Ministry of the Environment Announces Framework for Major Overhaul of Ontario's Environmental Approvals

Bryan J. Buttigieg, Toronto

In March of 2010 Ontario’s Ministry of Environment issued a document titled “Modernization of Approvals – Proposed Legislative Framework for Modernizing Environmental Approvals”. Posted on the environmental registry, the document outlines a proposal for a major overhaul of Ontario’s environmental approvals process – a process which, with only a few changes, has been in place for almost 40 years. The MOE has stated that it expects to begin introducing changes to the approvals system by September 2012.

Background

The current process, involving “certificates of approval” for air and land (issued under the Environmental Protection Act) and water (under the Ontario Water Resources Act) dates back to the 1970’s. One of its major drawbacks is its inflexibility – all activities must go through the same approvals process regardless of uniqueness, complexity or the potential harm the activity may represent.  Approvals once issued, tend to stay in place for years unless the approval holder seeks an amendment. One effect is that the same activity conducted by two identical businesses may be controlled by two very different sets of conditions simply because the certificates were obtained years apart or issued by different reviewers.

The Proposed Modernized Approvals Process

The MOE describes the “most notable” aspects of the proposed process as:

• A new, simplified process for activities that could be characterised as low risk, less complex or have standard requirements;

• Provisions for single-site, multi-media (ie air, land and water combined) permits or single, multi-site approvals;

• Service delivery standards and on-line access and tools; and

• Improved public transparency.

A Two Path Approval Process: The Registry and New Certificates of Approval

The proposed approvals system would have two paths. A Registry would be created by the enabling legislation and selected activities would be registered with the MOE, provided they meet specified eligibility requirements. Rules of operation for the facility would be established by regulation. Compliance would be determined by an auditing process conducted by the MOE. The intent appears to be to include many common activities within this process.  This will increase uniformity of compliance obligations and should simplify the process for obtaining “routine” approvals.

Activities that would not qualify for the Registry would be subjected to an approvals process, somewhat similar to what is in place today. This would involve detailed technical review by the MOE. The main difference to the current system would be that one approval would be issued to cover all activities on site regardless of whether air, land or water was potentially affected. Similar “system-wide” approvals could be issued to an owner having multiple sites engaged in similar activities.

All activities in the Province would eventually be subject to the new system.

Implications of the Proposed Changes

A key difference from the current system is that unique permitting legislation will be created as opposed to having the approvals process embedded within specific statutes such as the EPA or the OWRA. This should allow for greater legislative and regulatory flexibility and may result in more frequent changes to the permitting system than has been seen under the current system.

While obtaining one permit for an entire site has great apparent benefits at the time of the original application, the system may in fact become more cumbersome and less flexible once the approved activities go into operation. One concern might be that once a “site-wide” or “system-wide” permit is in place, any change to any part of that permit, may trigger a review of the entire permit and all activities it covers. In contrast, under the current system of individual permits, there is virtually no risk that an application to amend a CofA for a waste water treatment plant will trigger a review of conditions for a certificate of approval issued for say, air emissions under s.8 of the EPA.  The new system may make obtaining amendments to permits more expensive, more time consuming and more fraught with uncertainty than the present system unless explicit provisions are put in place limiting the scope of review to the subject matter of a proposed change.

Recognising some of this problem, the MOE is proposing to allow “operational flexibility” under the new permits similar to what is now granted under comprehensive Certificates of Approval. The challenge will be to create a system that allows enough flexibility to avoid creating a cumbersome amendment system without removing all regulatory scrutiny of material changes in operations.

Activities allowed under the new Registry system would also have to live with a certain element of uncertainty, since any change to the regulation governing registered activities might require all activities “re-register” in order to remain compliant. This could make it very expensive for industry to remain in compliance if there are frequent or unexpected changes to the regulation. Under the current system, the holder of a certificate is in control of when to make changes to their permit. The new registry system will grant an equal control to the regulator and allow the regulator greater ability to ensure that the rules do not become out of date.

