Erin Gray Environmental Law OutlineCommon Law...................................................................................................................................................1Applying Traditional Tort Law in Enviro Cases, pp 68-110..........................................................................................................................1

Palmer v. Nova Scotia Forest Industries, 1983, NS TD..................................................................................................................................... 2Cambridge Water Co v. Eastern Counties Leather Plc, 1993, UK HL.........................................................................................................2Smith v Inco, 2011, ON CA (leave to appeal refused)......................................................................................................................................... 2

Understanding the Limits of Traditional Torts in the Enviro Context, pp 110-121...........................................................................3Lynda Collins, “Material Contribution to Risk and Causation in Toxic Torts” (2001)........................................................................3Snell v. Farrell, 1990, SCC (flexible application of traditional approach)................................................................................................3Hollis v. Dow Corning Corp, 1995, SCC................................................................................................................................................................. 3

Class Action Suits and Enviro Tort Claims, pp 122-129..................................................................................................................................4Christie Kneteman, “Revitalizing Enviro Class Actions: Quebecois Lessons for English Canada” (2010).................................4

Public Rights, pp 138-162............................................................................................................................................................................................ 5Justice B.J. Preston, “The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific” (2008)................................................................................................................................................................................................................... 5British Columbia v. Canadian Forest Products Ltd. (2005) SCC.................................................................................................................. 5Jerry V. DeMaco, Marcia Valiante & Marie-Ann Bowden, “Opening the Door for CL Enviro. Protection in Cda: The Decision in BC v. Canadian Forest Products Ltd.” (2005).............................................................................................................................. 6Burns Bog Conservation Society v. Canada (Attorney General) (2012) FC..............................................................................................6Andrew Gage, “Asserting the Public’s Enviro. Rights” (2008)...................................................................................................................... 7

Constitutional Law...........................................................................................................................................7Overview and the Division of Powers & the Environment, pp 165-172..................................................................................................7

Adapted fr Constitutional Chapter in M. Doelle, “The Federal EA Process: A Guide & Critique”, 2008...................................7Federalism & the Enviro. in the SCC, pp 173-212..............................................................................................................................................8

R. v. Crown Zellerbach Canada Ltd., 1988, SCC................................................................................................................................................. 8Friends of the Oldman River Society v. Canada (Minister of Transport), 1992, SCC...........................................................................9R. v. Hydro-Quebec, 1997, SCC................................................................................................................................................................................ 10The Politics and Practicalities of Jurisdiction over the Enviro., pp 212-222..........................................................................................11William R. Mackay, “Cdn Federalism and the Enviro: the Literature”, 2004.......................................................................................11

Aquaculture, pp 223-228........................................................................................................................................................................................... 12Morton v. BC (Minister of Agriculture and Lands), 2009, BCSC – aff’d at BCCA..............................................................................12

Emerging Issues in Jurisdiction over the Enviro.............................................................................................................................................12Aboriginal Rights, pp 228-242.................................................................................................................................................................................12

Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004, SCC...............................................................................13Paul v. BC (Forest Appeal Commission), 2003, SCC....................................................................................................................................... 13

Municipal Jurisdiction, pp 243-257....................................................................................................................................................................... 13114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v. Hudson (Ville), 2001, SCC......................................................................14

Environmental Regulation..............................................................................................................................14Context and Perspective, pp 260-278...................................................................................................................................................................14

D. Paul Emond, “The Greening of Enviro. Law” (1991)............................................................................................................................... 14R. Michael M’Gonigle, “Taking Uncertainty Seriously: From Permissive Reg. to Preventative Design in Enviro D/Making” (1994).......................................................................................................................................................................................................... 14Stepan Wood, Georgia Tanner & Benjamin T. Richardson “Whatever Happened to Cdn Enviro. Law?” (2010)..................15

Enviro. Standard Setting & Forms of Standard Enviro. Standard Setting, pp 278-285..................................................................16C. Tollefson, F. Gale & D. Haley, “Setting the Standard” (2008).............................................................................................................. 16

The Emerging Governance-based Approach to Enviro Reg., pp 285-302............................................................................................17Michael Howlett, “Policy Instruments, Policy Styles, and Policy Implementation: National Approaches to Theories of Instrument Choice” (1991)......................................................................................................................................................................................... 17Kathryn Harrison, “Talking with the Donkey: Cooperative Approaches to Enviro. Protection” (1999)....................................17Jody Freeman & Daniel Farber, “Modular Enviro. Reg.” (2005)............................................................................................................. 18C. Tollefson, D. Haley & F. Gale, “Setting the Standard” (2008) cont’d................................................................................................19N. Gunningham, “Reconfiguring Enviro. Reg.: Next Gen. Policy Instruments” (nd).........................................................................19

Enviro. Reg, Innovation and Economic Performance, pp 302-316..........................................................................................................20

Stefan Ambec, “The Porter Hypothesis at 20: Can Enviro. Reg Enhance Innovation and Competitiveness?” (2011)..........20William Lahey & Meinhard Doelle, “Negotiating the Interface of Enviro. and Economic governance: Nova Scotia’s Enviro. Goals and Sustainable Prosperity Act” (2012)................................................................................................................................... 21

An Overview of Cdn Reg. Models, pp 316-327..................................................................................................................................................22The Fisheries Act............................................................................................................................................................................................................. 22Habitat Protection: Subsection 35(1)...................................................................................................................................................................... 22Pollution Prevention: Section 36.............................................................................................................................................................................. 22R. v. MacMillan Bloedel (Alberni) Ltd., 1979, BCCA (leave to SCC refused)........................................................................................22R. v. Kingston (City), 2004, Ont CA (leave refused to SCC).......................................................................................................................... 22Ian Richler, “R. v. Kingston and the Criminalization of Harmless Pollution” Case Comment, 2005..........................................22

The Cdn Enviro. Protection Act (CEPA), pp 327-341.....................................................................................................................................23Adapted from M. Doelle, CEPA and Commentary, 2008................................................................................................................................ 23Great Lakes United v. Canada (Minister of Enviro.), 2009, FC.................................................................................................................. 23

Intro to Compliance and Enforcement, pp 343-358.......................................................................................................................................24Joseph Castrilli, “Cdn Policy and Practice w Indicators of Effective Enviro. Enforcement”, 1999.............................................24[Reg. Enforcement: the Cdn Record]...................................................................................................................................................................... 24Jerry V. DeMarco & Toby Vigod, “Smarter Reg.: The Case for Enforcement & Transparency” (2007)...................................24Ecojustice Cda, “Enviro. Enfrocement by Cda’s Fed. Govt (The Essentials), 2011............................................................................25Office of the Auditor General of Cda, 2011 Report of the Commissioner of Enviro. & Sustainable Dvpt, 1999......................25[Cooperative vs. Adversarial Enforcement Approaches]................................................................................................................................ 25Matthew D. Zinn, “Policing Enviro. Reg. Enforcement: Cooperation, Capture & Citizen Suits”, 2002.....................................25

Selected Issues in Enviro. Law Enforcement, pp 358-398..........................................................................................................................26[The Role of the Crim. Law as an Enforcement Tool]...................................................................................................................................... 26Stanley David Berger, “The Future of Enviro. Prosecution in Ont” (2006)...........................................................................................26[The Role and Nature of the Reg. Offence]........................................................................................................................................................... 26John Swaigen, “Absolute Liability Revisited: Levis v. Tetrault”, 2006.....................................................................................................26Levis (Ville) v. Tetreault, 2006, SCC....................................................................................................................................................................... 27[The Prosecution & Defence of Enviro. Charges: Corporate Reg. Liability].........................................................................................27R. v. Syncrude Canada Ltd., 2010, Alta. Prov. Ct.............................................................................................................................................. 27Shaun Flaker, “R. v. Syncrude Canada: A Clash of Bitumen and Birds”, 2011...................................................................................27[Directors’ and Officers’ Liability]......................................................................................................................................................................... 28R. v. Bata Industries Ltd., 1992, Ont. Prov. Div................................................................................................................................................. 28[Sentencing in Enviro. Cases].................................................................................................................................................................................... 29R. v. United Keno Hill Mines Ltd., 1980, Y.T. Terr. Ct.................................................................................................................................... 29Elaine L. Hughes & Larry A. Reynolds, “Creative Sentencing and Enviro. Protection”, 2008......................................................29

The Emerging Role of Admin Monetary Penalties (AMPs), pp 398-400...............................................................................................30Stepan Wood & Lynn Johannson, “Six Principles for Smart Reg.”, 2008...............................................................................................30

Citizen Enforcement, pp 414-427...........................................................................................................................................................................30[Citizen Suits & Enviro. Bills of Rights]................................................................................................................................................................ 30C. Tollefson, et al, “Towards a Costs Jurisprudence in Public Interest Litigation”, 2004...............................................................30[Private Prosecutions].................................................................................................................................................................................................. 31K. Ferguson, “Challenging the Intervention & Stay of an Enviro. Private Prosecution”. 2004.....................................................31Kostuch v. Alberta (AG), 1995, Alta. CA (leave refused to SCC)................................................................................................................ 31

JR of Environmental Decision-Making..........................................................................................................32Admin D/Making & Judicial Review in the Enviro. Law Context, pp 429-437...................................................................................32

M. Haddock, “Enviro. Tribunals in BC”, 2011.................................................................................................................................................. 32JR Background & Overview, pp 437-441.............................................................................................................................................................32

Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas..............................33Standard of Review: Dunsmuir & the Enviro. Caselaw, pp 441-454.......................................................................................................33

New Brunswick (Board of Mgt) v. Dunsmuir (2008, SCC)............................................................................................................................. 33[Standard of Review in the Enviro. Law Context].............................................................................................................................................. 34Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated Orcas..............................34Wier v. BC (Enviro Appeal Board), 2003, BCSC............................................................................................................................................... 34Cdn Parks & Wilderness Society v. Canada (Minister of Cdn Heritage), 2003, FCA *CPAWS.....................................................35

Dene Tha’ First Nation v. Canada (Minister of Enviro.), 2006, FC........................................................................................................... 35Grounds for JR, pp 455-468...................................................................................................................................................................................... 35

[Reliance on Irrelevant Consideration/Fettering Discretion]....................................................................................................................... 35Wimpey Western Ltd. v. Alberta (Dpt of the Enviro.], 1983 Alta CA.........................................................................................................35Imperial Oil Ltd. v. BC (Ministry of Water, Land & Air Protection), 2002, BCSC..............................................................................36[Discrimination in the Exercise of Reg-making Power].................................................................................................................................. 36Moresby Explorers Ltd. v. Canada (AG), 2007 FCA........................................................................................................................................ 36[Procedural Fairness].................................................................................................................................................................................................. 37Chameau Exploration Ltd. v. Nova Scotia (AG), 2007 NS SC...................................................................................................................... 37[Failure to Give Reasons]........................................................................................................................................................................................... 37Pembina Institute for Appropriate Dvpt v. Canada (AG), 2008 FC...........................................................................................................38

Public Interest Standing, incl. Finlay Test pp 468-478.................................................................................................................................38[Benefit of Public Participation].............................................................................................................................................................................. 38Raj Anand & Ian Scott, “Financing Public Participation in Enviro. D/making”, 1982.....................................................................39Shiell v. Canada (Atomic Energy Control Board), 1995 Fed TD................................................................................................................ 39Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct.........................................................39MiningWatch Canada v. Canada (Minister of Fisheries & Oceans), 2007, FC....................................................................................39

Interim Injunctive Relief incl. RJR MacDonald Test, pp 478-487.............................................................................................................40C. Tollefson, “Advancing an Agenda: Reflections on Recent Developments in Public Interest Enviro. Litigation” 2002...40[Injunction Caselaw in the Enviro. Context]........................................................................................................................................................ 41Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div Ct.........................................................41Imperial Oil Resources Ventures Ltd. v. Canada (Minister of Fisheries & Oceans), 2008, FC......................................................41

Costs in JR Proceedings, pp 487-496.................................................................................................................................................................... 42C. Tollefson, “Costs in Public Interest Litigation: Recent Dvpts & Future Directions”, 2009.......................................................42C. Tollefson, “Costs in Public Interest Litigation Revisited”, 2011........................................................................................................... 42

Environmental Assessment.............................................................................................................................43CEAA 1995, pp 497-508..............................................................................................................................................................................................43CEAA 2012, pp 508-523..............................................................................................................................................................................................45Challenges ahead for EA, pp 569-586...................................................................................................................................................................48

Scoping Challenge [570]............................................................................................................................................................................................. 48The Role of the Public, p 571..................................................................................................................................................................................... 48Engagement with First Nations, pp. 573-575....................................................................................................................................................... 48Strategic Environmental Assessments (SEAs), pp 576-577............................................................................................................................ 49Sustainability Assessments, pp 579-585................................................................................................................................................................. 50Gibson, “Favoring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and Decisions under CEAA” (2000)..................................................................................................................................................................................................... 50Fonseca and Gibson, “Kemess North fails the test” 2008.............................................................................................................................. 50

Species at Risk................................................................................................................................................51Overview, pp 649-655................................................................................................................................................................................................. 51

P. Wood & L. Flahr, “Taking Endangered Species Seriously? British Columbia’s Species-at-Risk Policies” (2004, Can. Pub. Pol’y)......................................................................................................................................................................................................................... 51Kate Smallwood, “A Guide to Canada’s Species at Risk Act” (Sierra Legal Defence Fund, 2003)..............................................51J. Kunich, “Preserving the Womb of the Unknown Species with Hotspots Legislation” (2001, Hastings L.J.)........................51

Species Listing, pp 656-663...................................................................................................................................................................................... 52Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003)...................................................52A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience)...............................................................52

Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 663 – 667............................................................................53A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) – further extract.............................53

Recovery Strategy Litigation, pp. 667-682.........................................................................................................................................................54Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009, FC (“Sage Grouse case”)...............................................54Environmental Defence Canada v. Canada (Minister of Fisheries & Oceans), 2009 FC (“Nooksack Dace case”)..............54

Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 682 – 708............................................................................55Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2010 FCA “Consolidated Orcas”............................55

Adam v. Canada (Minister of the Environment), 2011, FC............................................................................................................................ 56Prohibition on Harm to species, pp 709-713....................................................................................................................................................57

Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003)...................................................57Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, US 1995....................................................................................58

Species Protection as Governance Issue, pp 716-731...................................................................................................................................58Species Protection Initiatives at Provincial Level.............................................................................................................................................. 58Ecojustice, Failure to Protect: Grading Canada’s Species at Risk Laws, 2012....................................................................................59SARA and Provincial Land Resource Development Decision-making....................................................................................................... 590707814 BC Ltd. v. BC (Assistant Regional Water Manager), (2008, BC EAB)...................................................................................59The Ontario Endangered Species Act, 2007......................................................................................................................................................... 60

Emerging Perspectives on Species and Biodiversity Protection, pp 731-738....................................................................................60Holly Doremus, “Biodiversity and the Challenge of Saving the Ordinary”, 2002...............................................................................60Isabelle Deguise & Jeremy Kerr, “Protected Areas and Prospects for Endangered Species Conservation in Canada” (2006)................................................................................................................................................................................................................................... 60

Climate Change..............................................................................................................................................61Climate Change and Tort Law, pp 747-761........................................................................................................................................................61

D. Curran, “Climate Change Backgrounder”, UVic ELC, 2007................................................................................................................. 61Climate Change Tort Litigation in the US: A Snapshot................................................................................................................................... 62Nature Village of Kivalina v. ExxonMobil Corp, 2009.................................................................................................................................... 62R. Trent Taylor, “The Death of Enviro. Common Law?: The Ninth Circuit’s Decision in Native Village of Kivalina v. ExxonMobil Corp.”, 2012........................................................................................................................................................................................... 63

Climate Change & the Division of Powers, pp 761-776................................................................................................................................63Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional & Policy Dimensions”, 2008...........63Alexis Belanger, “Cdn Federalism in the Context of Combating Climate Change”, 2011...............................................................64

Governance & Regulatory Approaches to Climate Change, pp 776-790...............................................................................................65Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional and Policy Dimensions”, 2008.......65Reuven S. Avi-Yonah & David. M. Uhlmann, “Combating Global Climate Change: Why a Carbon Tax is a Better Response to Global Warming than Cap & Trade”, 2009............................................................................................................................... 65

JR of Climate Change Policy, pp 790-808............................................................................................................................................................66Friends of the Earth v. Canada (Gov. in Council), 2008, FC (leave refused SCC)..............................................................................66Massachusetts et al, Petitioners v. Enviro. Protection Agency et al., US 2007......................................................................................67

Climate Change and EA, pp 808-818..................................................................................................................................................................... 67A. Koehl, “EA and Climate Change Mitigation”, 2010................................................................................................................................... 67

Climate Change & Biodiversity, pp 818-828......................................................................................................................................................69J. Kostyack & D. Rohlf, “Conserving Endangered Species in an Era of Global Warming”, 2008................................................69J.B. Rulh, “Climate Change and the ESA: Building Bridges to the No-Analog Future”, 2008.......................................................69

Perspectives on the Future of Climate Change Law & Policy, pp 828-839...........................................................................................70J. Purdy, “The Politics of Nature: Climate Change, Enviro. Law & Democracy”, 2010..................................................................70P. Havermann, “Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’ Rights”, 2009..70

1

Common Law

3 branches: Property, Contract, TortHistory: starting in 1970’s, CL perceived as inadequate, enviro leg. enacted

Applying Traditional Tort Law in Enviro Cases, pp 68-110

Cause of action Definition Leading case Key doctrinal issues & defencesTrespass to land Direct, intentional, unjustifiable

physical interference w another’s possession of landNote: actionable w/out proof of damage; w/out knowledge of ownershipRare: trespass to person for enviro harm causing pers. injury

Palmer

Smith v Inco

Directness requirement (spraying, vibrations, smells?)What constitutes “physical” interference (proof that substances migrated, etc.)

Private nuisance (amenity vs. physical damage to land)

*most common tort in enviro cases

Unreasonable and substantial interference with another’s use or enjoyment of land, causing foreseeable harm to PlNote: actual damage required

Palmer

Cambridge Water

Smith v Inco

Discretionary nature of judicial balancing test (physical damage, gravity/ duration interference, nature of neighborhood, utility of D’s activities, sensitivity of Pl)Smith v. Inco: test varies according to whether claim for “material physical damage” or interference w reasonable useRequires sufficient property interest

Public nuisance Interference w public as opposed to private rights; or a significant portion of the public; widespread in range and indiscriminate in effect;Note: actual damage required

See discussion in Smith v Inco

AG is presumptive PlPrivate citizens don’t have standing (except w AG consent)“Special damage” required (distinct fr that suffered by general public)

Rule in Rylandsv Fletcher

Non-natural use of land by landowner who brings on their property a dangerous substance capable of escape; escape occurs, causes injury to another [Smith v. Inco]Note: strict liability

Palmer

Cambridge Water

Smith v Inco

In UK law, includesreqt that damage be reasonably foreseeable (Cambridge Water); not so in Canada (Smith v Inco)Doesn’t need to be single, isolated escape (Smith v Inco obiter)Harm must be unintended consequence, not intended (Smith v. Inco obiter)Non-natural use requirement

Negligence Pl must show she was owed duty of care, D breached req’d standard of care, Pl suffered damage, damage was caused (factually/legally) by D [Mustapha]Breach of neighbour principle [Donoghue v. Stevenson]

-Just v BC (1989, SCC) :see note 8 atp. 66 DT

Issues of causation & remotenessUncertainty concerning scope of duty (esp. re. govt Ds due to policy/operational distinction)

Further problems: Remedy: monetary compensation (make Pl “whole”, restore her to position before tortious act) enviro harm that cannot be assigned mkt value goes uncompensated Alt Remedy: injunctive relief (interim or permanent) (Palmer: discretionary & unpredictable)

2Contaminated sites: most provs have laws requiring current owners to remediate sites w historical contamination only to point that eliminates ongoing risks to human health & enviro (rather than pre-contaminated condition) when bankrupt, not clear where remediation obligation ranks w other creditors

Palmer v. Nova Scotia Forest Industries, 1983, NS TDIssue Ratio NotesLegal reqts of nuisance, trespass and strict liabilitySought permanent quia timet/before the fact injunction (elements: irreparable harm, damages not adequate remedy, D’s actions will cause harm – burden of proof on Pl)

Claims: private nuisance, trespass to land, rule in Rylands, right of riparian owners, right of landowners to groundwater free of contaminants, breach of Fisheries Act all claims failCt: Cda has reg. agency, this isn’t Ct’s place/ criticized credibility of Pl experts *compare w Sage Grouse case, where Zinn, J. said “yes, cts aren’t academies of science, but we can look at evidence in record” D gets its costs

Traditional Tort lawAbility of CL to act preventative & precautionary mannerLeg. supremacyCosts played large part

Facts: Forest Co. spraying herbicides pursuant to a license to spray issued by NS Dept of EnviroJH: awarded injunction at TC, lifted by CA (interim injunction until new trial, sent back for new trial)

Cambridge Water Co v. Eastern Counties Leather Plc, 1993, UK HLIssue Ratio NotesForeseeability req’d for nuisance & rule in Rylands? nuisance yes, Rylands yes (eliminates SL)

Negligence not foreseeable by reas. employee at time of escapePrivate nuisance not foreseeableRule in Rylands not foreseeable if there’s to be SL for “ultra-hazardous” operations, leave that to Leg.Overturned TC: storage lrg amount chems “almost classic case of non-natural of land”

Leg. supremacyCurrent philosophy imposes no liability for historic pollution

Facts: PCE seeped into aquifer groundwater at site of D ops (regular small spills up to 1976), contaminated borehole, Pl bought borehole, then EU changed regs, so less sellable (no less potable!) ~loss of business opportunityJH: Trial ct dismissed case (found PCE spills not foreseeable at the time to cause enviro damage - thought evaporated in air), CA found D strictly liable, appealed to HL

Smith v Inco, 2011, ON CA (leave to appeal refused)Issue Ratio NotesDoes public concern generated from D’s actions qualify as actual, substantial, physical harm under nuisance?Does rule in Rylands extend to “ultra hazardous” activities; did D’s actions constitute a non-natural use of land?

Private nuisance: balance interests of 2 parties; D’s conduct may be reasonable, but interference must be unreas. (amenity = balance factors; phys. damage = conduct always unreas.) chem. change not enough for injury, must have detrimental effect on land/rights associated w land; nuis. based on public concern = inchoate crime hanging over prop. in case concern materializesRule in Rylands : non-natural use doesn’t mean bring substances didn’t arise naturally, must weigh factors (place, time, manner of use); SL for “ultra-hazardous activities” is for Leg, need “abnormal risk of harm” this wasn’t

Would be conceptual anomaly: no nuis. during emit, but 15 yrs later?Leg. supremacy (quotes Cambridge)Health effects alleged too diverse, class not certifiedTC challenges: pro bono, power imbalance, $ for health experts, ltn periods (so focused on discovery date – wouldn’t know prop. devalued until 2000), proving damages

Facts: D’s nickel refinery released nickel onto soil of Port Colborne residents’ properties from 1918 – 1984 (most before 1960), resulting in public perception that led to alleged lack of appreciation (as compared to similar municipalities)JH: TC found D liable in private nuisance and under strict liability of Rylands, appealed (found not liable in public nuisance, trespass – not appealed)Major diff. in class action leg. in BC / ON: in ON, even after certified, rep Pl potentially liable for costs

3Understanding the Limits of Traditional Torts in the Enviro Context, pp 110-121

Lynda Collins, “Material Contribution to Risk and Causation in Toxic Torts” (2001)

Causation one of big hurdles in enviro cases: all individual Pl can do is prove D materially increased risk of dvp’ing type of injury sustained

Traditional causation principles may deny Pl recovery even when D fell below societally-acceptable standards (not designed to deal w toxic torts)

“But for” causation test [traditional]: Pl must show “but for D’s conduct, on BoP, she wouldn’t have sustained loss”1) Legal/proximate cause (“remoteness”)2) Factual causation: quasi-scientific inquiry into mechanistic rship b/w Pl’s injury and D’s conduct

Problem all-or-nothing outcome usually results in nothing, due to: long latency periods, multiple potential causes, microscopic changes (no eye witnesses, just circumstantial evidence)

Material contribution test [can supplement w this when multiple causes]; “D materially contributed to loss”If proven, recover 100% of loss; if not, nothingFuture/probable losses discounted to % probability they will occur

Generic vs. Specific Causation: Generic causation: D’s conduct was capable of causing injury of type sustained by PlSpecific causation: D’s conduct actually caused Pl’s injury (necessarily proved Generic – collapsed in tort cases)

Problems w Generic Causation: 1. Evidence needed to est. generic causation often doesn’t exist2. Academic controversy re. admissibility/sufficiency of epidemiology/probabilistic evidence (US/Cdn cts suspicious, but haven’t ruled out)3. Disparities b/w legal probability (51%) & scientific (~95%) judges sometimes implicitly adopt scientific standard

Problems w Specific Causation: 1. Indeterminate D: Pl injured as result of 1+ Ds, not able to identify which

i.e. Sindell v. Abbott Labs [Pl’s mother ingested DES during pregcy]: used mkt share liability to permit recovery2. Indeterminate Pl: class of ppl’s risk of illness materially inc. as result of D’s conduct (i.e. 1 per 100 to 3 per 100)

should D be liable, if so, should it be full compensation or 2/3rd?3. Indeterminate harm/future claimant: no injury yet, but in class w inc. risk

if recover, should it be for medical monitoring (at least), mental distress associated w fearing injury, or intangible loss of value to Pl caused by exposure to risk?

Snell v. Farrell, 1990, SCC (flexible application of traditional approach)Issue Ratio NotesWhat causation test should be used?

Adoption of burden shifting unjust (only when Cook v. Lewis/ multiple tortfeasors scenario), should keep existing burden and standard of proof but use more flexibly (“too-rigid application by the cts in many cases”) (“causation… can be answered by ordinary common sense rather than abstract metaphysical theory”)

Flexible approach to traditional causation in neg.

Facts: eye injury after cataract op; TC found dr. neg. by continuing surgery after bleeding, but 1 of many possible causesJH: TC: followed HL’s McGhee [showers in brick factory] and shifted burden of disproving allegations to D after Pl makes case for causation; CA: upheld (even though McGhee redefined in UK in meantime)Toxic tort litigation in Cda: significant ongoing barriers (extreme costs due mostly to need for scientific evidence/experts, uncertainty caused by Snell may discourage many Pls fr going fwd)

Hollis v. Dow Corning Corp, 1995, SCC Issue Ratio NotesWhat causation test should be used?

Ct relaxed “but for” standard by relieving Pl fr proving Dr. would have warned of pertinent risks had mnftr provided Dr. w necessary info

“Pl in position of great informational inequality”, facts lie w/in knowledge of D (could extend to toxic torts) ~creation of new tort of neg. creation of risk?

4Facts: breast implants, wasn’t warned by Dr.

Alt Approaches to Causation (all use liability on basis of risk creation rather than injury):1. Material contribution/substantial factor test (discussed above)*2. Altering burden of proof:

i.e. HL’s McGhee case (though not followed in Snell, still good model)3. Concerted action theory4. Market share liability (see below)*5. Redefinition of “injury” (creation of new tort of wrongful risk creation: where D, w/out consent of Pl, exposes Pl to some risk of harm; don’t need to wait for illness to dvp, can secure recovery before)

Approaches (least to most extreme)Approach Case example (Pl’s mother

took DES during pregcy)Notes

Mkt Share liability Martin v. Abbot Labs (USA)

Judge limited ea. D’s liability to its mkt share; also used to sue tobacco mnfts & coal co’s (re. climate change)

De facto joint liability (radical version of risk contribution theory)

Collins v. Eli Lilly Co. (USA)

Pl sued any one of negligent mnfts of DES and recover 100%; Ct based liability on fact that “ea. D contributed to risk of injury to public & consequently to the ind. Pls”

Creation of Neg. creation of Risk tort (**see below)

Hymowitz v. Eli Lilly Co. (USA)

D mnft liable even though proved didn’t produce drug that caused injury; didn’t use proof of risk as proxy for proof of injury, but elevated neg. creation of risk to tort in and of itself

** Options for payment through Neg. creation of risk tort:i. Full compensationii. % paid = % likelihood D caused injury (Proportional liability)

~ Essentially Mkt Share liability w indeterminate D (D inc. Pl’s chance fr 1/100 3/100, owes 2/3rd of cost of harm)Note: issue w under- and over-compensation of specific Pls; proceeding as class action would better accomplish deterrenceAlso allows recovery in indeterminate harm situation (based on % inc. in dvp’g harm)

Summary: issues w causation deter Pls fr taking on expense of commencing action, Snell v Farrell is step in right direction, but need reverse onus in material contribution to risk situations & new tort of neg. risk creation

Class Action Suits and Enviro Tort Claims, pp 122-129

Pros & Cons of Class actions: Certification can cost $1 mil+, but afterwards, Pls either immune fr adverse damage awards or come fr public fund Class actions encourage out-of-court settlements Commentators originally optimistic re. class actions in Cda, but now Cts focus on individual aspects of prob,

overlook collective harm Problem: individual claims expensive to litigate, so denies access to justice

Christie Kneteman, “Revitalizing Enviro Class Actions: Quebecois Lessons for English Canada” (2010)

Benefits to class actions:1. Access to justice (*QB focuses on during certification):

Esp. imp as enviro torts often affect marginalized communitiesClass actions create economies of scale for legal fees, attract counsel on contingency basisNote: except for in QB, enviro class actions have done nothing to improve access to justice

2. Behaviour modification: Directly through threat of lrg damage awardsIndirectly through encouraging enviro policy/law change (exposes results of lax enviro laws)

3. Judicial economy (*English Cda focuses on during certification): Reduces total amount litigation arising fr single disputeIssue: assuming individual Pls won’t proceed w claims outside of class action, judicial economy actually served by not certifying

5

English Canada vs. Quebec: QB insulates Pl rep fr liability post-certification QB Civil Code more conducive to class actions than Eng CL QB more likely to certify class, but also willing to find for D’s on merits of case QB more likely to certify enviro class actions that involve personal injuries QB Pls have right to appeal decision to not certify, whereas D’s not able to appeal at all Procedure : during certification, QB favours focusing on access to justice, Eng Cda favours predominance test which

involves judicial economy concerns Causation : general causation common to all class members, specific causation is individual issue (can’t be resolved

in class actions) QB more likely than Eng to view est’g general causation as significantly advancing a case Judicial creativity in QB : judges facilitate certification (and decreasing individual differences) by est’g subgroups

concerns in Hollick could have been dealt w through subgroups? (see below)

Precedent casesCase Facts/Ratio NotesAlcan (QB) Air pollution Liberal approach to class actions in QBHollick v. Toronto (City) (SCC)

Keele landfill near TO, 30k residents denied certificat’n

Conservative precedent in Eng Cda (focused on individual nature, “overwhelming common issues”); tech’y SCC left it open, but few cases come fwd since

Barrette c. Ciment du St-Laurent inc. (SCC)

noise, odour, pollution fr cement factory

SCC’s first and only judgment on merits of enviro. class action; accepted no-fault liability (distinguished fr Hollick)

Note: Chamberlain v. BC (BCCA)

TC, group of FN collectives got cert’n based on geography; CA reversed

~BC’s Smith v Inco?

