Category Archives: Climate Change

Changes to Ontario Greenhouse Gas Emission Reporting Regulation

The Ontario Government is seeking comments on various suggested changes to the Greenhouse Gas Emissions Reporting Regulation. The aim of the changes is to simplify greenhouse gas emission reporting in Ontario. Diane Saxe (here) has summarized some of the changes as including:

  • changes to the Global Warming Potential (GWP) values to adopt internationally-accepted values
  • clarification on verification statements
  • clarification on temporary and partial closures
  • changes to the guideline to remain consistent with requirements in other provinces
  • streamline director approvals in the guideline

The Ontario government has provided a blackline draft of the changes, here. The comment period closes on January 19, 2015.

James Early

New Air Pollutant Regulations for Canada

Canada is to regulate industrial air pollutant emissions, according to the federal Minister of Environment. Taken from the Government of Canada website:

The Government of Canada is taking action to reduce industrial air emissions with the proposed Multi-Sector Air Pollutants Regulations (MSAPR). The regulations are a key part of the federal responsibility for implementing the new federal/provincial/territorial Air Quality Management System.

The MSAPR impose mandatory national performance standards on specific sector/equipment groups in order to establish consistent emissions limits for regulated industries across the country. The proposed regulations include requirements for stationary spark-ignition gas-fired engines, non-utility boilers and heaters, and the cement manufacturing sector.

Requirements for additional industrial sectors will be added to the regulations in the years ahead. Once fully implemented, industries will be required to reduce their emissions of nitrogen oxides (NOx), sulphur dioxide (SO2), volatile organic compounds, ammonia, and/or particular matter, which are all contributors to smog and increased health risks. Environment Canada estimates that there will be 3.4 megatonnes of greenhouse gas reductions between 2013 and 2035, as a co‑benefit to these regulations.

Stationary Spark-Ignition Engines
Stationary engines covered by the proposed regulations burn gaseous fuels and are typically used for gas compression in the upstream oil and gas sector (such as moving gas through pipelines), but can also be used for other purposes, such as back-up power generators for emergencies or in remote locations. These engines range in size from as small as the engine in a small car to as large as the engine found in a diesel-electric locomotive, and are a significant source of NOx emissions. In one hour of operation, an average-sized stationary spark-ignition engine emits as much NOx as an average light-duty vehicle does in almost 200,000 kilometres.

The proposed regulations would impose performance standards for both new and existing engines. The performance standards for new and existing engines are expected to reduce NOx emissions by about 1.8 megatonnes between 2013 and 2035, this is almost twice the amount of NOx that Canada’s entire mobile fleet—cars, trucks, planes, trains, tractors and other industrial equipment—emitted in 2011.

Non-utility boilers and heaters
Boilers covered by the proposed regulations burn gaseous fossil fuels, such as natural gas, to create hot water or steam for use in industrial processes and heating. Heaters directly heat the material being processed. In both boilers and heaters, the design of the burner is the most important determinant of NOx emissions intensity.

The proposed regulations would impose performance standards for both new and existing boilers and heaters. NOx emissions from regulated boilers and heaters are expected to be reduced by about 227,000 tonnes between 2013 to 2035. Using 2012 as the reference year, this is equivalent to eliminating an entire year’s worth of the NOx emissions from electric power generation, and commercial and residential fuel combustion.

Cement Manufacturing Sector
During cement manufacturing, the single greatest source of air pollutants of concern originates from the kiln. A kiln heats and processes limestone and other materials to produce an intermediate product called clinker. Clinker is then ground and combined with other materials to produce cement. The proposed regulations apply to all cement manufacturing facilities that produce clinker for the purpose of producing grey cement.

The proposed regulations would impose kiln-specific performance standards for NOx and SO2 per tonne of clinker produced. The proposed measures would impose performance standards starting in 2017. The cement sector produced a total of 16,000 tonnes of SO2 and 23,000 tonnes of NOx in 2011. The cement-sector standards are expected to reduce total SO2 and NOx emissions by 96,000 tonnes and 63,000 tonnes respectively between 2017 to 2035. For SO2, this is roughly the amount of sulphur dioxide in solid form that would fill 600 railcars, and 380 railcars for NOx.