Current CofA’s to Become Obsolete

It is proposed that all activities would have to comply with the new system. The net result is that by the time the new legislation has taken full effect, all current CofA’s would become obsolete and every one would have been replaced by a new approval with new conditions of operation either as dictated by the Registry regulation or by the conditions of a new Site or System-Wide CofA. This will allow the MOE an opportunity to look at older (sometimes referred to as “grandfathered”) CofA’s and bring them into compliance with modern standards. Industry that has counted on so-called “grandfathered” operations will need to begin planning now for the possibility that their current activities may no longer be permissible after as early as September 2012 (the date the MOE wants to begin introducing the new system).

Finally, unlike current approvals, and presumably to avoid the problems caused by the current system of old, unchanged CofA’s, the MOE has stated that new CofA’s will likely have a “sunset clause” that will require regulatory review after say 10 or 15 years. The MOE is also proposing that the legislation grant it the “explicit” power to revoke approvals based on a history of poor compliance.

Conclusion

Experience with the Record of Site Condition regulatory process has shown that legislative changes in the environmental area can be fraught with controversy. Consultation from this early a stage is laudable. Of course, the most meaningful consultation will still only be possible once the actual legislative and regulatory drafts are available. Ample time will need to be provided for review and comment if there is to be widespread acceptance of such dramatic changes to a system that has been in place for so long.

The challenge, as with any legislation that claims to be more “modern” and “flexible”, is that it will need to be seen by business as being responsive to their needs, allowing investments to proceed in a timely and efficient manner and providing the stability and certainty of operation needed to make long term investments in the province. At the same time, the legislation will have to maintain the confidence of interest groups that “modernizing”, “flexibility” and “service delivery guarantees” are not euphemisms for doing away with environmental controls, protections and meaningful public consultation.

Public comment on the framework document is invited until April 16, 2010.

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The Environmental Assessment Track - Discretion to Scope is Not Discretion to Track?

Sarah D. Hansen, Vancouver

In Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, Red Chris Development Company and BCMetals Corporation (“Red Chris”) sought to develop a copper and gold open pit mining and milling operation in north-western British Columbia. In May 2004, Red Chris triggered a federal environmental assessment by submitting to the Department of Fisheries and Oceans (“DFO”) applications for dams required to create a tailings impoundment area.

DFO initially concluded that a comprehensive study was required because the project’s proposed ore production was great enough that it fell within the provisions of the Comprehensive Study List Regulations, SOR/94-638 (“CSL”), under the Canadian Environmental Assessment Act (“CEAA”). However, DFO subsequently advised that it had scoped the project such that it excluded the mine and the mill and, as a result, a comprehensive study was not necessary and the assessment would proceed by way of screening.

In April 2006, the Screening Report was released, concluding that the project is not likely to cause significant adverse environmental effects, and in May 2006, the project was allowed to proceed. In June 2006, Mining Watch Canada, a non-profit society interested in the environmental, social, economic, health and cultural effects of mining and in particular its effects on indigenous people, filed an application in the Federal Court for judicial review of the decision to conduct a screening rather than a comprehensive study. It alleged a breach of the duty under the CEAA to conduct a comprehensive study and to consult the public on the scope of the assessment.

The Federal Court allowed the application, concluding that the DFO had been correct in first determining that the project required a comprehensive study. However, the Federal Court of Appeal allowed the appeal, holding that “project” for federal environmental assessment purposes means “project as scoped” by a federal responsible authority (“RA”).

The issue before the Supreme Court of Canada thus became whether the environmental assessment track is determined by the project as proposed by a proponent or by the discretionary scoping decision of the federal authority.

The position of Red Chris and the government was that s. 15(1) of the CEAA, which grants the discretion to “scope” the project, i.e. define what aspects of the project will be included in the federal environmental assessment, includes the discretion to “track” the project, i.e. determine the level of assessment. According to this argument, even though a project as proposed by a proponent appears in the CSL, it is open to a RA to scope the project for federal environmental assessment purposes in a more limited way. If the project as scoped by the RA is not in the CSL, it will be subject to a screening and not a comprehensive study.

Mr. Justice Rothstein, speaking for a unanimous Court, held that the approach of the Federal Court of Appeal and that advocated by Red Chris and the government could not be sustained. He concluded the CEAA and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a federal authority to change that level.