Public Rights, pp 138-162

Examples: public nuisance; also, though inchoate in Cdn law, “public trust doctrine” (stand in shoes of AG, represent citizens, make claim that action is against public interest)Tollefson: Optimistic area…

Justice B.J. Preston, “The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific” (2008)

Public trust doctrine: Idea that certain common resources (air, waterways, forests) held in trust by State for benefit/use of general public

o Broader: held by current generation for future generationso Accompanying fiduciary duty

Origins in Roman lawo Modern examples: Chicago Railway case (USA, 1892): sued in K, would have failed but uphold under

public trust, also Scottish and Australian law Cannot alienate property unless public benefit would outweigh loss of public use/”social wealth” derived fr area Joseph Sax, Michigan Law Review: 3 types restrictions imposed on govt authority by public trust:

o 1) Property used for public purpose and held available for use by general publico 2) Property must not be soldo 3) Property must be maintained for particular types of uses such as navigation, recreation or fishery

British Columbia v. Canadian Forest Products Ltd. (2005) SCCIssue Ratio Notes1. AG’s ability to recover damages for enviro. loss? (as prop. owner & rep ppl of BC/parens patriae); Crown’s hybrid role as reg’r of forestry industry & recipient of revenue stream

Affirms AG, rep’g Crown, is appropriate party to sue for abatement of public nuisance; injunctive relief isn’t only optn (damages possible) “Burning down forest is capable of constituting public nuisance, also neg.”

- Only articulation of public trust doctrine in recent yrs & ever at SCC- Forests not usually part of PT, usually things

6est’d and ltd by its own reg. system2. Reqt for proof of that loss?3. Approach to assess’t of enviro. compens’n at CL

Impractical for ind’s to show “special damage” w re. to most enviro. harm, so AG bring claim for them, should be entitled to damagesAffirms notion of “inalienable” public rights in enviro. reside in Crown, has deep roots in CL & procedural right of AG to sue on behalf of public as parens patriae to protect rights (shouldn’t be judicially def’d narrowly)Public trust doctrine aff’d, just not right case (Crown framed case commercially in pleadings, then public trust at SCC/sued as trustee; are other parts of enviro besides timber but weren’t mentioned (this really about enviro?) no compensation remains for harvestable trees, D’s appeal allowed w/ re. to non-harvestable trees (no compensation), as Crown didn’t plead public interest fr start

public needs to access (harbours)- Ntl Parks Act says “future gens”, interp’d by Ct as trust rship

Facts: Canfor’s controlled burn of logging waste didn’t extinguish over winter and caused forest fireJH: Crown claiming compensation for: (1) expenditures for suppression of fire – award at TC; (2) loss of stumpage revenue (had right to harvest/“harvestable trees”) – n/a at TC Crown appealed, still n/a; (3) loss of trees (didn’t have right to harvest/“non-harvestable/protected trees”) – n/a at TC Crown appealed, and awarded 1/3 mkt value at CA D appealed this award to SCC, Crown cross-appealed as thought too littleImportant policy q’s:

Crown’s potential liability for inactivity in the face of threats to enviro. Existence of fiduciary duty owed to public? Limits to role/function/remedies available to gvts taking action on harm to public resources Imposition of indeterminate liability for indeterminate amount of $ on private interests for enviro. damage

Jerry V. DeMaco, Marcia Valiante & Marie-Ann Bowden, “Opening the Door for CL Enviro. Protection in Cda: The Decision in BC v. Canadian Forest Products Ltd.” (2005)

Case charts pos. future for enviro. law in Cda; Ct actively engaged in promo of enviro. protection as “a fundamental value in Cdn society” (esp. w LaForest, J. at SCC, expanded role for municipalities, polluter pays, precautionary principle)Re. Public nuisance

When commencing action, BC based its claim in neg., then at SCC recast its arg in support of recovery for eco. harmo Accepting this arg would be to entitle BC to recover damages which a private landowner wouldn’t be

entitled (conceptually meaning wasn’t just Crown’s loss but public’s as well) Binnie, J. says no legal barrier to AG suing for compensation/injunction for public nuis/neg. causing enviro. damage,

this just wasn’t proper case (“invitation for test cases in these areas”)o Public nuis. concl. based on the following:

1. Crown’s parens patriae jurisdiction2. Broad view of what public nuisance is3. In public nuis,, injunction isn’t only remedy avail., damages possible (*key take-away)

Re. Public Trust Well-dvp’d in US, not in Canada (argued from time to time) Crown or public interest litigants to come fwd in appropriate case and argue public trust Binnie resolved issue of damages vs. only injunction, so public standing one of only remaining hurdles to dev’t of

more enviro. beneficial CL jurisprudence in Cda

Burns Bog Conservation Society v. Canada (Attorney General) (2012) FCIssue Ratio NotesDuty of trust generally; public trust doctrine specifically

Property ownership (vested interest) req’d for trust rship (in addition to 3 certainties of trust: (1) language must say settlor wants trust; (2) subject matter of trust; (3) object/ beneficiary of trust); Pl relies heavily on assertion but brings little evidence/

To-date no Cdn cts have recognized public trust doctrine req’g Crown to take pos. steps to protect enviro. generally or specific prop.Distinguishes Canfor (left public trust open) as Crown owned land there, didn’t here

7authority (incl. dangers to bog, how D fixed w legal duties/ obligations asserted) no genuine issues for trial (no evidence to back-up claims), case dismissed summarily

Facts: Fed govt and bog owners entered into Mgt Agreement re. long-term mgt of bog; South Fraser Perimeter Rd proposal will run adjacent to bog (passed Fed EA w conditions)JH: Pl filed statement of claim asserting Fed govt owes public a trust, fiduciary or other legal duty to protect bog; D filed motion for summary judgment on ground that no legal basis for Pl’s claim

Andrew Gage, “Asserting the Public’s Enviro. Rights” (2008)

Cdn enviro laws mostly unchanged fr 30 yrs ago, despite SCC writing re. fundamental imp. enviro. protection However, old idea of public rights (rights vested in public generally, any member may enjoy) Case law + stat. authority for [consumptive] rights to:

o Use airo Fish and continued existence of fish habitato Use water for navigation (and likely for domestic purposes)o Use parkland and other lands for public purposeo Hunt wildlife in accordance w law

Mixed blessing fr enviro perspective as consumptive More general right to safe enviro / conservation? Likely, b/c (1) Canfor suggests, as no evidence land was for public use; (2) moves law away fr focus on individual; (3) aligns w case law re. Ab rights (as also collectively held, emphasize “continuity of rship”) (also Canadian Pacific, Hydro Quebec, Imperial Oil)

Public nuisance: Issue w standing: usually only AG, or individual w “special harm” (case law kept this narrow, i.e. Hickey where

fishermen couldn’t sue for oil spill b/c their loss of income was just greater amount of same harm as rest of public) public nuisance used v. little in enviro context

o However, Hickey is TC decision; other cases show direct financial loss as result of interference w public right does qualify as “special harm”

o “Public interest standing” dvp’d in Admin and Const cases since HickeyStat interpretation of enviro. laws:

Accepted principle that leg should be interpreted as not infringing existing legal rights (w/out clear intention to interfere) incl. public rights?

Constitutional LawOverview and the Division of Powers & the Environment, pp 165-172

Adapted fr Constitutional Chapter in M. Doelle, “The Federal EA Process: A Guide & Critique”, 2008

History: SCC began confronting tension b/w DOP & enviro. protection in 1980’s w fisheries + marine pollution issues

(Zellerbach, Oldman River, Hydro-Quebec) Fed/Prov. conflicts (i.e. AB + Feds since energy crisis in 1970’s) Recently: implementing the Kyoto Protocol

Prov. heads of power (limited by territory): Provs wield significant proprietary rights as putative landowners

o Subject to s. 35 Ab rights (significant in BC) Provs broad leg. authority re. enviro. via: s. 92(13) prop + civil rights, 92(16) matters local/private nature, 109 mines

& minerals, 92A non-renewable resources, 92(8) municipal institutions, 92(10) local works & undertakings (except those under Fed control)

however, Provs subject to limitations by exclusive or concurrent Fed jurisdiction Prov jur’n ltd to boundaries of prov (uncertain in coastal areas), can only have incidental effects outside territory

8Federal heads of power (ltd by ownership):

Fed Crown ltd (see below), so relies on heads of power “patchwork of fed powers superimposed on carpet of prov powers” Conceptual powers (refer to specific responses allowed):

o Criminal law Hydro-Quebec upholds as means to achieve enviro. protection & allows embedding of reg. scheme

o Spending power (to support specific policies, i.e. incentives to reduce enviro. impact, reward enviro. innovation)

o Taxation power central to enviro law, i.e. carbon tax; Tollefson: lots of op for changeo Trade & Commerce power (interpreted narrowly, Parsons v. Citizens’ Insurance limits to T&C crossing

prov. or intl. border) intl. emissions trading system?o POGG:

a. Gap test (matter wasn’t in mind of drafters of Constitution) dismissed as means to achieve enviro. protectionb. National Dimensions Zellerbach upholds as means to achieve enviro. protection & lays out test c. Emergency proposed as basis to deal w endangered species and climate change verdict’s out

Functional powers (refer to specific issues allowed to control):o Sea coast and inland fisheries, s. 91(12); note: fish processing still prov. aquaculture currently under

disputeo Navigation and Shipping, s. 91(10)

Navigation: broad interp., all navigable waters (regardless of whether in prov. or private hands) Shipping: narrow interp., interprov. & intl. shipping

o Interprovincial works and undertaking, s. 92(10)(a); interprov. communication & transportation of interprov. nature, works for advantage of 2+ provs

o Note: Zellerbach accepts marine pollution as new functional head of power for Feds Concurrent/exclusive legislative powers:

o If exclusive, only that level can legislate Even if it doesn’t, the other cannot (resulting in gap in law) however, admin arrangements

delegating ability to leg. have been upheld)o If concurrent & both legislate, Fed. leg prevails in extent of inconsistencies – paramountcyo Interjurisdictional immunity: constitutional limits on prov. binding fed govt to their enviro. laws, BUT

reverse is dependent on leg. construction & as long as clear in their application to prov govts, fed laws upheld (~only goes 1 way)

Federalism & the Enviro. in the SCC, pp 173-212

Note on 1980s forestry cases impacting marine enviros: Fowler (SCC held no-dumping outright prohibition ultra vires Fed. govt as no link to harm to fish) Northwest Falling (held HADD provision in Fisheries Act intra vires Fed govt. as clear nexus b/w action &

harm) both cases decided on functional powers;\ Zellerbach decided on conceptual powers

LaForest trajectory:Zellerbach (1988: LaForest dissents on allowing marine pollution to be Ntl Dimension of POGG) Oldman River (1992: LaForest maj. says enviro. protection can’t be goal of POGG) Hydro-Quebec (1997: LaForest asserts broad crim. law power, seems to be in contradiction to his dissent in Zellerbach)

R. v. Crown Zellerbach Canada Ltd., 1988, SCCIssue Majority, Le Dain, J: Dissent, LaForest, J:Is Fed OCDA ultra vires Fed govt as it relates to regulating dumping in Prov water?

Cda arg: laws attempting to inhibit marine pollution should be upheld under Ntl Concern arm of POGG

Ntl Dimensions test [Anti-Inflation

Re. Crim law: re. public purpose reqt: can’t be held to protect health, as prevents any substance fr being dumped, even innocuous

Re. POGG: just regulating local works & undertakings,

9(Crim. Law or POGG)

Act Ref]1. “Singleness, distinctiveness, indivisibility” (clearly distinguish’g fr matters of Prov. concern) distinction b/w salt and fresh water (“ascertainable and reasonable limits insofar as impact on Prov. jurisdiction concerned”)2. Scale of impact on Prov. jurisdiction that’s reconcilable w distribution of heads of power3. Prov. inability test (as per Labatt): what effect on extra-prov. interests of prov. failure to deal effectively w control of inter-prov. aspects of matter ODCA passes Ntl Dimensions’ onerous test

Decision: Law upheld as marine pollution det’d to be new head of power under Ntl Dimension branch under POGG refer back to Prov. Ct

no evidence that substance being dumped is deleterious or will impact beyond limits of Prov.; “effective pollution control reqs reg’g pollution at its source” (would req. reg’ting air); OCDA doesn’t pass reqt #1 of test marine waters aren’t bounded by coast; line b/w salt & fresh water cannot be demarcated clearly; ocean pollution not confined to that coming fr substances deposited in water “simply amounts to truncated fed. pollution control power only partially effective to meet its supposed necessary purpose, unless… willing to extend it to pollution emanating fr air…[and] such an extension could completely swallow up prov. power” [p. 180]

Concerns w extending Fed. exclusive jurisdiction too broadly; anomalous results: (1) Van would have to ask Feds to do everything as coastal, (2) Fed law against depositing anything into air would be const. valid

Decision: “provision simply overreaches”; cannot be read down to apply to Fed. waters only; struck down as ultra vires Fed. govt

NotesSCC accepts marine pollution as new head of Fed power under Ntl Dimensions of POGG (even if marine water w/in Prov. boundary)

Maj: “Marine pollution… clearly a matter of concern to Cda as a whole”

Facts: Zellerbach forestry op dumping waste wood into water leased fr Prov Crown (“w/in jaws of land”); no evidence of impact on fish/habitat; Z charged under Oceans Dumping Control Act; CZ challenges constitutionality of lawUnderlying LaForest’s dissent: all levels of govt (incl. Municipal, Prov, Fed, First Nations) should concurrently legislate w re. to enviro protection goals (informal concurrency)Post-Zellerbach: laid groundwork for Feds to enact CEPA (ocean dumping is a chapter)

Friends of the Oldman River Society v. Canada (Minister of Transport), 1992, SCCIssue Judgment by LaForest, J: NotesConstitutionality of Guidelines Order that allows Fed. govt to trigger Fed EA

AB govt: GO is ultra vires Fed. govtCda: EA reqt was just policy, not law, so didn’t need to do it)

“Protection of the enviro. has become one of the major challenges of our time”

Pith & substance matter is w/in Fed power (may be incidental effects to Prov. but this is fine)Repeats dissent in Zellerbach: enviro. doesn’t have “distinctiveness” to meet POGG Ntl Concern branch test“Enviro. comprised of all that is around us & as such must be a part of what actuates many decisions of any moment” (diffuse nature)“Both levels of govt may affect enviro. either by acting or not acting” Double aspect: one may leg. in regard to Prov. aspect, the other fed (and GO only mandates Feds to examine matters directly related to areas of their jurisdiction; it’s a planning tool/integral to sound d/making, allows them to admin their duties/functions)

Decision: GO intra vires Fed. govt (both by sui generis const. power: simultaneously supported by all Fed heads of power implicated in specific proj. & “residuary power” of POGG – not one of traditional categories)

One of first cases where NGO moved case up to SCC; ex. of modern day enviro law case

Fed jurisdiction over EAs that are conducted to help fed d/makers decide whether to authorize proposals

[Double aspect] Ct should respect/promote ability of both levels of gvt to tackle enviro. issues legitimizes voices for citizen’s groups in resource dvpt projects

Facts: AB govt proposes dam on Oldman River; reqs authorizations by Fed. Mins. of Transport and Fisheries; Fed. EART Guidelines Order (GO) allows Fed Mins to screen proposals to det. if potential adverse enviro. effects & if so, can conduct EA; Prov. EA done, but no Fed. EA; AB govt gets permit fr Min. TransportJH: Application for certiorari & mandamus against Fed. Min. of Transport & Min of Fisheries to compel to complete EA (under GO) before issuing authorizationsNote: later, GO implemented into CEAA 1995 (~dialogue theory); now triggers to Fed EA gone (fr both Fisheries Act and

10Navigable Waters Act), so now completely discretionary

R. v. Hydro-Quebec, 1997, SCCIssue Majority, LaForest, J (x 5 judges) Dissent, Lamer, CJ (x 4 judges)Constitutionality of impugned provisions of CEPA

Cda arg: (1) valid exercise of crim. law power (public purpose reqt being “protection of health”); (2) POGG Ntl Concern; (3 – intervenor) T&C; P&S of law is simply control of pollution caused by toxic substances

QB arg: CEPA ultra vires Parl. due to regulatory, not crim., nature (Prov. waters governed by general prov. heads of power - prop/civil rights, matters of private nature); P&S of Act is enviro. protection

*case about enviro. protection

Quotes LaForest in Oldman River & “it is an intl problem, one that requires action by govts at all levels”

Enviro. not distinct subject matter to be assigned to Fed/Prov, but diffuse subject matter to be divided b/w two govts (double aspect/both govts can govern)

Re #1: Crim. law, s. 91(27) = prohibition + penalty w legit. public purpose (here, all reqts met; legit public purpose is protection of enviro); in Modern Reg. State, Feds should not be ltd to prohibition + penalty, need more flexibility in Crim Law power – “essential in dealing w amorphous subjects like health & then enviro”; note: pretty far-reaching power as LaForest frames it (emphasis on strong screening process to get toxic chem. listed) once Fed est. public purpose, only 2 things that can fetter this: Charter and colourability)

Note Re. #2: Ntl Concern branch allows Fed. govt to leg. exclusively in new head of power (vs. Crim Law more isolated – we’ll use that)

Re QB arg: arg that CEPA reg. scheme fails as regs. needed b/c of complexity of subject matter (regulating toxic substances)

Decision: valid exercise of crim. law power (regs needed due to complexity, but not overbroad/overreaching, as overlying law is crim. law: prohibition + penalty w public purpose)

*case about “what is the crim. law?”

P & S of Act = “protection of enviro and human life & health fr harmful substances by regulating these substances”

Re #1: Crim. law reqs prohibition, penalty & protection of public purpose; argued that purpose is protection human health, but: (1) Public purpose: “While the protection of enviro. is legit. public purpose, which could support the enactment of crim. leg., we believe impugned provision of Act are more an attempt to regulate enviro. pollution than to prohibit or proscribe it” (leaves door open; but must “outlaw” behaviour, not merely regulate it; “true crime” rather than reg. offence “[here,] scope extends well beyond matters relating to human health into realm of general eco. protection”)(2) Prohibition + penalties: certain provisions have no prohibition (put leg under microscope); distinguishes RJR-MacDonald (which upheld Fed. leg as crim. law) based on its broad prohibition w exemptions, & CEPA’s reg. scheme (w Min. discretion), as well as its narrow focus and CEPA’s broad focus; (Extra) Provs can be exempt if they’ve reg’d already, yet Provs can’t enact crim law… (contradictory)

Re #2: POGG Ntl Dimensions branch: reg. of enviro pollution is not “single, distinctive, indivisible” too broad; also, fails “prov. inability” text from Zellerbach

Re #3: Trade & Commerce power: even if sections could be justified as reg’g T&C, would have to be severed & are incapable of standing on own

Decision: CEPA cannot be upheld under Crim law, POGG Ntl Dimensions or T&C; ultra vires Parl. and should be struck down

NotesMaj. & Dissent agree that enviro. protection is legit. exercise of (Fed) crim. law power; approves embedding crim law measures in broader reg. scheme

1st case contesting const’lity of CEPA, in wake of success of Fed govt in Zellerbach (string of QB cases challenging Fed laws)

Facts: CEPA = omnibus statute, delegated authority to Min. to add toxic substances to list (either prohibited or regulated); accidental discharge of PCB water into QB river; charges laid against Hydro-QB under CEPAJH: QB CA: P&S is protection of enviro. (w an effect of protecting human health); CEPA provisions ultra vires Fed. govt. appealed to SCCUnderlying Lamer’s Dissent: worries Maj. diluting moral currency of crim law (allowing it to be harnessed for whatever public purpose govt of day wants to do); concerned about creeping Reg. state; this kind of leg allows bureaucrats to criminalize conduct.

Q’s at p. 211: 1. Maj. focuses on a flexible interpretation of public purpose, looks at Act as whole for prohibition + penalty; vs.

Dissent sees purpose as regulating enviro. protection & looks at Act provision by provision 2. Maj focuses on implementation; Dissent focuses on what could be listed in theory… 3. Maj. thinks broad jurisdiction under Crim. law still allows Provs. to leg; vs. Dissent thinks it pushes Provs. out

11 4. CEPA’s potential for being upheld under POGG? v. broad, arguably more so than Zellerbach’s marine

pollution head of power; T&C: only specific provisions reg. T&C and can’t stand on their own (as per Dissent)

The Politics and Practicalities of Jurisdiction over the Enviro., pp 212-222

William R. Mackay, “Cdn Federalism and the Enviro: the Literature”, 2004 Historically, cts recognized concurrent jurisdiction of two levels of govt in enviro policy Two ct decisions (Zellerbach, Hydro-Quebec) have increased potential scope of Fed leg. power

3 themes: 1. Factors affecting Fed role in enviro. policy (fr. fear of over-stepping constitutional boundaries, to now, fear of prov. resistance):

1. Constitutional constraints: Authors though provs. had strong claims to jurisdiction over enviro. generally; note: before

Zellerbach and Hydro-Quebec, which broadened Fed’s Crim law and POGG powers w re. to enviro. mgt

Feds now leg: CEPA, toxic regs, CEAA, fed “Green Plan”2. Fear of prov. resistance:

This arg used as “smokescreen for basic unwillingness to take necessary actions” provs continue to exercise greater share of enviro authority, Feds favouring “collaborative approach”

Feat incl. separatist sentiment in QB & objections fr resource-rich provs. 3. Waxing/waning of external pressure on Feds**:

International pressures Electoral incentives (usually diffuse benefits, concentrated costs politically unwise

After enviro disasters & when economy doing well, Fed intervention in enviro. protection ok (benefits less diffuse)

1 st generation enviro policy (up to mid 1980’s): air/water pollution, depletion natural resources 2 nd generation enviro policy (after mid 1980’s): diverse global and local issues

2. Dominant pattern of intergovernmental relations in Cdn enviro. policy (Collaboration)Collaboration vs. Competition

Collab. likely to happen when: (1) more likely to give greater control over domestic policy agendas, & (2) when intergov’t conflict imposes political costs

Pros: duplication by prov/fed govt avoided, intergov’l conflict reducedCons of collaboration:

“Race to the bottom” (weak enviro. standards, creation of pollution havens) Don’t get healthy prov/fed competition to satisfy voters, OR ea. level of govt overseeing other

(as we would in competitive) Leads to devolution of leg. power to Provs, results in deleterious effects on enviro. (see below) Intergovt’l agreements: non-enforceable legal commitments (don’t meet legal reqts of K), “soft

law” ~sim. to framework conventions in intl lawTollefson: Current trends:

Devolution (may be collaboration or forced collaboration) Cutting funding in ad hoc way (i.e. Feds not regulating navigable waters, fish habitat, maybe

SAR? ~form of devolution?) Interesting q: can province step in and reg. the areas Feds have vacated? i.e. Sage Grouse case (concludes that AB failed miserably in doing what it needed to do under SARA)

3. The preferred model of intergovernmental relations w re. to enviro. policy (Cooperation w both)Fed vs. Prov. control: Federal govt (pros):

Economies of scale on studying enviro. probs. Fed. govt better able to respond to interprov. spillover effects Can resist strong regional interests Ntl standards can avoid “race to bottom” Provs. lack resources and political will to screen info. fr diverging interest groups; sometimes

download enviro. mgt to other groups (Crown corps, local govt, even private co’s)Prov. govt (pros):

Better satisfy diverse citizen preferences

12 May encourage policy experiment’n (gauge effectiveness w/out subjecting whole country to it) Subsidiary principle: tailor solutions to local circumstances

neither level of govt. could be divested of its power to manage enviro.

Aquaculture, pp 223-228 History: Fed govt gradually let Provs legislate w re. to fisheries (despite pretty clear constitutional power for Feds)… until Morton successfully challenged Prov. leg. in BC

Morton v. BC (Minister of Agriculture and Lands), 2009, BCSC – aff’d at BCCAIssue RatioConstitutional validity of 2 prov statutes & 2 prov regs (i.e. BC Fisheries Act, etc.)

Fish farms are fisheries for purpose of constit’ty, so per s. 91(12) allocated to Fed. govt (& exclusive jurisdiction, as per Northwest Falling) double aspect doctrine cannot apply to exclusive jurisdiction; paramountcy cannot apply b/c there can be no valid inconsistent Prov leg (no valid Prov leg at all!) when jurisdiction exclusively Fed

Fish farms cannot be private unless expressly granted so by Fed govt here, farm wasn’t, so public fishery

Other than 2 provisions re. marine plants, dominant purpose of Prov. leg is reg’g aquaculture, so effects on Fed. fisheries head of power is not incidental / interferes w core of matter w/in exclusive jurisdiction of Fed. const’ly invalid Prov. leg

Note: only way Prov. can get involved is by signing agreement w Feds

Decision: due to exclusive jurisdiction of Feds over fisheries & the classif’n of fish farm in q as public fisheries, Prov. leg invalid, except for few provisions re. marine plants that were read down (so still in force)

NotesAffirms Fed. jurisdiction over fisheries

Out of step w 2 current trends:(1) Double aspect: typically, modern approach is Cts should strive to uphold leg rather than striking it down(2) Subsidiary principle: typically, govt should allow ppl closest to problem to regulate that issue (i.e. prov govt & aquaculture in Prov. waters)Facts: Granting of Prov fish farm licenses allows conduct that is directly contrary to fed. Fisheries ActClaims: (App) (1) Leg is P&S mgt of ocean fisheries (Fed. jurisdiction); Fed. can’t abdicate/delegate resp. to reg. fisheries to Prov.; (2) if leg is in Prov. jurisdiction, invalid due to IJI OR paramountcy; (Resp) (1) operation not fishery; (2) in alt., if it is a fishery, it’s a private fishery so not subject to Fed leg.

Emerging Issues in Jurisdiction over the Enviro.

Aboriginal Rights, pp 228-242

Section 35 rights include: Treaty entitlements Other, non-treaty rights, incl:

1) Cultural rights (hunt, gather, fish, use timber) [as per Van der Peet]2) Ab title (exclusive use & occupation) [as per Delgamuukw]

Sui generis Unalienable Held communally

Section 35 gets into Ct: 1. Defensively: response to reg. prosecution against something they saw as their Ab right [Sparrow, Van der Peet, Gladstone]

o Crown’s justification test: if leg. “min’ly impairs” s. 35 right AND advances legit overarching govt. concern for resource conservation, can override rights (otherwise Ab ceremonial & food reqts win out)

2. Judicial review: used as a “sword”, to challenge decisions of agent due to inadequate consultation when project potential to infringe Ab rights as affirmed in Haida Nation [Taku River, Mikisew Cree, Dene Tha’]

o Cts seeks to define Crown’s duty to consult and accommodate, w re. to unproven (non-Treaty) rights3. Title claims: only 2 have gone to trial, Delgamuukw and Williams (Tsilhqot’in) – Williams says in obiter that if Ab title were declared, Prov. laws would be ultra vires on that territory (SCC granted leave to appeal in Jan 2013)

o Also, constitutional cases attempting to limit applicability of Prov. leg on Reserve [Kitkatla, Paul]

13Taku River Tlingit First Nation v. BC (Project Assessment Director), 2004, SCCIssue RatioFN: we weren’t properly consulted/ accommodated

BC: FN has no right to be consulted until Ab rights proven in Ct or signed treaty

BC’s position incorrect in law, “impoverished” (p. 232) – directly contrary to Haida judgment; scope/nature of duty must be calibrated w strength of claim and seriousness of potential impact (acceptance into treaty process prima facie case in support of Ab rights); not under obligation to come to agreement, but consult & accommodate

p. 233: “The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them.”

Two main reasons for decision:1. Though not perfect record, no evidence on record that Crown is acting in bad faith (acting inconsistent w “honour of Crown”)2. We’re on journey: this has certificate (coming fr strategic stage), but Crown must continue to consult (during operational stage)

Decision: consultation enough to meet honour of Crown/Prov duty

NotesSame time as Haida (prov req’d to consult/accommodate, but not get agreement); distinguished fr Haida as there was no consultation in strategic stage, here there was

Scope/content of consultation varies w strength of claim & seriousness of potential impact to rights (as per Haida)

Considers former BC EAA (Ct found duty to consult was sufficient under Ab section of EAA, but v. diff from current Act

how may it be applied in future? (Enbridge)Facts: Proponent wanted to re-open mine which req’d building road through Taku’s trad. territory; consulted during EA process (incl. mitigating measures and responding that certain of Taku’s requests were outside ambit of cert. process); Taku in process of negotiating treaty w BCTC; BC EAO reco’d to Min. that project be cert’d to go ahead; FN JR’d cert. issuance (goes to Ct same time as Haida Nation)

Paul v. BC (Forest Appeal Commission), 2003, SCCIssue Ratio NotesRship b/w valid Prov leg and matters under Fed head of power (i.e. s. 91(24) “Indians, and lands reserved for Indians”)

Paul arg’s doctrine of IJI applies; Prov’y constituted FAC to hear/rule on Ab rights args that occur while exercising Prov. mandate trench on “core of Indianness” FAC cannot hear args based on Ab rights (has no jurisdiction)

Uncontested facts:1. All parties agree Forest Practices Code valid Prov law2. Leg would remain valid, as long as doesn’t touch on “core of Indianness” or violates s. 35 rights (only “incidental effects”)

IJI doesn’t apply b/c:1. Diff b/w legislating and adjudicating; doctrine of IJI focuses on legislative acts in a Prov (Prov can’t legislate in manner that goes to core of Indianness, re. Ab rights/title, etc., but Prov Ct can adjudicate using Constitution & Fed laws and it’s created by Prov statute just like FAC…)2. Policy reasons: efficiency (don’t want to see legal proceedings bifurcated), decision of FAC on Ab rights is q of law (or at least q of mixed law and fact) so will be reviewable on correctness standard and appealable to BCSC anyways (“he’ll get his day in Ct”)

Decision: IJI doesn’t apply, FAC has jurisdiction to hear issues of Ab rights (& has jurisdiction over Paul’s case)

Diff. b/w legislating and adjudicating means Prov. tribunals have jurisdiction to hear cases involving defenses of s. 35 rights

Facts: Paul member of Ahousaht FN, questioned ability of Prov. to govern his using cedar; sought permission of Chief, didn’t go to local board; prosecution was forced, so Paul challenged authority of Forest Appeals Commission over himJH: CA: IJI applies, touches on core; SCC?

Municipal Jurisdiction, pp 243-257

Provs const’ly empowered to pass on aspects of own jurisdiction to municipalities (i.e. Provs make Land Use plans, municipalities roll them out w separate policies)

Growing trend: municipalities want to use reg. powers to promote enviro. sustainability; at odds w constitutionally vested prov/fed powers

SCC in Oldman River: Ct should respect/promote ability of both levels of gvt to tackle enviro issues

14114957 Canada Ltee (Spray-Tech, Societe d’arrosage) v. Hudson (Ville), 2001, SCCIssue Ratio1. Whether town acted w/in authority in enacting bylaw reg’g/ restricting pesticide use

2. Even if intra vires town, is bylaw inoperative b/c conflicts w Fed/Prov leg?

Apps claim bylaw ultra vires & discriminatory against Apps

Subsidiary principle: govts closest to issue should leg.