Air Quality Management System
On October 11, 2012, the federal government, provincial and territorial governments agreed to begin implementing a new air quality management system (AQMS). The AQMS is a comprehensive approach for improving air quality in Canada and is the product of unprecedented collaboration by the federal, provincial and territorial governments and stakeholders. It includes:

– New Canadian Ambient Air Quality Standards (CAAQS) to set the bar for outdoor air quality management across the country (published in May 2013)

– Industrial emission requirements that set a base level of performance for major industries in Canada (first phase published in June 2014)

– A framework for air zone air management within provinces and territories that enables action tailored to specific sources of air emissions in a given area

– Regional airsheds that facilitate coordinated action where air pollution crosses a border
Improved intergovernmental collaboration to reduce emissions from the transportation sector

Following the announcement, the Globe Foundation pointed out that:

The new Multi-Sector Air Pollutants Regulations will not focus on the energy sector apart from capping emissions from Stationary Spark-Ignition Engines typically used for gas compression in the upstream oil and gas sector to move gas through pipelines, or as back-up power generators for emergencies or in remote locations.

The Multi-Sector Air Pollutants Regulations will be enabled pursuant to the Canadian Environmental Protection Act, 1999.

This is positive news for Canadians and our respiratory health, though much more needs to be done vis-a-vis the regulation of energy sector emissions generally.

By James Early

The Clean Power Plan, will Canada follow suit?

Today, President Obama and the Environmental Protection Agency (“EPA”) released the Clean Power Plan (the “Plan”), a 645-page rule created to curb global warming.

Amongst other things, the rule seeks to cut carbon emissions by 30% from 2005 levels by 2030. Under the rule, States must submit initial compliance plans by June 2016. Each state will be left to develop its own strategy for complying with the new guidelines. To read the Plan, if you have time, click here.

A summary of the Plan is can be gleaned directly from the Plan itself:

“Nationwide, by 2030, this rule would achieve CO2 emission reductions from the power sector of approximately 30 percent from CO2 emission levels in 2005. This goal is achievable because innovations in the production, distribution and use of electricity are already making the power sector more efficient and sustainable while maintaining an affordable, reliable and diverse energy mix.

“This proposed rule would reinforce and continue this progress. The EPA projects that, in 2030, the significant reductions in the harmful carbon pollution and in other air pollution, to which this rule would lead, would result in net climate and health benefits of US$48 billion to US$82 billion.”

Will the Plan result in legal challenges? Quite probably. One such challenge could be whether the EPA has overstepped its authority. A public comment period could also result in changes to the Plan.

Finally, will Canada follow in the footsteps of our southern neighbours? After all, didn’t Mr. Harper state that he would be acting “in concert” with the US on these matters? In the wake of the Copenhagen Summit on climate change (2009 United Nations Climate Change Conference), Mr. Harper announced that:

“[i]f the Americans don’t act, it will severely limit our ability to act. But if the Americans do act, it is essential that we act in concert with them.”

I’m on the edge of my seat…

By James Early

Kinder Morgan: Who Participates?

While thousands of interested parties participated in the Northern Gateway hearings, the same cannot be said of the Kinder Morgan National Energy Board (“NEB”) pipeline review.

More than 2,100 people applied to participate in the Kinder Morgan hearings, though as few as 400 will be permitted to appear as intervenors at the hearing. New rules enacted by the federal government now limit participation to only those who are directly affected by the project.

In order to participate, the NEB must be satisfied that an applicant:

-is directly affected by the granting or refusing of a project application

-has relevant information or expertise for the NEB to consider; or

-both.

As part of the new rules, the NEB is to determine who is directly affected by considering the following two factors:

1. The nature of the person’s interest.

2. Whether the granting or refusing of a project application causes a direct effect on the person’s interest.

The first enquiry addresses whether a person has a specific and detailed interest, rather than a general public interest. Examples of interests that could support participation are: commercial, property or other financial interest (including employment); personal use and occupancy of land and resources; or use of land and resources for traditional Aboriginal purposes.