This conclusion was based on Rothstein J.’s interpretation of s. 21(1) of the CEAA, which initiates the set of procedures that RAs must follow when a project is listed in the CSL. He found that the word “project” in s. 21 meant “project as proposed” by the proponent, not “project as scoped” by the RA. This was based on three main considerations:

• The statutory definition of “project” in s. 2 of the CEAA is “project as proposed”, and there is nothing in s. 21 to suggest that the defined term is not applicable or is displaced by the project as scoped by the RA under s. 15.
   
• The CSL describes projects in terms of proposals.
   
• The CEAA grants the Minister the authority to prescribe that certain projects or classes of projects are subject to a comprehensive study. Red Chris and the government’s interpretation of s. 21 would subordinate decisions of the Minister to decisions of the RA, which runs contrary to the presumption in Canada with a democratically elected responsible government.

Mr. Justice Rothstein also held that tracking and scoping are distinct steps in the CEAA process. While the RA does not have the discretion to determine the assessment track, once the appropriate track is determined, it has the discretion to determine the scope of the project for the purposes of assessment under s. 15(1)(a). Further, while the presumed scope of the project to be assessed is the project as proposed by the proponent, under s. 15(2) or (3), the RA or Minister may enlarge the scope in the appropriate circumstances.

In result, since the project as proposed by Red Chris was described in the CSL, the Court held that the requirements of s. 21 applied. The RAs were free to use any and all federal-provincial coordination tools available, but they were still required to comply with the provisions of the CEAA pertaining to comprehensive studies. By conducting a screening, the RAs acted without statutory authority.

The application for judicial review was allowed, and the Court declared the RAs erred in failing to conduct a comprehensive study. No further relief was warranted in the circumstances because the Court held that Mining Watch had no proprietary or pecuniary interest in the outcome of the proceeding and did not participate in the environmental assessment. Thus because there was no evidence of dissatisfaction by an interested party, this was just a test case and no further relief was warranted and Red Chris was not required to repeat the environmental assessment process.

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Public Disclosure: The Ontario Securities Commission Acts to Provide Guidance to Reporting Issuers on Environmental Matters

J. Bruce McMeekin, Markham

In December, the Ontario Securities Commission (“OSC”) issued OSC Notice 51-717 announcing its intention to provide greater guidance to reporting issuers on compliance with the existing environmental disclosure requirements under National Instrument 51-102 Continuous Disclosure Obligations.

In April 2009, the provincial legislature unanimously approved a resolution requesting the OSC to undertake a broad consultation towards establishing best practice corporate social responsibility and environmental and social governance reporting standards.  Subsequently, at the direction of Finance Minister Duncan, the OSC reviewed the existing reporting standards, consulted with stakeholders and provided its recommendations in December 2009 to the Minister in its Report entitled “OSC Corporate Sustainability Reporting Initiative”.  The Report concluded, in part, that the descriptions of environmental risks by many reporting issuers were poor or limited.

The OSC initiative will not change the existing reporting requirements, which were found to be satisfactory.  Instead, a new staff notice will be issued by the end of 2010 which will assist reporting issuers on compliance with the existing requirements, both in general terms and possibly on an industry-specific basis.  The OSC will also act to improve training for its staff on the environmental disclosure requirements to assist with the better evaluation of compliance with the reporting requirements.

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Species at Risk - Introduction

Kathleen J. Kendrick, Calgary

The Species at Risk Act (“SARA”) came fully into force on June 1, 2004.  The goal of the Act is to prevent wildlife species from becoming extinct and to help species at risk recover.  SARA is intended to work with complementary provincial and territorial legislation to protect all wildlife species at risk everywhere in Canada.  The Act applies on federal lands, to aquatic species and to birds under the Migratory Birds Convention Act.  The Act may also apply to provincial lands if it is determined that provincial laws do not effectively protect listed species, or their residences or critical habitat (s. 34).  To date, Alberta does not have endangered species legislation.

SARA took nearly ten years to pass for a variety of reasons, including jurisdictional wrangling between the federal and provincial governments, major policy debates over how habitat should be protected and whether scientists or politicians should decide which species would be legally protected.  Furthermore, there were fears about U.S. style litigation over endangered species and concerns about private land issues and compensation.