CTA s. 410(1) permits municipalities to enact bylaws for POGG, health, general welfare in municipality; however, w omnibus act, Ct must scrutinize for true purposeShell Canada v. Vancouver: generosity in interpretation (“barring clear demonstration that municipal decision beyond its power, cts should not hold so”), test for det’g if bylaw enacted for “municipal purpose” applied: must read in implied purpose (minimize use of allegedly harmful pesticides to promote health of inhabitants), so falls under CTA s. 410(1) purview of “health”

Supported by international law (which can be used to aid statutory interpretation, as per Baker), as Canada advocated inclusion of the precautionary principle in Bergen Conference negotiations

Re. conflicting w Fed/Prov laws, just b/c Fed has legislated in area doesn’t mean municipality can’t - paramountcy requires conflict, must be “impossibility of dual compliance”

Decision: Bylaw intra vires town as function of CTA s. 410(1) (for purpose of inhabitants’ health)Bylaw doesn’t contradict prov/fed law, rather is complementary

NotesPrecautionary principle invoked to uphold constitutionality of municipal bylaw restricting use of pesticides

Purposive interpretation of municipal bylaw

p 244: L’Heureux-Dube, at para 1: “our common future, that of every Canadian community, depends on a healthy enviro”; cites R v Canadian Pacific at para 55: “enviro protection has emerged as a fundamental value in Canadian society”

Facts: Town of Hudson is municipal corp. under Cities and Towns Act (omnibus Act); App’s landscaping co’s served w summons to appear at Municipal Ct w charges of violating Bylaw 270; suspension of proceedings to challenge vires of bylaw at QB Sup CtJH: Sup Ct: bylaw intra vires town; QBCA: upheld

Environmental Regulation Context and Perspective, pp 260-278

D. Paul Emond, “The Greening of Enviro. Law” (1991)Dvpt of enviro law in 3 stages of consciousness:

1. Symbolic reg: “gross pollution”, i.e. black smoke; reactive (i.e. to enviro disaster or revelation) rather than preventative

o Shifts liability fr regulated to regulator (if standard met, further issues are prob w standard)o Defining the prob as mkt-related or tech failures, then def of success also flawed o Reg. solutions like shooting moving target, ineffective

2. Preventive reg: more subtle pollution, i.e. chemicals (dioxins, PCB’s birth defects, allergies, mutations), involves land use planning, resource allocation decisions

o Relies on adjudicative model, little op for creative solutionso EA saved for “mega proj”, majority subject to often ineffectual approach process (“built-in bias for status

quo”) 3. Co-operative prob solving: move away fr competitive, adversarial rights-oriented model that focused on defining

rights to new modelo Concern that mediation (focus on compromise) will deter large-scale change

govts should legislatively mandate negotiation/mediation

R. Michael M’Gonigle, “Taking Uncertainty Seriously: From Permissive Reg. to Preventative Design in Enviro D/Making” (1994) “Permissive regulation approach”: allowable discharge limits for hazardous chemicals; inherent contradiction, issues w this approach are:

15 Assumption that enviro assimilates waste (w/out harm) Assumption that reg based on firm scientific knowledge (failure to acknowledge implications of scientific

uncertainty): o reg. occurs on substance-by-substance basis so many (often new) chemicals escape reg. due to testing being

prohibitively expensive and time-consumingo testing focuses on toxicity rather than cumulative effects (more likely, long-term effects v. dangerous)o Cts reluctant to accept probabilistic evidence for causality o Temporal/spatial latencies reg. delayed til after harm shows, causation issues for Pls (intervening causes,

remoteness, foreseeability issues in Ct) Assumption that agencies can effectively reg. (unrealistic expectation on reg. agencies):

o Req. high levels staffing and resources agencies rely on industry research/self-policing leads to externalized costs of industrial production through degradation of enviro quality and inc. in public health risks

Negotiation for setting standards may be effective, but not for ensuring compliance (contrast w last article by Emond)

Incremental reform possibilities: Lowering standard of proof (US: est. a fact on “preponderance of the evidence”) “Creation of risk” as evidence; “risk-benefit analysis” approach (cost of risk to Pl outweigh benefit to D? calculation:

cost of enviro degradation x probability of occurrence) diff. in implementing approach due to inability to quantify costs of degradation or % likelihood of occurrence currently, Canada doesn’t allow this

Leg. that secures right to enviro. quality (i.e. number of US states) Shifting burden of proof to D (to prove he wasn’t cause of harm):

o Alt. liability (Cook v. Lewis scenario): 1+ possible causes of harm, D must prove on BoP; requires (1) harm occurred, (2) limited number of possible causes, (3) proof D was neg.

o Strict liability: CL tort standard, removes (3) above of proving D was neg., however, D can bring (4) “due diligence” defence

rebutting due diligence defence req’s expert witness, subject to s. 7 or 11(d) Charter challenges

Structural reform possibilities: Waste reduction deals w waste at source rather than after generated; “precautionary approach” by creating

presumption of harm i.e. at state-level in US, as well as Fed. Pollution Prevention Act Cdn leg. policy lags far behind

inescapable presence of uncertainty should shift reg. burden onto those seeking to use & profit fr common enviro’s questionable assimilative capacity economic penalties essential tool judiciary must be more cognizant of implications of scientific uncertainty, reallocate burden of proof

Stepan Wood, Georgia Tanner & Benjamin T. Richardson “Whatever Happened to Cdn Enviro. Law?” (2010)

90’s Canada leading in enviro policy 2010 laggingSymptoms of decline:

Policy instruments: binary choice b/w “tax and control” & voluntary action; whereas, other places have implemented eco tax, extended producer responsibility (EPR), tradable pollution allowances (cap & trade)

o QB and BC adopted modest carbon taxes, but that’s about it Economic instruments: lack of use, few ex.’s such as amending Income Tax Act to encourage donating land to

conserve mostly subsidies to clean tech PC and Libs to blame; pulling out of Kyoto, etc. Even human rights leadership lagging (access to info) Leg. inaction: failure to implement existing laws, i.e. National Parks Act, interpreted by Fed Ct to not require

ecological integrity to be “determinative factor” and require balancing Other countries leading, i.e. Cali & Germany; US otherwise setting bar low, Cdn committed to maintain par w US Pollution reg: model of self-inspection for Nat Resources, Mining, Fisheries Mgt, delegating to arms-length agencies

w limited accountability effectiveness/reporting of non-compliance questioned (“reg. flexibility”) Financial economy: socially resp investment (SRI) not encouraged as no reqt to disclose policies for taking into acct

16social, enviro, ethical matters in investment decisions (i.e. CPP reform rejected)

Even w other countries struggling to achieve effective legal/policy responses to worsening enviro conditions, Cdn worse

Greater reliance on legal mechanisms going forward? Reliance on legal rights as govt clearly isn’t going to effectively regulate.

1) What perspective/context informs this reading? Lagging enviro record on intl stage as evidence of CC, chemicals persisting in enviro, stronger/indisputable 2) What linkages/implications does it have for the course so far? political background; we will have to rely on legal mechanisms available, if we’re at the “peak” of political will; Constitutional law cases where Ct came out in favour of Fed/Prov cooperation, which requires innovation arguably isn’t happening3) Which other reading(s) assigned for this session is it most similar to? Howlett article on instrument choice (govt using least coercive model possible, why we’ve ended up w lack of innovation)4) Which other reading(s) assigned for this session is it at odds with or depart from? two previous articles (Emond, McGonigle) fr. 90’s 5) Why? Doesn’t mention judiciary, focuses on policy; not particularly positive, lacks the optimism present in earlier articles fr. 90’s

Enviro. Standard Setting & Forms of Standard Enviro. Standard Setting, pp 278-285

C. Tollefson, F. Gale & D. Haley, “Setting the Standard” (2008)Standard-setting process:

1. Set goal outcome (political debate, judgment about values)2. Est. criteria by which you’ll measure goal achievement (involves science, “dose-response” rship w limited number parameters like threats, risks, etc.)3. Ambient standard (receiving enviro’s carrying capacity, def. upper OR lower limit on mass/concentration of harmful substances)4. Creating standards (to define permissible behaviour of party that standard’s trying to regulate)

Forms of standard: 1. Performance-based standard: outcome-based, broad discretion as to how to achieve outcome; preference in Canada for air and water pollution reg [wouldn’t want to reg. aviation and nuclear industries only using perf-based standards; however, still seems to be reflex for perf-based standards, though flawed]2. Technology-based standard: specifies specific tech; preference for US for air and water pollution reg3. Management-based standard: oblige operators to undertake specific mtg-planning activities

Interjection at which stage of process [p. 281]: Stage of production Planning Acting OutputsForm of standard Management-based Technology-based Performance-based

Prescriptiveness and Standard form: Most policy-makers feel that “prescriptive regulation” is bad pref. for outcome-related reg. (i.e. Gordon Campbell’s “results-based” forestry code)

However, Tollefson posit that reg. is by def. prescriptive; “prescriptiveness” dependent on context; when analyzing look at way firms act in mktplace and distinguish b/w diff moments in process

Private autonomy vs. certainty: Perf. standard sometimes preserves private autonomy (but depends on congruency b/w objective & form of

standard) o i.e. qualitative (“protect slope stability”) higher autonomy vs. quantitative (“don’t log on slopes stepper

than x”) May be argued that more generic standard = higher risk objective being compromised “Ownership of uncertainty”: should greater private accountability (in event objective compromised) be “quid pro

quo for greater private autonomy? Or should co’s be allowed to claim “due diligence” like their reg’d counterparts?

Public participation: allowing broad private discretion in how to achieve objective may impact PP as solutions

17become more complex; may even impact regulators’ ability to enforce (req. 3rd parties, etc.)

Measuring, Evaluating, and Verifying Perf. Though most effective measure is ambient value, that’s affected by many other natural & non- sources, so

usually quantitative meas’mt of incremental impact of reg’d activity “Dose-response” rship: nature of rship b/w behaviour standard targets & its impact on ambient enviro. “One size fits all” approach: under-protective in some circumstances & over-protective in others Costs: who bears costs for measure, evaluate, etc huge inc. to govt admin costs.

o Influenced by type of standard (open-ended ones harder to enforce)o If not enforced properly, lose perceived legitimacy & ultimate viability

Choosing optimal form of standard: Context-specific factors: (1) straightforward matter, able to measure at low cost perf-based standard; (2) diff.

to measure, reg’d sector homogenous tech-based (esp. if rship b/w action- output well-understood); (3) heterogeneous conditions/enterprises mgt-based standards

The Emerging Governance-based Approach to Enviro Reg., pp 285-302Command and control vs. new methods (incl. market forces and civil society)

Michael Howlett, “Policy Instruments, Policy Styles, and Policy Implementation: National Approaches to Theories of Instrument Choice” (1991)

“Policy instruments” = techniques at disposal of govts to implement public policy objectives Origins w Theodore Lowi work (categorize types of policies & place on continuum of coerciveness)

Canada: Degree of legitimate coercion spectrum ( Doern spectrum ) :

choice of instrument on spectrum based on ideology, with contextual politics thrown in; moves up spectrum w societal resistance or to achieve policy objective

Kathryn Harrison, “Talking with the Donkey: Cooperative Approaches to Enviro. Protection” (1999)International shift:

Away fr traditional “command & control” twd cooperative approacho i.e. President Clinton statemento i.e. Netherlands, Cda, Aus, UK, Japan (EU Action Plan: voluntary agreements & other forms self-reg)

Command & Control vs. Cooperation: C&C: gen. disenchantment (economically inefficient, dvp regs slow, end-of-pipe solutions rather than pollution

prevention; if specify tech, rather than perf standards, stifles innovation, failure to provide incentives to go beyond compliance; unnecessarily adversarial & legalistic)

Cooperative: choose b/c: (1) concerns re. inflexible regs affecting competitiveness; or (2) budgetary concerns (rather than higher enviro. protection)

Def’g Cooperation: 1. “Who is working together?”: partnerships b/w bus. & govt (to exclusion of other parties) could cause

additional conflict 2. Commonality of objectives: though due to govt’s ability to coerce, ask how cooperative really is (continuum

of explicit implicit coercion) 3. “Working together”: can govt choice not to intervene at all be considered bus-govt cooperation?

Typology of Cooperative Approaches (Doern & Phidd):

Private behaviour (self-regulated)

Exhortation (Speeches)

Expenditure (Subsidies)

Regulation (Taxes/ tariffs)

Public Ownership (Crown corps)

18most coercive least coercive

1. Regulation: Risk of frequent resort to “stick” may destroy good will of law-abiding firms who resent being treated like crims “Culture of resistance” may emerge where firms help ea. other exploit loopholes Proponents for cooperative enforcement advocate “tit for tat” strategy (initial forgiveness, increasingly stringent

sanctions in face of recalcitrant behaviour) Assumes more “good apples” than “bad apples”; though other scholars contest almost all firms “bad apples”…

quantitative comparison actual rates compliance conflictingo Efforts to promote flexible & cooperative enforcement that would provide benefits to honesty (p. 292)

Cooperative dvpt of reg. standards (rather than just during implementation): (1) # participants can vary; (2) approaches differ in weight given to input fr non-govt actions & emphasis places on consensus

4. Exhortation: Govts persuading bus. to change ways (nominally voluntary, vary in degree coerciveness:

o Most coercive (closest to reg.): voluntary agreements / govt-sponsored codes of conduct; usually accompanied by explicit/ implied threat of reg.; may be nonbinding “gentlemen’s agreement” or legally-binding K

o Mid-level: “voluntary challenges”; i.e. Env. Cda’s Accelerated Reduction/Elimination of Toxics program)

o Least coercive: education or info dissemination programs (twd bus. community or consumers); i.e. pollution prevention clearing houses, enviro. awards

5. Inaction: i.e. Forest Stewardship Council ISO 14000 Parallel exhortation programs above but w some other entity than govt doing educating or persuading

Jody Freeman & Daniel Farber, “Modular Enviro. Reg.” (2005)

Overview of “command and control” reg. vs. market mechanisms (pros & cons of each)Market mechanisms:Pros:

Emissions trading schemes (i.e. Clean Air Act Acid Rain Program reduced SO2 reductions) may be applied to carbon one day! or watershed based effluent trading, wetlands mitigation banking

Cons [also C&C pros]: Political considerations tend to dominate initial allocation of entitlements in mkt regimes (i.e. allocation SO2

units in Acid Rain program) Prices can be set inaccurately (as price must reflect accurate costs of pollution and a benchmark for this is

unavailable) o Natural resources, like ecosystems, enormously diff. to value & trade

More system tailored to local conditions, more cumbersome system becomes Mkts tend to lead to “hotspots” of concentrated pollution (distribution inequity) Generally req. easily monitored indicator that can be subject to trading or tax – can be diff. in circumstances

where lrg # sources or when emission rates hard/expensive to monitor (i.e. pollutants that contribute to ground-level ozone)

Command & Control:Cons:

Prescriptive reg: industry may say too costly, too intrusive, too “centralized”/coarse grained, inhibits policy & institutional innovation that only comes fr local knowledge/experience

Inhibits tech. innovation b/c no incentive to dvp new techs if tech is dictated or to reduce emissions past mandated level

Info reqd for prescriptive reg. in hands of industry, little incentive to reveal it fully (w/out it, implementation by govt is difficult)

Procedures for prescriptive reg. slow, cumbersome, conflict ridden (so costly)Pros:

*Regulation Govt. enterprise Expenditure *Exhortation *Inaction

19 Many of the assumptions re. cons of C&C (uniformity, inflexibility, cost) either wrong or exaggerated Prescriptive reg. still necessary as backbone of reg. system b/c mkt mechanisms risky & frequently don’t deliver

on promises empirical record on their perf. is, in fact, mixed

“either/or nature of debate echoes dichotomous nature of federalism debate”; no “one size fits all” approach to regulation, must rely on mix of mechanisms

Mkt mechanisms rely on some prescribed govt limit (i.e. the “cap” in C&T) vs. prescriptive regs. (i.e. Tech-based standards) not as uniform & rigid as some would suggest

“Challenge now is to mix and match instruments in a way that is sensitive to the contexts – political, economic, geographical… each [instrument] require[s] effective implementation and monitoring”

C. Tollefson, D. Haley & F. Gale, “Setting the Standard” (2008) cont’d1 st Generation Enviro. Laws : Most US enviro. laws enacted b/w 1970-80; almost all employed best avail. tech (BAT) standards

Applied universally on national basis Provided legal means by which citizens could challenge permit holders & govt for not complying (“citizen

suits”) generally, brought significant improvements in enviro. quality

Criticism: yes, successful in “picking low-hanging fruit”, but “one-size-fits-all” approach ignore basic cost-benefit analysis (don’t take into acct. diff. abilities of co’s to meet BAT standard); don’t encourage R&D in further reductions in emissions

2 nd Generation Enviro. Laws : Late 80’s, early 90’s, classic showdown b/w proponents of free mkt & defenders strong, interventionist state mid 90’s Clinton administration

Pollution credit trading, new incentives (incl. reg. relief for superior enviro. performers) Now, debate dominated by US legal scholars & economists began to expand, notably “Smart Regulation” (“mix

of policy instruments tailored to the particular goals and circumstances of the reg. context”); govts should “steer not row” & “govern fr a distance”

i.e. in US, fed. agencies now directed to specify perf. objectives, rather than behaviour, whenever this is feasible as they craft new regs.; many fed. agencies piloting perf-based reg. programs

N. Gunningham, “Reconfiguring Enviro. Reg.: Next Gen. Policy Instruments” (nd)Summary: more positive light on “command and control” reg.

C&C considerable success, esp. in terms of air & water pollution however, “1st gen. enviro. reg” widely criticized

Yes, it’s only part of the solution, but in time of shrinking reg. resources, need option in absence of credible enforcement regime must “extract the “biggest bang” fr a much diminished “regulatory buck” (p. 300)

Design a 2nd gen. of enviro. reg. still involves govt intervention but selectively & in combo. w range mkt & non-mkt solutions; “one size does not fit all”

Spectrum of policy instruments (most interventionist to least):

2. Self-regulation: organized group regs behaviour of members Pro: b/c standard setting and id’g breaches are resp. of industry (& they know their industry best!) arguable leads to more practicable standardsCon: rarely effective in achieving compliance (at least when used as stand-alone strategy w/out sanctions)

3. Voluntary Agreements: usually b/w govt & industry; incentives arise fr mutual interests rather than sanctions

Command & Control

Self-reg, economic

instruments

Pure voluntarism, education, info-based approaches

20Categories:

(a) Public voluntary agreements little evidence they work(b) Negotiated voluntary agreements** usually enacted w backdrop of threatened leg. little empirical evidence, not encouraging

Informational Reg. & Civic Environmentalism: involves state encouraging/ requiring info re. enviro. impacts but w/out directly req’g change in practices; relies on economic mkts & public opinion as mechanisms to bring about improved perf.

Pro: cost-effective, less interventionist i.e. community right to know (CRTK) or pollution inventories

works best w larger co’s & environmentally aware communities

Civic Regulation: civil society by-passes state to influence corps, consumersi.e. focus on highly visible branded retailers i.e. certification strategies (FSC – links together diverse, often antagonistic actors fr local, ntl, intl levels)

Erin note: MSC hugely successful w large grocery chains like Loblaws/Superstore getting on board

govt becoming more involved, & many 2nd gen. policy instruments geared toward empowering various institutions of civil society to play more effective role in shaping bus. behaviour, giving environmental NGOs “seat at the table”, standing to bring legal action, or info to threaten rep. of capital/lrg corp.

Enviro. Reg, Innovation and Economic Performance, pp 302-316

Stefan Ambec, “The Porter Hypothesis at 20: Can Enviro. Reg Enhance Innovation and Competitiveness?” (2011)Porter hypothesis relevant even now?

challenged traditional economists’ view that enviro reg reduces profits (tax pollution, by-product of production process which was free before, divert capital away from productive investments) pollution is often waste of resources, reducing pollution leads to improved productivity

Enviro. reg (esp. mkt-based) can “trigger innovation” that will offset costs of compliance “innovation offsets”; b/c of 5 reasons:

1. Reg. signals likely resource inefficiencies 2. Reg. focused on info-gathering raises corp. awareness3. Reduces uncertainty that investments to address enviro. will be valuable 4. Creates pressure 5. Levels the playing field

Note: PH only says well-designed reg. lead to innovation (not all)PH Criticism:

Rests on idea that firms often ignore profitable ops (incompatible w “assumption of profit-maximizing firms”) o And if isn’t true, how are regulators in better position than managers to find these profitable bus. ops?

However, in reality, firms might not be making optimal choices for many reasons, such as imperfect info or org./mkt failures…

Design of Policies to Enhance Competitiveness: Both innovation & competitiveness depends on context

Enviro. Policies Type of reg. important; must: (1) create max. op for innovation, (2) foster continuous improvement, (3) leave as

little room as possible for uncertainty at every stage. Narrow version of PH (“weaker hypothesis”): strict reg. leads to more innovation fairly well-established

nowo i.e. switch fr BAT to trading program for SO2 resulted in innovations & transfer of resp. fr chemists to

VPs, but at higher cost[vs. Stronger hypothesis that strict reg enhances business performance mixed results] **see Tollefson note

Organizational or Governance Conditions Studying since shows ability to support PH depend on stage of dvpt of firm

Summary: 20 yrs later, theoretical args that could justify PH now more solid than before

**When Porter says “stricter” enviro reg, what does he mean?

21 Tollefson: don’t know, but could see pref. for results-based reg. when discussing enhancing innovation; this is problematic, as skews data due to type of reg. selected

William Lahey & Meinhard Doelle, “Negotiating the Interface of Enviro. and Economic governance: Nova Scotia’s Enviro. Goals and Sustainable Prosperity Act” (2012)Overview:

NS’s Enviro. Goals & Sustainable Prosperity Act (EGSPA) into force 2007 2 overarching goals: (1) intl leadership “one of cleanest enviros in world”; (2) Prov’s econ. perf. to level equal or

above Cdn avg 21 discrete enviro goals: all being pursued or have been achieved (most on time!), i.e. substantive targets: GHG

emissions, air pollutants, energy & process targets: resource mgt, wetlands, brownfield re-dvpto Most dvp’d w enviro. protection, not econ. prosperity in mindo Substantive goals req. other levels of govt. & non-state actorso Process goals more in control of prov. govt

EGSPA’s Uniqueness: Diff. fr Green Plan as mandates gvot to follow through on tis enviro. policy commitments b/c it is law It contains schedule for 21 goals’ achievement Key aspects: (1) “soft reg” to policy-making process of govt (accountability fr annual report); (2) wide-ranging

reg. framework to govt’s enviro. policy-making process (casts a wider net – goals fall under mandate of MOE as well as many other dpts); (3) primarily directed at enviro. policy (contains little guidance as to connection b/w enviro. & economics)

Limitation: (1) silence as to both specific goals for econ. policy & mechanisms to ensure integration of enviro/econ. objectives; (2) [deeper lmt]: failure to address how enviro. goals best selected/implemented to ensure econ. prosperity

Implementation of EGSPA: Performance in Meeting EGSPA’s 21 Specific Enviro. Goals:

o Evidence that EGSPA more successful in implementing enviro. policy goals than non-leg. frameworks; matters that rooted in leg., makes actions on policy commitments obligatory suggests putting agenda into law can keep it at forefront

Performance in Integrating Enviro. & Econ. Policymaking o Implementation limited to achievement of 21 enviro. goalso Broad framework (integration of enviro. & econ.) not fully embraced by either govt that initiated

EGSPA or one that’s overseen its implementation o Not easy to achieve integration b/w branches of policy allocated to diff. govt dptso No institutional apparatus for making integration in Act has to be much more specific on what

integration means and reqsImproving Reg. of Govt’l Policy Perf. at the Interface of Enviro’l & Econ. Governance:

o Integration can occur in at least 2 ways: (1) though mechanisms chosen; (2) dvpt of additional goals (econ. & integration goals)

o Consider & state short, med & long-term econ. goals b/c some ops to integrate enviro. & econ. come at short-term econ. cost

Conclusions: 1. Seems to have succeeded in improving perf. of NS govt in implementing enviro. policy commitments 2. Not yet succeeded in transforming NS to achieving higher eniro. & econ. perf through integrated pursuit of

both goals EGSPA must address its econ. objectives more rigorously results encouraging; functioned as meaningful counterweight to forces that could have easily postponed/derailed goals

Strengthened (but not transformed enviro. gov, in NS

An Overview of Cdn Reg. Models, pp 316-327

22The Fisheries Act

“First generation” approach to enviro protection Parliamentary review 2005 – 2012: environmentalists concerned not effectively complied w and enforced,

businesses think impedes enviro. resp. devpt through imposing costly burdens on businesses

Habitat Protection: Subsection 35(1) Pre-2012: prohibition is “HADD”: harmful alteration, disruption or destruction” on fish habitat

o (2) Unless authorized by Minister/GIC; if you thought you were going to HADD, had to seek permission (not ask for forgiveness later) triggered Fed EA, which was supposed to inform Minister’s decision as to whether you would be exempt (~nice loop there)

Criticism fr BC Bus Council: proponents seek prior evaluation even if small proj, CEAA too easily triggered, DFO’s overly expansive interpretation of HADD1 called for changes that were incl. in Bill C-38 (2012 – also incl. repeal/replace of CEAA), incl. eliminating EA trigger, provided more exceptions for when can create a HADD2 even more sweeping changes coming up, limits serious harm to only fish used for human purposes (fisheries), fish playing vital role in ecosystem not protected; harm must be dramatic (death); Minister/GIC can designate projs to be exempt, doesn’t need to publish in Gazette (previously rare, limited to specific circumst)

Pollution Prevention: Section 36 Critics have said creates overbroad “zero tolerance” regime for marine pollution “Deleterious substance” added to “any water” “degrade or alter” “quality of that water” “rendered deleterious to

fish or fish habitat”o BCCA and ONCA interpreted as “any water” zero tolerance conclusion

R. v. MacMillan Bloedel (Alberni) Ltd., 1979, BCCA (leave to SCC refused)Issue Reasoning, Seaton, JA: NotesMeaning of s. 34(1) “deleterious substance”

D arg: purpose of provision to prevent waters fr becoming deleterious, so plain meaning interpretation absurd (req actual waters to become deleterious as part of conviction)

Leg. intention clear (could have phrased less strictly)Provision seeks to exclude each part of process of degradationPrompt cleanup (was argued) only relevant to sentence, not conviction

Decision: Bunker oil spill fulfills reqts of conviction under Fisheries Act s. 36

“Deleterious substance” + deposit = offence under s. 36 of Fisheries Act (doesn’t require that water becomes deleterious)

Defence brought to prosecutions under s. 36(3)

Facts: Bunker C oil leaked during offloading of ship (valve wasn’t shut properly)JH: Prov Ct: acquitted; CA: reversed acquittal; SCC: appeal refused

R. v. Kingston (City), 2004, Ont CA (leave refused to SCC)Issue Reasoning, Gillese, JA: NotesMeaning of s. 34(1) “deleterious substance”

No stipulation in s. 36(a) that substance must be deleterious to receiving water; but deleterious to “any water”

Decision: City of Kingston contravened s. 36 of Fisheries Act when allowed ammonia to leak into River

ONCA approves BCCA’s interpretation in R v MacMillan Bloedel

Facts: City of Kingston ran municipal dump site on shore of river, became peninsula of garbage, then made recreation area built on top, nothing done to address leakage of migration of toxic substancesJH: Citizen brought private prosecution and Minister brought charges

Ian Richler, “R. v. Kingston and the Criminalization of Harmless Pollution” Case Comment, 2005Summary: argues s. 36(3) overbroad as interpreted by MacMillan and KingstonCounterarguments:

1. R v Levesque found s 35(1) wasn’t overbroad but it applied to real-world effects (harm to fish); s. 36(3) doesn’t2. Uses hypotheticals SCC said “reasonable hypotheticals” ok, ONCA said “1 tsp oil in ocean” could bring conviction, zero tolerance is illogical

233. Prosecutors enough sense not to charge for trivial infractions R v Smith said law cannot be saved by relying on discretion of officials (esp the case when citizen’s can bring private prosecutions)4. Too onerous for Crown to prove substance caused harm should be onerous to prove5. Law necessary to deter pollution overbroad law will not deter harmful pollution, may breed disrespect for law6. Enough safe-guards for accused imprisonment only available on second conviction, defence of due diligence possible, but just b/c offence isn’t as draconian as could be, doesn’t mean it isn’t7. Cts shouldn’t second-guess Parl assumes CA interpretation is what Parl intended8. Must catch substances that seem innocuous on their own, but are harmful cumulatively doesn’t extend to all types of substances, irrational to adopt zero tolerance policy towards all other substances

Solution: draw distinction b/w “inherently toxic” substances and all others; sensible b/c refocuses provision on receiving water, provides clear nexus b/w prohibition + objective.Tollefson comments: Both provisions give govt v. strong reg. tool (even after amendments to s. 35); remain most important enviro law in Cda Bill C-38 creating much confusion/uncertainty, and business doesn’t like uncertainty… so not sure why govt is doing this

The Cdn Enviro. Protection Act (CEPA), pp 327-341

Adapted from M. Doelle, CEPA and Commentary, 2008 1988, CEPA was first serious attempt to provide coordinated response to growing enviro concerns (12 part law) Toxic Substances List: classification, id’n, reg’n, thousands chemicals currently used

o dvpt slow in early yrs, accelerated recently Used to implement international commitments (i.e. Mtl Protocol, London Convention, Basel Convention) Public participation plays key role: “action forcing” provision allows public to trigger investigation into

violations, commence enviro protection in own right when Minister failed, commence action for damages resulting from loss arising fr violations

o No such actions brought to-date “Heart and soul of CEPA”: Part 5 controls toxic substances (fed jurisdiction confirmed under crim law power,

Hydro-Quebec)o Procedure for reg. substance:

Stage 1: classify substance as toxic Stage 2: id means by which manage, reduce, eliminate

o All substances must be listed on: Domestic Substances List: 23,000 substances used in Canada at enactment of CEPA,

“grandfathered” in (not moved to Toxic list til reviewed) Priority Substances List: priority for listing due to potential for toxicity Toxic Substances List: to be controlled/eliminated

Ministers Health & Enviro have 2 yrs to pass Regs controlling import (i.e. PCB’s)

Unregulated: confirmation they should remain unreg. on Domestic Substances List Non-Domestic Substances List: prohibited fr import to Canada until approved under CEPA

(through procedure above) Part 4 National Pollutants Release Inventory (NPRI):

o Intended to “daylight” info about pollutants that is in possession of Fed govt; considerable ministerial discretion as to what kind of info reported and in what circumstances

Great Lakes United v. Canada (Minister of Enviro.), 2009, FCIssue Reasoning, Russell, J. (also on Con Orcas, threw out petitioner in Burns Bog case)App arg: Failure defeats purpose of CEPA (ensure public transparency and accountability in achieving pollution reductions); Failure breaches ss. 48 & 50 (are not set aside due to s. 46 discretion provision)

Use of word “may” in s. 46 isn’t wholly permissive, doesn’t mean Min. can choose which info to put in, exempt specific industries (this interpretation would be difficult to reconcile w purposes of CEPA) it’s enabling provision that allows Min. wide powers to gather info (must be exercised in way that meets obligations of govt of Cda)

May be dispute around what info imp. enough to incl. in NPRI, but here, no dispute arises

Evidence shows if Min. doesn’t already have info, it’s avail. to him essentially turning blind eye

24App request remedies:Declaration Min. in breach of CEPA; Min. must publish relevant info through NPRI (mandamus); Or, Min.must make manifest to public that he’s exempting

Re. availability of JR: D argues publishing info in Gazette under s. 46 discretionary decision in nature of policy action not subject to JR; in the alt, decision is leg. action, not subject to JR Ct: s. 46 enabling provision, must be read in full context of CEPA; nothing in CEPA gives Min. discretion to use s. 46 to exempt industries and forestall publication; here, Ct concerned w Min.’s failure to carry out mandatory obligations imposed under other sections; failure to comply w stat reqt is error of law & subject to CSOR

Decision: discretion under s. 46 cannot be used to abrogate obligations under ss. 48 & 50 of CEPA; Minister misinterpreted ss. and failed to discharge these obligations.