In relation to this second stage, the NEB will consider the degree of connection between the project and the interest, the likelihood and severity of harm a person is exposed to, and the frequency and duration of a person’s use of the area near the project.

The interpretation of these rules, however, is proving contentious.

In challenging the rules on participation, this week Forest Ethics Advocacy, amongst others, filed an application with the NEB alleging:

“…[the restriction on participation] is a draconian, undemocratic limitation of their constitutionally guaranteed freedom of expression…”

The applicants also allege that the NEB used a very narrow definition of the phrase “directly affected”, and that the NEB refuses to hear submissions on climate change or fossil fuels:

“This board cannot determine whether the proposed pipeline is in the public interest without a full consideration of the environmental effects… …[th]e project is being proposed in order to increase pipeline capacity in support of growing oil production. Without acknowledging that increased production of oil sands is having a devastating effect on the environment, and resulting in climate change, this board cannot even begin to address the issues which it has deemed relevant

The NEB application follows on the heels of a Tsleil-Waututh application, filed just a few days earlier in the Federal Court of Appeal. In this case, the First Nation claims that the NEB review process is unilateral and one-sided.

The First Nation has stated:

“…serious legal errors made by the federal Crown and NEB have led to a flawed and unlawful review process that puts Burrard Inlet and all peoples who live here at risk.

“The Crown and NEB are running roughshod over our Aboriginal Title and Rights. The process to review Kinder Morgan’s proposed pipeline expansion and tanker project was designed without First Nations consultation or public participation. The timelines appear to have been designed to rush through approvals,” says Chief Maureen Thomas, Tsleil-Waututh Nation.

“Legal materials to be filed in the Federal Court of Appeal will demonstrate that, among other things, the NEB lacked legal authority to start its review process because of the federal government’s failure to first consult Tsleil-Waututh on key decisions about the environmental assessment and regulatory review of the project.”

Regardless of the disposition of the NEB and Federal Court applications, what appears to be certain is that litigation in relation to the Kinder Morgan project is not likely to stop. Currently the Northern Gateway project is facing litigation on at least 10 fronts from a range of parties including First Nations and environmental groups.

By James Early

Carbon Capture, Alberta’s Licence to Drill

Last week, the Government of Alberta announced that, as part of “Budget 2014”, Alberta will continue to invest in two carbon capture and storage projects that, it says, will reduce greenhouse gas emissions from oil sands upgrading.

The report added that these two projects will commence in 2015 and will store 2.76 million tonnes of carbon dioxide per year, the equivalent, Alberta says, of taking 550,000 cars off the road each year.

What happens to the carbon dioxide once it is pumped underground? Is it safe? Will it leak? What energy has to be expended to actually pipe the carbon dioxide to its final resting place? Perhaps these questions need to be asked, and answered. Likely the carbon dioxide will be used to extract even more oil from the ground – adding more gas-using vehicles to our roads?

One thing is for sure, carbon capture and storage is being used by industry and the Alberta and Canadian governments as a licence to continue along the unsustainable path of developing the Alberta tar sands.

By James Early

Green Transit Projects Get Green Light in Alberta

In an announcement made by the Alberta Government on April 15, 2014, Alberta municipalities were advised that they may now submit new GreenTRIP applications.

The Green Transit Incentives Program (“GreenTRIP”) is a program that financially assists municipalities with the development of sustainable public transit alternatives.

This second call for GreenTRIP funding applications means municipalities can now apply for capital grant funding to support their new or evolving public transit projects. The deadline for receipt of applications is November 30.

GreenTRIP has already led to transit projects in 15 municipalities, worth more than $1 billion, and reported $1 billion remains in the program.

GreenTRIP is designed to provide Alberta residents with a wider range of sustainable and accessible public transit alternatives for local, regional and inter-municipal travel. This second call, and the length of the application period, gives municipalities time to consider their local transit priorities and opportunities for regional collaboration. It may also allow those communities with plans in place to move ahead sooner than expected.

Municipalities can apply for GreenTRIP funding to help purchase transit vehicles and technologies, build transit terminals and expand light rail transit services. Applicants for GreenTRIP funding are required to contribute at least one-third of the capital cost of a project.

