INTRODUCTION
ENVIRONMENTAL LAW
CML 3369
SEPTEMBER 9,2013
Stephen Hazell M.Sc. LL.B.
Sarah Jackson B.Sc. J.D.
Introductions
• Who are we??
• Stephen – Senior Counsel, Ecovision
Law, Senior Advisor, Nature Canada
• Executive Director of 3 national
environmental groups (Sierra Club
Canada, CPAWS, CARC)
• Director Regulatory Affairs, Canadian
Environmental Assessment Agency
Introductions
• Sarah - Counsel, Ecovision Law
• Articled with Ecojustice UOttawa clinic
• Ph.D. candidate University of Dundee
Introduction (cont’d)
• Outline of Course - expectations, course
materials, evaluation
• Requirements – exams, papers, class
participation, interactive exercises
• Input from students on expectations
• Global ecosystem change and
consequences for human well-being
• Historical development, current status
• Ecological, ethical dimensions
Overview of Course
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Ecology, History, Theory and Ethics
Constitutional Law, Aboriginal Rights
Civil Liability for Environmental Harm
Criminal Law: Regulatory Offences
Corporate Environmental Obligations
Judicial Review of Administrative Action
Environmental Regulations, Approvals
Environmental Rights, Public
Participation
Overview of Course (cont’d)
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Toxic Substances Law
International Law
Environmental Assessment Law
Endangered Spaces and Species Law
Economic Instruments
Climate Change Law
Toward Sustainability Law
Materials
• Benidickson Environmental Law (4th ed)
• Cases, legislation, articles on line
Blackboard Learn
Evaluation
• Class Participation (30%); if major
paper (20%)
• Interactive Exercises (10% each) two
required; if major paper, one required
• Exam (70% if no paper; 40% if minor
paper; (20% if major paper)
• Minor Paper (optional, 30%)
• Major Paper (optional, 60%)
Evaluation (cont’d)
• Paper Topics: Due Monday October 7
• Papers Due: Monday December 2
Class Participation
• General Class Participation (5%)
• Attendance (5%)
• Interactive Exercises (10%) each:
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Civil Liability Moot
Interested Party Moot
Enforcing Remedial Orders Moot
Climate Treaty Negotiations
Constitutionality of CEAA 2012 Moot
Species at Risk Act Prosecution
Parliamentary Debate on
Carbon Pricing
Why Environmental Law?
• Protecting ecological services in
fact of mounting human demands
will be defining issue of 21st
century
• Opportunities to make Canada a
more sustainable society
• Corporate community,
governments, academe will need
lawyers to navigate laws to protect
natural capital, ecological services
Those Awful People
The Global Ecological Crisis
• Human actions are systematically reducing
the life-supporting capacity of Earth’s
ecosystems even as rising human
populations and consumption are making
heavier demands on those ecosystems
• Ecological footprint analysis (invented by Bill
Rees UBC, conducted by WWF) shows that
1.5 “Earths” needed to support current human
population at current consumption levels
• Earth’s natural capital is being drawn down
The Global Ecological Crisis
• Average ecological footprint per person:
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Canadian 7.6 global ha
American 9.6 global ha
Frenchman 5.6 global ha
Afghan 0.1 global ha
• Several planet Earths will be needed to
maintain current global population at
developed country standards of living
Climate Change is Real
• Warming of the climate system is
unequivocal” and is “mainly due to human
activities.” – Intergovernmental Panel on
Climate Change (lPCC) 2007
• Catastrophic consequences are projected if
GHG emissions allowed to continue
unchecked – IPCC 2007
Canada: A Leading Carbon Polluter
• Canada’s GHG emissions increased from
596 Mt CO2 (1990) to 710 Mt (2012)
• GHG Emissions (tonnes per capita):
– Canada
14
– United States
20
– United Kingdom 10
– China
2
– India
1
GHG Concentrations in the
Atmosphere
• CO2 concentrations have risen from 280 ppm
(pre-industrial) to 403 ppm (2010)
Why is the Atmosphere Changing?