Remedy: declaration that Minister erred in interpreting CEPA; mandamus to Minister to publish mining transfer pollutant release info through NPRI

NotesPart 4 of CEPA important, ministerial discretion must be exercised judiciallyFacts: Application for JR of Minister’s failure under CEPA to req reporting by mining facilities of releases/transfer of waste to tailings areas; failure to publish data re. above to NPRI; 16 yrs consultations, all stakeholders agree mining tailings are “transfer/release” and should be reported, but while impasse on how, nothing is reported (finding new system doesn’t prevent it fr being reported in NPRI) (App want: NRPI, Industry/D want: separate system)

Intro to Compliance and Enforcement, pp 343-358

Joseph Castrilli, “Cdn Policy and Practice w Indicators of Effective Enviro. Enforcement”, 1999Introduction:

“Compliance”: state of conformity w the law “Enforcement”: activities that compel offenders to comply w their leg. reqts

Overview of Fed & Prov Roles in Compliance Measurement: FED: Key component of CEPA & Fisheries Act is that compliance is considered primarily in rtn to regs promulgated PROV: must be measured in rtn to approvals, permits, etc. (broad reg authority) challenge for compliance measmt Diff. in place where compliance to be measured result in diff. methods (i.e. inspections, self-monitoring/reporting)

confusing, fragmented, option for fed/prov agreements where provs ensure compliance w Fed reqtsOverview of Fed & Prov. Roles in Enforcement Measurement:

FED: 1988 Enviro. Cda enforcement & compliance policy dvp’d w CEPA; enviro. standards typically C&C prohibitions/regs (usually prosecuted in Cts like crim. offences)

PROV: more multifaceted, incl. admin orders, tickets, cancelling permits, AMPs allow to deal w less serious before becoming serious

Correlating Compliance & Enforcement Outcomes w Enviro. Results: Even 100% compliance level doesn’t equate w 100% protection of enviro. (regs don’t consider every aspect of their

reg’t prod/industry)Conclusions:

Compliance & enforcement indicators may be: (1) outputs, (2) outcomes, (3) improvements in enviro. quality (as move fr #1 – 3, govt efforts appear more fragmentary shows where govt effort should be devoted in future

o Diff. to correlate compliance & enforcement outcomes w enviro. resultso Outomes should incl. reporting more systematic approach needed

[Reg. Enforcement: the Cdn Record]

Jerry V. DeMarco & Toby Vigod, “Smarter Reg.: The Case for Enforcement & Transparency” (2007)History:

Mid 20th c: shift fr CL to address enviro. initiatives govt intervention; also saw shift fr focus on private rights b/w parties public law

However, reg. activity didn’t mean regs aggressively enforced ONT 70’s-80’s: shift to admin tools such as permits to ensure compliance (but fines criticized as being too low) Late 80’s – early 90’s: inc. reg. activism & enviro. concern (Fed & some Provs like ON)

o Change of focus: inc. emphasis on prosecution 1992: UN Conference on the Enviro & Dvpt (Rio Earth Summit) high point for public concern 90’s: considerable backlash against reg. activity & aggressive enforcement PM Mulroney quote: “pink slips and running shoes” for bureaucrats began politicians running on anti-govt platforms

25& the deregulation mvt shift in emphasis to more voluntary approaches (esp. in jurisdictions where govt elected on fiscal restraint platform); i.e. Ontario, but growing public concern re. failure of regulators to reg properly

Conclusion: Obviously not every prob. can be solved by reg., sometimes education or incentives work better However, certain areas have risk of opportunistic behaviour by bad actors (i.e. water pollution), so a strong

enforcement regime should be in place enforcement measures should be strong enough to ensure pollution doesn’t pay (implement polluter pays principle)

Ecojustice Cda, “Enviro. Enfrocement by Cda’s Fed. Govt (The Essentials), 2011Summary: highlights of “Getting Tough on Enviro. Crime” report Main issues:

Chronic under enforcement (i.e. # inspections, charges, convictions under Fisheries Act declined) Many warnings, few prosecutions or convictions (warnings most frequent tool used under CEPA/Fisheries;

numbers on pp. 349-350) Low Fines do little to dissuade (esp. large industrial actors) Hodgepodge of incomplete data (gathered using inconsistent methods) Or no data at all (i.e. Cda Wildlife Act, Cda Shipping Act no legal obligations to report enforcement activity) Making the public wait for info (public release of annual reports has been chronically late) What enforcement is happening near you? (limited info id’g enviro. offenders)

Conclusion: Cdns should be concerned; likely to be exacerbated w Enviro. Cda job cuts (2011)

Office of the Auditor General of Cda, 2011 Report of the Commissioner of Enviro. & Sustainable Dvpt, 1999Summary: chapter on enforcing CEPA

Enviro. Cda has dvp’d policy to ensure enforcement officers apply CEPA in fair, predictable, consistent manner Inadequate info re. whom CEPA is regulating, and which regulates pose greatest threats (w/out this, can’t be sure

Enforcement Plan targeting highest risks to human health & enviro.) Dpt doesn’t know extent to which enforcement is improving compliance or min. enviro. damage

[Cooperative vs. Adversarial Enforcement Approaches] Both “sticks” and “carrots” can be useful, but beyond this, views diverge…

Matthew D. Zinn, “Policing Enviro. Reg. Enforcement: Cooperation, Capture & Citizen Suits”, 20023 types regulated firms:

1. Amoral calculators2. Political citizen 3. Incompetent

tit for tat strategy, except in compelling circumstances, i.e. violation is intentional, or severe health/enviro. damageAdversarial enforcement: Pros:

Emphasizes imp. of general & specific deterrence (discourages D’s & reg’t entities at large fr violating law) Formal, publicly visible enforcement actions validate compliance decisions of voluntary compliers Penalties express public disapprobation of polluting activity Imposing penalties for “ill-gotten gains” prevents unjust enrichment

Cons: Only caters to “amoral calculator”

Cooperative enforcement: Pros:

Improves ongoing rship of regulator/regulatee reduces costs of friction that would otherwise occur Reduce costs of individual enforcements in short-term (i.e. notice, evidence, prosecute, etc.) Mitigates perceived irrationality and unfairness of one-size-fits-all regimes (can be over inclusive) boosts

Agency’s credibility w firms may lead to shoring up public support too Greater flexibility may inc. investment in enviro. beneficial techs (by not applying economically unreasonable rules

to a firm that won’t produce enviro. benefit, they may invest in actual enviro. beneficial process improvement)

26 May allow “trades” (agency accepts under-compliance in one area for over-compliance in another – if more econ.

feasible for co. & more enviro. beneficial in long run)Cons:

Insufficiently punitive & certain (violators face min. material incentives to avoid noncompliance) Agreements negotiated “under the table” means ethical message that polluting is wrong isn’t delivered Amoral calculators can feign or withhold compliance Cooperative approach places great faith in agency’s & enforcers’ ability to recognize & rep. public interests (officer

likely has less info about public costs of pollution, no broad public input or time to reflect on this) Considerable resources to monitoring to learn of regulatee’s compliance status (even though long-term savings)

Conclusion: Neither strategy completely satisfactory; agency’s enforcement tactics should depend heavily on particular violator

involved & agency’s past dealings w it “cooperate w cooperators and punish evaders” (p. 356) Response of regulated firms to the same enforcement tool will be v. different

o Scholz: reglator/regulatee playing ongoing game of “prisoner’s dilemma” tit for tat approach (regulatee cooperated, agency should; regulatee “defects”, agency punish until regulatee starts to cooperate again)

o Agency should shift firm from “political citizen” to “amoral calculator” as needed & treat accordingly (severity of sanctions and speed of imposition)

In cooperative approach, agency must broadcast its enforcement strategy secure legitimacy gains; formalize strategy into policy document to inc. certainty among firms (& explain why firms will be treated differently)

Selected Issues in Enviro. Law Enforcement, pp 358-398

[The Role of the Crim. Law as an Enforcement Tool] Many cases, prosecutors have option of proceeding by way of CCC:

CCC doesn’t contain any specific enviro. offences, so must be framed as “crim. neg.” (219) or “nuisance” (180)Also option under applicable fed (CEPA/ Fisheries Act) or prov. regs

Stanley David Berger, “The Future of Enviro. Prosecution in Ont” (2006) CCC = “big stick” when major enviro. event

o Crown proceeds summarily, max. fine against corps is $100k, individuals is $2ko Crown bears added burden of proving neg. (reg. prosecutions = burden assumed by D)o In case of neg., must show “marked & substantial departure fr standard of RP” (more exacting standard)o 2 reasons for going w Crim: (1) stigma associated w crim. prosecution, (2) detailed & time-consuming, & if

proceed by indictment, no limitation period (vs. 2-yr limitation periods for laying reg. charges) 2004 amendments to CCC (Bill C-45):o Dispense w Identification theory of crim. liability (crim. charges only laid if find “directing mind” of

corp)o Post-Westray Mining disaster, now allowed prosecutions against management (for acts/omissions); work

that was alleged to amount to crime directed/negligently supervised by one of Sr. officers created pos. legal duty on management to prevent bodily harm fr supervised work

Many provs have parallel reg. provisions that empower cts to impose multi-mil $ fines & up to 5 yrs jail

[The Role and Nature of the Reg. Offence] Key concern: what evidence of “fault” must be est’d, who bears burden? Cts must balance: prosecutorial efficienty vs. protection of public/fairness to the accused

John Swaigen, “Absolute Liability Revisited: Levis v. Tetrault”, 2006Dvpt of Absolute & Strict Liability Offences:

Beginning 19th c: accepted view that MR was principle of NJ no one could be convicted of crime w/out MR Yet, reg. offences often unintentional, so exception to general rule of MR Sault St. Marie created 3 categories offences:

o True crimes (proof beyond reasonable doubt)o Strict Liability (AR beyond reasonable doubt & defence of reasonable care, on BoP, allowed)o Absolute Liability (no evidence of fault reqd – no MR or negligence)

Presumption that reg. offence falls into middle category (SL) unless Leg. has made clear otherwise

27

Note: post-Sault St. Marie, most reg. offences fall into SL category, esp. vehicle offences (even more clear w Ref. MVA)

Levis (Ville) v. Tetreault, 2006, SCCIssue Reasoning, LeBel, J. NotesSL or AL for reg. offences?

Classifying offence into 1 of 3 categories q of SI; quotes Dickson, J. in Sault St. Marie to affirm reg. offences should generally be in middle/SL category (AL should be exception req’g clear proof of LI)

Ct reaffirms approach it adopted in Sault St. Marie (re. SL for reg. offences) – some q’s after R v. Pontes (w est’d AL)

Facts: charged w reg. offence

[The Prosecution & Defence of Enviro. Charges: Corporate Reg. Liability]

R. v. Syncrude Canada Ltd., 2010, Alta. Prov. CtIssue Reasoning, Tjosvold, J.Did co. do enough to deter birds fr landing (due diligence)?

Reg. offences = prima facie SL (Sault St. Marie); Crown proves AR beyond reasonable doubt, D est’s reasonable care on BoP +Co. raised more defences (once “air of reality”, Crown must disprove beyond reasonable doubt): Due diligence (took all reasonable steps to avoid event); could co. not reasonably have foreseen contravention of statutes? Ct: “not reqd to achieve standard of perfection”, assessed against conduct of RP in similar circumstances (list of factors on p. 368) RP would have foreseen hazards to waterfowl, co. did not est. proper system to ensure wildlife would not be contaminated Ct: no Mistake of Fact (co. could reasonably have foreseen events would occur) Impossibility: co: “could not ensure waterfowl wouldn’t be contaminated” Ct: could not ensure, but had reasonable legal alternative Act of God: co: adverse weather Ct: reasonable precautions weren’t taken Abuse of Process: co: complied w all approvals Ct: co’s directing mind & will should have det’d it was taking all reasonable steps, not just rely on fact it’s received approvals; also, prosecution has discretion, Cts rarely interfere (unless malicious) Officially Induced Error: Ct: co. didn’t make out the test De minimus: Ct: this is “not at all trivial”

Decision: guilty (under both statutes)

NotesOne of highest profile enviro. prosecutions in Cda in recent yrs

Facts: waterfowl trapped in bitumen on surface of Settling Basin; co. had used effigies & canons as deterrents (can be effective), but adverse weather affected things tooJH: co. charged under AB’s Enviro. Protection & Enhancement Act & Cda’s Migratory Birds Convention Act

Shaun Flaker, “R. v. Syncrude Canada: A Clash of Bitumen and Birds”, 2011Summary: focuses on fact that co. was prosecuted for activity that had reg. approval of AB govt, implications this has on tar sands industry & migratory bird habitat in ABIntroduction:

Co’s deterrence system not effective in conditions; member of Sierra Club began private prosecution (under Migratory Birds Convention Act); Crown took control, and Fed/AB govts laid charges too

The Aurora Mine: Syncrude acquired leases to dvp Aurora Mine in AB; completed EIS, indicated 81 waterfowl frequent area, Enviro.

Cda reco’d taking certain measures, incl. using the BAT Syncrude insisted they would AB & Fed govts approve tarsands projs on case-by-case basis w faith in industry that proj-specific & CE impacts

well-understood & will be mitigated Evidence at Syncrude trial indicate 3 – 10% of bitumen isn’t captured in extraction process tailing ponds are

enviro. liability The Offences:

Migratory Birds Convention Act, s. 5.1: depositing substances harmful to migratory birds in Aurora tailings pond Alb EPEA, s. 155: failing to keep or store hazardous substances in manner ensure it doesn’t come into contact w

birds o Syncrude arg: doesn’t apply when birds fly to it (would defeat stated purposes of EPEA)

Due Diligence:

28 Syncrude attempted to est. on BoP it took all reasonable steps to avoid action leading to offence Fed Crown confirmed due diligence defence not avail. for MBCA b/c purpose of tailings ponds is to store bitumen

toxins however, Fed Crown said should Syncrude est. due diligence for EPEA, they would drop charges under MBCA (imp. to judge re. arg of Abuse of Process)

Abuse of Process: Sycrude arg’d sanction for death of birds must come fr not complying w conditions fo reg. licensees to operate

talings pond Ct: this doctrine used sparingly by Cts for respect of separation of powers b/w judiciary & exec. in any event,

Syncrude didn’t come to Ct w clean hands Energy Dvpt vs. Habitat Protection:

Message fr case is: don’t need to eliminate adverse enviro. affects, but must take reasonable measures to prevent Pay special attention to bird deterrence Literal reading of MBCA s. 51 = no due diligence for operating tailings pond, but one has been read in by Enviro.

Cda (and judge indicated that w/out that, may have been abuse of process) likely other s. 5.1 prosecutions don’t get to trial b/c accused pleads guilty in face of evidence

[Directors’ and Officers’ Liability] 80’s-90’s: Cda broadened ambit of legal liability for corp. directions & officers for corp. wrong-doings in enviro. context & beyond

R. v. Bata Industries Ltd., 1992, Ont. Prov. Div. Issue Reasoning, Ormiston, J: NotesClarify legal standard by which corporate officers and directors may be held liable

Charges against directors: (1) on-site/GM; (2) Prez; (3) CEO

Factors to consider: Individual’s authority to control Holds the position of officer or director Distribution of power within corp. Corporate hierarchy Percentage of shares owned Responsibility undertaken for waste disposal practices

Test boils down to corp. & societal resp:1. As power grows, increased control over how waste is disposed2. As stake in corp grows, more potential to benefit from less expensive waste disposal practices

Decision: (1) GM guilty (resp. to personally inspect); (2) Pres guilty (can’t just give instructions, must ensure they’re carried out); (3) CEO not guilty (wasn’t aware, but not willfully blind either)

Liability for Directors of Officers who may be found liable

Facts: series of charges under Ont’s Water Resource Act and EPA, charged as directors with failing to take all reasonable care to prevent a discharge contrary to the OWRA and the EPANotes on fines: Trial judge: $120k Bata, $12k on GM/Pres (no indemnification); Sentencing appeal: $90k Bata, $6k GM/Pres (indemnification aff’d); ONCA: reduced fines aff’d (indemnification removed)

[Sentencing in Enviro. Cases]

R. v. United Keno Hill Mines Ltd., 1980, Y.T. Terr. Ct. Issue Reasoning, Stuart, CJ:Are there unique considerations for

Considerations for enviro. damage: Should vary the severity of punishment in accord with the nature of the environment

29sentencing enviro offences? YESAre there sentencing principles peculiar to sentencing a corp. vs. an individual? YES

affected and extent of damage 1. Nature of the Environment—unique, ecological area? High-use watershed? 2. Extent of Injury—irreparable, extensive, persistent? 3. The Offender—Corporations—size, wealth, nature of operations

Considerations for corp. offenders in enviro. cases:1. Criminality of the Conduct—related to degree of criminality2. Extent of Attempts to Comply—diligence?3. Remorse—actions speak clearer4. Size of Corp—size and wealth, larger fine5. Profits Realized from Offence6. Criminal Record

Evaluation of Sentencing Tools: Courts traditionally rely on fines But fines alone will not mould behaviour, need a greater spectrum of sentencing options Usually fines can be passed on in higher prices Sentencing to be more effective must reach the guiding mind—corporate managers Upper echelon of officials should first prove existence of a reasonable system of control

before liability can be passed to a subordinateo They are in best position to protect public interesto Subordinate may deny liability if the matter is either outside actual authority or

not a consequence of his lack of reasonable care“A corporate veil should never afford the slightest measure of special protection to anyone for criminal conduct” (p. 390)

NotesPrinciples of sentencing enviro. harm cases w corp. accused

Limitations of prosecution that solely target a corp. accused (new tools needed for behaviour mod)

Facts: pled guilty to depositing waste in Yukon waters

Elaine L. Hughes & Larry A. Reynolds, “Creative Sentencing and Enviro. Protection”, 2008Summary: discussion of alternate sentencing tools History:

Early pollution tools carried fine routine enforcement/compliance rarely achieved, hid behind corp. veil, insolvency caused issues

Late 1980s: improvements to sentencing in quasi-crim realm: 1. Higher max. fines, daily offence provisions, profit-stripping fines2. Creative options (or “non-fine measures”) added to statutes (see list below)3. (more recently) Diversion processes (restorative justice, conditional discharges)

Fines are still most frequently used, but lack of rigorous enforcement prob, fines have been low (due to lack of familiarity w reg. regimes by judges, lack of prosecutorial expertise and resources)

Existing leg: Creative Sentencing Options (pp. 392-394)(a) Removing Benefits(b) Restitution as Compensation(c) License Revocations and Prohibition Orders (d) Trust Funds, Research Orders and the EDF(e) Remedial & Prevention Orders(f) Community Service Orders (g) Notification, Publication and Info Orders(h) Performance Bonds or Guarantees (i) Suspended Sentences & “Probation” (j) Ticketing & Diversion Processes (different from Creative Sentencing as don’t result in conviction: (1) ticketing, (2) absolute/condition discharges, (3) EPAMs)

Application of Current Leg: Process & Policies: What outcomes are being achieved? Fed. enforcement relies on prosecutorial discretion (1) directing sentence to

local where offence took place, (2) ensuring logical nexus b/w nature of offence and sentence, (3) directly involve the offender (in negotiating w Crown too)

Assessment & Future Directions: Main goal to achieve compliance w enviro. statutes through specific/general deterrence measures Largest group of orders: order to conduct specific enviro. projects arguable specific deterrence benefit Creative sentencing moving beyond traditional sentencing objectives by providing direct enviro. benefit

30 Enviro. as ‘victim’, has parallels w victim’s rights objectives Enviro. realm, unclear that restorative techniques will be of particular interest due at least in part to deep distrust of

industry that enviro. reps maintain (wouldn’t have volunteer community reqd to engage in restorative justice) note: these are using existing stat. and CL concepts, incrementally building on case-by-case basis… is this enough? either way, it’s a pos. step fwd

The Emerging Role of Admin Monetary Penalties (AMPs), pp 398-400Crim/Reg prosecutions can be time-consuming, expensive & unpredictable… so dvp’d alt. enforcement mechanisms

Stepan Wood & Lynn Johannson, “Six Principles for Smart Reg.”, 2008Summary: AMPs

AMPs: modest financial penalties for minor enviro. violations w/out incurring the time & expense of a full-blown investigation, prosecution and trial

Lead us away fr all-or-nothing approach (crim prosecution or nothing), which led to many violations not being investigated/prosecuted at all

Research shows credible deterrent effect (at modest admin cost) Concerns: absolute liability, double jeopardy (being prosecuted too), lack of judicial scrutiny, high level of admin

discretion, one-size-fits-all approach Even some ENGO’s concerned, as see as trivializing what should properly be considered crimes

US EPA’s favourite enforcement tool, gaining popularity

Note: Cda enacted Enviro. Violations Administrative Monetary Penalties Act (MPA) in 2010, but none of the Regs needed to give it practical effect have been enacted. Food Inspection Agency’s use of AMPs has seen industry compliance rise fr 60-60% to over 90%Certainty of punishment is most significant single factor in promoting compliance Commentators warn certain offences must stay in crim. ct system (“true crimes”) reco. 2-track system that lists offences for which crim. prosecution is only option. future challenges under the Charter?

Citizen Enforcement, pp 414-427o US: has “citizen suit” provisions that provide citizens with standing to bring enforcement actions as a “private

attorney general” (& indemnified for costs of action, if successful)o Canada: reluctant to follow suit (SARA has no citizen provisions despite enviro. groups’ lobbying)

o However, some laws have provisions allowing citizens to trigger an investigation or in rare cases bring private prosecutions, though have been circumscribed in application

o Principal means for citizens to prosecute enviro. offences remains in private prosecutions in Ont, been successful, but BC/AB govt policies effectively precluded application

[Citizen Suits & Enviro. Bills of Rights] Cdn Enviro. groups proposed Enviro. Bill of Rights, like in U.S. Even more prevalent in US is Citizens’ Suits

C. Tollefson, et al, “Towards a Costs Jurisprudence in Public Interest Litigation”, 2004 US “private Attorney General” model as primary instrument to ensure fed law compliance

o If judgment for Pl, courts can order reimbursed for litigation costs incl. reasonable lawyer fees If counsel acting pro bono, get what lawyer fees at private firm would be

o Key feature: ONE WAY costs rule (known as fee-shifting) – reward if you succeed, no penalty if you fail (allows suits to be brought w/out fear)

o Citizen suits have been hailed as “a defining theme of the modern enviro. era” (p. 416) CEPA

o Contemplates right of citizen to bring enviro protection action – but constrained + never used Ont Enviro. Bill of Rights – used rarely Lack of citizen-led Private Prosecutions here – reasons?

o In Cda, must establish guilt beyond reasonable doubt vs. U.S. civil standard for citizen suitso More daunting legal and scientific challenges

31o Also, some jurisdictions’ policies for AG to assume conduct of all such cases prosecutions stayed

[Private Prosecutions]

K. Ferguson, “Challenging the Intervention & Stay of an Enviro. Private Prosecution”. 2004 Has been a gradual erosion of private prosecutorial authority since industrial revolution (shifting society values,

centralized bureaucracy) Important role private prosecutions can play:

o Cure to overworked bureaucracy o Important safeguard against corruption in Crown prosecution decisionso Avoiding laws being rendered paper tigers due to govt non-enforcemento Reassurance to those who comply with law that their competitors will not benefit from non-complianceo Important civil liberty in a participatory democracy

despite benefits, once private prosecution is brought, AG often intervenes and stays it (i.e. Alberta)o Can JR it, but Cts usually afford lots of deference to AG

Rationale for limiting reviews of AG decisions to stay: protection of rights of accused, public interests Balance must be struck for PI b/w zealousness error (improper, malicious PP) and leniency error (under-

enforcement)o However, zealous error easily dealt w by Crown providing reasonable justification for intervening & if it

continues as an issue, punitive costs award seem the obvious solution Law Reform Commission for Canada: “individuals, frustrated by the law, may seek to accommodate themselves

by unlawful means” (citizen’s resort to legal processes clearly preferable to unregulated forms of citizen self-help) Cts counter this w AG being accountable to the Leg. & electorate. BUT most decisions of the AG are invisible, may dramatically affect accused BUT have a negligible impact on voting public

The Legislature is an ineffective oversight mechanism, esp. when those who benefit fr AG’ exercise of discretion are the leaders of the current govt.

Kostuch v. Alberta (AG), 1995, Alta. CA (leave refused to SCC)Issue Ratio NotesAppeal fr dismissal of application to set aside stay of proceedings:

1. Does AG’s decision to intervene in her PP constitute a violation of Charter s. 7?

2. Are Ct’s intervention into prosecutorial discretion by AG limited to cases of flagrant impropriety?

Re #1: life, liberty, security doesn’t protect right to prosecute another person (however broadly you construe this) PI considerations important too;AG answerable to Leg & electorate – Cts don’t want to intervene AG’s discretion “the right, if any, of a PP to prosecute another person is very limited and is clearly restricted by the provisions of the CCC to cases where the AG opts not to intervene”

Re #2: power to review prosecutorial discretion will only be exercised where there has been FLAGRANT IMPROPRIETY in the exercise of the discretion

est’d by proof of misconduct bordering on corruption, violation of the law, bias against or for a particular individual or offence

Re. constitutionality of Alb enforcing Fisheries Act Ct has no concerns

Leading appellate decision in area of Private Prosecutions

Backround: App brought private prosecution re. ss. 35(1) & 40(b) of Fisheries Act re. construction of Oldman River dam; AG intervened, RCMP investigated, AG followed 2-step policy (re. likelihood of conviction and PI req’g prosecution) & proceedings stayed; App applied to have stay set aside dismissed; this is an appeal fr that dismissal

JR of Environmental Decision-Making

Admin D/Making & Judicial Review in the Enviro. Law Context, pp 429-437 Admin law governs rship b/w citizens & state (“intimately connected w ROL”, as per Dunsmuir) All state actors derive power to act fr statute (statutory d/makers) Admin law governs far-reaching range of state actions, incl. specific decisions & making regs

32 Power to make regs. typically vested in Min. vs. power to issue license, etc. vested in civil servant Most statutes provide for internal process of appeal All d/makers must comply w legally mandated procedures (fr statute), but also CL PF (Baker factors) usually reqs

notice & comment

M. Haddock, “Enviro. Tribunals in BC”, 2011Introduction:

Some jurisdictions have specialized enviro. cts (w dedicated judiciary), some have tribunals like in Cda (w some having a “green bench” of judges dedicated to hearing enviro. cases)

Reasons for est’g enviro. courts and tribunals: 1. Efficiency2. Economy 3. Expertise 4. Uniformity: also discourages “forum shopping”5. Access to Justice: open, identified forum 6. Case processing 7. Commitment: visible court system symbolic of commitment to protecting enviro. 8. Problem-solving: (as opposed to strict legalistic adjudication) ADR, hybrid civil-crim prosecutions9. Public participation: more open standing 10. Public confidence: transparent, effective, expert decisional body11. Accountability 12. Prevent marginalization: so enviro. cases won’t be pushed aside in favour of less complex cases

Participant funding & costs: Significant challenge; legal aid typically underfunded and only avail. for crim law “Costs after the fact of participation” (BCUC, Ont. ERT) still may limit ability to participate fully (w expert

evidence) b/c of “gamble” that costs will not be awarded ultimately Tribunal Powers & Procedures

Investigative/Inquiry Powers Purely adjudicative boards, like Cts, only consider evidence before them Adjudicative tribunals typically have more relaxed evidentiary rules than Cts; investigative powers act as

fact-finding Experts

Common that citizen appellant can’t refute D expert b/c they’re not qualified to provide opinion evidence & don’t have enough $ to pay expert

Ways to mitigate “hired gun” syndrome: all parties agree to 1 expert, court-appointed experts, expert panels (neutral)

ADR Voluntary or tribunal’s effort to promote/prod parties into coming to resolution

Decision Deadlines Enviro. Courts

Sweden, NZ, Aus

JR Background & Overview, pp 437-441 Ultimate resp. for supervising admin action lies w Sup Cts JR Rigour w which cts review admin action (either reg. making or delegated d/making) det’d on sliding scale of

judicial deference called Standard of Review key factor in det’g deference is legislative intent (~privative clause)

No deference when agency goes outside its powers/stat. jurisdiction (action is ultra vires) D/makers under fed. jurisdiction (CEPA, Fisheries Act, SARA) FC (subject to Federal Courts Act) D/makers under prov. statute Prov. Sup Cts Grounds for JR:

1. Substantive ultra vires *Cts will be receptive to these args of exceeding juridction2. Failed to consider relevant info3. Fettered stat. discretion4. Unlawfully delegated stat. d/making power5. Bias

336. Bad faith7. Breach of PF8. Errors of law/fact *Cts will be receptive to args raising pure q’s of law (subject to CSOR)

Granting of remedy discretionary; depends on coming w “clean hands” and appropriateness of remedy (will it make a difference?)

o i.e. certiorari, mandamus, prohibition, declaratory reliefo also, interim injunction (in enviro. context, this is v. difficult)

Process = file by way of petition + some evidentiary basis in form of affidavitTollefson: “much more of an art than a science” (can craft evidence & characterize case that creates sympathy from Ct) at end of the day, you’re appealing to Ct to uphold ROL

Often, public interest litigant arg ROL & govt arg deference (& that public officials should be accountable in public venue of voting, rather than in ct room)

Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated OrcasOutlines historical/constitutional foundations of JR

Role of judicial review in defining the rship b/w democracy (Parliamentary sovereignty) and ROL Bill of Rights of 1689: consecrated principle of Parl. sovereignty Act of Settlement of 1701: recognized independence of judiciary Early 20th c: expanded state intervention, intricate leg. schemes, much delegation incl. PC’s to protect admin

bodies fr interference by Ctso However, Cts have always maintained right (sometimes limited) to control admin decisions (on ROL

grounds)

Standard of Review: Dunsmuir & the Enviro. Caselaw, pp 441-454

New Brunswick (Board of Mgt) v. Dunsmuir (2008, SCC)SCC attempts to answer “threshold q” of how much deference to afford admin d/maker (Standard of Review)

Intro (p. 439): All exercises of public authority must find source in law; JR goal det’g agents don’t overstep legal authority JR function ensure “legality, reasonableness, & fairness” of admin process & outcomes

JR connected w not only upholding ROL, but of maintaining legislative supremacy & avoiding undue interference w discharging admin functions (ROL: b/c Cts have last word on jurisdiction; Leg. supremacy: det’g SOR accomplished by est’g leg. intent) Leg. can’t remove Ct’s power to JR; even privative clause isn’t determinative in that respect (inherent power of Sup Cts to review admin actions comes fr. Constitution Act 1867, ss. 96-191)

Standard of Review:Prior to Dunsmuir:3 SORs (correctness/no deference reasonableness simpliciter patent unreasonableness/most deference)Dunsmuir: collapses two reasonableness standards into one, so 2 standards now (correctness & reasonableness)REASONABLENESS:

Deferential standard Certain q’s before admin tribunals don’t lend themselves to specific, particular result number of possible,

reasonable conclusions Concerned mostly w existence of justification, transparency, intelligibility w/in d/making process; also w whether

decision falls w/in range of possible, acceptable outcomes which are defensible in respect of facts & lawCORRECTNESS:

Jurisdictional & other q’s of law Cts undertake own analysis of q; sub its own view & provide correct answer

Process of JR has 2 steps : 1. Has jurisprudence already det’d satisfactory manner the degree of deference req’d for particular category of q?2. If not, Ct must analyze # factors to id proper SOR:

1. Presence of privative clause2. Purpose of tribunal3. Nature of q at issue4. Expertise of tribunal

34Note: “exhaustive review is not req’d in every case to det. the proper standard of review” [para. 57], some may be determinative in some cases; CONTEXTUAL review

[Standard of Review in the Enviro. Law Context] SOR is huge battle in public interest litigation May have to concede RSOR to some parts of arg, but want CSOR for anything that looks like q of law/

jurisdictionGeorgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2012, FCA *Consolidated OrcasIssue Reasoning/RatioDoes Parl. intend to shield Min.’s interpretation of SARA & Fisheries Act fr JR on a CSOR? (at issue: “legally protected by provisions in, or measures under, this or any other Act of Parl”)

Minister arg: Dunsmuir states admin d/makers should be provided deference when interpreting enabling (“home”) statutes Ct: Yes, Dunsmuir says this in context of expert, adjudicative tribunal in context of adversarial process though… said “adjudicators presumed to hold expertise in interpreting leg. that gives them their mandate” [para 68]; what Min. is asking is to expand Dunsmuir framework to incl. all admin d/makers (not what SCC meant) Dunsmuir doesn’t set out the SOR of Min. decisions

Dunsmuir interpreted since as the following:Correctness: constitutional issue, q of “general law” both central importance to legal system & outside adjudicator’s area of expertise, true q of jurisdictionReasonableness: issues of fact, interpretation of tribunal’s “home” statute, or statutes closely connected to its function

Applies Dunsmuir threshold q:1. Previous cases det’d SOR for type of fact situation? NO2. Analyze factors:

1) Privative clause? NO2) Purpose of tribunal admin capacity, not adjudicative (Parl. didn’t set-up adjudicative body for SARA, so likely intended Cts to do it3) Nature of q purpose of s. 58 to ensure all habitat protected, describes what Min. “must” do (restricts Min.’s discretion)4) Expertise of tribunal Min. no expertise in interpreting statutes

Decision: Minister’s interpretation of s. 58 of SARA is reviewable on standard of correctness

NotesThreshold q of which SOR to apply in context of Min. decision under SARA (draws bright line b/w Ministers & expert adversarial tribunals)Whether/to what extent for JR purposes should Ministerial decision be treated as analogous to expert adjudicative tribunal decisionFacts: Resp. sought JR of “protection statement” of Minister of DFO, under s. 58(5) of SARA (stated Southern Resident Orcas protected under Fisheries Act so no further steps needed to protect their habitat); comes down soon after Dunsmuir

Wier v. BC (Enviro Appeal Board), 2003, BCSCIssue Reasoning/RatioWhat is the appropriate SOR for EAB’s interpretation of Spray-Tech’s application to issuing permit under BC Pesticide Control Act?

