Environmental Law

1. Environmental Law CLN4U

2. Environmental Law • Environmental protection in Canada is not within the exclusive jurisdiction of any one level of government • Federal, Provincial, and Municipal governments all have authority to pass environmental legislation

3. Federal Laws • Canadian Environmental Protection Act, 1999 (CEPA) • Fisheries Act • Species at Risk Act

4. Canadian Environmental Protection Act, 1999 (CEPA) • The primary environmental statute in Canada • Sustainable Development: “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.” • Pollution Prevention: “the use of processes, practices, materials, products, substances or energy that avoid or minimize the creation of pollutants and waste and reduce the overall risk to the environment or human health.”

5. Canadian Environmental Protection Act, 1999 (CEPA) • Defines toxic substances • Have or may have an immediate or long term harmful effect on the environment or its biological diversity • Constitutes or may constitute a danger to the environment on which life depends • Constitutes or may constitute a danger in Canada to human life or health • Establishes “Environmental Registry” allowing access to policies, regulations, notices, appeals, approvals, objections, etc.

6. Canadian Environmental Protection Act, 1999 (CEPA) • Gives citizens the right to sue when an action causes environmental harm • Action must be taken within two years from the time the plaintiff becomes aware of the alleged conduct • Plaintiff must prove case on a balance of probabilities

7. Canadian Environmental Protection Act, 1999 (CEPA) • The Precautionary Principle: full scientific proof is not necessary for environmental action to be taken; the threat of damage is enough • The Polluter Pays Principle: Users and producers of toxic substances are held responsible for costs associated with regulating these substances

8. Canadian Environmental Protection Act, 1999 (CEPA) • Criticisms: • 56 substances listed as toxic • Limited number? • Slow screening process • Effective in combating point-source pollution, but not non-point pollution • i.e. drain pipe vs. runoff

9. Canadian Environmental Protection Act, 1999 (CEPA) • Enforcement: • Use of enforcement officers • Can investigate matters under the act and make inspections • If a violation is found, may issue cease and desist order • Can order that a particular activity be stopped for a specified period of time • Maximum fine of $1 million • Maximum prison term of 5 years • Penalties are typically well below the maximum (rarely jail term) • Defendant must establish due diligence: took all reasonable steps to comply with regulations

10. Fisheries Act • administered by the Department of Fisheries and Oceans • prohibits putting harmful substances into fish habitat • no requirement of actual proof of harm to fish • prohibits any activity that results in “harmful alteration, disruption or destruction of fish habitat” • maximum penalty: $1 million for first offence; subsequent offences carry a maximum fine of $1 million and/or prison term of up to 3 years • see R. v. Imperial Oil

11. Species at Risk Act • Passed in 2002 • Protects 233 endangered species • Administered jointly by: ministry of environment; DFO; Canadian heritage ministry • 3 purposes: • Prevent Canadian wildlife species at risk from becoming extinct or extirpated • Provide recovery for species at risk • Encourage the management of species in order to keep them from becoming at risk

12. Species at Risk Act • Under this act, anyone who harms or threatens endangered animals can be prosecuted • Max penalties • For-profit corporation: $1 million • Non-profit corporation: $250,000 • Individual: $250,000 and/or up to 5 years

13. Bill C-45 (Omnibus Budget) • “Streamlined” through House of Commons in 2012 • Major component is the removal of “red tape” (i.e. environmental regulations) that stand in way of development • Repeals the Canadian Environmental Assessment Act • Amends the Species at Risk Act and the Navigable Waters Protection Act (removes protection of endangered species and their habitat when approving pipeline projects) • Amends the Fisheries Act by removing provisions for habitat protection

14. Why? • Dec. 12, 2011 letter to Environment Minister Peter Kent and Natural Resources Minister Joe Oliver • From a group called the Energy Framework Initiative (EFI) • Canadian Association of Petroleum Producers • the Canadian Energy Pipeline Association • the Canadian Petroleum Products Institute • the Canadian Gas Association

15. Why? • "The purpose of our letter is to express our shared views on the near-term opportunities before the government to address regulatory reform for major energy industries in Canada," • The letter specifically mentions six laws that relate to the oil and gas industry's ability to do its work: • National Energy Board Act • Canadian Environmental Assessment Act • Fisheries Act • Navigable Waters Protection Act • Species at Risk Act • Migratory Birds Convention Act

16. Why? • "At the heart of most existing legislation is a philosophy of prohibiting harm: 'environmental' legislation is almost entirely focused on preventing bad things from happening rather than enabling responsible outcomes. This results in a position of adversarial prohibition, rather than enabling collaborative conservation to achieve agreed common goals,"

17. Provincial Environmental Laws • Environmental Protection Act • Environmental Assessment Act • Environmental Bill of Rights • Safe Drinking Water Act

18. Environmental Protection Act • regulates harmful substances • contaminants • waste • vehicle emissions • ozone-depleting substances • ex: “no person shall discharge a contaminant into the natural environment that causes to is likely to cause an adverse effect.” S. 14 (1)

19. Adverse Effect • Impairment of the quality of the natural environment for any use that can be made of it • Injury or damage to property or to plant or animal life • Harm or material discomfort to any person • An adverse effect on the health of any person • Impairment of the safety of any person • Rendering any property or plant or animal life unfit for human use • Loss of enjoyment of normal use of property • Interference with the normal conduct of business

20. Spills/Pollution • Those who cause the spill have • A duty to report it to the MOE/municipality/person who owns/controls the pollutant • A duty to act in order to mitigate the damage and restore the environment • Pollution: • Sets limits on emissions of specific contaminants • Waste Management • Requires certificates of approval for the waste management/disposal sites

21. Environmental Assessment Act • Applies to public/municipal undertakings • Activities occurring on federal land or using federal money would fall under the Canadian Environmental Assessment Act • Environmental assessment must take place prior to certain activities • Waterfront improvements • Road building • Bridge construction • Hydro line placement • Landfill/waste disposal sites • Industrial expansion

22. Process • Description of purpose and rationale for proposed undertaking • Description of alternative methods for carrying out undertaking • Description of alternatives to the undertaking itself • Evaluation of the above alternatives • The anticipated environmental impact(s) • Those that will occur • Those that might reasonably be expected to occur • Assessment of the actions necessary to prevent the above impact(s)

23. Environmental Bill of Rights • “The people of Ontario have a right to a healthful environment.” • See goals on p. 409 of your textbook • Rights granted: • Right to request investigation • Right to seek appeal of decisions reached • Right to sue • Activity must have occurred or be imminent • Must cause significant harm to a public resource • Investigation must occur first • Action must be brought within 2 years

24. Safe Drinking Water Act, 2002 • Stems directly from Walkerton tragedy (7 deaths, 2300 illnesses) • Requires a standard of care for owners/operators of municipal drinking water systems

25. Municipal Authorities • Waste management • Recycling • Sewage • Noise • Pesticides (see Spraytech v. Hudson p. 415)