“The global increases in carbon dioxide
concentration are due primarily to fossil fuel
use and land use change while those of
methane and nitrous oxide are primarily due
to agriculture.”
IPCC 2007
Canada the Tar Nation: Why our
GHG Emissions are Increasing
• Alberta’s tar sands oil production is increasing
dramatically:
– 1 million barrels per day (2004)
– 2.45 million bbl/day (2013)
– 5.2 million bbl/day (2030)
• Tar sands oil produces 3.2 - 4.5 times the GHG
emissions as conventionally produced oil in Canada
and U.S.
• Tar sands oil production is the single largest factor in
the growth of Canada’s GHG emissions (17 MT in
1990 to 50 MT in 2010)
2003 – 2012:
Warmest Decade Ever
• World warmed by 0.8 degrees C. since Industrial
Revolution, mostly since 1970s
• 10 warmest years on record occurred in last 14 years
• Canada’s North warming even more rapidly than
global average
Extreme Weather Events
• Droughts (Australia, United States) and extreme
precipitation events: Mumbai, New York (Superstorm
Sandy), Pakistan, Toronto)
• Hurricanes have increased in severity and duration
by 50% since the 1970s
• Insurance losses from extreme weather have
increased 15-fold over three decades
Ecological Changes
• Extent of Arctic sea ice in September declined 50%
between 1979 and 2012 and could disappear
altogether in one to two decades
• Glacier melting (Rockies, Himalayas, Andes, Alps)
means lower summer river flows.
• Escalating melting of Greenland and Antarctic
glaciers could drive sea levels metres higher
• Lower water levels in the Great Lakes and the St.
Lawrence River
• Boreal forest burning
• Invasive species
• Mountain pine beetle
Climate Change as a
Security Threat
• “Climate change acts as a threat multiplier for
instability in some of the most volatile regions of the
world” --Military Advisory Board to U.S. Pentagon
2007
• “Projected climate change will add to tensions even
in stable regions of the world.”
• “Conditions in already fragile areas will erode as food
production declines, diseases increase, clean water
becomes increasingly scarce, and large populations
move in search of resources”
Millenium Ecosystem Assessment
(2005) World Resources Institute
• Ecosystem services essential to human wellbeing
• “Over the past 50 years, humans have
changed ecosystems more rapidly and
extensively that in any comparable period of
time in human history largely to meet rapidly
growing demands for food, fresh water,
timber, fibre and fuel” “substantial and largely
irreversible loss in the diversity of life”
Millenium Ecosystem Assessment
• Ecosystem changes have “contributed to substantial
net gains in human wellbeing and economic
development” but “at growing costs in the form of
degradation of many ecosystem services”
• “The degradation of ecosystem services could grow
significantly worse during the first half of this century”
• The challenge of reversing the degradation of
ecosystems while meeting increasing demands for
their services can be partially met . . . But this involve
significant changes in policies, institutions and
practices”
Global Trends to 2020
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Global economic growth may stall indefinitely
Increasing scarcity of oil, water, natural resources
Accelerating costs of fossil fuels through cap-andtrade regulations, carbon taxes, growing demand
Increasingly unpredictable and extreme climate
with related disruption of freshwater supplies, crop
failures, forest fires
Geopolitical instability (environmental refugees,
conflicts over oil and gas, water)
More emergencies resulting from climate disasters
Tens of millions of deaths annually from starvation,
dehydration, and climate diseases
Cocooning by the affluent
The Challenge for Environmental
Law
• Law must rise to the challenge of “ensuring
the restoration of essential natural capital and
of protecting the common rights of all to the
ecological services essential for civilized
existence”
• Environmental law: links to other fundamental
justice issues of poverty, racism, sexism,
economic inequality
One Earth, One Chance
A Brief History of