“Pragmatic & functional approach” (pre-Dunsmuir): 4 factors to det. leg. intent (similar to 4 factors for det’g SOR in Dunsmuir step 2)

1. No privative clause, no stat. right of appeal n/a2. EAB’s erring in interpreting legal test = error of law points to correctness3. Purpose of statute polycentric n/a4. Pure q of law + potential to apply widely to many cases points to correctness

all 4 arms of test conclude EAB’s interpretation of legal test under Pesticide Control Act reviewable on standard of correctness

Decision: EAB erred in its interpretation of the legal implications of Spraytech decision

NotesPre-Dunsmuir; involves Board’s interpretation of legal test

Facts: Petitioner sought JR of EAB’s decision that Spray-Tech (esp. precautionary principle) has no legal relevance to issuing permit under BC Pesticide Control Act

Cdn Parks & Wilderness Society v. Canada (Minister of Cdn Heritage), 2003, FCA *CPAWSIssue Reasoning/RatioWhat is the SOR to apply to Min.

Exercise of discretion involves polycentric interests:a. Residents say will reduce isolation in winterb. Difficult to quantify risks to wildlife/vegetation

35compliance ws. 8(2) of NPA?

c. Parl. has conferred on Minister broad resp. for admin, mgt, control of ntl parks (indicative of leg. intent that SOR should be most deferential)

Political accountability effective check on abuse of power, in these circumstances, b/c:a. Subject matter will register on political radar (cares about parks)b. Action engages w public interest rather than individualc. D/making transparent, part of public recordd. Finding of fact; when erroneous finding of fact made in perverse/ capricious manner w/out regard for material before her = det’g if finding was patently unreasonable

Decision: decision that road proposal was incompatible w maintaining as first priority the ecological integrity of Park reviewable on standard of patent unreasonabless

NotesPre-Dunsmuir; det’d reasonableness simpliciter vs. PUFacts: Minister approved road through a park, under Ntl Parks Act, which req ecological integrity be the 1st priority; Counsel agreed SOR not correctness

Dene Tha’ First Nation v. Canada (Minister of Enviro.), 2006, FCIssue Reasoning/RatioWhat is SOR for analyzing alleged breach of duty to consult? (involves timing of when such duty arose)

Minister arg: reasonableness & applies “pragmatic & functional approach” Ct: not helpful here, that’s used for statutorily created tribunals duty to consult no stat. basis besides Constitution

Quotes McLachlin in Haida Nation: Q’s of law, admin d/maker must generally be correct; Q’s of fact or mixed fact/law, Ct may owe deference to d/maker

Duty to consult is legal q in that it is legal duty; however, typically premised on analysis of facts Follows that degree of deference may be appropriate (depends on nature of q and tribunal’s expertise), SOR likely be reasonableness

“What is reqd not perfection, but reasonableness… the govt reqd to make reasonable efforts to inform & consult. This suffices to discharge the duty” [para 62, Haida]

SOR Decision:Existence of duty to consult and/or accommodate (incl. when it arose) = correctnessContent of duty (whether govt’s actions after duty arose complied w duty) = reasonableness

NotesPre-Dunsmuir; duty to consult & the appropriate SOR

Facts: FN alleges Fed govt’s breached duty to consult in reg. and enviro review process for Mackenzie Gas Pipeline (traversed through FN’s territory)

Grounds for JR, pp 455-468 When filing, you must enumerate grounds (convert your complaints into lexicon/terminology of admin law) Ground 1: relied on irrelevant considerations, didn’t consider relevant considerations Ground 2: fettered discretion (which can even lead to exiting jurisdiction – which always have to be reviewed on

CSOR) Ground 3: Discrimination in exercise of d/making power or reg. making power

[Reliance on Irrelevant Consideration/Fettering Discretion]

Wimpey Western Ltd. v. Alberta (Dpt of the Enviro.], 1983 Alta CAIssue Reasoning/Ratio1. Whether Director could take into acct Min’s policy on not granting permits for major facilities prior to “long-term servicing operation” being operational.2. Whether Director fettered/exceeded jurisdiction by applying this policy to appellant’s application.

App claims: Director exceeded jurisdiction by taking into acct irrelevant considerations

1. Det. scope of Director’s discretion by looking an enabling statute (CWA) “may issue or refuse to issue” (no limitation on Director’s power to refuse to issue permit)2. However, doesn’t mean discretion unfettered; can look to policy and objects of Act, which is construed by looking at Act as a whole purpose of CWA is means of controlling/eliminating probs fr exploiting enviro. (Min. given far-reaching powers, and policy in q is w/in scope of those powers) CWA does lay out factors to consider in granting permit, but must not be construed as being exhaustive, and factors in decision need not be limited to those implicit in enabling Act

36

Decision: relevant for Director to consider Min’s policies, though can’t act under dictation nor fetter his discretion (i.e. not consider specific circumstances of the application and just use policy as override); appeal dismissed

NotesArgued impugned decision defective due to reliance on irrelevant considerations

Facts: App’s own land, obtained subdivision approval to dvp land in stages into industrial park, application to build waste water treatment facility under Clean Water Act rejectedJH: application for JR dismissed by AB Ct QB appealed to AB CA…

Imperial Oil Ltd. v. BC (Ministry of Water, Land & Air Protection), 2002, BCSCIssue Reasoning/RatioWas the consideration (of whether the tort claim had been paid) relevant in the Min’s decision?

Imperial arg: settlement for tort claim only reason Min. withheld AIP (irrelevant consideration) requests mandamus, as should get AIP (rather than go through same process w different d/maker) Minister: but further consultation w owners needed before AIP given Ct: ignores fact that Min. admitted before he was ready to give AIP if tort claim paid

Enabling statute doesn’t confer jurisdiction on Min. w respect to tort claims, & can’t do indirectly what he can’t do directly

Min. ready to issue AIP after confirming w tort claimants that settlement was sufficient essentially put claimants in control of decision (improper delegation & improper fettering of discretion)

Decision: Mandamus ordered (unlawful delegation/fettering)

NotesArgued impugned decision defective due to reliance on irrelevant considerations

Facts: Imperial attempted to get approval in principle (AIP) fr Min. of Water, Land and Air Protection for proposal to remediate land; Min. wouldn’t approve until certain lawsuits were settled with local owners and village

[Discrimination in the Exercise of Reg-making Power] Cts don’t like to weight into these types of args; in Charter context, discrimination has serious implications, but in admin law, almost inherent feature in modern-day reg.

Moresby Explorers Ltd. v. Canada (AG), 2007 FCAIssue Reasoning/RatioAre policies example of administrative discrimination?

1. Appellants: admin discrimination as nowhere in empowering leg. does it say Superintendent can discriminate based on business size or race Ct asks: does Superintendent have leg. authority to distinguish b/w or create diff. classes of businesses?

In Sunshine Village Corp. [GIC set building permit fees higher in Banff & Jasper parks than other ntl parks], Fed Ct found admin discrimination as nowhere in governing leg. did it expressly/implicitly authorize discrimination, but SCC found leg. broad enough to permit GIC to draw distinctions b/w users of ntl parks (opposite of municipalities, where ability to discriminate must be expressly allowed) GIC may discriminate, unless expressly prohibited

2. Resp: appellants challenging policies (made pursuant to Regs), not Regs themselves, which are not subject to review Ct: grounds on which policy may be challenged are limited to the following:

Illegality: goes to validity of policy rather than its application, Cts can adjudicate this anytime

Contrary to public policy: depends on context, if reinforces stereotypical conceptions of particular group, contrary to public policy vs. seeks to ameliorate condition of historically disadvantaged group, it’s acceptable (s. 15(2) of Charter) this not a distinction that’s invalid on public policy grounds

Decision: Distinction drawn in AMB’s policies not ultra vires Superintendent based on discrimination (regs wide enough to incl. power to draw such distinctions, OR, following Sunshine Village Corp., nothing in Act to prohibit distinctions) +

NotesAllegations of admin discrimination

Not representative case, but discrimination hard to make out in best of cases, this was bad set of facts

Facts: Archipelago Mgt Board manages a Park Reserve, adopted set of policies to protect park; est’d total carrying capacity, allocated total user-day/nights per year to 3 groups (independent, Haida tour-operators, non-Haida tour

37operators) + business caps (max. user-day/nights for any one business); Non-Haida tour operators’ credits oversubscribed and there are no Haida tour operators, alleges unlawfully restricting growth of its business

[Procedural Fairness] Binnie, J quote fr Dunsmuir at pp. 462-463 *Tollefson likes this:

“… a fair procedure is said to be the handmaiden of justice… Nobody should have his or her rights, interests or privileges adversely dealt w by an unjust process… Constitutional considerations aside, however, statutory protections can nevertheless be repealed and CL protections can be modified by statute.”

When breach of PF found, no other remedy than to quash decision, and send back for redetermination (as can’t hypothetically ask what would have happened w proper PF)… subject to CSOREven though w passage of time, some things may have changed…

Chameau Exploration Ltd. v. Nova Scotia (AG), 2007 NS SCIssue Reasoning/Ratio(1) Did Director act outside jurisdiction in det’g UK govt owned wreck?(2) Err in law?(3) Breach rules of PF/ NJ?

Re #1: App arg: enabling leg. doesn’t allow Director to det. ownership of vesselRe #3: Did Director breach rules of PF and NJ by denying applicant op to be heard w respect to ownership of wreck?

Ct: Outlines Baker factors to det. content of PF, applies to situation:1. Nature of decision & process used to make it: no op to respond2. Stat scheme: doesn’t discuss3. Importance of decision to individual: significant interest in permit being issued4. LE: LE that Director would follow standard procedures set out in leg.5. Discretion afforded to/expertise of tribunal to decide own procedures: doesn’t discuss

Decision: Chameau asks for permit denial decision to be quashed YES, certiorari grantedAlso seeks order of mandamus NO, as during reviewing procedure used by d/maker, it’s not Ct’s role to sub its on opinion for that of d/maker

NotesChallenged based on procedural fairness

Facts: Petitioner co. explores and recovers artifacts fr shipwrecks; applied for permit under Special Places Protection Act fr Exec Director of NS Museum; denied due to UK govt allegedly owning wreck in permit area; was a procedural blunder when co. not given op to respond (notice & comment!) to evidence fr UK govt re. ownership it’s a counterfactual to say “what if co. had been given right to respond/ do we know if tribunal would have made same decision?” (doesn’t matter)

[Failure to Give Reasons] Tribunal relying on set of facts to reach legal conclusions, tribunal must provide reasoning used to reach your conclusion *Precedent saying we need reasons in enviro. context: Kearl Oil Sands case

Next frontier is adequacy of reasons… (maybe by indicating that d/maker must demonstrate awareness of BAT?)… if reject accepted science (esp. that they’ve commissioned), they must do so w ref. to some other body of science of equal repute, must JUSTIFY, can’t just say “we don’t like this science” this is law in US

Pembina Institute for Appropriate Dvpt v. Canada (AG), 2008 FCIssue Reasoning/RatioDid EA conducted by JRP (joint b/w Alb EAUB & CEAA) comply w mandatory steps in CEAA & Panel’s TORs?

P arg 1: Panel erred by failing to provide a cogent rationale for its concl. that adverse enviro effects of GHG of proj would be insignificant Imperial: not role of Ct to insist Ct: Ct recognizes in-depth explanation of scientific data used to reach conclusions would be disproportionately high burden; however, Panel must explain, in general way, why effects of GHG would be insignificant

Ct fully aware of level of expertise possessed by Panel, so should be awarded high degree of deference however, deference only triggered when concl. articulatedIf experts cannot explain their concl. to fair-minded observers, they’re not expert

P arg 2: Panel erred by failing to comment on effectiveness of intensity-based “mitigation” Ct: intensity-based targets allow GHG to increase (judge incredulous that it would lead to decrease), so concluding that targets would be appropriate mitigation measure req’s articulated

NotesAdmin decision impugned due to

38failure to give reasons

reasons…

Decision: incumbent on Panel to provide reasons for conclusions, Panel erred in law by failing to provide reasons, as mandated by s. 34(c)(i) of CEAA; JR allowed in part (impractical to conduct Panel again), same Panel to provide reasons (in meantime, stay granted; permits put on hold)

Facts: P sought JR of Panel reco to RA (DFO) that proj be able to proceed, as adverse enviro. impacts & GHG emissions were “insignificant” (Co. says emissions would decline over time; Panel: intensity-based approach)

Public Interest Standing, incl. Finlay Test pp 468-478“Public interest” is amorphous concept; how do we understand the role of public interest litigants in admin processes and JR? (PI standing is separate & apart fr private interest standing

Note: at this pt, Cdn Cts’ standing test more liberal than Cdn Admin tribunals! (i.e. EAB in current Kitimat case saying no way to get PI standing, interpreting word “aggrieved” as directly affected interpreting their home statute, not a Sup Ct. so only way to grant standing is through “aggrieved” provision)

1986 Finlay test for public interest standing (first time to say you can get PI standing in non-constitutional case):1. Is there a justiciable and serious issue to be heard? *almost always a serious issue, this arm is a “gimme”2. Does the applicant have a genuine interest in the subject matter? (Downtown Eastside Sex Workers puts emphasis on genuine interest part of test rather than “directly affected”)

Citizens’ Mining (as ref’d in MiningWatch): a) Longstanding reputation; b) Significant work on subject matter being challenged; c) Interest must be greater than that possessed by member of general public.

3. Is there another reasonable and effective manner of the case to be brought fwd? reformulated in 2012: is proposed suit a reasonable and effective means of bringing the matter before the Ct? (Cromwell, J. in Downtown Eastside Sex Workers) – broadens Finlay

“Rational for this final reqt is that those most directly affected by admin action are often in best position to bring to the ct the info necessary for an appropriate resolution of the dispute” [MiningWatch v. Canada]

But standing still barrier for public interest litigants: “Balance [must] be struck b/w ensuring access to justice and preserving judicial resources” [Cory, J. in Canadian Council of Churches, 1992] *this case regularly invoked by opponents of public interest standing

Debunked in Downtown Eastside Sex Workers by Cromwell, J: floodgates concern at issue never materialized

[Benefit of Public Participation] Summary next article:

Balanced review of benefits of public participation w admin/judicial process; why should we finance this? Tollefson comments:

Tollefson likes to ref. this article at Ct, also mentions that Scott wasn’t radical (later became ON’s AG), don’t need to be “wide-eyed idealist” to support financing of public participation; question is “to what extent should public interest litigants be denied benefits accorded to other, private interest, litigants?”

History: JR now has become statutory exercise, but roots in CL At Fed Ct, crystallized in s. 18.1 Fed Cts Act, says to bring JR, must be “directly affected” (associated w rigorous

standing test)

Raj Anand & Ian Scott, “Financing Public Participation in Enviro. D/making”, 1982 Economic barriers to participating in d/making in all areas of litigation worst for those suffering fr social, psych,

cultured impediments to the redressing of their grievances Additional barriers for public interest groups:

1. Enviro. concerns spread across range of projects (interests of dvpt more focused)2. Enviro. concerns generally not homogenous3. “Free-rider” phenomenon – rational/self-interested individuals will not act to achieve their common/group

goals (unless groups is small or there is incentive) 4 benefits accrue w increased public participation:

1. Provides d/makers w greater range of ideas (and provides view point not otherwise available to d/maker)2. Enhance public acceptance of judicial/admin decisions

393. Agency dependence on industry for political support may be alleviated by broad participation by other

parties4. More viewpoints allow d/makers to be more thorough in analyses

Shiell v. Canada (Atomic Energy Control Board), 1995 Fed TDIssue Reasoning/RatioDoes applicant have (public interest) standing?

Applicant must have direct, personal interest in matter in order to be granted standing (following Finlay) previous case on injunction to do w same matter, applicant denied standing (“Pl must be affected in the sense that the issue has some direct impact on her… clearly distinguishable fr Finlay”)Ct: her interest neither direct, nor personal; decision won’t affect her in a way diff. fr any other member of general public

Policy: Finlay (ref’g Borowski) and subsequently, Cdn Council of Churches addresses concerns re. balancing judicial economy w access to justice (floodgates arg)Decision: “Regrettably” denied standing (“regrettably” b/c App clearly had bona fide interest & concern) due to not meeting direct, personal interest test

NotesCounterpoint to Algonquin

Rigid, directly affected approach (probably now would be contrary to Downtown Eastside Sex Workers)Facts: Applicant wants to JR decision of Atomic Energy Control Board for approving amendment to operating license for uranium mine & mill; lives several hundred miles away, denied standing in previous case concerning injunction; Note: very few ppl live close to proposed facility

Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div CtIssue Reasoning/RatioDo applicants have standing?

Though no standing as of right, Ct has discretion to grant public interest standing (as per Finlay)

1. Serious, justiciable issue? YES (pending applicant can overcome hurdle that issues are serious)2. Applicant has genuine interest? YES3. Other way to reasonably, effectively bring matter fwd? NO

Decision: Applicants have standing

NotesCounterpoint to Sheill

Applicant NFP’s met public interest standing test laid out in FinlayFacts: Two NFP public interest enviro orgs request declaration & injunction

MiningWatch Canada v. Canada (Minister of Fisheries & Oceans), 2007, FCIssue Reasoning, Martineau, J:Is public interest standing est’d?

Prop args:1. not serious issue (Finlay #1)2. Apps do not have genuine interest (Finlay #2)3. Other directly affected parties who chose not to come forth w application for JR (Finlay #3)4. Already decided in previous case (True North)

Re #1, 2, 3:Finlay test for public interest standing applied:1. Serious/justiciable issue? YES (legal q re. not complying w CEAA)2. Applicant has genuine interest in matter? YES (“more than a bona fide interest & concern about social and enviro issues is necessary to obtain public interest standing”, but Citizen’s Mining test:

a) Longstanding rep.b) Significant work on subject-matter of challengec) Interest greater than that possessed by member of general public

Lack of participation in an assessment doesn’t preclude interested party fr seeking standing (MiningWatch doesn’t have resources to get involved in every EA)

3. Other reasonable, effective way for matter to be brought fwd? NO, takes Citizens’ Mining view that no evidence of others w genuine interest that could reasonably be expected to bring a challenge

despite Resp arg, given interconnectedness of modern society, Ct not persuaded that geographical proximity ought to be determinative factor when assessing public interest standing (likely the way going fwd, after Downtown Eastside Sex Workers) note: in applying test, Ct consistently rejected restricted reading of “directly affected” under s. 18.1(1) of the Fed Cts Act – codification of standing in Act doesn’t preclude using PI standing test

Also considered purpose of CEAA (projs req’g EA considered careful/precautionary manner, so don’t case “significant adverse enviro effects”, meaningful public participation), and particular

40circumstances of caseApplicant alleging that impugned decision is departure fr pos. duty to consult public

Re. #4: True North having decided issue before CEAA changed substantially in 2003, since that decision

Decision: Public interest standing granted

NotesQuite scathing of CEA Agency’s handling of situation

Facts: Mine in Tahltan territory, Red Chris mineJH: Reversed at FCA, reversed again at SCC (upholds Martineau, J)

Interim Injunctive Relief incl. RJR MacDonald Test, pp 478-487Many enviro cases, permit’s being issued that will permanently change landscape, harm cannot be compensated forTollefson: default position is if co. has permit, good to go, can be appealed after… this dev’d in private law setting, but not in public interest setting (can’t just holus bolus export private law principles)“Interlocutory injunctions are not merely procedural motions at the periphery of main litigation. In many enviro cases, they are the litigation… granting injunction reveals value placed on protected interest” (Prof. McLeod-Kilmurray)

RJR MacDonald test for availability of injunctions: 1. Serious issue to be tried? – canvass quickly

Frivolous or vexatious? May be revisited in balance of convenience step [Algonquin Wildlands League] * “gimme” step

2. Applicants suffer irreparable harm if injunctions refused? If public interest harm, not actual harm to applicants, skip this step & weigh public harm in balance of convenience stage [Algonquin Wildlands League]

3. Does balance of convenience b/w parties to application justify relief sought? “should have regard not only to the harm which the parties contend they will suffer, but also to the nature of the relief sought, the nature of the legislation which is under attack, and where the public interest lies” [Algonquin Wildlands League]

Note: often financial undertaking will be reqd by applicant to compensate for economic losses of resp. in case the injunction is granted

C. Tollefson, “Advancing an Agenda: Reflections on Recent Developments in Public Interest Enviro. Litigation” 2002

Common stumbling block faced by enviro. litigants has been inability to get interlocutory injunctive relief Judicial interpretation of RJR MacDonald test, & Cts typically req applicant to undertake to indemnify resp. for

damages in event claims dismissed 2 main difficulties:

1. Undertaking reqt: most enviro litigants not financially able to do so reasons for imposing this reqt (applicant not unjustly enriched at expense of party against whom relief granted) little application in context of PI litigant; in Cda, we have model of costs that is punitive

US Cts: alive to this, have allowed public interest litigants to post nominal bond Recent Cdn cases suggest mvt: Friends of Stanley Park v. Vancouver: “applicant in matter of

serious public interest… est serious q to be tried… relief should not be rendered ineffectual by reason of fact that applicant may not have financial wherewithal to provide viable undertaking”

2. “Irreparable harm” reqt fr step #2 of RJR test: typically focused on risk to applicant of physical injury or economic loss, where enviro, typically argued that “irreparable harm” is harm to enviro.

Wilderness Society v. Banff: logging of old-growth forests doesn’t constitute “irreparable harm” despite expert evidence

Recent cases more responsive: “irreparable” refers to nature of harm, not its magnitude1. 1998, Monin, JA: “trigger a non-reversible process” 2. Lamek, J: “trees will be gone, if not forever, at least for decades”3. Fed Ct – TD: trees “could not be replaced in person’s lifetime”

US Cts: harm to enviro will almost always be “irreparable”

[Injunction Caselaw in the Enviro. Context]

41Algonquin Wildlands League v. Ontario (Minister of Natural Resources), 1996, Ont Div CtIssue Reasoning/RatioResp. submits no irreparable harm (actually, no harm at all), & no harm to the applicants themselves which is precondition to step #2

Stay requested analogous w injunction, so apply RJR MacDonald test:1. Serious issue? (not frivolous or vexatious) YES2. Irreparable harm? PI harm should be considered at stage 3 SKIP THIS STEP3. Balance of convenience? App’s say irreparable harm to PI if stay not granted; Resp’s say irreparable harm to PI if stay is granted! Considerable conflicting evidence, Ct assumes some harm to natural growth & wildlife; also assumes some harm to Crown revenue, wood supply to mill, job loss as consequence, etc. *conventional economic cost/benefit analysis, default assumption in balance of convenience is that applicant will put up undertaking to compensate for Resp’s economic losses

Decision: Balance of convenience favours Resp; inappropriate to interfere w action of govt, even for a short time. Motion dismissed.

NotesLook at public interest harm in stage 3 of RJR test (balance of convenience)

Ct unwilling to interfere w govt actionFacts: Applicants allege noncompliance w Crown Forest Sustainability Act and conditions imposed by EAB request relief in form of a stay

Imperial Oil Resources Ventures Ltd. v. Canada (Minister of Fisheries & Oceans), 2008, FCIssue Reasoning/RatioProponent applies for stay of application, or alternately for injunction prohibiting Min. fr revoking authorization given under Fisheries Act s. 35(2)

Applicant args: nothing in Fisheries Act that allows Min. to revoke authorization; JRP’s report not quashed/set aside but sent back to Panel for better explanation; s. 37 of CEAA only req’s Minister to take report into acct, not rely solely on its rationalResp: Minister didn’t revoke authorization, but was rendered void as legal consequence of Tremblay-Lamer decision (since material flaw in EA process, short circuits the sequence; Minister can’t proceed until all reqts of CEAA fulfilled)

RJR MacDonald test for injunctions:1. Serious issue YES2. Applicant will suffer irreparable harm Ct not convinced; short-term delay will most likely not be major impediment in overall sched of proj.3. Balance of convenience favours applicant n/a to consider

Decision: Imperial’s application for interim relief (stay) dismissed, crucial importance to resolve all the uncertainties (legal and otherwise) before embarking on such an important project

Facts: Huge oil sands mine project to continue to 2060 w reclamation at end; subject to reg. primarily by AB Enviro (Enviro Protection & Enhancement Act) & AEUB (pursuant to Oil Sands Conservation Act), also req’d authorization by Min. under Fisheries Act so subject to EA process of both AB and Cdn govtsSigned JRP agreement, would conduct EA under CEAA; JRP issued report, AB Enviro & AEUB issued approvals, accepting all conclusions & recos of reportBackground: Application for JR of JRP’s report filed, alleging didn’t comply w mandatory steps of CEAA & Panel’s TORs; despite this, Min. issued Fisheries Act authorization, then Imperial immediately commenced work on project; JR allowed in part, Tremblay-Lamer remitted matter back to same Panel to supply rationale for concl (that proposed mitigation measures will reduce potentially adverse effects of Panel’s GHG emissions to “insignificant” level)New JR: directed towards Fisheries Act authorization (requesting quash order & interlocutory injunctive relief); DFO delivered letter to proponent w opinion that authorization had been rendered a nullity as result of Tremblay-Lamer’s judgmentCurrent JR: proponent filed this JR for stay of Min.’s decision to revoke authorization under s. 35(2)

Costs in JR Proceedings, pp 487-496Tollefson’s notes:

Area where gradually, change is happening (b/c squarely w/in discretion of judges) Law reform op: make case for departing fr typical costs regime, every case you have a new op. to make a run at it Recent trends (not good): Cts say “it’s your fault you took on X Company, they’re for all intents & purposes private

individuals when they step into a courtroom so should be subject to same protections” may not have to pay govt costs in suit against Crown, but will still have to pay the Corporate intervenor’s

42C. Tollefson, “Costs in Public Interest Litigation: Recent Dvpts & Future Directions”, 2009

Public interest litigants can be subject to paying other party’s costs (govt & private party intervenors)Canada:

Allocation of costs, governed by statute but also matter of judicial discretion “erratic & unpredictable” results

Arguments for est’g more coherent, predictable public interest cost jurisprudence Costs follow on “partial indemnity basis” (½ costs), 2-way regime

o Rationales: compensation (for defending suit), deterrence (to deter wrongful conduct – both specific & general), spoils (costs go w victory per se)

Counterargument to rationales: don’t need to deter people bringing action for public benefit or sorting out novel issue

o DISCRETION to deny if bad faith/sharp conduct, also if public interest litigant (novel pt, public significance), access to justice (undue hardship)

England: 2-way regime (litigation costs can flow in 2 ways, note: full indemnity)US: no-way regime (both parties pay own costs)

modified in citizen suits to 1-way regime (public interest litigant receives costs at full indemnity if successful) led to robust practice area & enhanced efficacy of fed law enforcement

Canada reform efforts: carve out “public interest costs exception” fr reg. 2-way regime to a 1-way regime

C. Tollefson, “Costs in Public Interest Litigation Revisited”, 2011 3 scenarios in costs case law in public interest litigation in Canada:

1. Ex post claims for special costs2. Ex post claims for relief fr adverse costs

Test/criteria originated fr Ont Law Reform Commission (OLRC) in 1989 Report on Standing: 1. Issue of importance which extends beyond party’s interests2. Party has no personal/pecuniary interest in outcome3. Issue not previously det’d4. D clearly has superior capacity to bear costs5. Pl hasn’t engaged in vexatious, frivolous conduct

Applied in Harris v. Canada (Fed Ct), Guide Outfitters Association (BCCA), Consolidated Orcas (Fed Ct – also b/c of “unjustifiably evasive and obstructive approach of resps”)

Modified & distilled, “bundled approach”, in Victoria (City) v. Adams, any time ct asked to depart fr normal rule as to costs (2-way):

o 1. Public importance transcending interests of parties, not previously resolved (PUBLIC BENEFIT)2. Party has no personal/pecuniary interest in outcome (ACCESS TO JUSTICE)3. Opposing party superior capacity to bear costs (ACCESS TO JUSTICE)4. Claimant not conducted litigation abusive, vexatiously (JUDICIAL DISCRETION)

3. Ex ante (advance) applications for costs Unique to Canada; exceptional cases, opposing party to pay public interest opponent’s costs in advance in any

event Genesis in Okanagan Lake Indian Band (2003, SCC), reqts:

1. Party can’t genuinely afford to pay litigation, no other realistic option exists to bring issue to trial – litigation would be unable to proceed2. Claim prima facie meritorious3. Transcends individual’s interests, of public importance, not been resolved previously “sufficiently special” that to deny costs application would be contrary to interests of justice (Little Sisters case)

Uncommon: 3-4 applications in Canada per year Only 3 made it to SCC: Okanagan Lake, Caron (both upheld), Little Sisters (reversed)

4. [Aus & UK] Protective Costs Orders Common in Aus & UK, not in Canada, despite majority in Little Sisters 2 case mentioning it (indicates

openness of SCC to recognize) UK 2005 case, Corner House Research lays out test:

1. Public importance2. Req resolution3. No private interest

434. Having re. to financial resources, just & fair5. W/out order, would likely discontinue proceedings

if awarded, 2 limitations: 1) just “solicitor’s feeds & fee for single advocate of jr. counsel status”, 2) “cap” on recoverable costs

Current issue: PCO denied in Ecojustice’s 2012 Sarnia Chemical Valley case, arguing s. 7 & s. 15 rights infringed by Ont. MOE & Suncor Energy, at Ont Div Ct, but Tollefson argues too narrow of a test when requiring “wouldn’t bring case w/out PCO”

Environmental Assessment Tollefson notes:

Seek to anticipate, prevent, reduce enviro impacts of proposed projects imposing conditions or not approving Too often EA serves to co-opt opposition, legitimize decisions that should not be result, ppl become

skeptical/hostile w re. to EAs Also, intervenor funding reduced Processes come to be dominated by professional consultants that work w lrg co’s Concern over efficiency caused jurisdictions to scale back EA processes Municipalities (land use planning) & other ad hoc processes at all levels of govt also option (EA only one

prominent example of this) Important to recognize how resp. for EA is allocated b/w proponent & regulator (NEB, CNSC or CEAA)

o “Proponent-driven” vs. “Agency-driven” (i.e. Enbridge hearings bit more Proponent-driven)o Often, govt doesn’t have resources to do assessment, or don’t like what scientists are saying to don’t

bring fwd their evidence…

CEAA 1995, pp 497-508History:

[US had Ntl Enviro Policy Act (NEPA) in 1969] 1970’s : EA’s started (EA Review Office to oversee non-stat. process of Fed projs, had screening process) 1973 : Cabinet policy directive, expanded to private projs w Fed involvement First evolution : 1974 – 1977, Berger inquiry into Mackenzie Valley Pipeline >> Parallel w this : Fed EA process strengthened/formalized as EARP 1983 : Beanlands & Duinker proposed new approach to enviro impact assessment >> Parallel w this, 1984 : EARP process formalized by Cabinet Guidelines Order

o Ct cases confirmed binding nature of Guidelines Ordero However, “d/making resp” interested narrowly to mean legal duty

1990 : bill to entrench Fed EA process in leg, passed by Con govt in 1992 (CEAA)o 1993: Lib govt took power, made changes

1995 CEAA came into effect 80s – 90s : most Cdn provs and enacted EA statutes

Sound EA: adaptable (to diff. projs), clear, certain, fair, consistent (to facilitate public participation), clear link b/w process

& decision, monitoring & feedback capabilities Number of key issues in design of EA process:

1. What activities are to be covered?o designate by list, threshold test, political/prof discretion

2. What is the nature of the EA process?o “one size fits all” or flexible?

3. What is the scope of the assessment? o Whole proj or 1 component? biophysical or socio-econ too?

4. What is the nature & implications of the final outcome? o info gathering (w reco) binding decision

EARP vs. CEAA 1995: CEAA limited to undertakings & physical activities, EARP also reviewed policies, plans, programs CEAA has Law List regs to trigger Fed EA process CEAA had 2 new process options (mediation & comprehensive study) CEAA’s preamble & purpose sections: EA process fully integrated into d/making, meaningfully engages public,

44leads to sustainable dvpt

CEAA 1995: Agency resp. for issuing permits resp. for doing EA (“self-assessment”) – “RESPONSIBLE AUTHORITY”

(RA) Elaborate, complicated process to det. whether EA applied & what track it was to follow

1. When did Act apply ? complex combo of defs & proj lists (for constitutional reasons) o Def of “project”: 1) undertakings related to physical work (unless excluded), 2) activities not related to

physical work (unless included)o + s. 5: list of Fed decisions that would trigger CEAA (sometimes prob. as unclear at start)o OR ss. 46 – 48: transboundary decision trigger CEAA

2. Scoping of Assessment:o s. 15: scope of activity to undergo EA

s. 15(3): scope of proj (i.e. whole mine, or just the bridge that built over navigable water to mine & tailings pond affecting river?), CE, considering alts, role of public

o s. 16: scope of EAo subject of much litigation (discretion of Fed d/makers in det’g scope of proj to be assessed, factors

considered & factors’ scope) – i.e. Red Chris Mine, SCC, said should look at whole project CEAA 2012 reaction to SCC’s decision?

