Category Archives: Regulatory

Ontario’s Neonicotinoid Law To Remain In Place

CBC and Better Farming are reporting that the Ontario Superior Court has upheld a provincial regulation to dramatically reduce the number of acres planted with corn and soybean seeds coated with a class of pesticides known as neonicotinoids, which are toxic to bees.

The regulation had been under challenge by the Grain Farmers of Ontario and a decision on the application, which was heard on September 28, 2015, was reserved by the Ontario Supreme Court. It is understood that this may not be the last word on this matter and Grain Farmers of Ontario is “reviewing [its] legal options”.

According to the Ministry of Environment and Climate Change, the new provincial requirements are intended to support the government of Ontario’s target to reduce the number of acres planted with neonicotinoid-treated corn and soybean seed by 80 per cent by 2017.

Banning the use of neonicotinoids has been a hot topic for the environmental movement for the past couple of years. For example, both Environmental Defence, and the David Suzuki Foundation, have called for complete bans on neonicotinoid use on the basis of studies which have shown and link between neonicotinoid pesticide use and escalating honeybee colony losses.

The decision follows on the heels of a US decision in September, 2015 where a US court overturned federal approval for a new  neonicotinoid formulation called sulfoxaflor. In that decision, the US court found that the Environmental Protection Agency had relied on “flawed and limited” data, and its green light was unjustified given the “precariousness of bee populations”.

It is time for an outright ban, country-wide, in Canada.

James Early

The Person Aggrieved vs. The Busybody | Standing When Challenging Decisions

In 2014, the British Columbia Supreme Court was asked (in Gagne v British Columbia, 2014 CarswellBC 3312, 2014 BCSC 2077), once again, to rule on the issue of “standing”.

Standing, from the Latin locus standi, determines whether a person has the right to bring a legal action. That person has to be sufficiently effected or harmed by an action or law in order to bring an legal claim. That person should not, however, be a “busybody”.

First, some background. On April 23, 2013, the Director of the Northern Region of the B.C. Ministry of Environment (the “Director”), granted an amendment to a multi-media permit, which increased the allowable daily emission of sulphur dioxide from 27 tonnes per day to 42 tonnes per day from an aluminum smelter operated by Rio Tinto Alcan (“Rio Tinto”) in Kitimat, B.C. This amendment was authorized in connection with Rio Tinto’s modernization of its Kitimat smelter.

This amendment was challenged by six individuals, the Skeena Wild Conservation Trust (the “Trust”), and the Lakelse Watershed Stewards Society (the “Society”). Two residents of Kitimat, B.C., were granted standing by the Environmental Appeal Board (the “Board”). Of those denied standing, four (including the Trust and the Society) petitioned the British Columbia Supreme Court for an order directing the board to grant them standing.

Ultimately, the British Columbia Supreme Court set aside the Board’s decision and directed the Board to reconsider whether the petitioners were “persons aggrieved”.

The Court found:

– that there was no doubt that the amount of sulphur dioxide emitted into the atmosphere was subjectively of significant importance the petitioners, and indeed the public in general;

– that the Trust and the Society “cannot be summarily excluded from the possibility of being a person aggrieved on the basis that they are not persons”.

– the burden on an applicant when applying for standing must only involve demonstrating to a prima facie (“at first sight”) standard that they are a person aggrieved, not a “balance of probabilities”. Note: a prima facie standard is lower, and therefore easier to achieve, than a balance of probabilities.

– a person aggrieved must demonstrate some form of prejudice to their individual interest, albeit only on a prima facie basis.

In addition to its comments on “persons aggrieved” and the test for determining standing, the Court also determined that the Board must rigorously comply with its own procedure manual. It did so because it found that, following the conclusion of written submissions in relation to the standing hearing, the Board requested extra records from Rio Tinto in breach of its own procedural manual.

Despite the fact that it was evident that the Board and Rio Tinto had acted in good faith throughout the “standing” proceeding, the Board’s breach of its own procedural manual had seriously breached the petitioners’ right to procedural fairness.

Following on from this decision, the Board then reconsidered the petitioners’ application for standing. The Board first noted that the test to establish standing as a “person aggrieved” is:

– Whether the person has disclosed sufficient information to establish, objectively and on a prima facie basis, that the appealed decision prejudicially affects the person’s interests.

Regardless, however, the Board found that none of the petitioners were “persons aggrieved” and, ultimately, the petitioners efforts were all for naught. The common reason appears to be the Board’s determination that Rio Tinto had provided unchallenged information that, under the Permit amendment, the level of sulphur dioxide emissions was predicted not to exceed BC Provincial Pollution Control Objectives outside of Kitimat and that the petitioners were resident some distance away from Kitimat.

James Early

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

AER Taking Baby Steps

Ecojustice recently reported on the Alberta Energy Regulator (“AER”) and the lack of action it has taken following a lot of hype when it was first introduced.

Well, one step does not a regulator make, but the AER has just shown some teeth in laying environmental charges against Plains Midstream Canada ULC.

The charges stem from a pipeline incident that occurred on June 7, 2012, and resulted in 2,900 barrels (461,000 litres) of sour crude oil being released from the company’s Rangeland pipeline into the Red Deer River near Sundre, Alberta.

Specifically:

“The charges include a federal charge under the Fisheries Act and a provincial charge for failing to report a release of crude oil from a pipeline as required under Alberta law.

“The provincial environmental charge stems from an Alberta Environment and Sustainable Resource Development (ESRD) investigation that found the company failed to report the release as required within Alberta’s Environmental Protection and Enhancement Act (EPEA).”

What will come of these charges? Does this baby step signal more to come from the AER, or will AER action only sporadically occur in the wake of pressure from organizations such as Ecojustice? Time will tell. For now, I for one am glad to see some teeth being shown.

By James Early