The purpose of SARA is to:

• prevent Canadian species from becoming extirpated or extinct;
   
• provide for the recovery of endangered or threatened species; and
   
• encourage the management of species of special concern to prevent them from becoming endangered or threatened.

The Act pursues these ends by providing a mechanism for species at risk to be identified and, where appropriate, given legal status.  In addition, SARA recognizes that compensation may be needed to ensure fairness following the imposition of the critical habitat prohibitions.  In the period leading to enactment and for some time thereafter, compensation was an extremely contentious issue, especially for the agricultural community.  Much of the concern was founded on the mistaken assumption that the habitat provisions would have extensive application on private lands, which they do not.  For the rare instances where the habitat provisions do apply to private land, the Government of Canada may provide “fair and reasonable” compensation for losses due to extraordinary impacts arising from a prohibition on the destruction of critical habitat (s. 64).

The Parks Canada Agency, Fisheries and Ocean Canada and Environment Canada share responsibility for implementing SARA.  Ministers have the authority to make decisions in their respective areas of responsibility and are required to consult with each other as necessary on matters relating to SARA.

The listing process is at the heart of SARA and is a prerequisite to protection under SARA.  Unless a species is included in the “List of Wildlife Species at Risk” in Schedule 1 to the Act (“List”), it will not be eligible for protection.

The Act establishes the Committee on the Status of Endangered Wildlife in Canada (“COSEWIC”).  COSEWIC is not part of the federal government – it is an independent body of experts who are responsible for assessing and identifying species at risk based on best available information.  Best available information includes scientific knowledge, community knowledge and Aboriginal traditional knowledge.  After receiving a recommendation from COSEWIC, the government consults with concerned ministers, relevant wildlife management boards and the public to consider many factors, including possible social and economic implications of listing the species. The government then decides whether to add a species to the List of Wildlife Species at Risk.

Once a species is added to the List, the provisions under SARA apply to protect and recover the species. It is illegal to kill, harm, harass, capture or take an individual of any Listed species.  The List continually evolves as species are added or removed as their status changes.

COSEWIC must review the classification of each species at risk at least once every 10 years, or at any time if it has reason to believe the status of the species has changed significantly.  COSEWIC must annually prepare a completed list of every wildlife species it has assessed and a copy of that list must be included in the public registry.  Any person may apply to COSEWIC for an assessment of the status of a wildlife species.

No person can damage or destroy the residence of an endangered or threatened species.  As well, a person can not damage or destroy the residence of an extirpated species if a recovery strategy has recommended the reintroduction of the species into the wild in Canada.  “Residence” means a dwelling place such as a den or nest that is occupied, or habitually occupied, at any time during their life cycle.  “Critical habitat” means habitat that is necessary for the survival or recovery of a Listed species.  Critical habitat is identified in the “recovery strategy” or “action plan” for that species.  The onus is on companies to determine whether Listed species, their residences or critical habitat are present in the areas in which they operate.  If the land you operate on has current or previous occurrences of Listed species, residences, or critical habitat, it is recommended that you perform an inventory on the property.  Taking stock of rare species is a complex task and should be conducted by specialists.

Once you have determined that a Listed species may live in or pass through the areas you operate in or if you are aware that residences or critical habitat may exist, you must:

• ensure that the activities you carry out in those areas comply with SARA requirements;
   
• ensure that the competent minister is notified if your project requires an assessment of environmental effects and is likely to affect a SARA listed species or its critical habitat;
   
• apply for an authorization if a proposed or current activity could contravene a SARA prohibition; and
   
• take SARA requirements into account when you sign agreements with subcontractors.

SARA has been criticized for a failure to lay out clear compliance rules as they pertain to the automatic prohibitions and enforcement provisions of the Act.  In the next issue of EnviroNotes, we will discuss implications of Incidental Harm Agreements and Permits as they relate to automatic prohibitions. 

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News From the Ontario Ministry of Environment: Recent Prosecutions and Fines

J. Bruce McMeekin, Markham

On March 2, U.S. Steel Canada Inc. (formally Stelco) pleaded guilty to one count of having caused or permitted the discharge of black particulate into Hamilton harbour from a blast furnace, contrary to section 14(1) of the Environmental Protection Act ( “EPA”).  The company was fined $150,000 in addition to the automatic 25 per cent victim impact surcharge.

