: Standing
o Old rule: “special injury” required
o Only person suffering special pecuniary or property harm could challenge
administrative action
o Why (as articulated by SCC in Finlay):
 Screen out busybodies, hear from the most directly affected
parties, keep courts out of political arena
o Public Interest Standing
o Anyone may challenge administrative action where
 Applicant has genuine interest as citizen
 There is no other reasonable and effective avenue
 The issue is serious and justiciable
o Recognized in USA 1973, Canada 1986 (Finlay)
o Who has a genuine interest?
o Individuals:
 Is it enough to have a "genuine concern," or must the person suffer
a "direct personal disadvantage“ or play a role in the statutory
scheme?
 Does it matter where the person lives or spends time?
o Public Interest groups:
 Is a “history of responsible involvement" enough, or is something
more required to discourage “marginal suits by well-meaning
organizations“ (Cdn. Council of Churches)?
o Apply to:
 Reese (Alta. QB 1992)
 Algonquin Wildlands League (Ont. GD 1996)
-
-
When is there no other reasonable and effective manner for the issue to be
brought before the court?
 When no directly affected individual might be expected to initiate
litigation (Canadian Council of Churches)
 E.g. a party to the agreement or licence; a person directly affected
by the action (e.g. refugee claimant, welfare recipient)
 In environmental cases, are proponent, government or local
residents likely to challenge the action?
When is an issue “justiciable”?
 Where to draw the line between what is appropriate for judicial
determination and what isn’t?
 Especially where the dispute raises broad policy
implications
73

Consider Reese
Obstacles: Standard of review

General rules (Pezim, SCC 1994)
o Courts highly deferential, especially to ‘expert’ tribunals or if there’s a
‘privative clause’ & no appeal
 Usual standard of review: Court will interfere only if no reasonable
decision maker could have made the decision
 Factors to consider re specialized bodies: reasons for existence,
area of expertise, does problem fall within it?
 Is the Minister of Natural Resources in Wildlands League a
“specialized body”?
 What about the Minister of Environment formulating and
implementing climate change plan?
 Courts less deferential in cases of jurisdictional failure
 Usual standard of review: was the decision correct?
 E.g. requirement to determine sustainability in accordance
with Manual (Wildlands League)
Obstacles: Cost


Public interest litigation is very expensive
o Especially for losers, because of risk of adverse cost awards
 Default rule: loser pays (a portion of) winner’s legal costs
 Arguments for changing the default rule for public interest cases
have mainly been rejected in Canada
Public funding to challenge government action may alleviate costs
o Eg., legal aid, intervenor funding: inadequate, precarious
Actions Against Polluters
1. Private prosecutions
2. Statutory “citizen suits”
Private Prosecutions



In Canada, anyone can lay charges against anyone else who allegedly commits an
offence
Obstacles:
o Criminal standard of proof (“reasonable doubt”)
o No discovery of defendant
o AG may take over and drop charges
 Refuse to enforce laws, then block public efforts to do so
o Courts may resist private prosecutions
o Due diligence defence usually available
o Investigation & prosecution usually very costly
Benefits
74
o Pressure gov’t and polluter, pocket 50% of any fine (for Fisheries Act and
some other statutes)
The Kingston case
The City of Kingston turned the old Belle Park dump into a park and golf course. A local
citizen, Janet Fletcher, believed the city allowed toxic leachate to leak from the former
dump into the Cataraqui river for years and MOE knew but did nothing. In 1997 she
finally laid Fisheries Act charges against the city for depositing a deleterious substance
into waters frequented by fish.


Hybrid private/public prosecution
o Fletcher laid Fisheries Act charges, province laid Fisheries Act and EPA
charges, all charges tried collaboratively
Court decisions:
o Trial decision (provincial court): city convicted, fined $120k on Fisheries
Act charges, $30k on OEPA and ordered to develop site cap plan
o On appeal, convictions overturned on basis that Fisheries Act requires
proof of actual harm (OWRA test)
o On further appeal, Ont. CA restored convictions: no proof of actual harm
to fish required
 But what happened to Fletcher’s private charges?
 What’s happening with the dump?
Other Ontario examples of government as defendant


A victory:
o City of Hamilton pleaded guilty to private Fisheries Act charges laid by
Lynda Lukasik and public OWRA charges for toxic leakage from Public
Works site, fined $450,000 (largest environmental fine ever levied against
a Canadian municipality)
A defeat: Deloro Mine
o Ontario took over abandoned mine north of Belleville in 1979, did nothing
about long term arsenic, heavy metal & radioactive contamination of land
& water. Sierra Legal laid private Fisheries Act, OWRA and OEPA
charges in 1997 & 98, Province acquitted because exercised “due
diligence”.
Citizen Suits

Statutory provisions enabling citizens to bring private action against another party
to redress environmental violations, stop environmentally harmful activity,
remedy environmental harm, collect fines or damages, etc.
o Introduced in US in 1970s, spread to Canada, UK, British Commonwealth
& Europe starting 1990s
o A modern innovation. Or are they?...
75
Statute of 12 Richard II, c. 13 (1388)

For that fo much Dung and Filth of the Garbage and Intrails as well as of Beafts
killed, as of other Corruptions, be caft and put in Ditches, Rivers, and other
Waters, and alfo within many other Places, within, about, and nigh unto divers
Cities, Boroughs, and Towns of the Realm, and the Suburbs of them, that the Air
there is greatly corrupt and infect, and many Maladies and other intolerable
Difeafes do daily happen,…to the great Annoyance, Damage and Peril of the
Inhabitants,…
Civil Suits for Air Pollution, 1388
 (2) …all they which do cast and lay all such Annoyances … in … Waters, and
other Places… shall cause them utterly to be removed, avoided, and carried away
[before the next Feast of St. Michael]…upon Pain to lose and to forfeit to our
Lord the King [twenty livres]…
 (4) Civil Suit for Failure to Remediate -And if any feel himself grieved, that it
be not done in the Manner aforesaid, and will thereupon complain him to the
Chancellor after the said Feast of St. Michael, he shall have a Writ to make him of
whom he will complain come into the Chancery, there to shew why the said
penalty should not be levied of him, and if he cannot excuse himself, the said
penalty shall be levied of him.
 (5) …none of what Condition soever he be, [shall] cause to be cast or thrown
from henceforth any such Annoyance…into the…waters… ;
 (6) Civil Suite for Future Violation - and if any do, he shall be called by Writ
before the Chancellor, at his Suit that will complain; and if he be found guilty, he
shall be punished after the discretion of the Chancellor.
Modern Citizen Suits

Limits of private prosecution led to agitation for a new citizen enforcement tool
o Found in virtually all US federal environmental statutes
 E.g. ESA, Clean Water Act, CERCLA, RCRA
o Recently introduced in Canada (eg Ont Environmental Bill of Rights,
CEPA 1999)
o Unlike private prosecution:
 Usually only requires civil standard of proof (“balance of
probabilities”)
 Damages may be available (sometimes treble &/or punitive in US)
o Canadian environmental civil suits almost never used. Why?
Ontario EBR Citizen Suits

“Section 84” actions
o For violation causing harm to “public resource”
o Prerequisite: must have applied for investigation and no response or
unreasonable response
o Court powers: injunction, declaration, order negotiation of restoration
plan, but no damages
76

If you want damages, use s. 103 (any person suffering direct
economic or personal loss due to a public nuisance may sue for
damages)
o Almost never launched, no trial decision on merits; barriers create a
“vortex of pain” for plaintiff
 “unreasonable response” threshold; broad defences of due
diligence, compliance with permit
EBR vs. CEPA citizen suits - chart
EBR s. 84 harm to public resource
action
CEPA s. 22 environmental protection
action
Grounds
Contravention causing signif harm to
public resource
CEPA offence causing signif harm to
the environment
Prerequisites
Application for investigation + no or
unreasonable response
Ditto, plus action barred if person
convicted or EPAMs
Burden of
proof
On plaintiff on a balance of
probabilities
Ditto
Defences
Due diligence, statutory authority
Ditto, plus officially induced mistake of
law
Remedies
Injunction, declaration, order to
negotiate restoration plan, other order,
no damages [but see s. 103 re special
damages rule for public nuisance]
Prohibition, mandamus, declaration,
order to negotiate restoration plan, other
order, no damages [But see s. 40 civil
action for damages]
Costs
To victor
To victor, but may be varied for test
cases, novel issues
Addendum: PIEL in Canada
 Brief History of PIEL in Canada
o 1970-86: establishment of legal ENGOs; focus on law reform; litigation
was narrow, procedural
o 1986-mid-1990s: birth of public interest standing, focus on environmental
assessment litigation addressing broad substantive issues
77
o Mid-1990s on: upsurge of public interest activism on all fronts in response
to introduction of EBRs, government downsizing, deregulation, failures to
enforce law
o Current examples: climate change lawsuits against federal government;
class actions against industrial polluters like INCO
11.
Environmental Justice
EJ in Canada: Sydney Tar Ponds
-
No efforts to minimize pollution in this site (passed through many ownerships)
Ovens closed in 1988
Crown agency pushed for increased production in 1970s, 80s & increased
pollution
Workers & families affected
- Especially in ovens
o 1 day in oven equivalent to smoking 35 packs of cigarettes in one day
- Most families lived very close to work site
o Neighbourhood had high # of immigrants & African Canadians
- What distinguishes the communities
o High concentration of African
o High concentration of immigrants
o Low income
- What were peoples experiences?
o Orange bright goo in basements
o Bad smells
o Health impacts
 Cancer of various forms, higher rates
 Aquatic life decreasing & contaminated
 This is what caused gov to take notice
 Respiratory problems
Environmental Justice - Bullard