3. Process options: 1. Screening (alt form of self-assessment):

Frequency: 99% projs got only this Characteristics: min. process reqts, max. flexibility, modest, inexpensive reqt for business Conducted by: Fed. d/makers resp. (RAs) Public: only public notice reqts, min. waiting periods, active public engagement discretionary Refer to Panel: could do so before, during, after screening (s. 20) Follow-up: at discretion of d/makers Tollefson: probably not that effective, but was a filter

2. Comprehensive study (alt form of self-assessment): Frequency: 10-15/avg. year, much more rare Characteristics: hybrid of screening & panel, more reqts/more fulsome than screenings, but not

onerous Conducted by: CEA Agency (only process), MOE oversight, RAs make decisions Public: mandatory public engagement at all critical steps, participant funding program (hearings

optional) Refer to Panel: decision to refer to panel early on, not revisited Follow-up: mandatory i.e. Red Chris Mine case: b/c way described proj, met threshold for Comprehensive Study; but

then govt re-scoped EA to bring it back down to Screening track3. Panel review (independent assessment), s. 34 of CEAA:

45 Frequency: 1-5/avg. year (Prosperity Mine/Fish Lake most recent) *usually when only way co.

would get public support it needed would be through Panel Review (so in that way served as benefit to co. as well)

Characteristics: power to summon witnesses same powers as Ct of Record, orders enforceable at Fed Ct

Conducted by: MOE (process incl. TORs), independent panel members, reco subject to Cabinet approval, RAs can make decisions

Public: always have public hearings, intervenor funding, transparency measures Joint Panels: w other jurisdictions, usually pursuant to MOU Substitution: s. 43(1), only w other Fed. processes

4. Mediation (independent assessment): Frequency: informal in other processes or as sep. process (at discretion of MOE) Conducted by: mediator appt. by MOE, report to RAs to make decision

or some combo of above

Tollefson notes: though never regarded as perfect model, in hindsight, much more sophisticated than CEAA 2012; brought w it much more certainty (had list of projs, had Fed. trigger, that necessarily led to EA – that was part of rationale for drafting CEAA 1995 as it was, quid pro quo to business for the extra effort of having EAs)

CEAA 2012, pp 508-523 Repeals & replaces CEAA 1995

1. When does CEAA 2012 apply? Triggering discretionary (big change fr CEAA 1995) – by MOE (if not “designated proj”, by s. 14(2) & CEA

Agency (if “designated proj”) must uncertainty, likely only small % of projs will trigger *don’t know yet when CEA Agency will req. EA

2. Scoping of Assessment: Changed fr broad scope to narrow one focused on discrete issues w/in reg. authority of Fed govt (fish & fish

habitat, aquatic species, migratory birds) where are terrestrial mammals? (caribou, etc.) full assessment only possible if Prov fills in gaps (“we’ll look at our own, you look at your own”)

Looking at 2 aspects: (1) scope of proj; (2) scope of assessment

Number of Fed. d/makers drastically reduced (NEB, CNSC, & CEA Agency for all others) – 3 possible tracks interesting b/c CEAA 2012 moves away fr self-assessment basis, but leaves self-assessment to NEB & CNSC… are they even well-positioned to be carrying out EA?

For CEA Agency, mandate is to not do EA when don’t have to, try to delegate to other agency (remarkable

46change to approach fr CEAA 1995, and cooperative approach)

3. Process: [1] (1) Screening + (2) Comprehensive Studies combined into one-size-fits all narrower scope “standard EA

process”1. Proponent registers w CEA Agencytimelines tight: 10 days to request more info fr proponent, 20 days for public comment, decision w/in 45 days2. CEA Agency says yes or no to EA (proponent can’t do anything until this pt) – decision posted on electronic registry3. If no EA or complies w conditions of EA, proponent can move fwd3. If EA, NEB or CNSC (or CEAA for all others) starts EA process w notice of commencement…. process not set-out in Leg. (except public notice reqts & timelines pursuant to s. 27 – 365 days time limit for standard, up to 3 mo. extension) MOE has 60 days fr notice of commencement to designate to Panel…

[2] (3) Panel review remains but v. different ruleso No panel review for NEB or CNSCo One-person panels now permitted (before, just 3-person panels)o Minister can seek further info fr proponent after Panel report submitted (gd to fill in gaps, but doesn’t

allow intervenor & Panel perspectives in considering info)o 2 yrs time limit for decision, up to 3 mo. extension (MOE reqd to specify time limits for individual

steps), at end of time referred to CEA Agency to complete if not doneo Unrecognizable fr Panels in CEAA 1995 due to narrower scopeo Power to est JRP w other jurisdiction only way to fulfill comprehensive assessment

n/a (4) Mediation eliminated

ss. 67-68: projs on fed land & outside Canada – no reqt for EA but only req decision as to whether proj likely to cause significant adverse enviro effects (& if justified)

4. Decision-making: 1. RAs det. if proj “likely to cause adverse enviro effects” (where CEAA resp. authority, decision made by MOE)2. If yes, GIC det’s if effects justified in circumstances3. If yes, RAs det. conditions (but only related to fed. authority) ability to impose conditions limited by CEAA 2012

s. 54: decision must be made public

Equivalency w Prov EAs: Equivalency (s. 37): Prov EA found to be equivalent, no Fed EA reqd… remains to be seen if Fed. d/makers

must consider results of Prov EA when making applicable authorizations

Scope of EA: Changes to scope of Fed. EAs has potential to be most significant change narrows, makes it info-gathering

process (i.e. TrueNorth case, oil sands project scoped as river destruction proj. b/c that’s what triggered the Fed EA) vs. CEAA 1995: scope quite broad, must be at least the full project (Red Chris case)

Def. of “enviro. effect” severely narrowed: 1995: any effect on biophysical enviro. (incl. social, econ, and cultural effects of those changes) vs. 2012: s. 5(1) = small # enviro. components under Fed. control (i.e. fish, aquatic species, migratory birds; fed. lands, impacts on Ab ppl)

o s. 5(2) allows other effects to be considered, time will tell how this is exercised Factors to be assessed changed, now doesn’t incl. alternatives to project & need for project (discretionary before,

but had become commonplace to incl in EA)o Now, results of regional studies incl., but only optional

now Fed EA essentially a regulatory info-gathering process w focus on components of proj. under direct reg. control

Harmonization w Prov EAs:

47 CEAA 2012 makes extraordinary efforts to ensure fed process will not apply whenever there’s concern about

overlap w prov or other process (picks one jurisdiction) Discretion to decided on case by case basis If there’s duplication, it’s w other fed. reg processes, not w EA processes carried out by other jurisdictions! Substitution & Equivalency – both req. Min. forming “opinion” that process in q “would be an appropriate sub”

o Substitution (w Prov EAs): mandatory language, triggered at request of prov.o Equivalency (w Prov EAs): takes one step further, & allows GIC to fully exempt designated proj. fr

CEAA once Prov. substitute approved + Prov process id’s significant adverse effects & ensures implementation of mitigation measures

CEAA 2012 shifted fr cooperative approach designed to encourage one comprehensive EA process to delegation to provs & narrowing of Fed EAs (now gathers info already needed for Fed reg authorizations will place significant new burdens on Prov & other EAs, as well as Ab self-governing agreements

… One would think w all the above constraints, you would allow more public participation to come in and do heavy lifting… however, quite the opposite…Public Engagement

Further step backwards (few leg. reqts re. public participation, strict timelines, fewer fed EAs, new triggering process as Prop encouraged to complete design & planning before applying, so public excluded fr that process)

New def. of “interested parties”; only parties w direct interest may participate in NEB and review panel proceedings (+ discretion of review panel in who incl! problematic due to short timelines, so panel pressured to exclude ppl)

note: already being litigated by person denied standing at Line 9 hearings (alleges violations to Charter rights)

Everyone gets notice and able to participate in standard EA processConclusions

Uncertainty how CEAA 2012 will be implemented, its effects (all changes go counter to improvements to CEAA 1995suggested in academic literature)

Delegation to NEB & CNSC problematic as aligns w existing reg. processes Discretionary triggering process creates uncertainty re. application of Act and politicizes the process (removed

trigger mechanism) Narrow scope may reduce EA to reg. info-gathering process Harmonization w provs discourages comprehensive cooperative EA processes

Major step backwards; less effective and less fair; arguably less efficient as duplicates existing reg. process; now an EA planning process in name only; burden now shifted to provs, territories, Ab, municipal govts

Note: [Chart of diff b/w CEAA 1995 & 2012 on pp. 521-523]

Challenges ahead for EA, pp 569-586

Scoping Challenge [570]▪ CEAA report 1996: the main challenge for scoping is how to make EA manageable without eliminating issues that are

important to members of the publico EA professionals could probably agree relatively easily on what issues are important enough to be included in an

EAo Problem is – proponents, members of public, public officials often have different views.

▪ A number of specific suggestions for reform have been made since this reporto Ex: House of Common Committee 2003 review – suggests national environmental priorities/international

environmental commitments be incorporated into EA processo Ex: impact of projects on climate changeo Also recommends cumulative effects assessment be a priority under CEAAo Regulatory Advisory Committee

Recommends more formal scoping process and establishment of criteria Agency should play a more central role in the scoping process

48 Scope determination must be linked to national priorities and international obligations

▪ CEAA moves federal EA process in a different direction with a narrow/discretionary approach to scope of the project and assessment

▪ Result is a Fed EA process that gathers info on a narrow range of environmental issues

The Role of the Public, p 571▪ Not clearly set out in either CEAA 2012 or CEAA 1995▪ Public is recognized in preamble/purpose section as a potential contributor to the process, whose participation should be

facilitated and encouraged to some degree▪ In addition, Act requires members of the public be provided with convenient access to documents that are relevant to the

EA process o An electronic registry is provided for under the Act to provide these documents or info on how to get them, and

provide notices about key stages in the EA process.▪ Actual engagement of the public is discretionary for most EAs▪ However, the literature and international law recognize public participation as crucial for sound decision-making

o Public is a source of information to help predict consequences of a proposed action, evaluate range of consequences and their likelihood, to determine which set of consequences is preferable.

▪ Page 572 provides a comprehensive list of various benefits ex: enhances legitimacy of proposed projects▪ The key to effective participation is:

Early and adequate notice of an EA Full and convenient access to relevant info Assistance ensure sufficient capacity Meaningful opportunities to provide input into EA and decision making processes

▪ Barriers to participation include: o Insufficient capacityo Lack of confidence in the ability to influence the outcome of the EA process

▪ Although neither Act was great at providing a strong role for public participation, CEAA 2012 will be worse because o a) There will be less assessments overall carried out and o b) CEAA 2012 reduces the role of the public in EAs that do take place (“interested parties”)

Engagement with First Nations, pp. 573-575 Province used to take the approach that assessments only needed to be carried for projects on or affecting reserves or

areas subject to land claims SCC has subsequently recognized the duty to consult and accommodate Growing recognition of the need to link/integrate consultation with the EA process Others believe there should be a separate, parallel consultation process independent of the EA process First Nations issues are mentioned in several places in CEAA 2012

o Purpose section refers to “communication and cooperation between responsible authorities and Aboriginal peoples with respect to environmental assessment.”

o Def’n of env effect includes effects of biophysical changes on “physical or cultural heritage”, on current use of lands for traditional purposes by Aboriginal peoples, and on any structure/site/thing of historical/archaeological/paleontological/architectural significance.

19(3) provides for consideration of Aboriginal traditional knowledge in EAs CEAA 2012 provides for harmonization/substitution w/ EA’s carried out under land claims agreement

o provides discretion to start EA on the basis of a project’s potential impact on land that is subject to Aboriginal rights.

Questions about whether the EA process is an appropriate tool for consultation Can/should the EA process serve to satisfy the Crown’s duty to consult?

o SCC decisions in Taku River Tlingit and Haida suggest EA process can serve this function in certain circumstances

Question is whether to proceed with separate consultation/EA processes, link them, or develop and integrated process

Strategic Environmental Assessments (SEAs), pp 576-577 SEA has precedent in Canada

o Cabinet directive on SEAs since 1994

49o EARP guidelines order did allow for assessment of some policies plans and programso Some provinces have experimented with SEAs

What is a SEA?o Various definitionso For our purposes, a SEA includes the following elements

1) Goes beyond a single project to consider an industry sector or region or particular policy/plan/program

2) Can be reactive in response to a new type of project, if it extends beyond the individual project to look at the whole technology or industry sector/region (ex – ELC calls for SEA of LNG development in BC).

3) Can be reactive by responding to a proposed policy, plan, or program initiated for economic reasons

4) Can be proactive by responding to identified sustainable development or environmental challenge

5) Can be proactive by responding to a policy gap or an outdated policy identified in the context of a project EA

When CEAA 1995 was introduced and limited just to projects, a Cabinet Directive on the assessment of policies and programs was introduced

Under the current version, a SEA is expected whenever a proposal that may result in important environmental effects is made to minister or cabinet for approval

When appropriate, SEA’s are also encouraged for matters of great public concern and to help implement sustainable development goals

Not clear if social and economic considerations are to be included in SEAs, although Cabinet Directive does provide for them to be included in the final decision.

Key change from when it was a EARP Guidelines Order to when it is a Cabinet Directive is a transition from a legally binding process to one that is not.

o This is a drawback; legislated EA processes tend to be superior in their effectiveness and level of compliance Federal Commissioner of Env and Sus Dev audited implementation of the SEA Cabinet Directive in 2004 and found

overall commitment and compliance was low Few SEAs/commitment varied/limited integration of results into the decision-making process/few involved public and

few made public after the fact.

In conclusion, EAs at the federal level are far from helping overcome the limitations of project EAs and delivering integrated decision making for sustainability.

o Process is not legislatedo doesn’t involve publico applied in limited circumstanceso limited influence on federal decision-making.

There have been efforts to make better use of the SEA process – the Environment Minister’s Regulatory Advisory Committee has been looking into this since 2000 and accepting proposals about how to make better use of SEA in the federal EA process.

Sustainability Assessments, pp 579-585 Some say key flaw of CEAA is focus on the “significance” of environmental effects. They argue for an approach that

considers the general sustainability of proposed projects. This is a difference in focus: from (significance approach) focusing on preventing/mitigating significant impacts on the

biophysical environment, to (sustainability approach) seeking an integrated assessment of the social, economic, environmental benefits and risks associated with a project.

Gibson, “Favoring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and Decisions under CEAA” (2000) Suggests the use of a “positive contribution to sustainability” versus “mitigation of significant adverse environmental

effects” criteriono Use of the “higher test” is appropriate and desirable because logical and suitable to global circumstances

50 However, do need to clarify what application of the sustainability criterion should be expected to accomplish, to build a

better basis for understanding how to specify the relevant requirements for proponents and other assessment participants. There is potential for confusion about what sustainability means as an effective criterion

o 1) Tradeoffs: pursuit of sustainability entails integrated pursuit of ecological/socio-economic ends, not some type of “balancing” although in certain circumstances tradeoffs may be necessary

o 2) Losses/unsustainable activities: S does not reject all losses/ unsus. Activities but may seek to limit themo 3) Gains: because of the prior focus on mitigation of SAAE, need to strengthen our design for gains, and how to

assess potential benefitso 4) Precaution: recent panel reviews have identified importance of precautionary aspect of commitment of

sustainability, but we need to clarify how this is applied in assessment work Sustainability assessment will only be useful if the S criterion is clearly specified and imposed in ways that stress the

long term and prevent ecological sacrifices for (short term) environmental gain. Not clear if sustainability-centered assessments should report to MOE might be more credible if it reported to Cabinet

or Parliament, as reps of the broad public interest Need to link sustainability at the project level to higher-level strategic assessments. Suggests CEAA could be amended to better provide for this by clarifying definitions of environmental effects, amending

CEAA to include SEA’s, specifying meaning/implications of sustainability criterion. **This article was prompted in part by two CEAA review panel decisions where proponents were required to provide

evidence that their undertaking would make a positive contribution to sustainability, and respect the precautionary principle (Voisey’s Bay; Red Hill)

Fonseca and Gibson, “Kemess North fails the test” 2008 Kemess North = a panel review convened regarding an open pit copper-gold expansion to an existing mine in a remote,

mountainous area of north-central BC Would have dumped 700 million tonnes of acid-generating mine tailings and waste rock into Amazay Lake, a body of

water spiritually significant for FN The BC Environment Minister turned the project down after accepting the recommendation of a federal-provincial

environmental assessment panel that had held public hearings and applied a “contribution to sustainability” test The panel found that the project was not likely to bring lasting gains

o There would be long term effects of mine waste on ecological and Aboriginal interests The Panel adopted a 5 pronged sustainability plan

o Env stewardshipo Ec benefits and costso Social and cultural benefitso Fair distribution of benefits and costso Present versus future generations

Found overall benefits didn’t outweigh the costs and recommended the project not proceed

Species at Risk Overview, pp 649-655

P. Wood & L. Flahr, “Taking Endangered Species Seriously? British Columbia’s Species-at-Risk Policies” (2004, Can. Pub. Pol’y)Summary:

In 6th major mass extinction event know it’s caused by humans; also overexploitation of resource species, intro’g “exotic” species in non-native areas

Humanity, in long-term, dependent on biodiversity World signed 1992 Convention of Biological Diversity at world’s first Earth Summit in Rio (“the Rio Convention”)

o Committed signatories to dvp domestic leg. to protect biodiversity o Leg. in 3 broad categories:

1. Protected areas, i.e. National Parks Act2. Preventative measures (beyond boundaries of protected areas), i.e. BC Forest and Range

Practices Act

513. Endangered species: protecting fr further harm, incl. recovery for species & habitat, i.e. SARA

Kate Smallwood, “A Guide to Canada’s Species at Risk Act” (Sierra Legal Defence Fund, 2003) Cdn Endangered Species Council report said only 65% Cda’s species secure Though Cda first industrialized nation to ratify Rio Convention, took decade to address commitment

o SARA passed in 2002 as 4th attempt at SAR leg. (big debate whether scientists or politicians would decide on listing) result is narrow protection for aquatic species, migratory birds under Migratory Birds Convention Act, & maj. species just on Fed land (only 5% of Cda!) left primary for species/habitat protection to provs.

BC/AB don’t even have species leg! None of provs. meeting all reqts in Ntl Accord for the Protection of SAR (primary ntl policy

doc) most habitat protection left to voluntary action, esp. on private land

J. Kunich, “Preserving the Womb of the Unknown Species with Hotspots Legislation” (2001, Hastings L.J.)Why should we care about species we have never identified? 1. Present practical value:

Nutrients for human diet, essentials (wool, wood, dyes) however, only 20 species provide 90% of world’s foodo Potential to breed unknown species to provide genes to inc. production in desert, for ex.

Medicinal drugso Genes of millions species unexplored/untapped

Medical/scientific research Support to other plants/animals: i.e. insects pollinating flowering plants Ecological benefits: i.e. decomposition/detoxification of organic matter Photosynthesis: converts CO2 to O2

For most part, this type species safe due to our self-interest, but those we don’t know about might not be… 2. Potential future practical value:

Given imp. benefits derived fr uncharismatic & previously unimp. species, wise to preserve as many as possible to provide future gens w genetic material to experiment

Ea. species reps successful set strategies to meet life’s challenges/threats Changing enviro. (global warming, inc. pollution), some species imp. today may not survive, we need some to take

their place Biosphere conceptualized as “complex computer program” & foolish to destroy program’s code b/c we don’t and

can’t know imp. now or in “unforeseeably altered world of the future” “Canary in coal mine”: vulnerable species early warning signal that probs. may affect more species

3. Intangible value: Less susceptible to reduction to monetary value, but some ppl find great beauty in nature/find emotional sustenance

4. Moral duty: …not to exterminate “fellow passengers on this planet”; seen as refraining fr “murdering” another species Each species has in some sense a right to exist Alternately, seen as living legacy for children (human-centric)

Species Listing, pp 656-663

Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003)Scientific listing process:

Would mean COSEWIC reco would become list In lead-up to SARA, environmentalists urged Fed govt to adopt scientific process; approach under US ESA

Political listing process: Would mean Fed Cabinet gets ultimate decision (can veto reco fr COSEWIC) Proven to be failure at prov. level

SARA in reality: “neg. option” or “reverse onus” listing COSEWIC reco becomes list, unless Cabinet takes contrary actions w/in 9 mos.; during that time, review assessment

& consult w competent Ministers, i.e. DFO, before: 1. accept and add species to list

522. decline to add species to list *3. refer back to COSEWIC for more info ** MOE must provide reasons for decision (public registry)Note: this prevents species fr being ignoring or indefinitely deferring through Cabinet inaction

Species Listing Categories: 1. Extirpated : no longer exists in wild in Cda but does elsewhere in world2. Endangered : imminent extirpation/extinction3. Threatened : likely to become endangered4. Of Special Concern : likely to become endangered or threatened

Key areas where listing category imp: 1. Basic prohibitions:

s. 32: no killing, harming, harassing, capturing, taking s. 33: damaging/destroying species “residence” Note: ltd to fed. jurisdiction only (fed. land, aquatic species, migratory birds)

Special Concern not covered2. Critical habitat prohibition: imminent extirpation/extinction

o s. 58: only protects CH w/in fed. jurisdiction (fed land/water, aquatic species, migratory birds) – only applies to Extirpated if RS reco’d being re-intro’d into Cda, doesn’t apply to Special Concern

3. Recovery process: likely to become endangeredo Req’d for all species except Special Concern (get less stringent mgt plans)

A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) Science req’d for sound policy-making; but translating science into policy difficult (ppl w diff. worldview may refer

to contrary info as scientific “claims”) Implementation of enviro. leg like SARA req’s v. clear delineation b/w all natural/social-scientific inputs & relevant political trade-offs

Current Process: Assessment of Species (Pre-listing):

o Description: COSEWIC id’s species suspected of being at risk, commissions status reports for those given highest priority (draws on broad input, w 100+ ppl generally commenting on any one report)

o Strengths: o Science-based prioritization & assessment of species independent of legal listing decision; doesn’t

consider feasibility/cost of recovery, nor social/political ramificationso MOST IMP: transparent separation of science & policy

o Weakness: o Candidate species themselves prioritized, “data deficiency” doesn’t trigger further research or listing

Listing: o Weakness:

o Imposes no obligation to list, Fed. govt can accept, decline, or return issue to COSEWIC (in making this decision, govt considers input fr public consultations & internal econ. assessments)

Govt has chosen not to list 23% of COSEWIC recoso Incomplete econ. analysis: makes reg. impact assessment statement (RIAS) fr best avail. info.,

emphasizes ST, regional econ. impacts (local jobs, effects on local bus.), distracts fr LT, ntl benefits Econ. concerns given as reason in 50% of rejections Note: 9 mo. time limit extended via loophole in leg. (s. 27.3)

Post-Listing: o Description: Species & dwellings auto. protected on fed-mgd lands/waters; if fed. species, protected everywhere

o Provs. resp. for protecting remaining species on prov. lando Initiates 2-step recovery process:

1. Recovery strategy [see next article]: id’s needs of & threats to species, obj’s for pop./distribution recovery

2. Recovery action plan [see next article]: concrete recovery measures w socio-econ. impacts of measuresBoth must id critical habitat (s. 2.1); once defined, Fed. govt must protect CH on fed. land (only 4% of Cda!), & outside fed. land if it chooses (never has – this is “safety net” provision)

o Govt must report on progress every 5 yrs

53o No delisting process, but species at risk are reassessed at least every 10 yrs

Note: some commentators have claimed listing process displays bias (against listing marine & Northern species); in separate paper, Mooers recos that biodiversity conservation best served by strict, transparent, leg. timelines for all aspect of listing process following MOE’s receipt of COSEWIC report; reco that RIAS display full costs of extinction & full benefits of recovery (quantified) & be externally reviewed

Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 663 – 667

A.O. Mooers et al., “Science, Policy, and Species a Risk in Canada” (2010, BioScience) – further extract Recovery Strategies:

o Production of RS slow and problematic o Req. clarity re. whether goals elected on basis of scientific or socio-econ. considerations (adequacy of reasons)o Much depends on meaning of undefined terms: “survival”

o Scientific def. = greater than 90% chance species persistence for at least 100 yrso Suggested policy def. = maintaining current pop. in short-term (what does this mean? prob. not 100 yrs)

o “Recovery”o Policy def. = “long-term persistence” or where decline is “arrested or reversed”

o Critical habitat designation: o s. 38: precautionary approacho s. 41.1(c): best avail. info.

Only 23/104 species w RS have CH designated (only 5% of total listed species)o Litigation: Nooksack Dace & Sage Grouse cases successful in challenging RS that omitted known CH

But is fear of litigation most efficient way for ID’g species’ CH for species recovery? o Reco: RS could benefit fr something similar to 2-step listing process: (1) unbiased scientific proposals, (2) clear

govt response Recovery Plans:

o If CH not described in RS, no legal timelines to do so (as RP have no legal timelines for completion) Summary, more explicit/transparent consideration of competing gov’t priorities may avoid distorted implementation

o Assessment process offers clear delineation b/w independent science & policy o But legal listing, recovery planning and implementation don’t

Subject Cabinet listing decision process to independent, non-govt peer review (may req. longer timeline, w accompanying interim legal protection); also subject RS and RP to independent peer review Structural separation of info gathering (scientific advice) & strategic planning/ action (policy) w hard deadlines

Recovery Strategy Litigation, pp. 667-682

Alberta Wilderness Assn. v. Canada (Minister of Environment), 2009, FC (“Sage Grouse case”)Issue Reasoning/Ratio, per Zinn, J. Notes1. What is correct SOR for Min’s decision to not id CH of Sage Grouse in the RS?

2. Does the decision to not id CH meet the SOR test, and if not, what is appropriate remedy?

Petitioner claim: Min. erred in law in interpreting SARA Ct: no error of law, parties agree on interpretation, just disagree on whether, based on best avail. info., it’s possible to identify CH

Resp claim: CH finding is finding of fact entitled to highest level of deference, only to be interfered w if falling outside “range of possible, acceptable outcomes” (as per Dunsmuir) Ct: “there is no discretion vested in Min. in ID’g CH under SARA”Re #1: SOR reasonableness (little discussion on this)Re. #2: Ct looked at RS itself to see if anything in it led to concl. that decision (being the RS) was based on erroneous finding of fact (that CH couldn’t be ID’d), made in manner w/out regard for material before it

Ct dismisses govt arg that “Ct is not an academy of science” & says cts must assess record of evidence that was before d/maker, some of which may be scientific to det. if d/maker’s decision reasonable (compare w Palmer where judge didn’t want to read

54(as per s. 18.1(4)(d) of Fed Cts Act)

RS mentions 4 types of habitat necessary for species: (1) breeding, (2) nesting, (3) brood-rearing, (4) winter it follows that if any of 4 can be ID’d as critical, Min. is reqd to incl. in RS (reqd to id “to the extent possible”); RS mentions work of researcher who ID’d nesting & brooding habitat in Manyberries, AB this info may change in future, but identif’n of CH cannot be postponed for that reason alone (based on info at point in time)

Decision: Min. reached decision to not incl. CH in Sage Grouse RS was w/out regard to material before it, doesn’t fall w/in “range of possible, acceptable outcomes” (unreasonable)

science report)

s. 41(1)(c) based on precautionary principle (Spraytech)

Facts: Sage Grouse listed on SARA Sched 1 as endangered, so per s. 39 MOE must prepare RS; in RS, Min. det’d recovery feasible; s. 41 outlines reqts of RS (incl. description of species & needs, its threats, pop. & distribution objs, any additional info reqd, when AP will be competed AND s. 41(1)(c) identif’n of CH, to the extent possible, based on the best avail. info, incl. the info provided by COSEWIC (sched of studies re. CH to be attached when info inadequate); “Critical Habitat” def’d as: habitat necessary for survival or recovery of listed species & ID’d as CH in RS or AP; “Habitat” def’d as: area species depends on to carry out its life processes; Project Charter (created before RS issued) said RS wouldn’t incl. identification of CHJH: JR of RS for Sage Grouse b/c it didn’t incl. CH

Environmental Defence Canada v. Canada (Minister of Fisheries & Oceans), 2009 FC (“Nooksack Dace case”)Issue Reasoning/Ratio (per Campbell, J.)1. What is the correct interp. of s. 41(1)(c) and (c.1), esp. def. of “habitat” (does it incl. 2 features: (1) defined geographic area; and (2) physical & biological attributes of that area)?