On November 5, 2009, B.P. Canada Energy Company pleaded guilty to have caused the discharge of an odorous vapour plume which caused or was likely to cause an adverse effect, contrary to EPA section 14(1). The discharge occurred at the company’s Sarnia Facility.  Some local residents experienced headaches, sore throats and nausea.  The company was fined $800,000 in addition to the 25 per cent surcharge.

Penalties for EPA section 14(1) offences are substantial. For a company on a first offence, there are minimum and maximum fines for each day the offence continues or occurs of $25,000 and $6,000,000, respectively. These amounts increase to $50,000 and $10,000,000, respectively, on a second offence, and $100,000 and $10,000,000, respectively, on third and subsequent offences. In addition, each fine is subject to the automatic 25 per cent victim fine surcharge. Convicted individuals are also subject to substantial minimum and maximum fines, in addition to imprisonment of up to 5 years less a day.

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GLOBE 2010: A Recap of Sessions

The GLOBE Foundation is a Vancouver-based, not-for-profit organization dedicated to finding practical business-oriented solutions to environmental problems.  GLOBE 2010 brought about 10,000 people to post-Olympic Vancouver to talk about the business of the environment. 

A number of Miller Thomson’s environmental lawyers attended GLOBE 2010.  Below are our reflections on some of the sessions we attended:

1. Corporate Sustainability

Tamara Farber
Miller Thomson Toronto
tfarber@millerthomson.com
416.595.8520

Charles Bois
Miller Thomson Vancouver
cbois@millerthomson.com
604.643.1224

Bryan Buttigieg
Miller Thomson Toronto
bbuttigieg@millerthomson.com
416.595.8172

John Tidball
Miller Thomson Markham
jtidball@millerthomson.com
905.415.6710

Sustainability and Supply Chains
(Tamara Farber)

A panel discussion involving various large corporations including Dell, HP and others drove home the notion that there is no room for tunnel vision competition when it comes to greening supply chains. Collaborative action between traditional competitors can make the difference between suppliers in the chain not only getting on board, but being part of the solutions.  This can incorporate changes in energy efficiency, environmental materials, codes of conduct for manufacturers, packaging changes, transport changes and controls relating to the end of life for products.  The general consensus among the executives was that it was critical to have accountability at the executive level for performance in the supply chain. If the governance is not in place to do what you're asking your own suppliers to do, the changes in the chain will not likely get implemented.

Transparency in the supply chain is something that is atypical for most corporations but is critical for supply chain buy-in and progress.  It fosters innovation and collaboration in the "pre-competitive" aspects of any given industry - meaning that companies still compete but are collaborative when it comes to what goes into getting to the competitive state.  Education of suppliers was also viewed as a key element of success in getting buy-in throughout the supply chain.  Education on the consumer side was also critical. The representative from Fed Ex provided a great example of how dialogue in the customer's supply chain was critical in reducing their carbon footprint.  If customers were given choices about timing and other delivery options, they might not choose the most expensive, most carbon intensive option.

Sustainability and the Natural Resource Sector: How to Acquire and Maintain your Social License to Operate
(Charles Bois)

A key theme in this session was that natural resource companies (i.e. oil, gas, mining, forestry) are experiencing increasing expectations and demands from the public that such companies must become more sustainable and transparent if they hope to retain their social license.   The social license can best be described as the civil acceptance of what the company is doing in the area.

For resource companies, it is imperative that they develop policies and practices in all phases of exploration, development, production and sales of the resources.  Many resource companies operate in wilderness areas and sustainability has been redefined for such companies.  It is not enough for a company to develop and operate the project with the least adverse impact possible on the environment and surrounding areas.  Today, a key element to a resource company's sustainability plan must include early and continuous community engagement and consultation with local governments and communities, and the company must increase its scope beyond the communities directly impacted by the project, to those that might be indirectly impacted.

Sustainability requires governments, regulators, and companies to go beyond minimizing the impacts of the project.  Resource companies must engage the community when it comes to reclamation plans and practices.  As a result, many companies are establishing codes of conduct for their employees to ensure communities and local populations are respected and engaged.  Some companies are imposing these codes of conduct and other requirements on their suppliers, contractors, and service providers to ensure that their actions do not adversely impact the company and jeopardize the company's social license to operate.