What is environmental justice?
o Receive worse environmental impacts due to race & economic status in
particular
o This movement being brought by many women
 Environment in general usually by white middle class
How does EJ relate to mainstream environmentalism?
o Until late 1980s, nothing had been done to contain & clean up area
o LULU – locally undesirable land use
o Bullard
 These groups disproportionately more harmed by pollution &
disproportionately less action to reduce or compensate for it
 Environmental regulations not applied equally
 In those areas less stringent
78



 Not on purpose racism, but institutional neglect
EJ is 25! 1993-2005 What has changed?
o Colored organizations – from 600 participants to 14000
o Impacts on ground – bullard is encouraged but says (justice delayed,
justice denied)
Is EJ an American thing?
o Canada: only 24 hits in Quicklaw Can. law journals
How does EJ relate to “ecological justice”?
o Eco justice departs from environmental justice in US
o Article in textbook making argument Bullard said is the problem
o Bullard – focus on people of color, poor
o Boselman – wants justice for non-human entities
12.
Economic Instruments of Environmental
Regulation
Key questions
•Can “economic instruments” stimulate the transformative changes needed for
sustainability?
•Is the economic critique of environmental regulation well founded?
o What about the environmental critique of economics?
•What kinds of economic instruments are there and what can we expect from them?
•Whats the end goal
o Transformatice technological change
Boyd v. Driesen?
•Boyd: optimistic about ability of economic instruments to spur transformation toward
dematerialization and substitution
•Driesen: skeptical about ability of economic instruments (popular ones, at least) to spur
transformative technological innovation
Economic and environmental critiques
•The economic critique of environmental regulation: what is it, and is it persuasive?
o How to allocate a value to resources where there is no value (ex: glaciers,
oceans)
 The value of service of natural environment providing to use is 10x
the value of world economy
•The environmental critique of economics: what is it, and is it persuasive?
o Redesign economy to reflect ecological “realities”
 Replace narrow focus on economic growth with holistic measure
of human progress
 Recognize economy as closed, finite system, minimize materialenergy flows
79



Put proper value on natural capital & ecosystem services
Internalize costs of environmental damage
Tax goods, not bads
 Ecological tax shifting
o Taxes labour, goods, creating wealth
o Should be taxing negative things, such as extraction
of resources, creation of pollution
The economic critique


Five central propositions
1.
Economic instruments are the opposite of command regulation
2.
The costs of command regulation often grossly outweigh its benefits (ie
targets are not efficient)
3.
Command regulation is not cost-effective at achieving given targets
4.
Command regulation hinders innovation
5.
Command regulation is too slow, adversarial and cumbersome
For each one: summarize the critique and identify possible responses
Discussion – Of Economic Critique


Economic instruments are the opposite of command regulation
o Command regulation imposes specific compliance techniques rather than
changing polluters’ incentives
 Political will – are you willing to put in stringent enough
provisions to make a difference
o Response? False premise, false dichotomy
 C&C reg is not just technology (work practice) standards
 C&C reg creates significant economic incentives
 “Economic instruments” are instruments that…
 Change polluter’s financial incentives
o Manipulate positive & negative economic
incentives
 Correct market failure by prompting polluter to internalize
environmental externalities
o “Polluter pays” and “user pays”
 Are “market-based”? Not necessarily
The costs of command regulation often grossly outweigh its benefits (choice of
ends)
o It does not set overall environmental targets at level that maximizes net
benefit
o Solution: set targets at level where marginal benefits equal marginal costs
(benefit-cost analysis)
o Response?
 This has nothing to do with choice of instrument (command vs.
economic instruments)
 Determining costs and benefits is difficult, controversial
80




How to assess non-market values (eg externalities, ecological
assets and services)?
 Should everything have a price?
Command regulation does not achieve targets cost-effectively (choice of means)
o Control costs vary, command reg fails to adjust for this, achieves overall
targets at higher total cost
o Solution: choose instruments to minimize total costs of pollution control
by getting more abatement from facilities with lower costs, less from high
cost facilities
 Allocate control burden so firms control at same marginal cost
 How? Use instruments that give polluters incentive to abate in
cost-effective manner and degree, eg taxes, tradeable permits
o Response?
 Yes, economic instruments are more cost-effective than uniform
standards, in theory
Command regulation is anti-innovative
o Because it either dictates technology or leads firms to adopt technology
they think government prefers
o Response?
 Stringent performance standards can stimulate substantial
innovation (eg. Boyd’s refrigerator example)
 Companys complained that they couldn’t reduce electricity
usage of fridge, but all met target (900kwh from 1800)
Command regulation is too slow, adversarial
o It invites ‘adversarial legalism’ and intense lobbying
o Response?
 A function of political culture, not instrument choice; economic
instruments have been subject of intense litigation & lobbying in
US
Economic instruments: an assessment