Environmental Law
• Forest/fisheries conservation laws and antipollution laws (Fisheries Act) 1860s
• Market hunting (bison, passenger pigeon) led
to wildlife management laws late 1880s
• National parks:Yellowstone1872, Banff 1885
• Navigable Waters Protection Act 1906
• U.S. Governor’s Conference, Conservation
Commission (Roosevelt, 1908)
• Commission of Conservation (Laurier, 1909)
• Boundary Waters Treaty 1909
• Migratory Birds Treaty 1916
A Brief History of
Environmental Law (cont’d)
• Ontario’s Conservation Authorities Act,
Planning Act 1946
• Rise of environmental awareness in 1960s
• Silent Spring Rachel Carson 1962
• The Population Bomb Paul Ehrlich 1968
• “Tragedy of the Commons” GarretHardin1968
• The Limits to Growth Club of Rome) 1972
• U.S. National Environmental Policy Act 1969,
Clean Air Act 1970; Clean Water Act 1972
A Brief History of
Environmental Law (cont’d)
• Pollution agencies (Environmental Protection
Agency, Ontario Ministry of Environment,
Environment Canada) early 70s
• Greenpeace (Vancouver), Canadian
Environmental Law Association established
(Toronto) 1970
• Term “environmental law” appears as index
entry between 1972 and 1975
• Canadian Environmental Law Service 1976
A Brief History of
Environmental Law (cont’d)
• First generation environmental laws (1970s)
“Dilution is the solution”
– control of waste deposited on land or discharged
into water
– recognition that common law remedies (e.g., torts)
inadequate or sometimes too effective (riparian
rights cases)
– focused on local environmental harms
• Clean Air Act, Fisheries Act amendments,
Ontario Environment Protection Act,
Endangered Species Act
A Brief History of
Environmental Law (cont’d)
• Great Lakes Water Quality Agreement 1972
• United Nations Conference on the Human
Environment, Stockholm 1972
• “Should Trees Have Standing?” Christopher
Stone 1974
• Berger Inquiry “Northern Frontier, Northern
Homeland 1974 - 1977
A Brief History of
Environmental Law (cont’d)
• Trio of Catastrophes (Bhopal 1984,
Chernobyl 1986,Exxon Valdez 1989)
• Environmental Assessment Review Process
Guidelines Order in Council 1984
• World Commission on Environment and
Development: Our Common Future 1987
• Montreal Protocol on Substances that
Deplete the Ozone Layer (CFCs) 1987
• Intergovernmental Panel on Climate Change
1988
• National Round Table on Environment
and Economy 1988
A Brief History of
Environmental Law (cont’d)
• Second generation laws (1980s, 1990s)
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focus on persistent toxic substances
regional harms (pollution knows no borders)
environmental issues are complicated
development projects should be assessed based
on science to determine their advisability
– increased understanding of threats to species,
ecosystem processes
• Canadian Environmental Protection Act 1988,
Ontario Environmental Protection Act 1990,
Canadian Environmental Assessment Act
1992
A Brief History of
Environmental Law (cont’d)
• Canada-U.S. Air Quality Agreement (acid
rain) 1991
• UN Conference on Environment and
Development (Earth Summit),Rio Declaration,
Convention on Biological Diversity)1992
• North American Free Trade Agreement, with
North American Agreement on Environmental
Cooperation 1994
• Kyoto Protocol 1998
• Species at Risk Act 2002
A Brief History of
Environmental Law (cont’d)
• Third generation laws
– focus on sustainability
– global harms (biodiversity, CFC damage to
stratospheric ozone layer, anthropogenic climate
change)
– Integration of environmental factors together with
social and economic)
• Federal Sustainable Development Act 2008
• Sustainability assessments under CEAA
(Mackenzie Gas Project, Prosperity Mine)
A Brief History of
Environmental Law (cont’d)
• Fourth generation laws 2009 - ?
– Provinces to have primary if not exclusive
authority to manage natural resources including
related environmental effects
– Navigable Waters Protection Act amended 2009,
2012
– Canadian Environmental Assessment Act
amended 2009 then repealed in 2012, replaced by
CEAA 2012
– Fisheries Act, amended to weaken fish habitat
protection provisions 2012