Operation Update 2008 October Oba

  • 198 views
Uploaded on

Major environmental caselaw of 2008 that every lawyer should know about

Major environmental caselaw of 2008 that every lawyer should know about

More in: Technology
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Be the first to comment
    Be the first to like this
No Downloads

Views

Total Views
198
On Slideshare
0
From Embeds
0
Number of Embeds
0

Actions

Shares
Downloads
0
Comments
0
Likes
0

Embeds 0

No embeds

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
    No notes for slide

Transcript

  • 1. Environmental Law …What’s New? OBA - Operation Update October 3, 2008 Dianne Saxe, Ph.D.
  • 2. Overview Caselaw  Legislation  What’s coming?  2 October 3, 2008 OBA
  • 3. Caselaw 2008 Berendsen v. Ontario  Lafarge Canada Inc. v. Ontario  R. v. Inco, round 3  Pembina Institute v. Canada  Pakootas v. Teck Cominco  Edwards v. DTE Energy  1st environmental penalty  3 October 3, 2008 OBA
  • 4. Berendsen - how clean is clean? Dairy farm contaminated by highway waste  Cows wouldn’t drink, became ill  MOE investigated, concluded:  Site met PWQO  Waste in clay, couldn’t reach well  Gov’t refused to help; Berendsen lost farm  4 October 3, 2008 OBA
  • 5. Berendsen, #2 Berendsen sued MTO and MOE  Limitations issue (SCC)  MTO:  did not get informed consent  liable even if waste dumped by contractor  5 October 3, 2008 OBA
  • 6. Berendsen, #3 MOE liable because  Failure to investigate/remedy a breach of  OWRA / EPA Continued presence of waste a breach of  MOE’s duty to farmer MOE standards inadequate  Dairy cows   Cumulative, additive, or long-term effects 6 October 3, 2008 OBA
  • 7. Berendsen, #4 $1.73 million in damages  $655,000 in legal costs (incl a $50,000  premium + 6% prejudgment interest from 1995) Under appeal  How clean is clean?  7 October 3, 2008 OBA
  • 8. Lafarge - MOE standards ERT granted leave to appeal two MOE permits to  burn tires at Lafarge cement plan air, waste  Test for leave is stringent  Proposed emissions met MOE criteria  8 October 3, 2008 OBA
  • 9. Lafarge #2 ERT:  Not clear how permits complied with the MOE’s  Statement of Environmental Values (EBR). Emissions might affect common law rights.  Inconsistency: permitting tire burning in one place  while prohibiting it elsewhere. “Precautionary approach”: MOE has limited  experience with regulating tire burning; assumed potential for serious environmental risks. 9 October 3, 2008 OBA
  • 10. Lafarge, #3 Lafarge sought judicial review  MOE intervened  Environmental Commissioner intervened  Divisional Court upheld ERT  10 October 3, 2008 OBA
  • 11. Lafarge #4 Lafarge seeking leave to appeal  ERT hearing under way  MOE reconsidering major approvals  New life for the SEV?  11 October 3, 2008 OBA
  • 12. Inco - water standards Alleged breach of OWRA in 1994 - mine  effluent escaped into ditch Third trial  Inco acquitted again  12 October 3, 2008 OBA
  • 13. Inco, #2 MOE tests total nickel, compares result to  PWQO But PWQO based on studies of  bioavailable nickel Apples/oranges  Same method for other contaminants?  13 October 3, 2008 OBA
  • 14. Pembina - GHG Judicial review of Imperial’s EA for huge  oilsands mine (CEAA) Badly flawed EA  No reasons why mine’s GHG emissions were  “insignificant” Sent back to Panel, Fisheries Act permit revoked  14 October 3, 2008 OBA
  • 15. Pembina #2 Panel quickly gave more reasons  Project emissions “insignificant” because will  comply with the law, once we have one GHG huge issue to be managed by government,  not by proponents Fisheries Permit re issued  15 October 3, 2008 OBA
  • 16. Pakootas - transborder Teck Cominco, Canadian co., discharged  slag in Canada, per Canadian permit, until 1994 Slag washed downstream into US  Metals leach slowly from slag  Voluntary agreement with EPA, $20 M, in  place of mandatory order Colville tribes dissatisfied  16 October 3, 2008 OBA
  • 17. Pakootas, #2 US Superfund law (CERCLA) applies to  discharges “in” US Jurisdiction over Teck?  US SC: yes because leaching in US  17 October 3, 2008 OBA
  • 18. Edwards - transborder redux High mercury emissions from DTE Energy  coal plant, Michigan, despite available technology Major source of mercury contamination in  St. Clair River DTE ignores NGO  18 October 3, 2008 OBA
  • 19. Edwards, #2 Private prosecution, Fisheries Act  Mandamus for delivery of summons  Trial date set for February 2, 2009  No intervention (yet) by AG  19 October 3, 2008 OBA
  • 20. First Environmental Penalty $9000 for OWRA breach  CGC of Hagersville  Gypsum runoff escaped into a creek  Large exceedence and 2 prior convictions  Good example: dealt with actual harm, and  quickly 20 October 3, 2008 OBA
  • 21. Overview Caselaw  Legislation  What’s coming?  21 October 3, 2008 OBA
  • 22. Legislation Cosmetic Pesticides Ban  Clothesline ban banned  WDO: E-waste  Ontario Securities Commission guidance  on environmental disclosure 22 October 3, 2008 OBA
  • 23. Cosmetic Pesticides Ban Act Royal assent June 18, 2008  Won’t come into effect until its regs are adopted  Will prohibit use of listed pesticides; exceptions  for agriculture, forestry, public health, golf courses (conditional) Will prohibit sale of pesticides on another list  Will invalidate municipal pesticide by-laws  Controversial as the province may permit some  pesticides banned by individual municipalities 23 October 3, 2008 OBA
  • 24. Environmental reporting: OSC Staff Notice 51-716 Boilerplate inadequate: must provide “meaningful  information” to investors Improved disclosure:  Financial liabilities related to the environment  Asset retirement obligations must be in financial  statements Financial/operational effects of environmental  protection requirements Environmental policies fundamental to operations  Environmental risks  24 October 3, 2008 OBA
  • 25. Overview Caselaw  Legislation  What’s coming?  25 October 3, 2008 OBA
  • 26. What’s coming? Toxics reduction law  Community right to know bylaw  Mining Act  Climate change legislation  26 October 3, 2008 OBA
  • 27. Toxics reduction law 4 lists of toxic substances, going beyond  NPRI Materials accounting  Toxic reduction plans  Public notice  New governance structure  New powers to control toxics in products  27 October 3, 2008 OBA
  • 28. Community Right to Know Environmental reporting and disclosure by-law  Challenges:  Major sources of pollutants may be located outside  city boundary Will reducing emissions by local businesses make a  difference in citizens’ health? Can the City fill the regulatory gap? Jurisdiction  Costs and complexity: to businesses, City  Coordination with MOE requirements?  28 October 3, 2008 OBA
  • 29. Questions? Comments? Saxe Law Office 248 Russell Hill Road Toronto, Ontario M4V 2T2 Tel: 416-962-5882 Fax: 416-962-8817 Email: admin@envirolaw.com www.envirolaw.com 29 October 3, 2008 OBA