Category Archives: Environmental

The Past, Present, and Future of CIRL’s “Environment in the Courtroom” Symposia

By: Martin Olszynski and Allan Ingelson

Workshops commented on: Environment in the Courtroom (I): Key Environmental Concepts and the Unique Nature of Environmental Damage; Environment in the Courtroom (II): Environmental Prosecutions; Environment in the Courtroom (III): Sentencing and Environmental Offences

PDF version: The Past, Present, and Future of CIRL’s “Environment in the Courtroom” Symposia

Over the course of the last three years and with the support of Environment Canada (EC), the Canadian Institute for Resources Law (CIRL) has organized a series of symposia intended to strengthen the understanding and application of environmental law in Canadian courtrooms. In this post, we provide a snapshot of what this series has accomplished thus far and, thanks to continued funding and support from EC, the vision going forward as we plan the next three years of symposia.

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Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

By: Shaun Fluker

PDF Version: Leave to Appeal Granted in NRCB Case Concerning Participatory Rights and the Interpretation of ‘Directly Affected’ Persons Entitled to a Hearing

Decision commented on: JH Drilling Inc. v Alberta (Natural Resources Conservation Board), 2014 ABCA 134

The Alberta Court of Appeal has granted leave to JH Drilling to appeal a ‘standing’ decision by the Natural Resources Conservation Board (NRCB).  While not a decision on the merits of the issue, this leave decision is significant because the question for appeal will concern the NRCB’s interpretation of ‘directly affected’ in its governing legislation to determine participatory rights before the Board.  Moreover, the interest asserted by JH Drilling to be directly affected here is one of a commercial nature – JH Drilling is not a landowner or resident in the immediate vicinity of the proposed project in this case.  To my knowledge, this merit hearing will be the first time the Court of Appeal considers participatory rights before the NRCB.

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What the ELA Tells Us About Alberta’s New Monitoring Agency

By: Martin Olszynski

PDF Version: What the ELA Tells Us About Alberta’s New Monitoring Agency

Developments commented on: Government of Canada announces that a new operator for the Experimental Lakes Area has been secured; Appointment of Chair and Vice-Chair of Alberta’s Environmental Monitoring, Evaluation and Reporting Agency’s Board

This past Tuesday, the Canadian and Ontario governments, together with the Winnipeg-based International Institute for Sustainable Development (IISD) announced that an agreement had been reached to transfer responsibility for the Experimental Lakes Area (ELA) from the federal Department of Fisheries and Oceans (DFO) to the IISD.  Many readers will know that the ELA is the world-renowned research facility located in northern Ontario where since 1968 freshwater ecologists and other scientists have conducted numerous important and unique whole-lake experiments, including one by a then-recent Rhodes Scholar named David Schindler that resulted in the phasing out of phosphorus additives in cleaning products.  These same readers will also likely know that DFO’s funding for the ELA, a whopping $2 million per year, was cut as part of the (in)famous 2012 federal budget (which also took an axe to the National Roundtable on the Environment and Economy).  What readers might not know, however, is what these events tell us about the potential success of Alberta’s new independent monitoring agency, the Alberta Environmental Monitoring, Evaluation and Reporting Agency (AEMERA).

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To Be (Justified) or Not To Be: That is (Still) the Question

By: Martin Olszynski

PDF Version: To Be (Justified) or Not To Be: That is (Still) the Question

Document commented on: Decision Statement Issued under Section 54 of the Canadian Environmental Assessment Act, 2012, SC 2012, c19, for Taseko’s proposed New Prosperity Mine Project

A couple of weeks ago, the federal Minister of the Environment, Leona Aglukkaq, released another highly anticipated “decision statement” pursuant to section 54 of the Canadian Environmental Assessment Act, 2012 (CEAA 2012), this time regarding Taseko’s New Prosperity Mine project. Most readers will know that this was Taseko’s second attempt to secure federal approval for its proposed mine and that the federal review panel that conducted the second environmental assessment (EA) concluded that, like the original Prosperity project, it too was likely to result in significant adverse environmental effects (SAEEs) (for more on the panel’s report, see my previous post here). As with Shell’s Jackpine Oil Sands Mine expansion project and Enbridge’s Northern Gateway Pipeline project, this meant that New Prosperity could only proceed if the Governor in Council (GiC) (which is to say, Cabinet) concluded that these SAEEs were “justified in the circumstances” (section 53). Unlike Jackpine (and probably Northern Gateway), however, the GiC has apparently concluded that New Prosperity’s SAEEs are not justified.  I use the term “apparently” here because, as in Jackpine, there is no explanation or rationale contained in the decision statement as to how or why the GiC reached this result.

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Oral Argument Hints that Supreme Court May Trim Back U.S. Industrial Source Greenhouse Gas Regulations

By: James Coleman

PDF Version: Oral Argument Hints that Supreme Court May Trim Back U.S. Industrial Source Greenhouse Gas Regulations

Report Commented On: Oral argument in Utility Air Regulatory Group v Environmental Protection Agency (EPA)

On Monday the U.S. Supreme Court heard oral argument in Utility Air Regulatory Group v Environmental Protection Agency (EPA), in which petitioners challenged the EPA’s “Prevention of Significant Deterioration” (PSD) regulations for stationary industrial sources of greenhouse gases. These regulations, finalized in 2010, require sources that emit over 100,000 tons of greenhouse gases to obtain a PSD permit and adopt the “best available control technology” for every pollutant that they emit, including greenhouse gases. These regulations have been closely watched in Canada, especially given Prime Minister Harper’s suggestion that he would like Canada to move in tandem with U.S. greenhouse gas regulation.

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