Access to Water: Challenges and Opportunities
(Bryan Buttigieg)

Water supply can be a socially disruptive issue. Experiences in Australia and Israel show how a series of different solutions, from increasing supply (desalination plants), decreasing consumption, creative use of market forces (allocation of tradable water rights in Australia) and price signals can lead to workable solutions. In an interesting contrast, Arizona has also "allocated" its water resources. But unlike Australia, no allocation is given to the natural environment. Instead water resources are fully allocated for human consumption and because the allocations are based on outdated historical levels, the water supply is significantly over allocated. Out of necessity, solutions in Arizona now focus on conservation.

Both Australia and Arizona found it very effective to provide users with comparative usage data. When homeowners compared their usage to that of their neighbours, the "competitive spirit" kicked in resulting in dramatic decreases in consumption. Some utilities in Arizona now take several hundred (automated) meter readings a year which allows for much better provision of usage data to the utility and consumers.

The Sustainability Payoff
(John Tidball)

Corporate executives from Suncor Energy, Cenovus Energy, Novo Nordisk, Herman Miller and HSBC described how environmental sustainability has become a fully integrated concept in their organizations and how it has benefited their bottom lines.

2. Climate Change and Carbon Management

Sarah Hansen
Miller Thomson Vancouver
shansen@millerthomson.com
604.643.1273

Charles Bois
Miller Thomson Vancouver
cbois@millerthomson.com
604.643.1224

John Tidball
Miller Thomson Markham
jtidball@millerthomson.com
905.415.6710

Voluntary Carbon Markets: Opportunities and Risks
(Sarah Hansen)

Several emerging issues in the voluntary carbon markets were raised at this session.  Quebec's approach to carbon pricing was discussed with a focus on the transportation sector, a key target in making Quebec carbon-neutral.  A number of transportation reduction strategies were raised including tree planting in urban areas, reforestation, and carbon capture.  A representative from the Pacific Carbon Trust (PCT) explained its role as a government procurement agency, the concept of additionality, and the eligibility of various projects in BC.  The CEO of ERA Ecosystem Restoration Associates spoke about the biological effects of climate change on BC's forests, the benefits beyond carbon, key markets for trading offsets, wood plantations, and supporting biodiversity.  Finally, the Co-Founder and President of Offsetters spoke about the importance of early stage technology transfer, building the price of carbon into goods, "pressure release schemes" like tax incentives, the impact of America and the tonnes per capita of carbon emissions, and the problem with the high overhead cost of validation. 

The group discussion that followed saw some panelists question the role of PCT competing with private entities in purchasing offsets, and generally, on the proper role of government.  The group also discussed whether those in the business have "over-engineered" validation and that perhaps a new approach for smaller projects is more appropriate where the validator underestimates and undertakes a more conservative assessment.  Finally, there was a general discussion on cost avoidance and price signals.

Carbon Capture and Storage
(Charles Bois) 

CCS is considered to be a technology essential to developing long term solutions to climate change and global warming.  A key theme of all of the presenters was that action was needed now to achieve the targets set by different governments around the world.  Currently, it is thought that the costs of CCS could range between $40 per tonne to more than $120 per tonne by 2015.  All of the CCS projects being developed have relied on government investment and incentives to move forward.  Governments of all levels in Australia, Canada and Great Britain have invested over $12 billion in 8-12 demonstration projects based on different technologies, including re-injection of carbon dioxide into depleted oil or natural gas reservoirs, enhanced oil recovery and injection of carbon dioxide into deep saline aquifers. 

A second and underlying key theme throughout the speakers' presentations was the need to exchange information about CCS.  Historically, there has been little in the way of information exchange.  Some argued this was because of the need to protect intellectual property rights or patentable processes.  However, the general suggestion was that there is too little time and that the need to develop commercially viable CCS and obtain social acceptance is too important a task to be approaching these issues independently. 

Innovative Policies for Effective Carbon Capture and Storage (CCS)
(John Tidball)

This informative session, chaired by the British High Commissioner, dealt with the urgent need to proceed with development of a large number of CCS facilities in order to have any chance of meeting a target of no more than a 2 degree global temperature rise by 2050.  The Canadian Government has already invested $2 billion into CCS.

