Meinhard Doelle

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.

By: Martin Olszynski and Meinhard Doelle

PDF Version: Ontario Power Generation Inc. v Greenpeace Canada: Form over Substance Leads to a “Low Threshold” for Federal Environmental Assessment

Case Commented On: Ontario Power Generation Inc. v Greenpeace Canada et al, 2015 FCA 186

In this decision, a majority of the Federal Court of Appeal (Justices Trudel and Ryer) overturned a ruling of the Federal Court (Justice Russell) finding that the environmental assessment of Ontario Power Generation’s (OPG) Darlington New Nuclear project conducted by a Joint Review Panel failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (since replaced with the Canadian Environmental Assessment Act, 2012 SC 2012 c 19). Justice Russell found gaps in the Panel’s assessment (specifically with respect to hazardous substances emissions, spent nuclear fuel, and a failure to consider the effects of a severe ‘common cause’ accident) that in his view were unreasonable in light of the purpose and scheme of the Act. The majority of the Federal Court of Appeal, on the other hand, endorsed a more formal approach to judicial review in this context, holding that reasonableness was a “low threshold” (at para 151) such that a panel need only give “some consideration” to a project’s environmental effects (at para 130) to be reasonable; it is only where a panel “gives no consideration at all” that its assessment will be deemed unreasonable (at para 130). Justice Rennie dissented, agreeing with Justice Russell with respect to hazardous substances emissions (at paras 48 – 50) and endorsing the latter’s characterization of CEAA as a two-step decision-making process that is intended to be evidence-based and democratically accountable (at para 52). Because of its potential to seriously undermine the effectiveness of the federal environmental assessment regime, this post focuses on the majority’s approach to reasonableness review in this context. Both of us previously commented on Justice Russell’s decision in separate blog posts (see here and here), and one of us wrote up a full case comment on it (forthcoming in the Dalhousie Law Journal).

Author: Meinhard Doelle

Do Comparisons Between Tobacco and Climate Change Liability Withstand Scrutiny?

Ontario Power Generation Inc. v Greenpeace Canada: Form over Substance Leads to a “Low Threshold” for Federal Environmental Assessment