By James Early

Green Energy vs Conservation

It is unfortunate when environmental litigation pits two “green” battles against one another. In this case, it is green energy against conservation.

This legal battle stems from a decision made by the Ministry of Environment for Ontario (“MOE”) to issue a Renewable Energy Approval (“REA”), which authorized Ostrander Point GP Inc. (“Ostrander”) to construct and operate nine wind turbines in Prince Edward County in Ontario (the “Project”).

As a result of the MOE’s decision, the Prince Edward County Field Naturalists (“PECFN”) and the Alliance to Protect Prince Edward County (“APPEC”) filed appeals, arguing that the Project would cause serious and irreversible harm to animals and human health.

Between March and June 2013, for a period of forty days, the Environmental Review Tribunal (“Tribunal”) heard the appeal, hearing evidence from thirty-one experts, along with a number of fact witnesses.

In a decision dated July 3, 2013, the Tribunal allowed the appeal of PECFN and revoked the MOE’s decision to grant a REA. The Tribunal found that the Project would cause serious and irreversible harm to the Blanding’s turtle. The Tribunal rejected PECFN’s arguments relating to birds and alvars, and rejected APPEC’s argument regarding the impact to human health.

With the Project at risk, Ostrander and the MOE appealed the Tribunal’s decision, arguing that the Tribunal was incorrect when it found that the Project would cause serious and irreversible harm to the Blanding’s turtle.

Not to be outdone, PECFN appealed the Tribunal’s decision as it related to the dismissal of PECFN’s argument that the Project would bring serious and irreversible harm to birds and alvar. APPEC also appealed the Tribunal’s decision as it related to the dismissal of their argument that the Project would impact human health.

On January 21, 22 and 23, the Ontario Superior Court of Justice heard the appeals.

The Court conducted a thorough review of the particulars of the Blanding’s turtle, its predators, and its threatened status. It seemed to the Court that, based upon the evidence available, it was “unquestionable” that there was a risk of serious harm to the Blanding’s turtle from the Project. The question, however, was whether the harm was irreversible.

In reviewing the Tribunal’s decision, the Court found numerous errors in the Tribunal’s analysis and decision making including:

– making findings with no factual foundation;

– failing to interpret and apply the Endangered Species Act (“ESA”) harmoniously with the Environmental Protection Act (“EPA”); and

– failing to separately consider the issue of irreversible harm.

In particular, the Court found that the Tribunal did not have a handle on the population size of the Blanding’s turtle, or where the population was located, or what impact vehicular traffic would have on the turtle. The Court also ruled that the Tribunal erred by considering the issue of irreversible harm in conjunction with serious harm when those lines of analysis should have been separate.

The Court opined that the Tribunal failed to give sufficient weight to the fact that Ostrander had obtained an ESA permit in relation to the Project. While the Court expressly noted that the Tribunal does have jurisdiction to consider the issue of Blanding’s turtle mortality, even in the face of the ESA permit, the permit was relevant and significant evidence relating directly to the issue that the Tribunal had to decide and, by failing to give sufficient weight to the permit, the Tribunal failed to ensure harmonious interpretation and application of the ESA and EPA.

Based upon these errors, the Court set aside the Tribunal’s decision.

With regard to the remaining appeals, the Court found that the Tribunal’s decision with regard to birds and alvar was reasonable and was entirely within the scope of the Tribunal’s statutory mandate. The Court also found that the Tribunal’s decision on the issue of human harm was also a reasonable. All of the remaining appeals were, therefore, dismissed.

Subject to an appeal of the Court’s decision, Ostrander’s Project now has the green light to proceed despite the “unquestionable” serious harm that it may cause to the Blanding’s turtle.

Wind trumps turtle in this battle. However, at the time of writing, it appears that PECFN is considering seeking leave to appeal to the Court of Appeal. The war may not be over. To read the full text of this decision, see: Ostrander Point GP Inc. and another v. Prince Edward County Field Naturalists and another, 2014 ONSC 974 (CanLII)

By James Early.