Special Workshop
(John Tidball)

A special workshop was presented by ADEME, the French Environment and Energy Management Agency, which has developed a sophisticated tool, Bilan Carbone (carbon balance), to assist communities to develop climate change action plans.  The tool is now being used throughout France and around the world.  The workshop included a presentation by Toronto’s Harbourfront Corporation, which has used Bilan Carbone to develop an action plan to green public spaces.

3. The Future of Energy

Bryan Buttigieg
Miller Thomson Toronto
bbuttigieg@millerthomson.com
416.595.8172

The Next Spike: Building the Smart Grid

A “smart grid” is defined as a complex system of interventions to make grids more efficient.   The technology exists in many parts of the system but efficiency requires sending price signals to consumers. This isn’t occurring in North America because electricity pricing is seen as a political issue (unlike pricing for airline tickets, parking spaces, etc.).  The price of electricity is seen as a measure of political performance making it impossible for politicians to allow prices to rise.

Since politicians are reluctant to see electricity pricing rise, there is a huge impediment to implementing a smart grid.  The problem is compounded by 280 utilities in North America and different regulatory structures for all of them.  The rate based model is a problem in that the goal of the smart grid is to ultimately decrease consumption and therefore decrease utility revenue. But if revenue decreases, it may jeopardize the ability of the utility to be profitable or to service existing debt.

4. The Urban Infrastructure Revolution

Tony Crossman
Miller Thomson Vancouver
tcrossman@millerthomson.com
604.643.1244

Future of Cities Dialogue

With the Mayor of Vancouver committing Vancouver to become the greenest city in the world, the release of some key reports also highlighted the importance of clean technologies to achieving this, the importance to Canada’s economy generally, and some of the hurdles faced by these emerging companies.

Ernst and Young’s review of BC’s CleanTech sector concluded that although BC has the potential to be a world leader, it has yet to achieve this.  Key factors in realizing on this potential include BC’s abundance of natural resources, its regulatory regime which includes a comprehensive GHG emissions scheme (with cap and trade and carbon tax) and its geographical position. The report notes a number of ideas for immediate attention including a more effective procurement process and less government “red tape”.

Interestingly, in the recent 2010 BC budget, the BC government announced $100 million over three years for research and development to support transportation infrastructure, development of biofuels and renewable power, which will go some way to achieving these BC green goals.

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What's Happening at Miller Thomson

In January, Tony Crossman and Teresa Meadows' article “A Tale of Two Provinces” reviewing greenhouse gas emissions reduction law and policy in the oil and gas sector in Alberta and BC was published in the special Petroleum Law edition of the Alberta Law Review.

In January, Bryan Buttigieg presented at a Federated Press Conference on Environmental Transactions on “Structuring the Transaction to Avoid Environmental Liability”.

On February 25, Teresa Meadows was a guest lecturer at the University of Alberta teaching the environmental law component of a Reclamation and Remediation Methods course.

In February, Bryan Buttigieg delivered a paper and spoke at the OBA 2010 Institute on “Long Term Issues and Liabilities of a Spill”.

On March 1 and 3, Teresa Meadows was a panelist at the Alberta Status of Clean Technologies Symposium speaking on “Legal Issues Associated with Bringing CleanTech Products to Market”.

On March 3, Bruce McMeekin presented “Directors’ & Officers’ Penal (Criminal, Environmental & Regulatory) Liability” at the 5th Annual Directors’ & Officers’ Liability Course (Federated Press).

Tony Crossman and Teresa Meadows co-chaired the Greenhouse Gas Emission Trading Course in Calgary on March 11th to March 12th.

In March, Bryan Buttigieg presented at a joint seminar with Pottinger Geherty Consultants on “The New Brownfields Regulations”.

Tony Crossman will be chairing a panel on recent federal environmental developments at the CBA’s National Environmental, Energy and Resources Law Summit in Montréal on April 16-17.

On May 11 to 13, Teresa Meadows will be speaking in Edmonton and Calgary at the Canadian Green Building Council – Alberta Chapter “13th Annual Green Building Symposium”, speaking about Legal Issues in Green Building.

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