Applicants: Min. knowingly failed to follow mandatory reqts of s. 41(1)(c) (Final RS provision); statements re. CH in Final RS was contrary to law; specifically:1. Each of reqts listed in s. 41(1) must be met, incl. (c) and (c.1) Ct: yes, provisions of s. 41 mandatory, as confirmed by Zinn, J. in Sage Grouse: “no discretion vested in Min, in id’g CH under SARA”2. (c) and (c.1) and conjunctive duties (i.e. both need to be fulfilled, not either/or) Ct: yes; also, reqs Min. not to disregard, ignore or remove reliable info; determinations under this provision subject to JR on SOR of reasonableness3. CH requires det’g and stating habitat’s features & providing geospatial delineation of its location Ct: “location is inextricably linked to its special identifiable features and incl. its special identifiable features”; Min’s textual analysis too narrow for broad, purposive approach that’s reqd4. “To the extent possible” in s. 41(1)(c) reqs identifying as much CH as possible, in as much detail as possible Ct: take Zinn, J.’s judgment fr Sage Grouse. “Min must ID as much CH as is possible to ID at that time, even if all of it cannot be ID’d and to do so based on the best info then avail”5. “Based on the best avail. info” means the info in existence not the best possible info that can be acquired in futureApplicants: SARA should be construed as conforming to values/ principles of Convention; note: no allegation of bad faith

SOR is correctness

Stat int. req’s modern approach (contextual, textual, purposive analysis)

s. 38 is the precautionary principle codified, meeting Cda’s commitments to UN Convention on the Conservation of Biological Diversity s. 38 is “mandatory interpretative principle” (note: does mention “cost-effective measures” but clear about not postponing measures due to lack of scientific certainty)

Stage 1: RS | Stage 2: Action Planning *only at this stage that socio-econ. factors can be considered (this is error of law)

Notes“Test case” for SARA interpretation; Ct: “bringing present Application was absolutely necessary… creation and application of policy by Min. in clear contravention of law, and reluctance to be held accountable for failure to follow law”; case about ROL as described by LaBel & Bastarache in Dunsmuir

Scathing judgment re. Min’s actions

Law & science working together can ensure laws passed in Parl. aren’t thwarted in

55implementation Decision: Policy Director DFO direction (to remove CH fr RS) and Dep. Min’s approval of

this are contrary to law Min. failed to meet mandatory reqts of s. 41(1)(c) in Final RS; totality of conduct fundamentally inconsistent w precautionary principle

Facts: Nooksack dace (stream minnow) listed as endangered on SARA Sched 1 (facing imminent extirpation) when Act came into force, so RS deadline is 3 yrs; listing auto. triggers prohibitions against harm (s. 32), protections for residence (s. 33) & reqt for RS and action planning (ss. 47-64); RS process: draft RS placed in public registry for comments for 60 days; applicants submitted comments noting that RS fails to id CH even though it’s known; 1 yr after due date, Final RS posted; Recovery Team could and did identify CH but upon direction fr Min., Team removed identif’n of Critical habitat fr RS and inserted into separate doc (which wasn’t posted to Public Registry)Tollefson: one thing Campbell, J. did that’s vulnerable to appeal are his findings w re. to international law

Critical Habitat Designation, Recovery Strategies & Actions Plans, pp 682 – 708

Mentioned in class: Environmental petition process: if you have a q that would be w/in jurisdiction of 1+ ministries, can ask q directly to Minister, who must answer (quality of answer not guaranteed, but will be part of public record) Alternative to ATIP process (Fed FOI process)

Georgia Straight Alliance v. Canada (Minister of Fisheries & Oceans), 2010 FCA “Consolidated Orcas”Issue Reasoning/Ratio, per Zinn, J.1. What is the SOR?

2. How to interpret SARA s. 58; did Min. err in relying on Fisheries Act & its Regs in making Killer Whales Protection Statement?

Re #1: essentially issue of stat. interp., so correctness (agrees w FC)

Min. arg: Parl. intended that he be allowed flexibility to provide compulsory protectiono Ct: if accepted, compulsory non-discretionary protection scheme of SARA would be

replaced w discretionary management scheme of Fisheries Acto Reinforced by textual and contextual analysis – surely PS and PO must have same obj. to

avoid destruction of ID’d CH of listed species through any means, incl. activities authorized through discretionary permits/licenses only legally protected if other Act prevents destruction through legally enforceable means, not subject to Ministerial discretion

Min arg re. s. 35 Fisheries Act (HADD provision): though discretion broad, where Min. relies on Fisheries Act to meet reqts of SARA, reliance will guide exercise of discretion to ensure CH remains protected Ct: doesn’t explain how this intent can be legally enforced in future if Min. changes mind; also doesn’t bind Min’s successors

Re. s. 36 Fisheries Act (deleterious substances): allows for deposit under conditions authorized by Regs (notably, Metal Mining Effluent Regs and Pulp and Paper Effluent Regs) Ct: doesn’t allow for waiver through Min. issuing license/permit; non-discretionary & legally enforceable, fundamentally different than s. 35 which allows for discretion in appropriate circumstances, s. 36 + its Regs may afford species legal protection mandated by s. 58 of SARA, but no evidence here (differs fr FC on this point, but same outcome)

Decision: Upholds FC’s judgment, except for declaration that s. 36 of Fisheries Act barred fr inclusion in PS/PO under s. 58 of SARA (see last para. above)

NotesSARA Protection Statements (relying on other leg) & Protection Orders – via s. 58(5), w/in 180 days after RS; note: only applies to “fed. species” (marine, migratory birds, etc.)

Protection Statement cannot be non-enforceable leg. subject to Min. discretion, but can rely on Regs (as they’re enforceable)Background: Under SARA, when species listed in Sched 1, Min. must prepare RS w/in specified time (prepared w stakeholders, public consultations) req. 1+ Action Plans based on RS final RS [either (1) Protection Statement, referring to other laws, OR (2) Protection Order] – often will try to do (1) PS; note: “law” doesn’t incl. policy/guidelinesFacts: (2001) Southern resident orcas endangered, Northern resident threatened; (2006) final draft RS (after heated disputes b/w Recovery Team Scientists & DFO re. how critical habitat def’d); w/in 180 days, Min. had to release PS or PO released “Killer Whales Protection Statement” (chose (2) PS route), incl. geophysical attributes only but some of most important elements of critical habitat left w/out protection (incl. acoustic degradation, chem/bio contamination, diminished prey) PS said these would be dealt w through “leg. and policy tools” and not under SARA)Judicial History: (Russell, J. at FC): 1. Judicial Review #1 at FC: Resp. argued Min. couldn’t resort to non-binding policy, prospective leg. or ministerial discretion in Protection Statement before JR was heard, Min. reversed & issued PO2. Judicial Review at FC of Protective Order two JR’s consolidated & heard as one; (a) Scope of “critical habitat” already decided in Nooksack Dace case (both the location & components of CH contemplated by SARA); (b) Min. arg’d:

56PO wasn’t “decision” subject to JR, but rather a “regulation” immune fr JR Ct: no privative clause, clearly justiciable; (c) Ct decided to hear issue of PS regardless of Min. reversing & issuing PO (applied Borowski factors) Russell, J. decided that through purposive reading of pertinent provisions of SARA, Parl. sought to limit discretion where protection of endangered species/habitat at issue (and Fisheries Act subject to discretion)

Adam v. Canada (Minister of the Environment), 2011, FC

SARA Emergency order provisions:80. (1) The Governor in Council may, on the recommendation of the competent minister, make an emergency order to provide for the protection of a listed wildlife species.Obligation to make recommendation(2) The competent minister must make [less discretionary, more objective] the recommendation if he or she is of the opinion [discretionary] that the species faces imminent threats to its survival or recovery.Issue Reasoning/Ratio, per Crampton, J.1. Did Minister err in interpreting Emerg Order provision (s. 80(2) of SARA)?

2. Should mandamus be granted (make Minister reco EO)? [Tollefson]: most interventionist approach, v. diff. to get

3. Did Minister err in refusing to reco EO by failing to consider relevant factors? (seeking declaration)

4. Should declaration be made re. contravening s. 42(2) by not posting RS?

SOR: interpreting d/maker’s enabling/home statute accorded deference (so reasonableness standard), as per Dunsmuir however, re. FN issues, overridden by const considerations, so subject to correctness (all other issues subject to reasonableness)Note: contradiction w FCA’s Consolidated Orcas case where Ct says Min. isn’t expert in the area, even though was interpreting home statute (SARA)

Re #1: Ct: Min. clearly erred in reaching decision when stated FN treaty rights & honour of Crown weren’t factors in decision re. EO reco; not saying decision would have been different, just saying there was error

Apps ask Ct to endorse list of propositions (p. 701) Ct accepts a few: (1) mandatory duty in s. 80(2) only triggered when Min. “of the opinion”; (2) s. 80(1) broad enough to permit GIC to make EO on reco fr Min. outside of s. 80(2) situations, but no stat. duty to do so; (3) Min. doesn’t need to consider only best science but also legal advice; (4) Min. can take “short period of time” following Applicants’ request to act under s. 80; (5) language doesn’t imply that EO must be made every time any species/sub-species faces threat in only a part of habitat; (6) less likely threats are to materialize, less weight accorded in Min.’s assessment

App arg: only reasonable interpretation of “survival” or “recovery” is conserving/recovering all herds to self-sustaining levels throughout their current ranges Ct: would be anomalous result where v. small herd would req. EO if threatened in small area of prov., would misalign w leg. intent to give Min. discretion, evidenced by words “of the opinion”

App arg: based on facts, not reasonably open to Min. to reach opinion that “no imminent threats to natural survival” (list facts on p. 703) Ct: acknowledges not immediately apparent how Min. could have concluded no imminent threats, but didn’t give reasons; proper approach to set aside Min’s decision as wasn’t “justifiable, transparent, intelligible” (as per Dunsmuir)Note: “imminent threats to its survival or recovery” wasn’t def’d by counsel, so Ct will defer det’g this to another day

Re #2: App’s concede that decision to reco EO to GIC is discretionary Ct: mandamus not available to compel exercise of discretion in particular way; proper approach is set aside decision & ask for reasons

Re #3: SOR: this is q of mixed fact/law so reasonableness standard; relevant factors (according to Apps): (1) FN’s treaty rights Ct: Min. didn’t consider; (2) Min’s ongoing breach to prepare RS w/in time period mandated considered; (3) Purposes of SARA not considered, but doesn’t matter as what was considered wasn’t inconsistent w purposes SARA; (4) Draft Recovery Policies’ obj.’s considered; (5) Best avail. science considered Ct: despite evidence, made contradictory conclusion & reasons given “do not enable me to conduct meaningful review of Decision” (conclusion came “out of the blue”)

Re #4: App arg: SARA s. 38 codifies “precautionary principle” & enacted partly to satisfy Cda’s obligations under 1992 UN Convention on Biological Diversity Ct: no suggestion of bad faith on behalf of govt, & they committed to RS in “summer of 2011”, so will defer

NotesSARA s. 80 Emergency Orders

[Tollefson]: Good time to be govt lawyer b/c likely get reasonableness standard even when weak case

57declaration of unlawfulness until Sept 1, 2011

Decision: Min.’s decision quashed/set aside (no mandamus), remitted back for reconsideration according to FC judgment; Ct defers declaration (issue 3) Sept 1, 2011

Facts: App. FN’s & ENGO’s attempted to get MOE to finalize RS for boreal caribou (NE Alberta), issue Emerg Order under SARA s. 80(2); (2002) general pop. woodland caribou designated as “threatened”; (2008) scientific review by Enviro Cda det’d “not self-sustaining”; (2009) draft Species at Risk Policies describe 3 factors Minister will consider in forming his “opinion” under s. 80(2); (2010) FN’s & ENGO’s separately wrote to MOE requesting he reco to GIC to make Emerg. Order each filed applications in Ct, they were consolidated into one JR; Min. decision: “no imminent threats to survival”; claims threats to “recovery” less straightforward than those to survival as will be def’d in National RS which isn’t finalized yet, but science needed has been ID’d & RS will be issued by “Summer of 2011” (even though due in 2007); Provs. resp. for mng’g terrestrial species on Prov. land & even though Alb’s RS lacking and would affect other jurisdictions’ caribou, MB & Eastern Cda caribou healthy so could allow recoveryNote: Boreal caribou: iconic species in Cda (in Enbridge, looked at their cousins, Southern Mountain caribou)Future cases’ potential arg: in face of scientific evidence, not open to Min. to say “I don’t agree”; may be obligation on Min. to embrace unless can provide scientific evidence to contrary [haven’t seen one of these case win yet]

Prohibition on Harm to species, pp 709-713

Takings provisions carefully designed to allow broad discretion to Min. (Min. to form opinion and make reco. to Cabinet)Have been no “safety net orders” made, though there have been applications Tollefson note: troubling when combine elusive nature of safety net orders, and that only Fed. species deserving of Fed. protection and the rest will be protected by the Provs.

o However, at least in terms of Fed. species, Cts have made the best of this by pushing on this designation of critical habitat (Sage Grouse, Consolidated Orcas, Nooksack Dace) – so there’s at least some sort of protection order or protection statement which has effect of legally conferring protection on those species haven’t had that many PO’s made (still fighting over what these PO’s should include)

Kate Smallwood, A Guide to Canada’s Species at Risk Act (Sierra Legal Defence Fund, 2003) s. 32: “takings” prohibitions (cannot be killed, harmed, traded); Note: no judicial interpretation of meaning of word

“take” and first conviction not until in 2012, so we’ll look to US where significant body of law dvp’d under ESA (see Babbitt case, below)

s. 33: “residences” cannot be damaged or destroyed; “residence” not biological/scientific concept, but artificial term to restrict legal protection to min. part of habitat (“dwelling place”) scope ltd to areas of fed. jurisdiction (ntl park, fed. agri. lands, Reserves, military bases, airports, post offices), unless s. 61 “Safety net” invoked, to extend protection to areas of prov. jurisdiction (MOE must make reco if he’s of opinion that… laws of Prov. don’t effectively protect CH currently unclear how fed. govt will det. this)o Order made under s. 61(2) lasts for 5 yrs, unless GIC renews it by order (s. 61(5); if MOE considers no longer

necessary, must reco. that order be repealed s. 58 protects Critical Habitat, incl. larger def. of habitat than s. 33 (above) but isn’t invoked until RS in place; s.

58(5) gives 6-mo. time limit to issue PS or PO

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, US 1995Issue Reasoning/Ratio (per Campbell, J.)Resp. argues Congress didn’t intend “take” to incl. habitat modification

1. Ordinary understanding of word “harm” is cause hurt, damage, injure (in context of ESA, encompasses habitat modification)2. Broad purpose of ESA3. Congress authorized Secretary to issue permits for takings that would otherwise be prohibited “in exercise of lawful activity” suggests indirect in addition to direct takings (undermines Resp. arg that means only accidentally killing endangered animals during regular hunting)

Decision: habitat modification incl. in ambit of “taking” that’s prohibited by ESA

NotesU.S. analogy to SARA (interpreted “take” in ESA v. broadly)

Facts: Spotted owl designated as endangered; ESA gives Secretary power to make Regs; Secretary extended “taking any endangered species” to incl. habitat modification where it results in killing or injuring wildlife (def. of “take” in Act is basket clause that includes “harm”; harm def’d in Reg to incl. habitat modification)

58Tollefson: interesting US tradition for protecting private property hasn’t manifested itself here (would expect an elaborate compensation system for property injured from decisions made under ESA, but hasn’t happened; in Cda, when SARA initially drafted there was placeholder for reg. system to be brought in that would deal w compensation to those adversely affected (i.e. farmers, lrg landowners in Western Canada) but nothing has come of this (no Reg. passed)

Species Protection as Governance Issue, pp 716-731

Biodiversity protection much more complicated than setting air/water targets, etc.

A. Dan Tarlock, “Biodiversity Federalism”, 1995: [relevant also in Climate Change section]2 branches of enviro. protection policy

1. Risk Minimization 2. Biodiversity Protection

Difficulties No reliable way to measure risks Legitimacy & implementation (more difficult)

Acceptance Widely accepted as legit public policy for 25 yrs

Emerged as primary obj. of both US & intl govts

Biodiversity protection: Site-specific nature of problems means fed. policy can’t be applied across the board effectively Chief threat = habitat loss

So objective is habitat conservation & protection, rather than regulating industries through technology Federalism frustrates biodiversity protection by:

1. Premised on optimal reg. balance (which can frustrate necessary inter-govt cooperation)2. No uniform standards that can realistically be applied to such diff. states (Alaska + Arizona, for ex.)3. Fed govt must rely on powers usually vested in prov./local govt

Lrg threat to achieving obj. is local resistance that may undermine national efforts (fed. mandates seen as intrusions on local sovereignty)

Biodiversity doesn’t mesh w federalism, b/c:1. Political boundaries don’t match w ecosystem boundaries2. Conflicts among diff. fed agency mandates3. Constitutional values (property, individual interests) difficult to adapt to biodiversity protection 4. Fed. jurisprudence neutral w re. to biodiversity maintenance (SC decisions likely to hinder) [note: prior to the Oldman River, Hydro-Quebec]5. Demands of biodiversity protection exceeds fed ability to achieve w/out state & local cooperation

Species Protection Initiatives at Provincial Level1996 National Accord for the Protection of Species at Risk stood for cooperative approach to species protection (Provs taking lead role, Feds stepping in for Emerg & safety net orders)14 principles (list p. 719): independent assessment, immediate protection, timeliness, monitoring, preventative measures…

Ecojustice, Failure to Protect: Grading Canada’s Species at Risk Laws, 2012 Judged efficacy of species protection on 4 elements: (1) listing process, (2) “take” protection, (3) habitat protection,

(4) recovery planning BC/AB failed as don’t have dedicated SAR leg. Even govts w strong laws (ONT and Cda) weakening them Op for Fed. govt to take leadership role (Provs can’t as don’t have necessary tools to recover species on their own,

esp. if crossing jurisdictional boundaries)

SARA and Provincial Land Resource Development Decision-making How is SARA having an impact on prov. decisions re. licensing/ permitting resource activities?

0707814 BC Ltd. v. BC (Assistant Regional Water Manager), (2008, BC EAB) Issue Reasoning/RatioDvpr arg: If species wouldn’t survive anyway (and Dvpr contends it wouldn’t), water license should be approved

Magnitude/gravity of harm at extreme end of scale; Capturing + relocating species not feasible option; Predicting whether species will persist is not exercise in certainties (“best guess” based on best avail science)

Re. need for further study, Panel says this isn’t right case – no q that threats to these

59species’ survival already exists at this site (“property is an oasis in an urban landscape”)

Pressures simply too overwhelming for Panel to have any confidence that, w/out protection proposed by the App, any of the species reasonably likely to persist; Water Act not meant to deal w land issues; Ecosystem no longer one of “high value”; species’ habitat being degraded, more to come; also, City’s not doing anything

Decision: Application allowed, dvpt to proceed

NotesBC has no dedicated Prov. SAR law [compare w next case]

Demonstrates little support for interpreting Prov. laws to align/ support Fed. laws (i.e. Water Act to support SARA)Facts: Prov. Water Approvals Manager refused application for dvp’r to infill wetland in ravine near suburban area (would destroy habitat for SAR (frog & forestsnail listed in SARA as threatened/endangered); Dvp’r resubmitted refused

Guelph (City) v. Soltys, (2009, Ont SCJ) Issue Reasoning/Ratio (per Gray, J.)1. Pl brings motion for injunction to restrain Ds fr trespassing on lands, impeding construction [D arg: if granted, Pls themselves should be enjoined fr engaging in any construction interfering w habitat for reasonable period (duration of breeding season)]

2. D argues in alt, separate motion for injunction to restrain Pl’s fr continuing construction (same terms as above)

*Note: public interest standing must be est’d

Re #1: test for interlocutory injunction fr RJR MacDonald: (a) serious issue to be tried; (b) pls will suffer irreparable harm if injunction not granted; (c) balance of convenience favours pls+ Pl argues b) & c) less important when landowner (prima facie entitled to injunction when trespass occurs) Ct: D’s have no right to take matters into their own hands, so Pl’s requested injunction against D trespassers issued

Re #2: D relies on “precautionary principle” – currently unknown where breeding grounds are, but this isn’t sufficient to decline to take steps to avoid potential destruction/interference w habitatNote: Public interest standing est’d for this limited actionApplying test: (a) serious issue based on preamble of ESA (habitat = geographical + non-geographic area, but when reg. not issued yet, area is undef’d; Salamander listed as threatened species; ESA prohibits damaging habitat but suspends that prohibition until reg. issued (subject only to Min. issuing stop work order) Min. in better position to issue order than Ct and enforcement mechanisms conferred to Min. under ESA is exclusive, Ct can’t issue orders in absence of Min. having done soBUT exception when Ct asked to enjoin an activity until the stat. tribunal can exercise that stat. d/making powerThere’s no evidence that Min. even contemplated making orderD’s made out 3-part test for injunction (balance of convenience favours D’s for injunction for short duration) “… if it turns out that the project must be delayed for a year, so be it. The policies enshrined in the ESA, 2007, must prevail in these circumstances”

Decision: Pl’s requested injunction against D trespassers issued; D’s requested injunction stopping work granted for 30 days to allow Minister to make reg. re. salamander habitat (or refuse to)

NotesONT has dedicated Prov. ESA as of 2007 [compare w previous case]

Ont ESA prevails over dvpr’s project being slightly delayedFacts: City of Guelph proposing dvpt of Hanlon Creek Business Park; has all necessary permits/approvals to move fwd w Phase 1, $20 mil spent on project so far; Dr. Bogart testified w re. to dead Jefferson Salamander found on site (vs. City-hired consultant says salamander doesn’t exist in that area); NRCan reco’s that dvpt of rd that crosses creek be delayed due to unknown location of salamander breeding pts City has taken no steps to stop work (no formal approval req’d & no power to issue stop work order under ESA s. 27 b/c Reg. hadn’t been promulgated def’g area of habitat); Land Is More Important Than Sprawl (LIMITS) oppose dvpt & entered land to restrain (D is member of LIMITS)

The Ontario Endangered Species Act, 2007 Strongest law of its kind Cda Ont has 1/3 of Cda’s total endangered species However, govt already exempted forestry industry fr reg. woodland caribou remain at risk Science-based mandatory listing process (by independent agency) Strong mandatory provisions re. habitat designation & recovery strategies Minister must designate critical habitat for listed species by reg. Broad takings provisions (balancing traditional use rights by FN by way of exemptions) Note: silent w re. to compensation for landowners

60Emerging Perspectives on Species and Biodiversity Protection, pp 731-738

Holly Doremus, “Biodiversity and the Challenge of Saving the Ordinary”, 2002 Protection of biodiversity enshrined in law & policy, recently in intl law (Convention on Biological Diversity)

Special vs. Ordinary We must focus the law & public on ordinary nature rather than merely obviously special or unique aspects Only most extraordinary species helped by ESA (those w significant public appeal or tenacious human advocates) Suggestions to focus on:

o Indicator species: reflect health of ecosystem as wholeo Keystone species: contributors to community structureo Umbrella species: extremely lrg ranges (would guarantee protection of many smaller species)o Hotspots: locations w high levels of biodiversity

Protection of the special hasn’t proven effective for saving ordinary… Human beings not wired to care about, or even notice, ordinary – easier to gather support to save whales, than to save nature as a whole/biodiversity

Landowners: Assume they’re free to use land any way they want as long as don’t injure others

Reg. controls on private land use essential to biodiversity protection (but huge institutional barriers) No “magic bullet” biodiversity law, but focus on patchwork of fed, state, local law

o Incl. reg. activities that predictably pose threat to biodiversity (most already subject to some kind of reg., so just ensure biodiversity considerations adequately factored into existing reg. schemes multi-jurisdictional regional plans needed (not isolated land use reg)

“Tough challenge to build political support to limit human actions, saving some room on the planet for nature. That requires the development and maintenance of emotional connections to ordinary nature.”

Isabelle Deguise & Jeremy Kerr, “Protected Areas and Prospects for Endangered Species Conservation in Canada” (2006)

Habitat loss is primary cause of species endangerment; caused by: o Land-use conversion to agriculture o Introduced species o Urbanizationo Overhunting

Reserve networks (protected areas) one of leading strategies for reducing extinction rates, but not mtg their potential Significant proportion of the world’s remaining wilderness is in Cda

o Mean reserve size in Cda declined sharply as #’s endangered species per eco-zone increasedo Areas w highest diversity now dominated by agri land uses o Cda’s SARA provides little additional habitat protection in areas w largest #’s endangered species, b/c: (1)

endangered species concentrated in areas w extensive human land use, clearly inhibiting reserve est’t or expansion; (2) protected areas haven’t been est’d to protect biodiversity, like Ntl Parks for “enjoyment of Cdns”)

Protected area networks unlikely to provide effective endangered species protection in CdaSuggestions: o Tax incentives, easements for private landowners o Importance of distinguishing b/w inclusiveness & effectiveness

Climate ChangeClimate Change and Tort Law, pp 747-761

D. Curran, “Climate Change Backgrounder”, UVic ELC, 20074 main categories of tort actions:

1. Against public agencies for acts/omissions that contribute to climate change2. Against public agencies to req. consideration of climate change impacts in d/making**3. (civil lawsuits) against private entities that emit GHG (usually nuisance, negligence)

614. Against public agencies reg. GHG emissions by reg’t entities

** Greatest potential for ripple effect through corp. sector - but signfcnt legal/science hurdles to overcome in mass tort litig’n Duty of Care

Negligence: must exercise duty of care twd those foreseeably at risk fr their behaviour (doesn’t extend to those at risk by secondary impacts fr neg. activity) how big is the zone of foreseeable risk?

o Foreseeability inc. as scientific understanding of impact of climate change has increased However, Cts may decline to impose duty of care for policy reasons

Public nuisance: Pls have special injury fr D’s action that interferes w right common to public (health, safety, morality, comfort, convenience); req. balancing test of reasonableness of D’s activity & how activity conforms to industry/sectoral norms

o Note: Cdn cts req. strict adherence to showing injury diff. in kind & degree fr other members of public (US cts more lenient)

o Defence of stat. authority: where leg. exists. D’s use defence to say Leg. sanctioned a range of activities Leg. could have contemplated

Private nuisance: at what level does the conduct become intentional and the interference unreasonable where the harm (enviro., economic and social) outweighs the benefit (economic and social)?

o Hunter & Salzman: relative risk-utility balance of CC activities shifting… towards finding of liability o Next generation of tort litigation may see more nuanced approach to naming D’s

Causation “But for” test: won’t work w multiple emitters over a century (contribution by any one group insignificant, or at

least well below 50% reqt for liability under BF test) Cdn test “material contribution”: little guidance, but clear that BF to be applied in “all but most exceptional of

cases”, when 2 reqts met: o 1. Impossible for Pl to prove D’s neg. caused Pl’s injury using BF testo 2. D breached duty of care owed to Pl, exposing Pl to unreasonable risk of injury, that injury

materialized (i.e. injury must fall w/in ambit of risk created by D’s breach) Market-share based theory: found favour in US, recently approved in English HL, stat. adopted in BC leg,

referred to at SCC in passingRemedies: Apportionment of Liability

% of mkt share corp holds in particular industry will be amount of damage for which held liable In BC, D’s are jointly & severally liable under Negligence Act

Discussion Cda following British system of costs has neg. impacted Cdn public interest litigation

Climate Change Tort Litigation in the US: A Snapshot2 notable case examples:

Connecticut v. AE Power Co.: filed against group coal energy production co’s operating in 8 states (dismissed on prelim. motion) now up to SC

California v. GM Corp: filed against group of major auto mnftrs (still before Cts)

Nature Village of Kivalina v. ExxonMobil Corp, 2009Issue Reasoning/RatioThreshold q: does Ct have subject matter jurisdiction over claim for CL nuisance?Political q doctrine: would req Ct to make policy determinations; polycentric interests lead to inherently

Re #2: political q doctrine: species of separation of powers doctrine, says certain q’s political as opposed to legal; Baker v. Carr test:

i. Involve issues committed by text of Constitution to coordinate branch of gvt?**ii. Demand ct move beyond areas of judicial expertise? (Cts must ask if have legal tools to reach ruling that’s “principled, rational, based upon reasoned distinctions”Pl arg 1: same as all nuisance cases (def: significant interference w public heath, safety, peace, comfort, convenience, conduct continuing in nature, produced permanent or long-lasting effect)Ct adds: must also incl. balancing of benefit vs. harm; test is “whether RPs generally, looking at the whole situation impartially and objectively, would consider it unreasonable”Applied: weigh energy-producing alts avail. in past; principle purpose of D’s conduct, social value in that purposePl arg 2: long, prior cases on air/water pollution supports (i.e. Connecticut v. AE Power: rejected Ds’ reliance on uncertainties re. effect of GHG, “Fed cts have successfully adjudicated complex CL

62political q’s nuisance cases for over a century”)

Applied: may provide guidance in novel cases, this isn’t one; distinguished as those cases involved discrete # polluters, causing specific injury to specific area here, GHG emissions fr innumerable sources located throughout world & affecting entire planet/atmosphereCt: Pls not providing any guidance as to which judicially discoverable standards to employ; seeks to impose liability on scale unlike any prior enviro. case cited 2nd factor precludes judicial consideration of Pl’s fed. nuisance claim

**iii. Do prudential considerations counsel against judicial intervention? policyCt adds: this factor triggered when “ct must make policy judgment of leg. nature rather than resolving dispute through legal/factual analysisPl arg: b/c not seeking injunctive relief, no need for Ct to retroactively det. emission limits that should have been imposedCt: same faulty logic as above (look at reasonableness of harm w/out looking at conduct) regardless of relief sought, harm must be balanced w utility of conductReqs judiciary to make policy decision about who should bear cost of global warming (virtually everyone on earth responsible on some level)Allocation of fault and cost of global warming matter appropriately left for det’n by exec or leg. branch 3rd factor militates in favour of dismissal

Decision: D’s motion to dismiss granted; appealed to 9th circuit, dismissed

NotesThought to have chance of success

Denied leave to appeal to US SC this yr (even though AEP was allowed)

Main theme is leg/political nature of issues

Facts: as result of global warming, coastal storm waves and surges affect coastal village on barrier reef to pt that needs to relocate (specific effect in specific area); science pretty bullet-proof (self-gov’g Indigenous community, w/in few yrs will be underwater); filed complain alleging: (1) Fed CL: Public nuisance, (2) State law: private & public nuisance, (3) Civil conspiracy (big oil mnftrs cahoots to keep CC under wraps - if claim allowed to proceed, permit broad disclosure; *same tactic used in tobacco litigation), (4) Concert of Action; D’s would be jointly & severally liable; Pls request damages in form of cost of relocation ($95 – 400 million); do not request injunctionJH: D’s bring motion to dismissTollefson: Why not bring trade practices claim when co. alleges it’s carbon neutral (and it’s not) esp. good case to bring if good facts (could start to build up a jurisprudence in this area, incremental approach)

R. Trent Taylor, “The Death of Enviro. Common Law?: The Ninth Circuit’s Decision in Native Village of Kivalina v. ExxonMobil Corp.”, 2012Summary:

Looks at AEP v. Connecticut and Kivalina decisions for CL climate cases in US; effectively ends Fed. CL, & grave implications for enviro. CL more generally

Decision Kivalina 9th Circuit appeal Ct: dismissed case on rarely invoked doctrine of displacement (when Fed. law speaks

directly to issue, Fed CL found to be displaced, i.e. “Congress has directly addressed issue of domestic GHG emissions fr stationary sources” & even though seeking damages, not injunction, remedy not relevant to application of displacement doctrine)

o Pl arg: no fed. statute re. monetary damages as result of climate change Ct: if fed. CL cause of action has been displaced by leg., means “field has been made subject of comprehensive leg. by Congress” (AEP extinguished Kivalina’s fed. CL of nuisance damages action, now must rest w Leg/Exec action)

Concurrence2 main reasons:

(1) tension in SC on whether displacement for injunctive relief necessarily calls for displacement of damages claim (maj. doesn’t acknowledge tension) though comes up w same conclusion (by supplying fed. remedy Congress chose not to, wouldn’t be “filling a gap” but offering alternate reg. scheme – not ok)(2) said Kivalina lacked standing

Future Outlook Pls have 2 options: appeal to full 9th circuit or ask for certiorari to SC (AEP got certiorari so it’s possible) [note:

Pls have since been denied leave to SC]Significance

631. Another nail in the coffin of climate change litigation: AEP left door slightly ajar, Kivalina shuts it almost completely; AEP only sought injunctive relief now only other basis for CC suits would be state CL2. No further need apparent for Fed CL of Public Nuisance: takes doctrine of displacement further than ever 3. Death of Enviro law more generally? so thoroughly one-sided on displacement issue that cannot help but strengthen preemption defence also

o Undercurrent of enviro. law generally: to what extent should any enviro. CL tort claims (state or fed.) be permitted when every conceivable matter legislated on?

