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November 21, 2011 - Volume 8, Number 8

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Federal News

PROVINCIAL NEWS

ONTARIO

QUEBEC

WHAT'S HAPPENING?


Federal News

Environment Canada releases greenhouse gas reporting requirements for 2011

Environment Canada has issued a notice setting out the greenhouse gas (“GHG”) reporting requirements for the 2011 calendar year. The reporting requirements apply to facilities that emit 50,000 tonnes of CO2 equivalent or more of GHGs. Facilities that meet this reporting threshold must submit the required information by June 1, 2012.

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Mercury compounds to be added to List of Toxic Substances

Environment Canada and Health Canada have proposed an order adding mercury compounds to the List of Toxic Substances under the Canadian Environmental Protection Act, 1999. Although the list currently includes “mercury”, this is considered insufficient to accomplish the government’s risk management objectives. Replacing “mercury” with “mercury and its compounds” would, according to the government’s Regulatory Impact Analysis Statement, improve “Canada’s ability to manage the risks associated with mercury effectively”, for example by allowing for the control of “batteries and polyurethane catalysts which contain mercury compounds”. The proposed order and the Regulatory Impact Analysis Statement are available in the Canada Gazette.

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Chemicals Management Plan extended for five years

On October 3, 2011, the Ministers of Health and the Environment announced the renewal of the Chemicals Management Plan. The next phase of the plan will receive $506 million in funding over five years. According to the official announcement, the next phase will include:

  • Improving product safety in Canada;
  • Completing assessments of 500 substances across nine categories including phthalates which are used primarily in plastics;
  • Investing in additional research for chemicals like Bisphenol A, flame retardants, chemicals that affect hormone function and chemicals that affect the environment.

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Commissioner of the Environment and Sustainable Development releases annual report

Scott Vaughan, the federal Commissioner of the Environment and Sustainable Development, tabled his annual report in the House of Commons on October 4, 2011. The report focuses on two issues: climate change and the oil sands.

Under the Kyoto Protocol Implementation Act, the government is required to prepare annual climate change plans and the Commissioner is required to review them. The Commissioner’s report notes that “Canada is not on track to meet its commitments under the Kyoto Protocol to reduce greenhouse gas emissions. This is not new.” The report adds that it is unclear whether the government will even be able to achieve its more modest goal, arising out of the Copenhagen Accord, of reducing GHGs by 17 percent from 2005 levels by 2020. The report adds that, “despite allocations of more than $9 billion, the government has yet to establish the management systems and tools needed to achieve, measure, and report on greenhouse gas emission reductions.”

The Commissioner is also critical of what the government has done to understand the cumulative effects of oils sands projects in Alberta. The report asserts that environmental assessments of such projects under the Canadian Environmental Assessment Act have been done on the basis of incomplete information due to “insufficient or inadequate environmental monitoring systems”. The report notes that the government has recently taken a “good first step” towards closing these “information gaps”. Namely, the government convened an expert Oil Sands Advisory Panel last year to examine the current state of environmental monitoring in the region, and in response to the panel’s report has developed a detailed plan for improving the system.

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PROVINCIAL NEWS

ONTARIO

New Environment Minister named

Following the provincial election on October 6, 2011, Jim Bradley was named Minister of the Environment. Mr. Bradley has been the MPP for St. Catharines since 1977 and has held several portfolios including Community Safety and Correctional Services, Municipal Affairs and Housing, and Transportation. He also served as Environment Minister in 1985-1990. He replaces John Wilkinson, who lost his seat in Perth-Wellington.

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QUEBEC

The Minister of Sustainable Development, Environment and Parks goes carbon neutral

Pierre Arcand, Minister of Sustainable Development, Environment and Parks of Québec, recently announced that he will offset his travel-related GHG emissions representing approximately 28 tons of CO2 equivalent per year. The Minister will compensate these emissions through a financial incentive of $15,000 paid to ZEROCO2 towards the latter’s measures to obtain a verified carbon standard certification for its tree-planting initiative in the urban setting of Les Salines Park in St-Hyacinthe, Québec. This initiative, according to the Minister, will be one amongst other efforts he intends to deploy in order to limit and optimize his travelling whether through teleconferences or opting for commercial flights with a view to contributing personally to limiting GHG emissions in the province. 