Kinds of economic instruments
o Price-based
o Quantity-based
o Information-based
Price-based instruments
o Instruments that change the price of pollution or resource use
o 3 categories: negative, positive and mixed incentives
o Negative incentives:
o Taxes and charges
 Theory: All firms have incentive to abate to point where control
cost equals the tax, achieving overall abatement target costeffectively (‘first-best’ instrument)
o In practice: experiences, strengths and weaknesses
 Direct pollution taxes uncommon, indirect used widely
81
 Inconsistencies, exemptions hinder effectiveness
 May be regressive
 Note: traditional fines and penalties may qualify
o Liability rules
 Theory: they provide incentives to alter conduct
 In practice: stringent ‘polluter pays’ cleanup rules can provide
powerful economic incentive to avoid future contamination, to
avoid being caught in liability net; but:
 Effectiveness re past contamination questionable
 May provide too little certainty to motivate change
o Positive incentives
o Subsidies (grants, loans, tax breaks, etc)
 Goal: incentivize socially beneficial behaviour by compensating
those who undertake it
 e.g. renewable energy, green technology
 Problems:
 Often allocated on basis of lobbying power, not
environmental friendliness (eg ‘clean coal’)
 Far outweighed by “perverse” subsidies (Boyd)
 Encourage over-production
 Violate polluter pays principle
 Are there any “good” subsidies?
o Mixed incentives
o Fee-bate schemes
 Combined tax and subsidy: tax on environmentally unfriendly
products, rebates for friendly ones
o Deposit-refund schemes (eg beverage containers)
 Deposits usually too small to be significant negative incentive to
reduce consumption, but even tiny refunds provide powerful
incentive to reduce litter, encourage recycling – Why?
Quantity-based instruments
o Quantitatively defined resource or pollution rights
o Tradable environmental rights, eg. emissions trading, transferable fishing
quotas
 2 key elements: performance standards (overall cap divided into
individual quotas) plus right to buy/sell quotas
 Theory: by capping total amount of pollution/resource use,
dividing rights among users and allowing them to trade, low-cost
firms will make greater reductions and sell credits to high-cost
firms, achieving overall targets cost-effectively
 How do they differ from price-based instruments?
 How do they differ from performance standards?
 Do they violate the polluter pays principle?
 Success factors: tough caps, monitoring, geography, equivalence
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Information-based instruments
o Instruments that change economic incentives by providing information to
consumers or polluters
o Theory: information translates into market pressure and ‘green’ market
advantage
 Instruments that inform consumers about pollution or
environmental superiority: PRTRs, voluntary certification
programs, eco-labelling
 Instruments that inform polluters about cost-saving environmental
improvement options: eg. environmental audits, EMSs, education
o In practice: impacts on economic incentives and behaviour mixed
Summary
o Command regulation-economic instrument dichotomy breaks down
o Many instruments blur line between command and incentives
o Lessons
o Examine carefully how incentives really operate
o Command regulation can offer powerful (sometimes superior) incentives
and cost-effectiveness
o A “smart” mix of command regulation and economic instruments is
needed; what distinguishes the new from the old instruments?
Conclusion: transformation toward sustainability
o Which instruments will deliver the transformative technological innovation
required for sustainable development?
o Not just a matter of cost-effectiveness
o What are the key factors driving innovation?
o Can trading drive ‘high cost’ innovation?
o Are taxes potentially superior to both trading and traditional regulation?
13.
Voluntary Environmental Codes
Questions about Voluntary Environmental Codes
-
What are voluntary codes?
Is there a move to voluntarism in environmental law?
What role can and should they play in environmental governance?
o Depends on an understanding of:
 Drivers of voluntary codes
 Performance of voluntary codes
 Goals of environmental governance
1. What are voluntary environmental codes?
-
Working definition: Commitments undertaken by one or more polluters or
resource users, in the absence of an express legal requirement to do so,
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prescribing norms to regulate their behaviour in relation to their interaction with
the environment.
o Not restricted to ‘beyond compliance’
o Not restricted to business firms
o Go by many names, e.g. voluntary initiatives, voluntary agreements, codes
of conduct
What forms do they take?
-
The social space of voluntary environmental codes
Codes may be located anywhere in this space, varying in terms of the identity of
the parties involved and the degree of ‘jointness’ of decision-making
Polluters
Joint polluter-third
party negotiated
arrangements
Polluter codes
Joint polluterpublic authority
negotiated
arrangements
Integrated rule
making
Public authority
codes
Third party
codes
Public Authorities
Third Parties
Joint public
authority-third
party negotiated
arrangements
Polluter codes
-
-
Self-regulatory codes developed unilaterally by polluters or actors with a
commercial interest in polluters
o Cross-sectoral (eg ICC Business Charter for Sustainable Development)
o Sector-specific (eg Responsible Care, Equator Principles)
o Firm-specific (eg The Body Shop International, The Shell Group,
Interface Flooring)
Many not strictly ‘unilateral’ (eg trade association & supplier codes)
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Joint polluter-public authority negotiated arrangements
-
-
Negotiated agreements
o Eg 30,000 local authority-specific firm NAs in Japan, 300 central
government-industry association NAs in EU
Codes of conduct
o Eg Equator Principles (developed jointly by IFC and commercial banks)
Broader partnerships
o Eg green design, industrial ecoparks
Public authority codes
-
-
Public voluntary programs: codes developed by public authorities, to which
polluters are invited to subscribe on a take-it-or-leave-it basis.
o Leadership programs, eg US EPA National Performance Track (400
participants), EMAS
o Laggard programs, eg US EPA self-audit policy
o Middle of pack challenge programs, eg VCR, ARET, 33/50, UN Global
Compact, OECD Guidelines
Intergovernmental negotiated agreements
Joint public authority-third party negotiated arrangements
-
Codes developed jointly by public authorities and third parties (eg ENGOs)
without direct involvement by polluters
o Rare because public authorities usually want polluters at the table
Third party codes
-
Codes developed by third parties, to which polluters are invited to subscribe on a
take-it-or-leave-it basis
o ‘Civil society’ codes (eg 2003 Collevecchio Declaration, Bench Marks,
Global Sullivan Principles), often very demanding
o Line with polluter codes often blurred
 Eg Standards developed by “recognized standards bodies” (eg ISO
14000, ISO 26000, BS 8555), usually business-dominated, often
business-as-usual
o Distinguish from third party verification of code implementation
Joint polluter-third party negotiated arrangements
-
-
Polluter-pollutee codes
o Eg Rotterdam-Rhine river agreement; US EDF-McDonalds agreement,
private stewardship agreements (esp in developing countries)
Polluter-other third party codes
o Eg green energy contracts, Social Venture Network CSR standards
Complex rule-making institutions
o Eg FSC, GRI, MSC
85
Integrated rule-making
-
Polluters, public authorities and third parties create joint rule-making institutions
or codes
o Eg official policy processes? ILO?
Other dimensions of variation
-
-
Binding vs. non-binding
Process vs performance orientation
o Eg EMS, LCA, reporting, auditing, eco-labelling vs. substantive
performance targets
Implementation- vs. target-based
General vs. specific
Individual vs. collective (danger: free riding)
Geographic scope
Policy scope
2. Is there a move to voluntarism?
-
Voluntary initiatives are as old as modern environmental law
o 1960s: local pollution agreements in Japan
o 1970s: French & German contracts; 3M “Pollution Prevention Pays” (3P)
o Late 1980s take-off
 Dutch pollution covenants, EU 5th Action Plan, US EPA 33/50,
Project XL; UNEP IE, Chemical industry’s Responsible Care, ICC
Business Charter for Sustainable Development, CERES/Valdez
Principles
 Facilitated by transformations of the state, environmental crisis and
business
A move to voluntarism?
-
-
Today:
o 1000s of government sponsored VCs
o 1000s of polluter or third party VCs
o 10,000s of government-industry agreements
o 100,000s of organizations with VCs in place
Mais plus ça change…
o Environmental law has always been negotiated
Paradox of the post-regulatory state: Deregulation, privatization and market
liberalization have often been accompanied by a substantial increase in the
number of governmental agencies, the volume of official regulation, and the
domains of activity subject to official regulation
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3. What role can – and should – they play in environmental
governance?
-
Almost everyone recognizes VCs are supplements to official regulation and
economic instruments, not replacements
Criteria for credible & effective codes
-
Criteria for credible and effective use of VCs to pursue public policy goals?
o New Directions Group, 1999
o Effective participation by all interested parties
o Transparency of development & implementation
o Credible and regular monitoring, reporting and verification
o Clear articulation of roles, rights and responsibilities
o Clear baseline to measure performance
o Clear performance-based targets and indicators
o Flexibility in how to meet targets
o Clear rewards for good performance
o Clear sanctions for nonconformity
o Promotion of “soft” effects (learning etc.) through knowledge exchange
o Credible threat of regulation should voluntary action fail
 Is mere threat enough?
o Supportive legal and public policy framework
 E.g. corporate governance law, contract law
Role of voluntary codes
-
To evaluate their role in environmental governance, we must understand
o What drives effective voluntary action beyond “business as usual”
o How voluntary codes perform and why
o The goals of environmental governance
 Incremental change at the margins to manage the adverse effects of
urban/industrial development?
 Fundamental transformation toward sustainability?
 What do we mean by sustainability?
What drives voluntary codes?
-
Are they really voluntary?
o Virtually all voluntary codes are undertaken because the relevant actors
have been effectively pressured to act
 Eg regulatory threat, competitiveness, bad publicity, customer
requirement, trade association requirement, ‘social licence’, ethical
obligation, legal mandate
o Question is not whether voluntary codes are ‘voluntary’ but what
effectively drives relevant actors to develop and implement them
Rethinking the drivers
-
Drivers for business:
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-
o The promise of reward?
 Anticipated net benefit: firms will take voluntary action to improve
environmental impacts only if expected benefits to firm equal or
exceed costs
 Cost savings (no regrets), regulatory gains, higher
revenues, reputational gains, subsidies
 What happens when what’s good for the environment is not good
for business?
 Ie. Voluntary action entails net cost
 The problem of free riding
o The threat of regulation?
 Consensus: credible threat of reg is most effective driver, degree of
environmental improvement varies with magnitude of threat
 Evidence?
 Threat of regulation is self-defeating. How?
o Ethical commitment? Maybe, for some
o The “grind of obligation”?
o Businesses will be driven toward sustainability by the “grind of
obligation,” which can come from numerous directions. Our focus should
be on expanding the sources and intensity of this grind, and – just as
important – eliminating the root causes of unsustainable production and
consumption.
Drivers for public authorities?
o Regulatory gains, resource constraints, ideology, vs. capture
Drivers for ENGOs?
o Superior performance, bypassing gov’t, enhanced voice, vs. greenwash,
cost
How well do VCs perform?
-
-
-
-
Few reliable data
Environmental effectiveness
o Performance usually improves and targets met, but
 Voluntary targets may be less ambitious (except CSO-led codes)
 The “business as usual” problem
Efficiency
o Cost-effectiveness, transaction and operating costs vary; free riding and
opportunism common
 Free riding may be minimized by “clubs,” independent monitoring,
sanctions
Transparency and accountability
o Civil society participation mixed; monitoring, reporting and verification
weak; lack of sanctions
Firms’ financial performance
o Typically improves, but depends on win-win options
Firms’ legal performance (compliance)
o Modest evidence of improvement
88
-
-
Stimulation of innovation
o Some technology diffusion, little development
o Significant “rulemaking innovation” in CSO codes
“Soft effects”
o May affect attitudes, culture, collective learning
 But plenty of firms lobby hard for public policies that contradict
their voluntary commitments
What are the goals of environmental governance?
-
Sustainability?
o What does it mean?
 Business more or less as usual?
 Ecological integrity?
 Social emancipation?
o Implications?
 Sophisticated synergistic policy mix, “polycentric” governance
 Emphasis on reflexivity: enlisting autonomous subjects to selfreflect and adjust their conduct in line with democratically
determined goals
 Focus on marginalized actors and regions (developing countries,
internal “fourth worlds,” pro-poor business models)
14.
Sustainable Finance
Themes of this Lecture:
o Why should the financial sector matter to environmentalists?
o What is socially responsible investment (SRI)?
o What are the main barriers to SRI?
o What governance mechanisms have been developed to promote SRI?
“Unseen Polluters” – the problem
o Environmental law targets the frontline companies that extract, consume &
pollute
o Environmental law ignores their financial sponsors
o Financiers (banks, mutual funds etc) enable and profit from the pollution of their
borrowers and clients
o Can SRI change the behaviour of the “unseen polluters”?
Conventional view of financial institutions
o Greedy: “Hand in my pocket”
o Socially and environmentally irresponsible (Youtube video)
The era of ‘finance capitalism’
o Massive growth of institutional investment
o Corporate demand for more external financing
89
o Power of fund managers, credit rating agencies, etc
Quick overview of financial sector
o Debt finance (loans, bonds)
o Debt financiers:
o Banks
o Credit unions
o Equity finance (issuance of new shares by public companies to raise capital)
o Equity financiers
o Pension funds
o Mutual funds
o Venture finance firms
o Retail investors:
o Mutual funds
o Commercial banks
o Credit unions
o Institutional investors:
o Pension funds
o Investment banks
o Insurance companies
Problems of financial markets from an environmental perspective
o
o
o
o
o
-
Short-term investment horizons
Speculative, unproductive investment
Insufficient attention to the ecological and social costs and benefits of investment
Insufficient shareholder activism and corporate engagement
Fiduciary duties
o Need to max profit mix for shareholders
Market failure
What is Socially Responsible Investment (SRI)?
o A financing process that considers the social, environmental and ethical
consequences of investments and loans.
o Also known as “ethical investment” or “sustainable finance”
o No authoritative definition
Primary functions and aims of SRI
1. Traditional ‘ethical’ investment (religious-based) driven by ethics, largely
regardless of financial risks and returns.
2. Investment to maximise shareholder value by addressing misbehaviour of
corporate managers.
3. Investment to address market failures, where there is no or incomplete
state regulation or social sanctions.
The main SRI institutions
o Church-based ethical investors
90
o Mutual SRI funds for ‘retail’ investors
o Institutional investors (eg pension funds) seeking long-term sustainable
development
o Commercial banks that consider social and ecological risks in project finance (eg
HSBC)
o Venture capital financiers pioneering new environmental technologies and
services
What are the methods of SRI?
o
o
o
o
o
o
o
Screens
“Best of sector”
Environmental and social risk assessment
SRI portfolio index tracking
Shareholder activism & corporate engagement
Differential loan pricing
Special environmental-financial products (eg environmental affinity credit cards)
What do you think drives SRI?
o Public perception - Consumers and public opinion on green issues.
o Pressure on the financial sector from NGOs, churches and other civil society
institutions.
o The ‘business case’ for behaving responsibly
o Liability, risk
o Ex: Manitoba pension, relaxes the profit maximizing idea; decisions based
on ethical values ok
o Pressure from insurance industry
o Government regulation
o Precedential effect of earlier reforms to public development finance (World Bank,
export credit agencies)
o Information  individuals, shareholders
How extensive is SRI today?
o Approx 1,000 SRI ‘retail’ funds worldwide marketed to the public.
o Approx. 2 - 5% of institutional investor finance worldwide tied to SRI criteria
o Specialist eco-banks: eg Cooperative Bank (UK), Citizens Bank (Canada) and
Triodos (Netherlands)
o SRI funds in Europe: 4 in 1980; 313 in 2003
Canadian SRI market evolution
o 1975 – establishment of the Taskforce on the Churches and Corporate
Responsibility (TCCR) to stop investment in South Africa
o 1986 – first SRI mutual fund (set up by Vancouver City Savings Credit Union)
o 1990s – public sector pension funds start applying SRI screens (eg Ontario
Teachers’ Pension Plan)
o 2004 – Social Investment Organisation study estimates some C$65 billion of
assets subject to SRI criteria (3% of capital market).
91
Growth of Canadian SRI mutual fund market
o 4000% compared to 1000% growth overall of market (1989 -2002
o SRI mutual fund market share in Canada (1989 – 2002)
o Peaked at 1.4% in 2000
Issues most frequently screened by SRI funds in US in 2005 ($179 bil)
o
o
o
o
o
o
Tobacco  88% (of 179billion)
Alcohol  75%
Gambling  23%
Military Equipment  19%
Community Relations  18%
Environment  17%
Bottlenecks to SRI
1.
2.
3.
4.
5.
6.
Investors’ weak economy-wide view (spatial aspect)
Investors’ short-term horizons (temporal aspect)
Investors’ lack of access to information about corporate environmental
performance, and weak incorporation of environmental issues into financial
analyses
Financial sector’s tragedy of the commons
Investment intermediaries’ incentives (fund managers and financial advisers)
Legal obstacles, eg:
- fiduciary duties of institutional investors
- undemocratic governance of corporations
- undemocratic governance of financial institutions
Fiduciary duties of investment trustees – pension plan trustees
o Invest “prudently”: eg diversify investment portfolio; maximise financial returns;
minimise fund administration costs
o Invest “loyally”: in the best interests of the beneficiaries; exclude consideration of
collateral benefits (eg to society or environment)
How to promote SRI through state and non-state regulation
o Challenges and issues:
o Direct vs. Indirect regulation of Financial Sector
o How to enlist financial sector as surrogate regulator
o Do we need to regulate what qualifies as “socially responsible
investment”? How?
o Institutional differences among financiers (eg pension funds vs mutual
funds)
o Differences in the character of environmental issues
o Regulate of international financial markets
92
Trust law – SRI as a “material” or discretionary concern
o Modifying fiduciary duties
o Manitoba’s Pension Benefits Amendment Act 2001:
o “Unless a pension plan otherwise provides, an administrator who uses a
non-financial criterion to formulate an investment policy or to make an
investment decision does not thereby commit a breach of trust [if he or she
has otherwise complied with prudent investment standards]”
The “disclosure” approach
o Obligations on occupational pension funds to publicly disclose their policies for
ethical, social and environmental investment:
o adopted in Australia, Austria, Belgium, Germany and UK since 2000
o proposed federal legislation in Canada failed to pass
UK’s Pensions Act 1995: regulation of 1999
o “… trustees must state their policy in their statement of investment
principles [on] o the extent (if at all) to which social, environmental or ethical
considerations are taken into account in the selection, retention and
realisation of investments; and
o (b) their policy (if any) in relation to the exercise of the rights (including
voting rights) attaching to investments".
The “mandatory SRI” approach
o So far applied only to public pension funds
o United States: state pension funds – Sullivan Principles and MacBride Principles
investment mandates, 1980s
o Sweden: National Pension Funds Act, 2000
o New Zealand: Superannuation and Retirement Act, 2001
o France: Retirement Reserve Funds Law, 2001
o Norway: Regulation on the Management of the Government Pension Fund, 2005
New Zealand Superannuation & Retirement Act 2001: s. 61(d)
“Contents of statements of investment policies, standards, and procedures:
A statement of investment policies, standards, and procedures must cover (but is
not limited to) - …
(d) ethical investment, including policies, standards, or procedures for avoiding
prejudice to New Zealand’s reputation as a responsible member of the world community;
…“
93
Informational policy instruments
o Mandatory corporate non-financial reporting laws: eg Australia, France,
Germany, Sweden and US
o Environmental management systems: EU’s voluntary Eco-Management Audit
Scheme amended (2001) to include financial sector.
o Eco-labeling: EU’s voluntary Eco-Labeling Directive amended (2000) to include
financial sector.
SRI Subsidies (positive incentives)
o Green Investment Directive 1995 (Netherlands)
o Community Investment Tax Relief 2002 (UK)
o Labour-sponsored investment funds – tax deductions (Canada)
Corporate governance reforms
-
-
Canada Business Corporations Act (2001 amendments on filing shareholder
resolutions)
US Securities & Exchange Commission’s “Disclosure of Proxy Voting Policies
and Proxy Voting Records” Regulation of Mutual Funds (2003) (similar
Canadian reg. adopted in 2004)
Pension fund members’ consultation and information rights (UK and Australia)
Lender liability for environmental damage
-
Comprehensive Environmental Response, Compensation & Liability Act, 1980
(US)
Directive on Environmental Liability 2004 (EU)
Canadian provincial pollution laws hold lenders liable for cleanup in some
circumstances
Non-state regulation: voluntary standards and codes
-
UN Principles of Responsible Investment (2006)
Equator Principles (2003)
London Principles of Sustainable Finance (2002)
Global Environmental Reporting: financial sector reporting supplement (2002)
UNEP Statement by Financial Institutions (1994)
Other non-state governance mechanisms
-
-
SRI think-tanks & lobbyists:
o Social Investment Forum (USA)
o Social Investment Organisation (Canada)
o Ethical Investment Research Service (UK)
SRI stock market indexes:
o Dow Jones Sustainability Indexes
o FTSE4GOOD Series Indices
o Jantzi Social Index of Canadian Companies
 J social index returns (1994-2003)
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
15.
SRI stocks mirror movement of regular stocks (so both
affected by normal market forces)
Aboriginal Peoples and the Environment
Overview