Climate Change & the Division of Powers, pp 761-776

Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional & Policy Dimensions”, 2008Summary: division of powers w re. to CC3 gen. observations about manner which SCC approached reviewing, on federalism grounds, leg. intended to protect enviro:

1. SCC made clear protecting enviro. doesn’t rest w either Fed or Prov. legs (upheld leg protecting physical enviro. fr both levels govt)2. SCC upheld Fed leg. under POGG (Zellerbach) & Crim law (Hydro-QB) even if pushed doctrinal envelope; SCC willing to afford Feds broad authority to protect physical enviro.; high degree sympathy for goal of enviro. protection 3. Power to enact leg of obligations undertaken as part of intl treaty/convention doesn’t fall to Parl. simply b/c leg. enacted for that purpose (goes to level of govt resp. for that subject matter); i.e. leg to fulfill Kyoto obligations

Prov. jurisdictiona) Carbon taxes: s. 92(2) “direct taxation w/in Prov. to raise revenue for Prov. purposes” (only potential challenge would be on “revenue for Prov. purposes” part if revenue-neutral scheme like in BC – but authors predict challenge would fail b/c weaknesses outweigh strengths) b) Cap and Trade/Intensity-based trading: validity depends on entities to which regime applied (s. 92(5),(10),(13), s. 92A likely ok, i.e. O&G, mntfr, mining, forestry, construction, intraprov. truck/bus lines)

Applying to any fed. reg’t entities, likely to be found invalid, at least to extent of inconsistency Necessarily incidental doctrine: would have to list fed. reg’t industry specifically in leg, so industry

could have target to attack; Ct asks how much leg. encroaches on fed. jurisdiction (would likely fail) However, BC’s plan to engage in region-wide trading program (w MB), prob. fine

c) Command and control regimes: applying only to prov. reg’t industries, likely ok; fed. reg’t industries, prob. notFed. jurisdiction

a) Carbon tax: Fed. govt v. broad power to levy taxes (s. 91(3) “raising of money by any mode/system taxation”); no territorial limit or on kind; challenge if revenue-neutral scheme prob. wouldn’t succeed same reasons as Prov.

b) Cap and Trade/Intensity-based trading regimes: if applied only to fed. industries, constitutionally sound; if applied to Prov. industries as well….?

i. Crim law: highly reg. character of C&T appears to preclude (but Hydro-QB upheld toxic substance provisions of CEPA as “crim law” & they were regulatory)

Args against: (1) emission of carbon not direct/immediate harm norm. associated w crim law; (2) allows co’s to buy/sell right to cause v. enviro. harm at which it is aimed; (3) diff. to label C&T regime as “prohibitory” (reqt of crim law) – would arguably broaden the limits of crim law greatly

Unlikely to be upheld, as not “prehistory” (but if found prohibition, public purpose & penalty reqts met) ii. National concern branch of POGG: allows Feds to leg. on prov. head of power when matters “unquestionably of Cdn interest & importance”

Militates twd: may be enacted in furtherance of Kyoto, predominantly extra-prov. character, prov. inability test, etc. Militates against: Cdn GHG only 2% of global total, & lack “singleness, distinctiveness, indivisibility” b/c arguably simply combo of Fed matter (GHG reg. of Fed industries) + Prov. matter (GHG reg. of Prov. industries); also, scale of impact on Prov. jurisdiction high (esp. AB for ex), & provs would be precluded fr regulating on Prov. industries which Cts wouldn’t look on favourably

Unlikely Cts would find matter of POGG National Concerniii. Emergency branch of POGG:

Summary: existing emergs or prevention; can incl. econ.; Cts shouldn’t 2nd-guess leg’s finding of emerg (as long as “rational basis”); leg. must be temp. duration; leg. must indicate in preamble what emerg is; likely doesn’t preclude the Provs. fr legislating

Likely that all reqts could be met, only for C&T option (not Intensity-based trading as can allow

64emissions to grow over time), much more attractive option than Ntl Concerns branch

c) Command and control regime: if limited to Fed. industries would be upheld; as for application to Prov. industries, same analysis as for C&T above (Crim – NO though a bit stronger arg; Ntl Concern – NO; Emerg – YES)

Summary: “both orders of govt have relativ’y broad array of options avail. to them under Const’n to deal w GHG emissions”

Alexis Belanger, “Cdn Federalism in the Context of Combating Climate Change”, 2011Introduction:

Probs w centralization: (1) Prov policies viewed as fragmented patchwork; (2) Fed/prov govts caught in trap of joint d/making; (3) Current system packed w useless, costly structural duplications i.e. Fed govt didn’t pay attention to div of powers & attempted to deal w 1970’s energy crisis w Ntl program (failure)

However, many think true federalism could be asset in battle against CCPast decade, Fed approach has been assumption that every Prov has a price & can be bought; however, “eco-Trust program” has allocated $1.5 bil to provs who have enacted initiatives (i.e. QB’s royalties on gas’s carbon content)Note: Feds seeking to expand control outside jurisdiction, while not maintaining interprov. railways (matter squarely w/in jurisdiction)

Patchwork or tapestry? The debate Fed govt’s 2007 Climate Change Plan (pub’d as obligation of Kyoto) said 85% of GHG emissions come fr areas

under partial or sole prov. control… nevertheless, Ntl Round Table on Enviro & Economy [note: Harper govt has since de-funded this] 2009 report reco’d possible Cdn carbon tax (transition fragmentation current carbon pricing policies to unified policy framework.. will be harder to do this in in future)

Fed initiatives are expensive, stifle innovation w/in Provs, will likely be accompanied by delay tactics (i.e. fed plan on air quality still not implmt’d more than 4 yrs after announced)

“Rather than visualizing a patchwork, which gives the impression of a fragmented, heterogeneous arrangement, let us apply the metaphor of a tapestry in which various patterns are skillfully combined to produce a unit whose quality exceeds the sum of its parts” (p. 774)

Carbon tax (an example how Federalism can contribute to dvpt/implementation of innovative policy) Innovative role of provs in combatting CC appears once again to be eclipsed by perpetual search for best

solution w view to setting Cda-wide policy Justifying reg. of carbon based on traditional heads of power is constitutional Trojan horse; carbon is omni-

present, no single aspect of society not directly/indirectly affected by it Main cause contributing to reduced effectiveness carbon tax in Norway was exemptions to certain industries Carbon tax proponents should support handling by provs, b/c centralized handling by Feds strongly risks

clashing w political reality Conclusion

Decentralized approach should be greater appeal to political & academic elite who have examined/analyzed univocal approach that’s reached its limits

o Instead of centralized approach, feds should work in partnership w provs to undertake activities to complement prov initiatives, thereby maximizing impact of enviro. actions

o Feds should set aside centralist reflexes & encourage provs to continue experimenting, but fulfill its enviro. responsibilities in its own fields of jurisdiction

Enviro. challenges call for new forms of governance

Governance & Regulatory Approaches to Climate Change, pp 776-790

Shi-Ling Hsu & Robin Elliot, “Regulating Greenhouse Gases in Cda: Constitutional and Policy Dimensions”, 2008Introduction; options for regulating GHG:

a) Traditional form of enviro. reg. (~Command & Control): some admin standard serves as baseline for pollution control perf.

b) Industry practices (~Best Avail. Tech Economically Achievable or BATEA) [note: BAT in other articles] c) Cap & Trade programs: allowances to emit, compliance = whether emitter has enough to cover emissions

(economic theory states credits will flow to highest/best use, concentrates emission reduction w those who can do it cheapest, reducing overall industry compliance cost; thought to spur innovation) *quantity instrument (certainty of total emissions, but only for emitters covered by program)

d) Carbon Tax: tax levied at some point of sale; rationale is those that can most cheaply reduce emissions will *price instrument (certainty of price for consumers)

65Fed. attempts at GHG reg.

Intensity-based trading: diff. to predict how much emissions reduction b/c # allowances tied to productive output (improvements in productive efficiency essentially lifts ceiling on emissions)

Prov. experiences w GHG reg. (Provs have gone their own ways w GHG policies) i.e. AB’s “CC Central” proposed intensity-based targets to achieve Kyoto targets (though Pembina criticized

heavily), & carbon capture (piping carbon underground for indefinite storage); note: like Cda, inflated/used misleading #’s to make initiatives sound better

i.e. BC & QB carbon taxes (at POS); administratively simpler to design/carry out than emissions trading scheme (full descriptions of schemes, p. 279: revenue fr BC scheme goes towards lower-incomer residents “to address perceptions that consumption-based taxes such as carbon taxes & gas taxes are regressive”)

i.e. BC and MB Cap & Trade (as part of California led “Western Climate Initiative”) i.e. ON & QB bi-prov. Cap & Trade scheme (“signal of widespread impatience w fed. efforts”)

“BC & QB certainly taken lead in GHG reduction, but magnitude of GHG reductions reqd of Cda necessitates a fed response, & one that is considerably more serious than any proposed to date”

Reuven S. Avi-Yonah & David. M. Uhlmann, “Combating Global Climate Change: Why a Carbon Tax is a Better Response to Global Warming than Cap & Trade”, 2009Key features of Carbon Tax and Cap and TradeCarbon Tax

Tax rate based on marginal cost of CO2 emissions (“social cost of carbon”); provides price signal to capture externality

Tax revenues for dvpt of alt. energy & address regressive effects of carbon tax If tax doesn’t produce reductions, would be increased (and vice versa for overcorrection) Implementation through existing programs (IRS & Energy dpt)

Cap & Trade Cap on carbon content of fuels, would decline over time Complicated: setting baseline for allocation of allowances Revenue: absent auction, no revenue generated Best example: 1990 Clean Air Act acid rain program overwhelming success; but, no experience w economy-

wide programThe case for a Carbon Tax most economists believe carbon tax most effective method for reducing CO2 emissionsAdvantages of a Carbon Tax

Simplicity: tax imposed upstream at point of extraction/importation; exports exempted (C&T complex, p. 782); carbon tax would only req adding few new provisions to existing leg (Internal Revenue Code)

Revenue: $10/ton would lead to $50 bil per year; some systems “revenue-neutral” as seek to address regressive effects vs. putting in segregated fund to further reduce GHG (reduce “Benefit Uncertainty”, see below)(C&T no revenue, free allowances to create buy-in; exemptions fr Carbon Tax more visible)

Cost Certainty: allows businesses to plan ahead (C&T suffers fr inherent Cost Uncertainty: reducing cap leads to more expensive allowances, but this depends on future tech, which can’t be predicted)

Signaling: carbon tax sends clear signal to polluters, even w word “tax” itself (C&T says govt permits you to pollute if you pay, less clear signal) forces us to acknowledge cost of polluting activities directly

Note: also can be implemented faster (so preferable fr an intl-leadership standpoint) Disadvantages of a Carbon Tax

Political resistance: critics have concerns it can’t get enacted simply b/c it’s a tax (also opponents may seek to gain fr C&T, like industries who can reduce & will sell credits, & wall street traders) *most significant hurdle

Benefit uncertainty: no assurance that give tax level results in desired reduction in GHG emissions *main substantive disadvantage (though C&T my suffer fr same)

Tax exemptions: would significantly weaken; however, article only takes into acct oil, coal & natural gas (in reality, if one of these argued for exemption, other 2 industries would oppose none would get)

Coordination: benefit to C&T but currently no global system for the US to join; however, enacting US carbon tax would allow US to participate in global accord on curbing GHG emissions

Note: both Tax and C&T persuade the rest of the world that the US is serious (so they should cooperate)

JR of Climate Change Policy, pp 790-808Shortage of leg. on CC means few JR cases in CC context to-dateConnection b/w Cda’s intl obligations & domestic leg. considerably debated b/w entering Kyoto in 2005 & withdrawing in

662011 (goal: reduce emissions to 6% below 1990 levels)

Friends of the Earth v. Canada (Gov. in Council), 2008, FC (leave refused SCC)Issue Reasoning/Ratio3 applctns for JR:1) Minister failed to comply w s. 5 (prepare initial CC Plan);2) GIC failed to comply w ss. 8 & 9 (failed to publish proposed regs in Gazette & prepare statement);3) GIC failed to make, amend, repeal regs w/in 180 days to meet commitmentsPl arg: language unambiguousResp: not justiciable, accountability at the ballot box, not the Ct room

Statutory InterpretationContextual (leg’s purpose, legislative intent, reasonable & just meaning);

JusticiabilityPolitical q can only be JR’d if “possesses sufficient legal component to warrant decision by a Ct” (uncontested); do these issues qualify?Underlying: branches of govt must be sensitive to separation of functions in Constitution did the Leg. intend for actions of Minister & GIC to be subject to judicial scrutiny?

Re #1: s. 5 incl’s measures, some of which well outside realm of JR (policy-laden, no objective criteria to be applied to facts); not appropriate for Ct to parse language into justiciable & non- while failure of Min. to prepare CC Plan justiciable, evaluation of its contents is not; also, word “ensure” isn’t mandatory language, provisions allowing for cooperation implicitly state compliance w s. 5 not mandatory

Re #3: s.6 “GIC may make regs” (clearly not mandatory); 180 days impractical so just directory/ suggestive; s.7 language doesn’t override discretionary language of s.6 Ct dictating content of reg. would be inappropriate interference w Exec. role

Re #2: if s.7 doesn’t create duty to reg, follows that ss. 8&9 not justiciable

Parliamentary Accountability: KPIA clearly contemplates this; if Parl. had wanted to impose justiciable duty, could have said so in clear & simple language Parl. has created a comprehensive system of public and Parl. accountability as a sub for JR (however, significance of Parl. oversight shouldn’t be underestimated, esp. in case of minority govt)

Decision: Ct has no role to play in review’g reasonableness of govt’s response to Cda’s Kyoto commitments w/in 4 corners of KPIA; limited role for Cts in clearly mandatory elements of Act; even if wrong about justiciability, would still decline to make order against Resp (as matter of discretion – “such an order would be so devoid of meaningful content”)

NotesMinority Fed govt failed to implement Fed. leg passed by private members’ bill (Kyoto Protocol Implementation Act – purported to bind fed govt)Facts: Leg. history: KPIA not supported by minority govt (embodies leg policy inconsistent w govt’s stated policy; also note: can’t spend funds as money bill can’t be intro’d by opposition); CC Plan released, but resp. framed as discretionary, clear that govt has no present intention to meet Kyoto commitments; NRTEE robust scientific critique of plan; Context: Cda GHG emissions increased since Kyoto ratification, so would need to purchase emissions credits + drastic action like tax on energy (GDP would decline, employment levels would fall, energy prices would increase) if meeting immense challenge of Kyoto targets

US, considerably more litigation w re. to duty of Fed. regulators to take steps to fight CC…

Massachusetts et al, Petitioners v. Enviro. Protection Agency et al., US 2007Issue Reasoning/RatioPetition for certiorari that EPA abdicated resp. under Clean Air Act to reg. emissions of 4 GHG, incl. CO2;(1) does EPA have stat. authority to reg. GHG emission fr new vehicles; (2) reasons for refusing consistent w statute?

Standing: risk of harm, though remote, nevertheless real; reduced to some extent if petitioners get their relief they have standing

Re #1: stat. def’s both “air pollution” & “welfare” broadly; CO2 falls into this (“statute is unambiguous”); discretionary “in his judgment” language Ct: no doubt Clean Air Act authorizes EPA to reg. GHG fr cars

Re #2: “unwise to do so” is reasoning divorced fr stat. text, use of word “judgment” not roving license to ignore stat. text; EPA provided laundry list reasons not to reg. and Ct doesn’t have expertise/authority to evaluate these, but clear they have nothing to do w whether GHG contribute to CC, less so have amount to reasoned justification for declining to form scientific judgment; nor can EPA avoid stat. obligation by noting uncertainty around CC & decide not to reg. (if uncertainty so great that it precludes reg., EPA must say so)

NotesDecisive victory

67Message: reg. agency can’t assume someone else will address the CC prob

Decision: EPA offered no reasoned explanation for refusal to decide whether GHG cause/ contribute to CC; action therefore not in accordance w law

Facts: 19 orgs filed rulemaking petition w EPA to reg GHG fr new motor vehicles, EPA requested public comment, EPA denied petition w 2 reasons: (1) Clean Air Act doesn’t authorize EPA to make mandatory regs to address CC, (2) unwise to do so at this time

Tollefson: may be duty on Min. not to disregard science, either find contradictory science to support their position either way (esp. when Ministry’s mandate supports)Note: Friends of the Earth sued Fed. govt under CEPA, alleging in face of growing evidence of CC impacts, Min. violating CEPA by failing to take appropriate remedial action to “prevent, control or correct pollution”Note: similarities b/w “in his judgment” in Clean Air Act & “of the opinion” in SARA (s. 80, Emerg Order, as per Adam v. Canada)

Climate Change and EA, pp 808-818

A. Koehl, “EA and Climate Change Mitigation”, 2010[Note: old CEAA, but article’s principles applicable to CEAA 2012]EAS and Climate Change in the US – Useful lessons from the South?

US jurisprudence provides some reason for optimism (req’g more rigour in assessment of climate impacts)1970 Ntl Enviro. Policy Act (NEPA):

EA leg. reqs production of EIS (Enviro. Impact Statement) if “finding of no significant impact” threshold isn’t met; intention is to address direct effects & indirect effects that are “reasonably foreseeable” Guideline dvp’d saying CC is reasonable foreseeable but never been made final (& review of 10 ESI’s mentioning CC reveal all said GHG emissions would be “insignificant potion of global emissions”… “foreseeability” has been subject of subsequent litigation

Centre for Biological Diversity v. Ntl Hwy Traffic Safety Admin: Successfully challenged NHTSA “final rule” for improved fuel economy standards on basis it violated NEPA (failed to properly consider GHG implications, alternatives and cumulative impacts)Re. CE: what matters is how much being added to atmosphere in real terms & impact of addition (since GHGs accumulate in atmosphere); shouldn’t matter it’s lower GHG than alt. or “bus. as usual” as it’s adding to CC prob. Ct ref’d CJ Wald in earlier CC case: “w/out some articulated criteria for significance in terms of contribution to CC that is grounded in the record & avail. scientific evidence… concl. that magnitude of % inc. enough to alleviate its burden of conducting more thorough investigation cannot carry the day”However, sent the matter back to NHTSA for det’n whether rule would have significant enviro. impact, instead of Ct itself making det’n & ordering EIS

Los Angeles v. NHTSA: Ct found global warming was proper subject for analysis under NEPA, but upheld NHTSA’s decision that change in fuel efficiency standard would have no significant impact

Massachusetts v. EPA: Not EA, but noteworthy for shift twd judicial acceptance of CC science & corresponding obligations on govt bodies

EA Litigation and Law Reform in Cda – Options for a Road Fwd on GHG Mitigation Cumulative Effects

Greater potential that limit will be exceeded, more imp. every incremental contribution becomes; doesn’t mean every small GHG release labeled significant – it’s possible to articulate a de minimus range CE Analysis eliminates need to est. direct causal link b/w individual project’s emissions & resulting CC consequences (b/c CE allows GHG emissions to be examined as aggregate)Climate science clear on urgency of prob; so decision that new release of GHG not significant arguably unreasonable “q is not whether particular emission was one that broke camel’s back but rather whether it’s an emission that will contribute to such an occurrence”

Interpreting Significance Must consider purposes & objectives of CEAA: (1) decisions to be made in careful & precautionary manner; (2) encourages “sustainable dvpt” (def’d as “dvpt that meets needs of present, w/out compromising ability of future generations to meet their needs” strong arg that any GHG emissions will prejudice future gens; (3) in admin’g CEAA, govt expected to exercise powers “in manner that protects enviro. & human health & applies precautionary principle”) Spray-Tech: “lack of full scientific certainty should not be used as a reason for postponing measures to prevent

68enviro. degradation” Note: adaptive mgt isn’t explicit purpose of Act; what we need to know re. CC is quite clear & it follows that each emission is significant

A project could still avoid significance concl. if mitigation brought emissions down to zero (offsets, carbon capture/storage, or other) Also possible if emissions justified in circumstances (based on language in Act) – but this would likely garner public attention

In stat. interp., can look to intl agreements for indicator of stat. intent: UN Framework Convention on CC suggests using impact assessments; Rio Declaration reqs them for project w may impact enviro. may be argued that to give effect to Cda’s intl obligations to stabilize GHGs, must only approve proposals that would ensure net decrease in overall GHGs or if reductions could be realized elsewhere as part of proj. approvalRe. political: CEAA is political response to prob. of enviro. degradation; attempt to integrate enviro. considerations into govt d/making to avoid precisely type of danger CC exposes us to today (so far failed to prevent inc. emissions)

Law Reform – Federal Integrating National Enviro. Priorities & Intl Enviro. Commitments into the EA Process

Impacts to CC would auto. come part of scope of Fed. EA; cumulative effects becoming priority “Positive Contribution to Sustainability” as Test for Project Under CEAA

… as opposed to current focus on mitigating significant adverse enviro. effects (question of focus)Establishing benchmarks for “Significance”

Prob. in Kearl case was judge had no direction on what constituted “significant”; Guidance Docs unlikely to help as non-binding; suggested that legislative solution would be cleanest approach (explicitly provide GHG considerations) prob. w leg. solution has to do w politics

If enact Reg., could be challenged & struck down as ultra viresConclusions

Context: 80-95% reduction target for dvp’d countries by 2050 reco’d by IPCC Could be argued that hoping for benchmarks for GHG is almost no diff. fr hoping for general govt action on CCEA’s have failed to stop global march twd dangerous CC but CEAA provisions on CE provide potential opening to challenge EAs and d/makers in cases where incremental inc. to GHG takes us even closer to critical CC thresholdsCurrently EA’s legitimizing (& therefore enabling) projs w high GHGs, when these are leading us twd CC disaster

Climate Change & Biodiversity, pp 818-828Will focus on central component of biodiversity: species Recall SARA chapter parts: (1) listing process; (2) critical habitat; (3) takings; (4) compensation to private parties

J. Kostyack & D. Rohlf, “Conserving Endangered Species in an Era of Global Warming”, 2008Summary: no drastic changes reqd to US ESA to address effects of CC, real challenges lie elsewhere (significant reg. & econ. policy reforms aimed at capping/reducing GHGs, resourcing ESA administering agencies, adaptive mgt, ecosystems approach rather than “species by species”)Context:

20-30% species inc. risk of extinction if 2-3 degree inc. global temp, but will be countless climate refugees fleeing coastal areas & humans will have to rebuild infrastructure of civilization conservation programs likely to have $ reduced

Probs at species level: 1. Phenology (timing of seasonal events) 2. Distribution of wildlife

Conserving Wildlife in a Changing Climate: Policy Recommendations No radical changes reqd to ensure current ESA addresses effects of global warming (just strengthen programs &

funding inc) – even though 35 yr old law, enacted at “dawn of environmental era”Addressing Endangered Species in Federal CC Legislation

Congress must leg. substantial, economy-wide reductions in global warming pollution; make necessary investment into wildlife/biodiversity protection

Making Adaptive Management a Central Focus of the ESA Exact consequences of global warming will always defy prediction, so ESA implementation must have flexibility to

change course in response to new info (agencies’ use of term “adaptive mgt” has mostly been lip service in the past should enact Regs that req rigour in carrying out adaptive mgt)

Ecosystem-Based Approaches

69 Rather than “species by species” i.e. Arctic & coral reef systems

Applying the ESA to the Causes of Global Warming Pollution Fed. agencies should construe any action that results in non-trivial inc. of GHGs as meeting threshold to trigger

substantive protections of ESA s.7 Conclusion: Congress must place ntl cap on emissions w annual reductions, US must work at intl level to achieve similar commitments fr other nations, adaptive mgt integrate biodiversity protection & funding into comprehensive fed reg. response to CC

J.B. Rulh, “Climate Change and the ESA: Building Bridges to the No-Analog Future”, 2008Summary: calls for sweeping changes in way rep. fed agencies discharge duties under ESACautious optimism about how global community will respond to CC (author’s approach to article):

Job of ESA it to help as many species as is reasonably possible get fr present to future w usRestraint:

“Going for jugular” by reg. GHGs not how ESA can be of most help to endangered species Can provide assistance to more appropriately situated agencies like EPA

Policy choice “pressure points” for Fish & Wildlife Service: 1. Identifying Climate-Threatened Species: early, aggressive identification 2. Regulating GHGs: FWS shouldn’t regulate GHGs3. Regulating Non-Climate Effects To Protect Climate-Threatened Species: i.e. loss of habitat, should utilize s. 7 reg. &

s.9 taking provisions, as well as innovative approaches like mkt-based and regional planning efforts 4. Designing Conservation and Recovery Initiatives: ecosystem-based mgt approach 5. Species Trade-Offs: differentiate b/w species unlikely to survive CC under any circumstances & those likely to

benefit fr assistance (resources shouldn’t be wasted on non-recoverable species) 6. Dealing w the Doomed: don’t accelerate decline of “doomed” species, but don’t take measures on their behalf at

expense of other species Conclusion: ESA must be employed in a more focused manner; ESA provides flexibility/means to proactively identify threat of CC and focus on helping those species that can be helped Strong supporters & strong critics’ views would doom the ESA; aggressive pursuit of GHG emitters would ignite political battle the ESA wouldn’t likely survive ES should stay engaged in reg. non-climate threats, esp. those stemming from human adaptation to CC

Perspectives on the Future of Climate Change Law & Policy, pp 828-839Reason for optimism…?

J. Purdy, “The Politics of Nature: Climate Change, Enviro. Law & Democracy”, 2010Challenging 2 claims about enviro. public language:

1. “Environmentalism” is unsuited to nature & scale of today’s problems 2. Language is vague, motivationally weak, presumptively poor resource for address’g next gen. enviro. concerns US enviro. movement has & can play a constructive role in id’g sustainable path fwd

Politics of Anomaly 1015 city govts adopted goals of Kyoto Protocol through Mayors Climate Protection Agreement

Anomaly as Persuasion Article is integral part of story about democratic self-interpretation rather than anomaly in a story about self-interest;

city govts hope to benefit fr green-dvpt block grants and, in long-term, density-friendly econ. dvpt, but also hope to induce others to take similar action

Opponents favour args that local climate action can only be futile Loal govts’ response:

(1) Engaged in symbolic politics (actions demo. existence of envoi. commitments as ntl values, making public arg. that fed govt should do the same)(2) Existence proves coordinated action can succeed in reducing GHGs(3) Attempts to reframe the cultural valence of CC fr ideological flashpoint associated w left-liberal attitude to rallying pt of pragmatic efforts (i.e. strategists for local initiatives emphasize practical local vulnerability to CC, like Seattle’s dependence on the Cascade snowpack for water & power)(4) Practice of membership & mutual respect (give broader class of ppl reasons to believe CC is both real & susceptible to action

70 Activist core: local initiatives are acts of defiance against idea that politics is finite against the pessimistic acct of CC

(rebelling against idea that action if futile)Community, Politics, Thresholds

Enviro. movements started as groups wanting to share similar experiences, grew more politically effective as membership grew (i.e. Sierra Club)

Participation in local carbon-reduction efforts motivated by: (1) doing the ecologically right thing, (2) form & participate in communities that do the same

Conclusion: environmentalism gave ideas of nature’s intrinsic value and moral instructiveness new reach in American public language

P. Havermann, “Ignoring the Mercury in the Climate Change Barometer: Denying Indigenous Peoples’ Rights”, 2009Summary: global climate regime through Ab lens; Ab interests not formally rep’d in UN based nation-to-nation negotiation process (nations w significant Ab pops haven’t rep’d those interests, i.e. Cda, US, Aus, NZ) author argues for human-rights based approachIntroduction:

Effects of CC being felt most acutely by those least able to cope and least resp. for the problem “Participation” in intl climate negations means more than the right to be consulted Currently, neither respect for the human rights of Ab ppl, nor for the governance principle of free prior and informed

consent is intrinsic to CC governance regime and resulting carbon mkt Human rights-based approach to CC governance:

Must explicitly incorporate substantive & procedural human rights of Ab ppl (& other vulnerable groups) Right to healthy, bio-diverse and sustainable enviro. not expressly articulated in “Intl Bill of Rights” so must be

assembled fr whole body of intl law (incl. regional human rights treaties CC litig’n limited dimension to human-rights based approach (reactive, costly, time-consuming, result depend on Ct)

Optimism: 2007 Bali Conference of the Parties to the UNFCCC onwards… Right to water has been key focus Coming yrs will be critical in addressing probs of CC in “attempting to alter the current trajectory to avert

ecocide”Conclusion: present plight of Indigenous ppl will be future for all humankind; Indigenous ppl are the “miner’s canary, the mercury in the global warming barometer”