Author Archives: Martin Olszynski

About Martin Olszynski

B.Sc. in Biology (Saskatchewan), LL.B. (Saskatchewan), LL.M. Specialization in Environmental Law (University of California at Berkeley). Assistant Professor. Please click here for more information.

Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

By: Martin Olszynski, Sharon Mascher, and Meinhard Doelle

PDF Version: Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

Research Commented On: “From Smokes to Smokestacks: Lessons from Tobacco for the Future of Climate Change Liability” (2017) Geo Envtl L Rev (forthcoming)

A few years ago, the Canadian Press reported that environmental groups were “taking inspiration from the legal fight against tobacco to fire warning shots at major energy companies over their alleged role in funding climate change denial and blocking climate-friendly legislation.” The next day, an editorial in the Calgary Herald suggested that “the comparison doesn’t stand up to even cursory examination. One is a product that is always hazardous to human health when consumed, the other is a staple of the modern world.” Setting aside for a moment the fact that tobacco wasn’t always understood as hazardous to human health (back in the 1950s, almost one in every two Americans smoked, and cigarettes were ubiquitous in homes, places of work, universities, restaurants and bars), the past few years have seen an increasing number of comparisons made between the fossil-fuel industry’s potential liability for climate change and “Big Tobacco’s” liability for tobacco-related disease. Very few of these comparisons, however, have considered the legally relevant similarities and differences between these two contexts in detail. In our most recent paper, recently accepted for publication in the Georgetown Environmental Law Review, we set out to do just that.

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Assessing Adaptive Management in Alberta’s Energy Resource Sector

By: Martin Olszynski

PDF Version: Assessing Adaptive Management in Alberta’s Energy Resource Sector

Research Commented On: “Failed Experiments: An Empirical Assessment of Adaptive Management in Alberta’s Energy Resources Sector” (UBC L Rev) (Forthcoming)

It was three years and six months ago – almost to the day – that I published my first ABlawg post. The Joint Review Panel (JRP) assigned to conduct the environmental assessment of Shell’s then-proposed Jackpine oil sands mine expansion project had just released its report. That report was notable for several reasons, including that it was the first to conclude that an oil sands mine was likely to result in “significant adverse environmental effects” pursuant to the Canadian Environmental Assessment Act 2012, SC 2012, c 19 (CEAA, 2012). In Shell Jackpine JRP Report: Would the Real “Adaptive Management” Please Stand Up?, however, I focused on the role that adaptive management had played in the Joint Review Panel’s determination of the project’s environmental effects. Briefly, adaptive management is defined by the Canadian Environmental Assessment Agency as “a planned and systematic process for continuously improving environmental management practices by learning about their outcomes.” The concern that I have expressed over the past few years is that, as practiced in Canada, adaptive management appears to be seldom planned or systematic. The problem was that I couldn’t show this to be the case – until now.

In a recent paper, I examine the implementation and effectiveness of adaptive management in Alberta’s energy resources sector. Using freedom of information processes, publicly available documents, and communication with the relevant regulator, I collected the environmental impact statements, environmental assessment reports (e.g. the Shell Jackpine JRP Report), statutory approvals and required follow-up reports for thirteen energy projects in Alberta: two coal mines, three oil sands mines, and eight in situ oil sands operations. In each case, the proponent proposed adaptive management for at least one environmental issue or problem. I then analyzed these various documents to determine the conception, implementation, and, to the extent possible, effectiveness of adaptive management with respect to each project throughout the regulatory cycle (i.e. from the proposal stage through to approval and reporting). Simply put, I set out to determine how adaptive management was actually being applied in this context.

Unfortunately, the results confirm longstanding concerns about the implementation of adaptive management in natural resources development. Continue reading →

Recent Analysis Shows Canada was Losing Fish Habitat Before 2012 Budget Bills

By: Martin Olszynski and Brett Favaro

PDF Version: Recent Analysis Shows Canada was Losing Fish Habitat Before 2012 Budget Bills

Matter commented on: Standing Committee on Fisheries and Oceans’ Review of the Fisheries Act RSC 1985, c F-14

Back in October of last year, we appeared before the Standing Committee on Fisheries and Oceans (FOPO) in the context of its review of the 2012 changes to the habitat protection provisions of the Fisheries Act. Shortly after our appearance it occurred to us that it would be useful, using the best evidence available in the short time that was left, to provide FOPO – indeed all Canadians – with some quantifiable estimate of the state of fish habitat protection in Canada (the deadline for public submissions was November 30th, 2016).

Consequently, we returned to Professor Olszynski’s original access to information request from 2015 that provided the evidentiary basis for his article “From ‘Badly Wrong’ to Worse: An Empirical Analysis of Canada’s New Approach to Fish Habitat Protection Laws” (2015) 28(1) J Env L & Prac 1). Briefly, Professor Olszynski obtained all of the subsection 35(2) authorizations issued by DFO’s two largest regions (Pacific, Central and Arctic) over a six-month period (May 1 to October 1) for the years 2012, 2013, 2014. Generally speaking, each authorization contains information about the project proponent, project type (e.g. a bridge, a mine, a dam), project location, the size and kind of impacts to habitat, and the amount of compensation or offsetting habitat required – if any. We recorded the total area that each project was authorized to impact (in m2), as well as the total amount of compensation habitat required. Of the 86 authorizations in 2012, eight authorized impacts that were not described in terms of area (e.g. the proponent was authorized to destroy 1,500 eelgrass plants, or to dewater a stream killing all its fish); these were excluded from our analysis, leaving us with 78 authorizations. Continue reading →

Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

By: Martin Olszynski

PDF Version: Avoiding the “Tyranny of Small Decisions”: A Canadian Environmental Assessment Regime for the 21st Century

Matter Commented On: Expert Panel Review of Environmental Assessment Processes

The Expert Panel charged with reviewing Canada’s environmental assessment regime lands in Calgary this week. Professor Emeritus Arlene Kwasniak and I are presenting to the Panel later today, while Professor Shaun Fluker and students from University of Calgary’s Public Interest Law Clinic will be presenting on Wednesday. In this post, I step back a bit from the nuts and bolts of environmental assessment and consider the nature of modern environmental law – and environmental assessment law in particular – as primarily a decision-making process and whether this is sufficient going forward. My full submission – indeed all submissions to the Panel – can be found on its website. Continue reading →

Fisheries Act Review Should Be Evidence-Based

By: Martin Olszynski

PDF Version: Fisheries Act Review Should Be Evidence-Based

Matter Commented On: Standing Committee on Fisheries and Oceans Review of the Fisheries Protection Provisions (section 35) of the Fisheries Act R.S.C. 1985 c. F-14.

Consistent with the Prime Minister’s mandate letter to the Minister of Fisheries and Oceans and the Liberal government’s announcement this past summer of a broad review of the federal environmental and regulatory regime, the Standing Committee on Fisheries and Oceans (FOPO) is about to begin its review of the changes to the habitat protection provisions of the Fisheries Act introduced by the previous Conservative government back in 2012. I have previously blogged about those changes here and here, and eventually wrote an article about them. What follows is a letter that I recently sent to FOPO with respect to the scope of its review, urging it to ensure that it has the evidentiary foundation necessary to make its review meaningful. Continue reading →