Guest presentation: Dr. Ben Richardson, Osgoode Hall Law School
o General introduction to indigenous peoples and the environment
 First Nations and the environment in Canada
o Briefing on aboriginal environmental self-government
Who are aboriginal peoples?
o How do they relate to the environment?
 Typical features?
 Spirituality, respect, inter-connection, self-sufficiency,
proximity, knowledge
 Contemporary relevance?
 Guardians of vast areas, knowledge an incalculable asset,
eg. fire management, crops, pharmaceuticals
 Danger of romanticization
 Past and present aboriginal values toward and relationships
to environment complex
Aboriginal experiences
o Shared experience of subjugation, degradation, assimilation or
extermination
 Aboriginal livelihoods, health and societies often systematically
and disproportionately affected by environmental degradation
 Often closest to ‘nature,’ most affected by environmental
decision-making and adverse environmental impacts
o Mining, dams, oil & gas, logging, ranching,
settlement, parks, long range toxic pollution
 Desecration of sacred sites, destruction of communities and
lands, disruption of livelihoods, displacement, resettlement,
violence, genocide
Selected issues
o Resource rights and self-government
o Resource harvesting rights, land tenure
o Control over or at least participation in environmental decision-making
 Voice vs. autonomy: environmental self-government? Comanagement? Participation in decision-making? Equitable share of
benefits?
o Relation to state system
95
o
o
o
o
o Independent nations & “full” legal pluralism vs. accommodation within
official system?
o The government must ultimately be able to determine and direct the way
in which these rights should interact” (Nikal, SCC 1996)
Environmental justice: redress for environmental and social harms
o Often pursued via rights & self-government claims
Protection of cultural integrity and diversity
o Aboriginal cultures as part of diversity to be sustained
 Represent ~3/4 of world’s linguistic diversity
o Relation between cultural and biological diversity?
o Not just people but cultural landscapes, culturally modified land features
Protection of aboriginal knowledge
o IP rights? Prior informed consent?
Aboriginal rights and environmental protection: harmony or conflict?
o Some aboriginal people welcome resource development, especially when
they have a measure of control and participation
 Eg Mackenzie Valley pipeline project; Jawoyn in Australia
o Aboriginal self-determination may promote sustainability
 more often than not aboriginal claims are conservationist,
aboriginal people are the on-the-ground stewards
o But what if they conflict?
 “whatever approach is taken to empower indigenous peoples, …
their claims to … self-determination should not be interpreted as a
freedom to engage in unsustainable uses of the environment”
(EL4S 226)
Around the world in 20 minutes
o Historical trends
o Colonial period
 Latin America: extermination; Africa: enslavement
 British & French North America:
 18th C: treaties of alliance, trade (Eastern seaboard)
 19th C: treaties to acquire land and resources (Ont, NWT),
or no treaties at all (BC)
 Australia: no treaties, terra nullius
 New Zealand: unusually favourable Treaty of Waitangi (211)
 General practice: subjugation, denial
o Contemporary period
 Some legal recognition, modern treaty negotiation, some moves
toward recapture of land base, self-determination
o International developments
o General international law: ILO, UN Declaration, etc.
o International environmental law: CBD, etc.
o Intellectual property rights: boon or curse?
o National developments
o Latin America: constitutional reform?
96
o
o
o
o
o
o
Asia: intolerance?
Scandinavia: as good as it gets?
Canada: some judicial and political recognition?
Australia: grudging progress?
New Zealand: national prominence?
US: inherent sovereignty, judicial backtracking?
First Nations and the Environment in Canada
o First, some basics about aboriginal rights and the environment in Canada
o Then, focus on two key questions:
o Is there a right to aboriginal environmental self-governance?
o Does resource co-management offer a promising role for First Nations in
environmental governance?
Three main elements of the Canadian legal system define its relationship to First
Nations:
o The federal Indian Act
o Main instrument of cultural assimilation, colonialism
o Section 35 of the Constitution Act, 1982
o Entrenches existing aboriginal and treaty rights, including resource rights
and common law aboriginal title, but permits infringement for wide range
of purposes including conservation
o Operationalized mainly through aboriginal rights litigation
o Comprehensive Land Claims Agreements
o Typically provide for land title, compensation, limited self-governance or
co-management
o Products of lengthy, often acrimonious negotiations
Two illustrative questions
o Rather than surveying details of existing legal regime, aboriginal rights
jurisprudence, CLCA process, we will focus on two questions:
o Do First Nations constitute a third level of government with jurisdiction to
engage in environmental self-governance?
o Among various possible forms of aboriginal involvement in environmental
governance, does resource co-management present a promising
development?
A Third Order?
o Does (or should) the constitution encompass aboriginal environmental
governance?
o Should First Nations be recognized as a third order of government?
o What would be the sources of aboriginal jurisdiction?
 Delegated authority, like municipalities?
 Aboriginal & treaty rights to hunt, fish, exploit resources?
 Aboriginal title to land?
 Inherent right of self-government arising from pre-existing
occupation and legal systems?
97
Aboriginal self-government
o What should be its nature and scope?
o Generic, unlimited or case-specific, limited?
o What aspects of environmental decision making should fall within an
aboriginal sphere?
 “Traditional” and “distinctive” activities? Commercial exploitation
vs “moderate livelihood”? “Internal” and “cultural” matters only,
or resource management & environmental protection?
o Should it be “infringeable”?
o For what purposes, subject to what conditions?
o Which gov’t should have management priority?
Aboriginal self-government / Contd
o Infringement and conflict
o Aboriginal & treaty rights take priority over other uses, but may be
infringed or regulated for “valid objectives” if consistent with special trust
relationship
 Valid objectives include resource conservation, environmental
protection, economic development, etc.
o Conflict/overlap with federal or provincial law:
 Fed CLCA policy and Nisga’a treaty: federal or provincial law
takes priority
 R v Blackbird (Ont CA 2005): “impossibility of dual compliance”
standard applies to Band hunting bylaw
 What weight should be given aboriginal conservation practices and
knowledge? (eg Sparrow, Nunavut)
 From disregard to co-management
o How should it be implemented?
o Via negotiation, litigation, confrontation, co-management?
o Via exercise of Aboriginal lawmaking institutions and practices?
 Discover, interpret and codify traditional laws
 Enact and amend new laws, create institutions
 Enforce laws “internally” or “externally” (eg through comanagement regimes or courts)
Resource co-management
o Can co-management arrangements established pursuant to land claims agreements
facilitate aboriginal ‘re-capture’ of resources?
o Forms of aboriginal environmental governance
 Limited self-government agreements (eg Nisga’a)
 Non-aboriginal public government (eg Nunavut)
 Resource co-management (eg Nunavut, Gwaii Haanas)
 Impact-Benefit Agreements
 Sovereign nationhood
o Note: the following slides are based on the Bankes article and are not
examinable in 2007
98
Nunavut
www.gov.nu.ca
Resource capture/recapture
o What is “capture” by settler society?
o Whaling, turbot; what’s law got to do with it?
o Nunavut Land Claims Agreement of 1993
o What kind of governance arrangements did it create?
o Nunavut Wildlife Management Board, www.nwmb.com
o Composition, authority, rule-making procedures, relation to other
authorities?
Recapturing resources?
o Have the NLCA and NWMB facilitated aboriginal recapture of resources?
Consider three cases:
(1) Polar bear hunt
(2) Bowhead whale and … narwhal harvest
(3) Davis Strait turbot fishery
i. Richardson
o Class road map
o Theorising relationship between Indigenous peoples and the nature
o Environmental threats and problems for First Nations
o International environmental law and Indigenous peoples
o Comparative (national) examples
o Stepan to cover domestic law (eg Indian Act, land claims agreements and
Aboriginal title)
Nature and Indigenous Peoples: Theoretical perspectives
1. Inherently ecologically harmonious Culture
2. Nature an integral part of culture
3. Part of the environment
- They have viewed themselves as a part of the environment
4. Irreparable cultural change
5. Western colonisation
- Brought mines, environmental destructive behaviour
6. Successful adaptation to change
7. Myth of the environmentally benign culture
8. Why pick on Indigenous peoples?
- when western does more damage to environment
9. A form of cultural imperialism
99
Environmental Issues for First Nations





