Major environmental caselaw of 2008 that every lawyer should know about

1. Environmental Law
…What’s New?
OBA - Operation Update
October 3, 2008
Dianne Saxe, Ph.D.

2. Overview
Caselaw

Legislation

What’s coming?

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October 3, 2008 OBA

3. Caselaw 2008
Berendsen v. Ontario

Lafarge Canada Inc. v. Ontario

R. v. Inco, round 3

Pembina Institute v. Canada

Pakootas v. Teck Cominco

Edwards v. DTE Energy

1st environmental penalty

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October 3, 2008 OBA

4. Berendsen - how clean is clean?
Dairy farm contaminated by highway waste

Cows wouldn’t drink, became ill

MOE investigated, concluded:

Site met PWQO

Waste in clay, couldn’t reach well

Gov’t refused to help; Berendsen lost farm

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October 3, 2008 OBA

5. Berendsen, #2
Berendsen sued MTO and MOE

Limitations issue (SCC)

MTO:

did not get informed consent

liable even if waste dumped by contractor

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October 3, 2008 OBA

6. Berendsen, #3
MOE liable because

Failure to investigate/remedy a breach of

OWRA / EPA
Continued presence of waste a breach of

MOE’s duty to farmer
MOE standards inadequate

Dairy cows

 Cumulative, additive, or long-term effects
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October 3, 2008 OBA

7. Berendsen, #4
$1.73 million in damages

$655,000 in legal costs (incl a $50,000

premium + 6% prejudgment interest from
1995)
Under appeal

How clean is clean?

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October 3, 2008 OBA

8. Lafarge - MOE standards
ERT granted leave to appeal two MOE permits to

burn tires at Lafarge cement plan
air, waste

Test for leave is stringent

Proposed emissions met MOE criteria

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October 3, 2008 OBA

9. Lafarge #2
ERT:

Not clear how permits complied with the MOE’s

Statement of Environmental Values (EBR).
Emissions might affect common law rights.

Inconsistency: permitting tire burning in one place

while prohibiting it elsewhere.
“Precautionary approach”: MOE has limited

experience with regulating tire burning; assumed
potential for serious environmental risks.
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October 3, 2008 OBA

10. Lafarge, #3
Lafarge sought judicial review

MOE intervened

Environmental Commissioner intervened

Divisional Court upheld ERT

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October 3, 2008 OBA

11. Lafarge #4
Lafarge seeking leave to appeal

ERT hearing under way

MOE reconsidering major approvals

New life for the SEV?

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October 3, 2008 OBA

12. Inco - water standards
Alleged breach of OWRA in 1994 - mine

effluent escaped into ditch
Third trial

Inco acquitted again

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October 3, 2008 OBA

13. Inco, #2
MOE tests total nickel, compares result to

PWQO
But PWQO based on studies of

bioavailable nickel
Apples/oranges

Same method for other contaminants?

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October 3, 2008 OBA

14. Pembina - GHG
Judicial review of Imperial’s EA for huge

oilsands mine (CEAA)
Badly flawed EA

No reasons why mine’s GHG emissions were

“insignificant”
Sent back to Panel, Fisheries Act permit revoked

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October 3, 2008 OBA

15. Pembina #2
Panel quickly gave more reasons

Project emissions “insignificant” because will

comply with the law, once we have one
GHG huge issue to be managed by government,

not by proponents
Fisheries Permit re issued

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October 3, 2008 OBA

16. Pakootas - transborder
Teck Cominco, Canadian co., discharged

slag in Canada, per Canadian permit, until
1994
Slag washed downstream into US

Metals leach slowly from slag

Voluntary agreement with EPA, $20 M, in

place of mandatory order
Colville tribes dissatisfied

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October 3, 2008 OBA

17. Pakootas, #2
US Superfund law (CERCLA) applies to

discharges “in” US
Jurisdiction over Teck?

US SC: yes because leaching in US

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October 3, 2008 OBA

18. Edwards - transborder redux
High mercury emissions from DTE Energy

coal plant, Michigan, despite available
technology
Major source of mercury contamination in

St. Clair River
DTE ignores NGO

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October 3, 2008 OBA

19. Edwards, #2
Private prosecution, Fisheries Act

Mandamus for delivery of summons

Trial date set for February 2, 2009

No intervention (yet) by AG

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October 3, 2008 OBA

20. First Environmental Penalty
$9000 for OWRA breach

CGC of Hagersville

Gypsum runoff escaped into a creek

Large exceedence and 2 prior convictions

Good example: dealt with actual harm, and

quickly
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October 3, 2008 OBA

21. Overview
Caselaw

Legislation

What’s coming?

21
October 3, 2008 OBA

22. Legislation
Cosmetic Pesticides Ban

Clothesline ban banned

WDO: E-waste

Ontario Securities Commission guidance

on environmental disclosure
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October 3, 2008 OBA

23. Cosmetic Pesticides Ban Act
Royal assent June 18, 2008

Won’t come into effect until its regs are adopted

Will prohibit use of listed pesticides; exceptions

for agriculture, forestry, public health, golf
courses (conditional)
Will prohibit sale of pesticides on another list

Will invalidate municipal pesticide by-laws

Controversial as the province may permit some

pesticides banned by individual municipalities
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October 3, 2008 OBA

24. Environmental reporting:
OSC Staff Notice 51-716
Boilerplate inadequate: must provide “meaningful

information” to investors
Improved disclosure:

Financial liabilities related to the environment

Asset retirement obligations must be in financial

statements
Financial/operational effects of environmental

protection requirements
Environmental policies fundamental to operations

Environmental risks

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October 3, 2008 OBA

25. Overview
Caselaw

Legislation

What’s coming?

25
October 3, 2008 OBA

26. What’s coming?
Toxics reduction law

Community right to know bylaw

Mining Act

Climate change legislation

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October 3, 2008 OBA

27. Toxics reduction law
4 lists of toxic substances, going beyond

NPRI
Materials accounting

Toxic reduction plans

Public notice

New governance structure

New powers to control toxics in products

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October 3, 2008 OBA

28. Community Right to Know
Environmental reporting and disclosure by-law

Challenges:

Major sources of pollutants may be located outside

city boundary
Will reducing emissions by local businesses make a

difference in citizens’ health?
Can the City fill the regulatory gap? Jurisdiction

Costs and complexity: to businesses, City

Coordination with MOE requirements?

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October 3, 2008 OBA

29. Questions? Comments?
Saxe Law Office
248 Russell Hill Road
Toronto, Ontario M4V 2T2
Tel: 416-962-5882
Fax: 416-962-8817
Email: admin@envirolaw.com
www.envirolaw.com
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October 3, 2008 OBA