Author: Shaun Fluker Page 28 of 37

B.Comm. (Alberta), LL.B. (Victoria), LL.M. (Calgary).
Associate Professor.
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Raising Questions About the Use of an Offset For Compliance with Carbon Emission Reduction Obligations

On June 13, 2013

By: Shaun Fluker

PDF Version: Raising Questions About the Use of an Offset For Compliance with Carbon Emission Reduction Obligations

Case Commented On: Citizen’s Climate Lobby and Our Children’s Earth Foundation v California Air Resources Board (Superior Court of California, County of San Francisco, January 25, 2013, Case number CGC-2-519544)

This comment examines a recent judicial review decision by the Superior Court of California dismissing a challenge to the legality of the carbon emission offset regime established by California’s Air Resources Board (CARB). The petitioners in this case alleged the offset regime does not comply with its parent statute – the Global Warming Solutions Act of 2006, (California, AB 32) – and thus the CARB does not have legal authority to implement it. The essence of the claim was that a carbon emission offset created by the CARB regime would not necessarily represent the real and demonstrable carbon emission reduction required by the legislation. The Court ruled the offset regime created and administered by the CARB complies with the legislation.

Species at risk and an adjustment clause

By Shaun Fluker

On April 23, 2013

In Contracts, Environmental, Protection of Species

PDF version: Species at risk and an adjustment clause

Case considered: Matichuk v Quattro Holdings Ltd, 2013 ABQB 164.

The case of Matichuk v Quattro Holdings Ltd involves a contractual dispute over the sale of a parcel of agricultural land in St. Albert. The parties entered into a purchase and sale agreement in June 2012. The facts set out by Mr. Justice G.A. Verville suggest the Vendor was keen to sell and the Purchaser was keen to purchase in order to develop the land (I presume residential). Time was of the essence. The closing date was set for early October 2012. But the deal began to go sideways just a couple weeks before closing. The Purchaser sought an adjustment (reduction) on the purchase price to account for the facts that there are five wetlands on the property, some which may be Crown owned under section 3 of the Public Lands Act, RSA 2000, c P-30, and that a bird species listed as “special concern” under the Species at Risk Act, SC 2002, c 29 – was known to nest on the lands. The Vendor was not agreeable, and insisted on closing for the full purchase price. The parties filed counter claims and Mr. Justice G.A. Verville heard arguments in late February at the Court of Queen’s Bench. Justice Verville decided in favour of the Vendor, ruling the environment adjustments provision in the contract being relied upon by the Purchaser was so vague as to be meaningless and thus the Purchaser could not rely on it. Accordingly, Justice Verville found that the Purchaser had repudiated the contract by refusing to close the deal.

Migratory Birds and the City

By Shaun Fluker

On February 25, 2013

In Environmental, Protection of Species

PDF version: Migratory Birds and the City

Decision considered: Podolsky v Cadillac Fairview Corp. [2013] OJ No 581 (QL) [Note as of date of writing this decision is not available online at Canlii or the Ontario Court of Justice].

In this recent decision of the Ontario Court of Justice, Justice Melvyn Green finds the corporate defendant property developers and managers not guilty of charges laid against them by Ecojustice as a private prosecutor under the federal Species at Risk Act, SC 2002, c 29 as well as the Ontario Society for the Prevention of Cruelty to Animals Act, RSO 1990, c O.36 and the Environmental Protection Act, RSO 1990, c E.19. The substance of these charges is the physical harm or death suffered by migratory birds when they collide with urban buildings. Justice Green rules the prosecution established beyond a reasonable doubt that the defendants committed the actus reus of the offences, and he also finds the defendants established on the balance of probabilities that they took reasonable steps to avoid the bird collisions. Accordingly, Justice Green acquits the defendants on all charges.

No Public Interest Standing at the Alberta Environmental Appeals Board

By Shaun Fluker

On February 15, 2013

In Environmental, Intervenors and Standing, Water Law

PDF version: No Public Interest Standing at the Alberta Environmental Appeals Board

Decisions considered: Alberta Wilderness Association v Alberta (Environmental Appeal Board), 2013 ABQB 44; Water Matters Society of Alberta et al v Director, Southern Region, Operations Division, Alberta Environment and Water, re: Western Irrigation District and Bow River Irrigation District (10 April 2012), Appeal Nos. 10-053-055 and 11-009-014-D (AEAB), (the “EAB Standing Decision”).

Over the past decade, Alberta Environment has amended water licenses held by irrigation districts (IDs) to allow these IDs to allocate water for commercial purposes other than irrigation. Some question the authority of Alberta Environment to approve these amendments under the Alberta Water Act, RSA 2000, c W-3. The general argument here is that such change-of-purpose license amendments should be handled as a transfer of license allocation under the Water Act. And this argument is grounded on several points, including that by using the license amendment route rather than a transfer the conservation holdback provision of the Water Act is avoided and the amendment approach involves significantly less opportunity for public oversight over water management. This latter point has borne out further as public interest groups have been consistently denied standing to contest these approvals by Alberta Environment and the Alberta Environmental Appeals Board (EAB). The summary point is that Alberta Environment and the EAB assert public interest groups do not qualify as “directly affected” by a license amendment, and thus have no standing to file a statement of concern with Alberta Environment and/or a notice of appeal with the Board under the Water Act to challenge the legality of these amendments.

How the Canadian Forces defended the Sprague’s Pipit

By Shaun Fluker

On December 13, 2012

In Environmental

PDF version: How the Canadian Forces defended the Sprague’s Pipit

Decisions considered:

Decision Statement issued November 30, 2012 re: Cenovus (formerly EnCana) Shallow Gas Infill Development Project proposed for the Suffield National Wildlife Area, online here.

Re: EnCana Shallow Gas Infill Development Project – Review Panel Report under the Canadian Environmental Assessment Act, EUB Decision 2009-008, online here (the “2009 Panel Report”).

In October 2008 a joint review panel constituted under the Canadian Environmental Assessment Act, SC 1992, c 37 heard submissions and evidence from EnCana Corporation as the proponent of a proposed shallow gas well project (up to 1275 wells) to be located at the Canadian Forces Base Suffield National Wildlife Area in southeastern Alberta (the “Cenovus gas project”). The panel also heard submissions and evidence from other interested parties such as Environment Canada, the Department of National Defence, and a coalition of environmental groups including the Alberta Wilderness Association. Being a project located on federal lands (a national wildlife area designated under the Canada Wildlife Act, RSC 1985, c W-9), provincial departments such as Alberta Environment and Sustainable Resource Development played a minimal role in the proceedings. The joint review panel issued its assessment on January 27, 2009, essentially recommending to the federal Minister of Environment that the Cenovus gas project should not proceed until (1) critical habitat was designated for 5 listed species under the Species at Risk Act, SC 2002, c 29 [SARA], and (2) the project was designed to ensure it would not be located within these designated critical habitat areas or alternatively was expressly permitted to do so under the Species at Risk Act (2009 Panel Report at 171). The Minister of Environment responded on November 30, 2012 with a Decision Statement issued under section 54 of the Canadian Environmental Assessment Act 2012, SC 2012, c 19, s 52 (CEAA 2012) declaring that the Cenovus gas project was likely to cause significant adverse environmental effects that are not justified in the circumstances. Section 6 of CEAA 2012 prohibits Cenovus from proceeding with the Cenovus gas project and section 7 prohibits a federal authority from approving the project. That is the news. What follows is some commentary.