Contamination of food chain from long-range pollutants (especially for Inuit)
Global warming, particularly in Arctic
Clear-cutting forests, especially in BC
Loss of biological diversity
Water pollution on reserves (eg Kashechewan)
International Environmental Law standards and Indigenous peoples
UN Declaration on the Rights of Indigenous Peoples, 2007:
(Article 29.1)
o “Indigenous peoples have the right to the conservation and protection of
the environment and the productive capacity of their lands or territories
and resources. States shall establish and implement assistance programmes
for indigenous peoples for such conservation and protection, without
discrimination”.
(Article 32.1)
 “Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.”
ILO Convention concerning Indigenous and Tribal Peoples in Independent
Countries, 1989

“The peoples concerned shall have the right to decide their own priorities for the
process of development as it affects their lives … and the lands they occupy or
otherwise use, and to exercise control, to the extent possible, over their own
economic, social and cultural development…” (Article 7)
Rio Declaration on Environment and Development 1992

“Indigenous people and their communities, and other communities, have a vital
role in environmental management and development because of their knowledge
and traditional practices. States should recognise and duly support their identity,
culture and interests and enable their effective participation in the achievement of
sustainable development.”

(Principle 22)
Convention on Biological Diversity, 1992:
o “Each Contracting Party shall, as far as possible and as appropriate: …
o Subject to its national legislation, 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 wide application with the approval and
100
involvement of the holders of such knowledge … and encourage the equitable
sharing of the benefits arising from the utilisation of such knowledge …” (Article
8(j))
 Agreement on Conservation of Polar Bears, 1973
 Convention on Conservation of North Pacific Fur Seals 1976
 (Revised) African Convention on the Conservation of Nature and
Natural Resources, 2003
Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001)


First case in which an international tribunal with legally-binding authority has
ruled in favor of Indigenous peoples’ collective rights.
The Inter-American Court concluded that Nicaragua had violated the rights of the
Mayangna community of Awas Tingni by granting a logging concession within
the community’s traditional lands without its consent.
Comparative examples around the world - Australia



Joint management of national parks situated on Aboriginal land
Environment Protection and Biodiversity Conservation Act 1993 allows some
Aboriginal land councils to manage federal nature reserves
The Native Title Act 1993 provides for the negotiation of Indigenous Land Use
Agreements, by which potential native title claimants can enter into Agreements
concerning territories claimed to address issues for biodiversity conservation and
sustainable use
Comparative examples around the world - New Zealand




Treaty of Waitangi, 1840
o Crown “guarantees to the Chiefs and Tribes of New Zealand .. The full
exclusive and undisturbed possession of their Lands and Estates, Forests,
Fisheries and other properties which they may collectively or individually
possess so long as it is their wish and desire to retain the same in their
possession.”
“Sealords’ fisheries settlements (1989, 1992)
Resource Management Act, 1991
o 'The relationship of Maori and their culture and traditions with their
ancestral land, water, sites, wahi tapu, and other taonga' is a matter of
national importance which must be recognised and provided for by
decision makers (section 6(e))
'Kaitiakitanga' is a matter which decision makers must have particular regard to
(section 7(a)). It is defined in section 2 as meaning 'the exercise of guardianship
by the tangata whenua of an area in accordance with tikanga Mari in relation to
natural and physical resources; and includes the ethic of stewardship'.
101

All persons exercising functions and powers under the Act must “take into
account the principles of the Treaty of Waitangi” (sec. 8)

If the Minister for the Environment is considering preparing a national policy
statement he or she must seek and consider comments from relevant iwi
authorities (section 46(a))

Where a recognized customary activity is likely to be adversely affected by a
proposed activity, the assessment of effects accompanying the resource consent
application must include a description of possible alternative locations or methods
(First Schedule, clause 1A)
Comparative examples around the world - USA



The Environmental Protection Agency in 1984 adopted a Federal Indian Policy
which recognised Indian tribal governments as the appropriate entity in setting
environmental standards and managing environmental programs within
reservation boundaries.
Delegation of regulatory authority to Indian tribes, including: the Clean Water
Act, the Clean Air Act, Surface Mining Control and Reclamation Act, and the
Resource Conservation and Recovery Act.
Supreme Court has rejected tribal efforts to regulate hunting and fishing on nonIndian fee simple lands within reservation boundaries, or to regulate non-Indian
water use within reservations.
Montana v United States (1981)
o United States v Anderson (1984)
Themes




Legal pluralism – mixing of legal norms and institutions – or delegation?
Relationship between environmental law and Aboriginal law – which trumps
when there is a conflict of laws?
Status of international environmental and Indigenous law in domestic legal
systems?
Do we extend “Indigenous” environmental rights to peoples such as the Japanese
who claim a traditional practice of whaling?
16.
Environmental Law Beyond Canadian Borders
i. International Environmental Law
Is transboundary pollution illegal at international law?


