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Operation Update 2008 October Oba

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Major environmental caselaw of 2008 that every lawyer should know about

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Operation Update 2008 October Oba

  1. 1. Environmental Law …What’s New? OBA - Operation Update October 3, 2008 Dianne Saxe, Ph.D.
  2. 2. Overview Caselaw  Legislation  What’s coming?  2 October 3, 2008 OBA
  3. 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. 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. 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. 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. 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. 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. 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. 10. Lafarge, #3 Lafarge sought judicial review  MOE intervened  Environmental Commissioner intervened  Divisional Court upheld ERT  10 October 3, 2008 OBA
  11. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 21. Overview Caselaw  Legislation  What’s coming?  21 October 3, 2008 OBA
  22. 22. Legislation Cosmetic Pesticides Ban  Clothesline ban banned  WDO: E-waste  Ontario Securities Commission guidance  on environmental disclosure 22 October 3, 2008 OBA
  23. 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. 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. 25. Overview Caselaw  Legislation  What’s coming?  25 October 3, 2008 OBA
  26. 26. What’s coming? Toxics reduction law  Community right to know bylaw  Mining Act  Climate change legislation  26 October 3, 2008 OBA
  27. 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. 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. 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

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