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Reinforcement of compliance with the Environment Quality Act: Bill 89 passed on October 4, 2011

Bill 89 entitled An Act to Amend the Environment Quality Act in order to reinforce compliance was passed on October 4, 2011. The Act comes into force on November 4, 2011 except for certain provisions, namely Sections 115.13 to 115.28 which create a new monetary administrative penalties system that will only come into force on February 1, 2012. This new system will allow persons designated by the Minister of Sustainable Development, Environment and Parks to impose monetary administrative penalties on any person or municipality that fails to comply with the Environment Quality Act (“EQA”) or its regulations in the cases and under the conditions that will be established through a general framework that will be made public before its coming into force next February.  Depending on the nature of the failure to comply with the EQA, the monetary penalty, which can be imposed within two years of the failure, will vary, for a corporation, from $1,000 to $10,000 (for each day during which a failure continues). The persons targeted by such penalties shall have the right to request a review and to be provided with an opportunity to submit observations and produce any documents to complete the record. The person responsible for the review shall render a decision on the basis of the record, unless the person deems it necessary to proceed in some other fashion. The review may confirm, quash or vary the decision under review. The applicant will also have the right to contest the decision before the Administrative Tribunal of Québec within the time prescribed for that purpose. 

Bill 89 also provides for a significant increase of the amounts of fines, in some cases up to $6,000,000 for each day during which an offence is continued, that may be imposed by a court. The Bill sets forth certain aggravating factors which the courts must take into account in imposing the penalties. The amendments to the EQA grant to the Minister of Sustainable Development, Environment and Parks the power to order work or activities to be stopped if they cause serious harm or damage, or create a risk of serious harm or damage, to human health or the environment. In addition, the government or the Minister is given the power under certain conditions to deny, amend, suspend or revoke any authorization, certificate or permit they issue particularly in cases where a fiscal or other criminal offence may have been committed by the proponent or a director, officer or shareholder of that proponent in the two, and in some cases five years, prior to the application being made for an authorization, certificate or permit, or the amendment thereof, or of the Minister’s or government’s decision. The Act also provides that public registers must be kept to record information on monetary administrative penalties imposed and on offences committed.

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WHAT'S HAPPENING?

The Practical Law Company’s newly published Environment Multi-jurisdictional Guide has recognized Gowling Lafleur Henderson LLP as a “Highly Recommended” firm in the area of Environmental Law and as a “Recommended” firm in Climate Change Law. PLC’s Environment Guide also recognizes Harry Dahme, David Estrin, Paul Granda and Mark Madras in the area of Environment and Mark Madras in the area of Climate Change.

Paul Granda presented a two day training course on environmental law organized by Réseau des ingénieurs du Québec on November 10-11, 2011.

Douglas Clarke of our Montréal office, who heads Gowlings’ National Climate Change Group, spoke on November 17, 2011 at the “Colloque Air et Changements Climatiques” in Montréal organized by Réseau Environnement on the topic “Étude comparative des différents systèmes de plafonnement et d'échange dans les juridictions membres de la WCI” (Comparative study of the different cap-and-trade systems in the member jurisdictions of the WCI).

Mark Madras will be speaking at Allen & Overy's International Environmental Law Conference in London, England, on December 7, 2011. Mark will be on an America's panel, providing a Canadian perspective on international environmental law developments.

Mark Madras and Jennifer Danahy will be speaking at Federated Press' 6th Environmental Deal-Breakers in Real Estate and Business Transactions Course to be held in Toronto on January 30 & 31, 2012.  Mark and Jennifer will co-lead a workshop on “Structuring the Transaction in Order to Allocate Environmental Liability”. 

Paul Granda will be speaking on the new Quebec regulatory requirements applicable to shale gas and petroleum exploration and production at the "Colloque Sols et Eaux Souterraines" organized by Réseau Environnement that will take place in Drummondville, Québec on November 30, 2011.

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Harry Dahme (Toronto)
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