Trail Smelter then..
Smelter at Trail, BC, 1896, in Columbia River valley, 20 km from US border,
“An outcrop of hell”
102
Transboundary pollution and international law


The Trail Smelter dispute, 1927-1941 and on…
Problem: massive emissions of SO2 causing damage to farms, forests, etc.
o
across border in Washington
o Genesis and History of the dispute: local to international
o Holding: “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: compensation plus regulation
Trail Smelter’s contemporary relevance
o Is transboundary environmental harm illegal under international law?
 Tension inherent in IEL is captured by Stockholm Declaration,
Principle 21 (1972): 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 States
 What answer do the applicable principles suggest?
o And the Trail Smelter controversy lives on:
 Unresolved transboundary water pollution issues
 US unilateralism: US EPA is trying to force Teck Cominco to
clean up historic contamination under federal Superfund law, and a
Native American tribe is trying to do same via citizen suit.
ii. Trade & the Environment


The Trade/Environment Debate
Trade and Environment in North America
o NAFTA, Investors and the Environment
The Summers Memo
“shouldn't the World Bank be encouraging MORE migration of the dirty industries to the
LDCs? I can think of three reasons:
1) …a given amount of health impairing pollution should be done in the country
with the lowest cost, which will be the country with the lowest wages. I think the
economic logic behind dumping a load of toxic waste in the lowest wage country
is impeccable and we should face up to that.
2) The costs of pollution are likely to be non-linear as the initial increments of
pollution probably have very low cost. I've always though that under-populated
countries in Africa are vastly UNDER-polluted…
3) The demand for a clean environment for aesthetic and health reasons is likely to
have very high income elasticity. The concern over an agent that causes a one in a
million change in the odds of prostate cancer is obviously going to be much
higher in a country where people survive to get prostate cancer than in a country
where under 5 mortality is 200 per thousand.”
103
- Lawrence Summers, World Bank Chief Economist, December 1991
Trade-environment conflict: The arguments




Regulatory effects
o Free trade increases efficiency & incomes and thus resources & demand
for more stringent environmental laws
o Free trade increases mobility of capital and induces regulatory “race to the
bottom” to attract or retain investment
Scale effects
o Free trade leads to increased economic output and thus increased
environmental degradation (ceteris paribus)
Composition effects
o Free trade leads to specialization which may or may not mean increased
environmental degradation
Technological effects
o Free trade leads to spread of “green” technologies, higher incomes and
increased demand for environmental “goods”
NAFTA & Mexican Maize

In 1994 NAFTA liberalized agricultural trade between US and Mexico
o New export markets for US corn propped up ecologically unsustainable,
mass-production agribusiness
o Flood of imported US corn led to loss of agricultural biodiversity in
Mexico due to out-migration of farmers with traditional knowledge and
displacement of local varieties with other crops or commercial hybrids
Environment and Investment
How are they treated in North American free trade regime?
Basic rules,
norms, rights,
obligations
Investment
(NAFTA Ch. 11)
Environment
(NAFTA, NAAEC)
National treatment
Most favoured nation
Minimum standard
No expropriation or action
tantamount to it
“Regulatory takings”
High level of protection
Avoid race to bottom
Effective enforcement
Regulatory takings

Does NAFTA enable foreign investors to dismantle environmental laws?
o Early Ch. 11 cases seemed to confirm fears
 Ethyl Corp.: Canada settled MMT case, withdrew ban
104

Metalclad: Mexican state creation of ecological preserve, local
refusal of construction permit for toxic waste dump ruled
expropriation
o But recent Methanex decision quelled worst fears
 Canadian methanol manufacturer challenged California ban on
gasoline additive MTBE as regulatory expropriation and corrupt
conspiracy between government and competitor
 Tribunal rejected claim in 2005, holding ban was for public
purpose, non-discriminatory and observed due process
Methanex on regulatory takings



a non-discriminatory regulation for a public purpose … enacted in accordance
with due process … which affects … a foreign investor … is not deemed
expropriatory and compensable unless specific commitments had been given by
the regulating government … that the government would refrain from such
regulation….
No such commitments were given to Methanex. Methanex entered a political
economy in which it was widely known, if not notorious, that governmental
environmental and health protection institutions at the federal and state level,
operating under the vigilant eyes of the media, interested corporations, nongovernmental organizations and a politically active electorate, continuously
monitored the use and impact of chemical compounds and commonly prohibited
or restricted the use of some of those compounds for environmental and/or health
reasons.”
“…the scientific and administrative record establishes clearly that … California
… acted with a view to protecting the environmental interests of the citizens of
California, and not with the intent to harm foreign methanol producers. Faced
with widespread and potentially serious MTBE contamination of its water
resources, California ordered a careful assessment of the problem and thereafter
responded reasonably to independent findings that large volumes of the state’s
ground and surface water had become polluted by MTBE and that preventative
measures were called for. The evidential record establishes no ill will towards
Methanex or methanol…. Having concluded … that no illicit pretext underlay
California’s conduct and that Methanex has failed to establish that the US
measures were intended to harm foreign methanol producers (including
Methanex) or benefit domestic ethanol producers (including ADM), it follows …
that … the US measures do not “relate to” Methanex or its investments as
required by Article 1101(1).”
But…Evidence of “regulatory chill” persists

E.g. Canadian federal government’s abandonment of proposal to ban use of terms
“light” or “mild” on cigarette packaging after Philip Morris threatens Ch. 11
claim for regulatory expropriation of trademarks
o Philip Morris issued 60 page legal opinion on ch. 11 violation
105

S.D. Myers (PCB export ban) and Pope & Talbot (softwood lumber agreement)
decisions suggest “market share” and “market access” may constitute protected
investments
o In both cases Ch. 11 tribunals dismissed claims of regulatory
expropriation but upheld “minimum standard of treatment” claims due to
discrimination, lack of due process
Adjudication of complaints

Compare Ch. 11 investor-state disputes with NACEC “citizen submissions”
o Basics:
 Who may complain? Against whom? To whom?
o Public participation and transparency
 Who may participate? Are proceedings and documents secret?
o Powers
 What can the adjudicator do? Is the decision binding and
enforceable?
o Track record
 How many complaints? Against which countries? Outcomes?
 If SEM is toothless, why is the CEC Council sitting on the
Montreal Technoparc PCB factual record?
NAFTA and Water






Does NAFTA force Canada to sell its water?
Does NAFTA apply to water exported in bulk?
Does it prevent Canada from banning bulk exports?
Has Canada turned on the tap?
Can it turn it off? (“proportionality”)
Would denying or revoking a US investor’s right to export water be “tantamount
to expropriation”?
o The Sun Belt Chapter 11 dispute
17.
Taking Stock and Looking Forward
The Doctor is In
- Evaluating David Boyd’s Diagnosis and Prescription
- Boyd finds too much discretion for administering government agencies
Brainstorming
•
•
•
1. Reasons for Canada’s Progress
2. Root causes of Environmental Degradation
3. Ways Forward
– Sweden: A New Role Model for Canada?
Reasons for Progress (ch 7)
•
Strong institutions
– Canada has strong economic & political institutions
106
•
•
•
•
•
•
•
•
•
International pressure
Effective laws
– Clear jurisdiction & cooperation,
– Clear enforceable standards,
• Something that is measurable & is clear
• These 2 results in it being enforceable
– mandatory language
• directive rather than voluntary for industry
• non-discretionary for government agencies
– effective compliance & enforcement tools
• robust enforcement (by the state)
• publicly supported
– adequate resources
Federal-provincial cooperation
– Progress where there is clear authority for one jurisdiction to act
– Progress where government was assertive to act & uphold the jurisdiction
to make laws
• Ex: federal regulation of dioxins from pulp/paper mills
Proactive local governments
Progressive Supreme Court
– Oldman River, Hydro Quebec
• Shared jurisdiction  all levels of government have authority &
duty to act re: environment
• Importance  Spray tech – affirms the precautionary principle
- But FCA takes narrow approach on environmental assessments & judicial
review (conservative attitude)
Public pressure
US influence (double edged sword?)
– Boyd appears to support command regulation but says US who has the
most of these standards but is failing (US has most extensive
environmental laws)
– Command regulation vs complex mix of tools
• Ex: Sweden, heavily emphasis on tax/economic incentives
Knowledge - certainty
Vested interests
– Canada receives more impact from certain pollution
Root Causes of Degradation
•
•
What’s wrong with US & Cdn. law?
– Treating symptoms not the causes
What are the root causes of environmental degradation?
– Unsustainable consumption?
– Unsustainable population growth?
– Human population x per capita consumption of energy & materials?
• Human impact on biosphere
107
•
This equation is too simplistic (other variables, ex by
location)
• Some say its an attack on developing world
• Problem is population control (what north is saying)
1. There are multiple root problems re: environment
degradation (ex: different for air vs water etc)
a. All need to be taken into account
The ‘Natural Step’ Principles
-
-
In a sustainable society, nature is NOT subject to systematically increasing
i. Concentrations of substances extracted from Earth’s crust
ii. Concentrations of substances produced by society
iii. Degradation by physical means
And in that society
i. People are not subject to conditions that systematically undermine
their capacity to meet their needs
1. Fourth principle to recognize that first 3 principles left out
human aspect of social justice
Ways Forward
•
•
•
Implement existing laws?
– What kinds of laws and policies will enable Canada to achieve economic
growth and improve Canadians’ quality of life, while reducing resource
consumption and environmental damage?” (Boyd 294)
Enact “effective” new laws?
– Cooperation, enforceable standards, mandatory language, effective
compliance & enforcement tools, adequate resources
Incorporate…
– Precautionary principle; independent scientific advice; intergenerational
equity; polluter pays, user pays, pollution prevention; public participation
-
-
-
Ecological tax shifting (ecological fiscal reform)
i. Tax bads (consumption of energy, bad environment activity) not
goods (which we usually tax labour)
ii. Ex: Tax
1. Resource extraction
2. Resource consumption (ie water)
3. Pollution (ie carbon)
SMART Regulation
i. Mix of instruments
ii. If you just use command regulation, there is no incentive to
innovate (Driesan)
iii. If you give tax benefits for innovation with command regulation is
more effective
Fundamental reforms
i. Democratic Reform - Recalls proportionate reform, referenda
108
-
ii. Redefine progress
Enact effective laws (based on criteria on earlier slide & enforce existing
laws)
subsidies
Mimic the Swedes?
•
Goodbye USA, “hej Sweden”?
– How do the environmental performance of Canada & Sweden compare?
• Two northern, sparsely populated industrialized countries with
cold climates and similar economies
• Differences
• Sweden Unitarian state, easier to get things done
• Sweden relies heavily on forestry, but not oil & gas;
Canada has strong reliance on oil & gas
– GHGs  S half of C rates
– Air pollution C 8x more SO4
– Water consumption, sewage treatment
– Waste
– Pesticides
A New Role Model?
•
•
Lessons for Canada?
– Stringent, ambitious general environmental laws and policies
– Holistic regulatory approach
• Mix of command, economic and other instruments
• Boyd really praises the economic taxes, rebates in Sweden
– Aid to developing countries
– Do stronger environmental laws hurt prosperity?
Is Boyd’s attitude toward command regulation consistent?
So what are we aiming for?
•
•
A sustainable future means…
– Clean air and water
– Renewable energy
– No dangerous human interference in climate system
– Thriving ecosystems, species and biodiversity
– Laws that recognize ecological limits
– Dematerialization and substitution (recall ch. 13)
Do we have the time?
– Window of opportunity is closing rapidly
– E.g.: Post-2005 data on sea ice and ice sheets show MUCH faster change
than IPCC 4AR worst case scenarios
109
1.
Introduction ............................................................................................................... 1
i. Setting the Scene ...................................................................................................... 1
What is Environmental Law?...................................................................................... 1
The Continuing Chronicle of Environmental Law ..................................................... 1
“New” environmental problems of 1980s-onward ..................................................... 3
Transformation of the state and business .................................................................... 3
IPCC ............................................................................................................................ 4
ii. Core Case Studies .................................................................................................... 4
a. Climate Change .................................................................................................... 4
b. Forest Management .............................................................................................. 4
2. Governmental Institutions ....................................................................................... 4
i. Federalism and the Environment ............................................................................. 4
Executive branch ......................................................................................................... 5
Legislative branch ....................................................................................................... 5
Judicial branch ............................................................................................................ 5
How do federalism issues arise? ................................................................................. 5
Division of Powers ...................................................................................................... 6
Environmental powers ................................................................................................ 6
Federal powers ............................................................................................................ 6
Functional Powers ....................................................................................................... 7
Oldman River Case - Navigable Waters .................................................................... 7
R v. Fowler; R v. Northwest Falling Contracters Cases - Fisheries Act .................... 7
Conceptual Powers – Hydro Quebec .......................................................................... 8
Is federal regulation of toxic substances valid? .......................................................... 8
Crown Zellerbach – POGG Power ............................................................................. 9
Making Sense of Federalism: Theories and Trends .................................................. 10
Race to the Bottom (tragedy of the commons) ......................................................... 10
Race to the Top ......................................................................................................... 10
Spillovers (transboundry externalities) ..................................................................... 11
Regulatory capture by locally dominant interests ..................................................... 11
Geographic variation in preferences ......................................................................... 11
Democratic self-determination, subsidiarity ............................................................. 11
Trends ....................................................................................................................... 11
ii. Local Governments and Environmental Protection ............................................... 12
Spraytech (SCC 2001)............................................................................................... 12
3. Environmental Regulation: Concepts and Controversies ................................... 14
i. Command Regulation and its Critics ..................................................................... 14
Roadmap: .................................................................................................................. 14
An introduction to command regulation ................................................................... 14
Historical Phases of C&C ......................................................................................... 15
Environmental Standards .......................................................................................... 15
Setting standards ....................................................................................................... 15
Implementing standards ............................................................................................ 16
Environmental Licensing .......................................................................................... 17
Environmental planning ............................................................................................ 17
Strengths and weaknesses of Command Regulation ................................................ 17
110
Strengths and weaknesses ......................................................................................... 17
Recent trends and the future ..................................................................................... 19
Environmental Standards .......................................................................................... 20
Setting Standards ...................................................................................................... 20
ii. Risk, Uncertainty and Precaution .......................................................................... 20
Precaution and adaptation ......................................................................................... 21
4. Water ........................................................................................................................ 22
General introduction ................................................................................................. 22
i. Safe Drinking Water: Walkerton and Beyond ....................................................... 22
Regulating Water Quality ......................................................................................... 22
Beyond the Koebels .................................................................................................. 23
High level political decisions .................................................................................... 23
Ensuring Safe Drinking Water .................................................................................. 23
1. Source Protection .................................................................................................. 24
2. Water Treatment ................................................................................................... 24
3. Water Distribution ................................................................................................ 24
4. Comprehensive Testing ........................................................................................ 24
5. Public Transparency.............................................................................................. 25
6. Resources .............................................................................................................. 25
Where are the Feds? .................................................................................................. 25
Comparative Example ............................................................................................... 25
Special Issues ............................................................................................................ 26
ii. Water Consumption and Conservation .................................................................. 26
Overview ................................................................................................................... 26
Water Use in Canada ................................................................................................ 26
Environmental effects ............................................................................................... 26
Laws and Policies ..................................................................................................... 27
Water use law in Ontario .......................................................................................... 27
The OMYA case ....................................................................................................... 27
Subsequent developments ......................................................................................... 28
Briefing #2 – Water Taking ...................................................................................... 28
New PTTW Process .................................................................................................. 28
5. Air **see Boyd ......................................................................................................... 29
i. Overview ................................................................................................................ 29
Air and Atmosphere: a mixed bag ............................................................................ 29
Air pollution: key themes.......................................................................................... 29
ii. Air Pollution Regulation in Ontario ....................................................................... 30
Regulatory Framework ............................................................................................. 31
Air Pollution Approvals ............................................................................................ 31
Stages 2 and 3 ........................................................................................................... 32
Stage 4. Application Review..................................................................................... 32
Stage 5. Ministry Decision ........................................................................................ 33
Stage 6. Appeal ......................................................................................................... 33
Other recent developments ....................................................................................... 33
6. Toxic Substances ..................................................................................................... 33
“Cradle to grave”: the toxic chemicals problem ....................................................... 33
111
Briefing # 3 ............................................................................................................... 34
Federal regulation of toxic substances ...................................................................... 34
CEPA 99 Five Year Review ..................................................................................... 34
DSL categorizing & screening .................................................................................. 35
Key Issues ................................................................................................................. 35
The word “toxic”....................................................................................................... 35
Knowledge ................................................................................................................ 36
From Knowledge to Precaution ................................................................................ 37
Precautionary Principle ............................................................................................. 37
Pollution Prevention.................................................................................................. 37
Virtual Elimination ................................................................................................... 38
A closer look at CEPA 1999 ..................................................................................... 38
Purposes and principles............................................................................................. 38
CEPA, 1999 .............................................................................................................. 38
Control of Toxic Substances ..................................................................................... 39
1. Is it “Toxic”? ......................................................................................................... 39
PSL Assessments ...................................................................................................... 39
DSL Categorization .................................................................................................. 39
2. If it’s toxic, then what? ......................................................................................... 40
Managing toxic substances ....................................................................................... 40
Regulations ............................................................................................................... 41
7. Nature Conservation ............................................................................................... 41
i. Biodiversity Conservation: Issues and Concepts ................................................... 41
Biodiversity ............................................................................................................... 41
ii. Parks and Protected Areas ..................................................................................... 42
Current Picture in Canada ......................................................................................... 42
Key Issues ................................................................................................................. 42
Purposes and uses of parks ....................................................................................... 42
Conflicting purposes ................................................................................................. 42
Resolving conflicting purposes ................................................................................. 43
Ecological integrity ................................................................................................... 43
Wood Buffalo Park winter road dispute (CPAWS v. Canada) ................................. 43
The end of the road?… ............................................................................................. 45
Ecological Integrity /con. .......................................................................................... 46
Who pays, and how much? ....................................................................................... 46
R. v. Tener ................................................................................................................. 46
Number, size, shape & location ................................................................................ 46
(More) threats to parks .............................................................................................. 47
Current Developments .............................................................................................. 47
iii.
Endangered Species............................................................................................ 47
Evaluating ES laws ................................................................................................... 48
Briefing #8 ................................................................................................................ 49
8. Environmental Impact Assessment ....................................................................... 49
What is Environmental Impact Assessment? ............................................................ 49
History of EIA (skim) ............................................................................................... 49
EIA in Canada ........................................................................................................... 49
112
Key issues regarding EA ........................................................................................... 50
Note: Forms of EA .................................................................................................... 51
Triggers and timing: overview .................................................................................. 51
What actions trigger an EA? ..................................................................................... 51
Federal approvals ...................................................................................................... 52
What projects trigger an EA? .................................................................................... 52
Timing of EA ............................................................................................................ 52
Timing – Hamilton –Wentworth v Canada ............................................................... 52
Scope of the EA: 2 issues.......................................................................................... 53
The Sunpine case ...................................................................................................... 53
Sunpine reasoning ..................................................................................................... 53
Other scoping scenarios ............................................................................................ 54
Cumulative effects etcetera ....................................................................................... 54
Cumulative effects - Sunpine .................................................................................... 54
Other cumulative effects scenarios ........................................................................... 55
Strategic EA .............................................................................................................. 55
Significance and Mitigation ...................................................................................... 55
Consideration of alternatives .................................................................................... 56
Public Participation ................................................................................................... 56
Role of Public - Panel reviews .................................................................................. 57
Binding or non-binding? ........................................................................................... 57
Last words........................................................................................................................ 57
9. Environmental Compliance and Enforcement ..................................................... 58
Overview ................................................................................................................... 58
1. Definitions, trends, and strategies ......................................................................... 58
What determines whether a person complies with the law? ..................................... 58
Does enforcement matter? ........................................................................................ 58
Trends in OECD countries ........................................................................................ 59
Trends in Ontario ...................................................................................................... 59
Unfortunate coincidences.......................................................................................... 59
Public (non-)disclosure ............................................................................................. 59
Strategies ................................................................................................................... 60
2. The “traditional” approach .................................................................................... 60
A. Abatement Orders ................................................................................................ 61
B. Sanctions: prosecution, fines and imprisonment .................................................. 61
What is Due Diligence? ............................................................................................ 61
R v Bata Industries (Ont Prov Ct 1992) .................................................................... 62
Penalties .................................................................................................................... 63
In practice - penalties ................................................................................................ 63
Sidebar: is pollution a crime? ................................................................................... 63
Limits of Traditional approach ................................................................................. 64
3. Innovations ............................................................................................................ 64
Targeted enforcement ............................................................................................... 64
On-the-spot fines ....................................................................................................... 64
Enviro penalties - Features and controversies .......................................................... 65
Other innovations ...................................................................................................... 65
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10. Environmental Legal Activism ........................................................................... 65
i. Overview ................................................................................................................ 65
ii. Public Participation and Environmental Rights ....................................................... 65
Environmental rights: basic issues ............................................................................ 66
Constitutional rights .................................................................................................. 66
The Minors Oposa case – Philippines....................................................................... 66
Public participation ................................................................................................... 66
Forms of public participation .................................................................................... 67
Aarhus Convention, 1998 ......................................................................................... 67
Public Participation in practice ................................................................................. 67
Lingering Public Participation issues........................................................................ 68
Case Study: Canada .................................................................................................. 68
Ontario EBR.............................................................................................................. 68
Basic elements of the EBR ....................................................................................... 69
Participation in decision-making .............................................................................. 69
Citizen law reform .................................................................................................... 70
Citizen law enforcement ........................................................................................... 70
Political Accountability ............................................................................................ 71
ii Public Interest Environmental Litigation I: Citizen Law Enforcement ..................... 71
PIEL I: Citizens as law enforcers.............................................................................. 71
Judicial Review ......................................................................................................... 71
Grounds for Judicial Review .................................................................................... 72
Focus: substantive constraints................................................................................... 72
But there are rare victories(?) ................................................................................... 72
Legal Briefing #6a .................................................................................................... 73
Obstacles: Standing ................................................................................................... 73
Obstacles: Standard of review .................................................................................. 74
Obstacles: Cost.......................................................................................................... 74
Actions Against Polluters ......................................................................................... 74
Private Prosecutions .................................................................................................. 74
The Kingston case ..................................................................................................... 75
Other Ontario examples of government as defendant............................................... 75
Citizen Suits .............................................................................................................. 75
Statute of 12 Richard II, c. 13 (1388) ....................................................................... 76
Modern Citizen Suits ................................................................................................ 76
Ontario EBR Citizen Suits ........................................................................................ 76
EBR vs. CEPA citizen suits - chart........................................................................... 77
Addendum: PIEL in Canada ..................................................................................... 77
11. Environmental Justice ......................................................................................... 78
EJ in Canada: Sydney Tar Ponds .............................................................................. 78
Environmental Justice - Bullard................................................................................ 78
12. Economic Instruments of Environmental Regulation ...................................... 79
Key questions ............................................................................................................ 79
Boyd v. Driesen? ....................................................................................................... 79
Economic and environmental critiques ..................................................................... 79
The economic critique............................................................................................... 80
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Discussion – Of Economic Critique ......................................................................... 80
Economic instruments: an assessment ...................................................................... 81
Price-based instruments ............................................................................................ 81
Quantity-based instruments ...................................................................................... 82
Information-based instruments ................................................................................. 83
Summary ................................................................................................................... 83
Conclusion: transformation toward sustainability .................................................... 83
13. Voluntary Environmental Codes ........................................................................ 83
Questions about Voluntary Environmental Codes .................................................... 83
1. What are voluntary environmental codes? ............................................................ 83
What forms do they take? ......................................................................................... 84
Polluter codes ............................................................................................................ 84
Joint polluter-public authority negotiated arrangements .......................................... 85
Public authority codes ............................................................................................... 85
Joint public authority-third party negotiated arrangements ...................................... 85
Third party codes ...................................................................................................... 85
Joint polluter-third party negotiated arrangements ................................................... 85
Integrated rule-making .............................................................................................. 86
Other dimensions of variation ................................................................................... 86
2. Is there a move to voluntarism? ............................................................................ 86
A move to voluntarism? ............................................................................................ 86
3. What role can – and should – they play in environmental governance? .............. 87
Criteria for credible & effective codes...................................................................... 87
Role of voluntary codes ............................................................................................ 87
What drives voluntary codes? ................................................................................... 87
Rethinking the drivers ............................................................................................... 87
How well do VCs perform? ...................................................................................... 88
What are the goals of environmental governance? ................................................... 89
14. Sustainable Finance ............................................................................................. 89
Themes of this Lecture: ............................................................................................ 89
“Unseen Polluters” – the problem............................................................................. 89
Conventional view of financial institutions .............................................................. 89
The era of ‘finance capitalism’ ................................................................................. 89
Quick overview of financial sector ........................................................................... 90
Problems of financial markets from an environmental perspective.......................... 90
What is Socially Responsible Investment (SRI)? ..................................................... 90
Primary functions and aims of SRI ........................................................................... 90
The main SRI institutions ......................................................................................... 90
What are the methods of SRI? .................................................................................. 91
What do you think drives SRI? ................................................................................. 91
How extensive is SRI today? .................................................................................... 91
Canadian SRI market evolution ................................................................................ 91
Growth of Canadian SRI mutual fund market .......................................................... 92
Issues most frequently screened by SRI funds in US in 2005 ($179 bil) ................. 92
Bottlenecks to SRI .................................................................................................... 92
Fiduciary duties of investment trustees – pension plan trustees ............................... 92
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How to promote SRI through state and non-state regulation .................................... 92
Trust law – SRI as a “material” or discretionary concern ........................................ 93
The “disclosure” approach ........................................................................................ 93
UK’s Pensions Act 1995: regulation of 1999 ........................................................... 93
The “mandatory SRI” approach ................................................................................ 93
New Zealand Superannuation & Retirement Act 2001: s. 61(d) ............................. 93
Informational policy instruments .............................................................................. 94
SRI Subsidies (positive incentives) .......................................................................... 94
Corporate governance reforms .................................................................................. 94
Lender liability for environmental damage............................................................... 94
Non-state regulation: voluntary standards and codes ............................................... 94
Other non-state governance mechanisms.................................................................. 94
15. Aboriginal Peoples and the Environment .......................................................... 95
Overview ................................................................................................................... 95
Aboriginal experiences ............................................................................................. 95
Selected issues .......................................................................................................... 95
Around the world in 20 minutes ............................................................................... 96
First Nations and the Environment in Canada .......................................................... 97
Two illustrative questions ......................................................................................... 97
A Third Order? .......................................................................................................... 97
Aboriginal self-government ...................................................................................... 98
Aboriginal self-government / Contd ......................................................................... 98
Resource co-management ......................................................................................... 98
Nunavut www.gov.nu.ca........................................................................................... 99
Resource capture/recapture ....................................................................................... 99
Recapturing resources? ............................................................................................. 99
i. Richardson ............................................................................................................. 99
Nature and Indigenous Peoples: Theoretical perspectives........................................ 99
Environmental Issues for First Nations................................................................... 100
International Environmental Law standards and Indigenous peoples .................... 100
Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001) .......................... 101
Comparative examples around the world - Australia ............................................. 101
Comparative examples around the world - New Zealand ....................................... 101
Comparative examples around the world - USA .................................................... 102
Themes .................................................................................................................... 102
16. Environmental Law Beyond Canadian Borders ............................................. 102
i. International Environmental Law ........................................................................ 102
Is transboundary pollution illegal at international law? .......................................... 102
Transboundary pollution and international law ...................................................... 103
ii. Trade & the Environment ....................................................................................... 103
The Summers Memo ............................................................................................... 103
Trade-environment conflict: The arguments .......................................................... 104
NAFTA & Mexican Maize ..................................................................................... 104
Environment and Investment .................................................................................. 104
Regulatory takings .................................................................................................. 104
Methanex on regulatory takings .............................................................................. 105
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But…Evidence of “regulatory chill” persists ......................................................... 105
Adjudication of complaints ..................................................................................... 106
NAFTA and Water .................................................................................................. 106
17. Taking Stock and Looking Forward ................................................................ 106
Brainstorming ......................................................................................................... 106
Reasons for Progress (ch 7) .................................................................................... 106
Root Causes of Degradation ................................................................................... 107
The ‘Natural Step’ Principles.................................................................................. 108
Ways Forward ......................................................................................................... 108
Mimic the Swedes? ................................................................................................. 109
A New Role Model? ............................................................................................... 109
So what are we aiming for? .................................................................................... 109
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