West Coast Environmental Law
Research Foundation
NewsletterWest Coast Environmental Law
Research Foundation
NewsletterLast August, the provincial government asked the BC Energy Council to report on whether the provincial government should allow either independent power producers or BC Hydro to construct new electricity generation and/or transmission facilities dedicated to the export market. This type of export is currently not allowed.
WCELA recently made a submission to the Energy Council. The key issue is whether the net benefits of long term firm electricity exports outweigh the net costs to British Columbians. Net costs and benefits must take into account all environmental, social and economic factors. We asked the Council to recommend to Cabinet that it defer this decision until other relevant policies are completed.
We submitted that the decision on long term firm electricity exports should be deferred for the following reasons:
Both federal and provincial areas of jurisdiction are affected by electricity exports. Federal areas of jurisdiction include Aboriginal peoples, fisheries, navigation and migratory birds. In addition, since the issue of pollution is of particular significance to environmental impact, the federal government's pollution control powers should also be used to regulate this type of project. [[Footnote: (2) -- 2. . The case of R. v. Crown Zellerbach [1988] 1 S.C.R. 401 established that marine pollution control was a federal area of responsibility under the federal government's Peace, Order and Good Government powers. Some have argued that the federal government's powers in this area should be more broadly applied. Transboundary pollution is an additional area of federal jurisdiction.]]
4. Trade treaties have the potential to dramatically affect environmental regulation of dedicated energy projects. As the Interim Report of the Energy Council notes, no one can predict how the Free Trade Agreement (FTA) (or the North American Free Trade Agreement, NAFTA, if it is approved) will affect long term firm electricity exports.
The existing framework of incentives and subsidies for energy exploration, development and consumption promote the opposite of what is needed for a sustainable energy future. [[Footnote: (3) -- 3. . MacNeill, J., Winsemius, P. and Yakushiji, T. Beyond Interdependence -- The Meshing of the World's Economy and the Earth's Ecology, (New York, NY: Oxford University Press, 1991) pages 33-38.]] Environmental taxes on goods such as electricity may be necessary to promote efficiency and conservation, which are required to conserve natural resources, reduce greenhouse gas emissions, and reduce adverse impacts on wildlife, air, water and land. Yet enacting this type of tax may be challenged as a trade barrier.
Trade treaties must not compromise any government's ability to protect the environment. The treaties must incorporate measures to further environmental protection. If we proceed with exports at any time, we need to ensure that these trade issues are settled to our satisfaction first. The Province must be free to enact whatever measures it decides are necessary to protect the environment without challenge from our trading partners.
The Energy Council's final report on this issue will be released April 8, 1993.
If you would like a copy of WCELA's complete submission to the Energy Council, please contact West Coast Environmental Law Association at 684-7378.
BC has no law which protects the jobs of employees who report corporate violations of environmental laws. Presently in BC, even if an employee gives evidence which assists the Crown to obtain an injunction to stop an environmental violation, the whistleblower has no protection against dismissal with notice. An employee who tries to get environmental protection laws enforced can be fired with no legal recourse. This creates an incentive for public servants and private sector employees to remain silent, to the detriment of the public interest. BC needs whistleblower protection.
Other Canadian jurisdictions do have whistleblower protection laws. The Canadian Environmental Protection Act (CEPA) and the Ontario Environmental Protection Act (OEPA) both contain a whistleblower provision. OEPA prohibits employers from dismissing an employee who has complied with certain environmental statutes, sought enforcement of the legislation, given information to the government, or testified in a proceeding brought under one of the Acts. The provision has successfully protected whistleblower employees in the few instances that it has been considered by the Ontario Labour Relations Board (OLRB).
In the 1991 case of Alan G. Marshall v. Varnicolor Chemical Ltd., an employee was suspended with pay and then subsequently laid off after he complained to the local media and an environmental group about his employer's waste disposal practices. The OLRB found that his layoff was motivated by his activities in seeking enforcement of OEPA. The company was ordered to pay compensation, but since it had since ceased operations, no order to reinstate Marshall to his old job was made. The director of Varnicolor later plead guilty to a charge of illegal waste disposal and was sentenced to eight months in jail.
The legislation discussion paper on a draft BC Environmental Protection Act addresses whistleblower protection in Recommendation 41:
Whistleblower protection could result in increased convictions, and stricter compliance by polluting corporations. BC needs legislated protection for employees who want to see environmental laws enforced, to protect and sustain British Columbia's ecological diversity.
-- Benita Bellrichard
On her final day as Ontario's Environment Minister, Ruth Grier released a long-awaited draft regulation intended to force Ontario's 26 pulp and paper mills to eliminate organochlorines from their effluent by 2002. A subsequent Cabinet shuffle named Bud Wildman (formerly Minister of Natural Resources) as the new Environment Minister who will oversee the finalization of the regulation, after a 60 day public comment period.
The comprehensive regulation sets effluent limits and monitoring requirements for a number of substances including: total suspended solids, Biological Oxygen Demand (BOD), total phosphorus, chloroform, toluene, phenol, 2,3,7,8-TCDD (dioxins), and 2,3,7,8-TCDF (furans). The regulation also establishes an "acute lethality" standard which effectively provides that wastewater discharges must be safe for fish to survive.
A highlight of the regulation is the effluent limit set for AOX (adsorbable organic halides, a parameter for collectively measuring organochlorines), which decreases over time: 1.5 kg/tonne of pulp by December 31, 1995, and 0.8 kg/tonne of pulp by December 31, 1999. In addition, the regulation requires kraft mills to submit initial, interim and final plans to the government outlining how the companies propose to meet the regulation's goal of zero discharge of AOX by 2002.
The Canadian Environmental Law Association (CELA) will be working with Greenpeace, Pollution Probe, Great Lakes United and other groups to review and comment upon the draft regulation. While CELA supports this long overdue initiative, there are a number of improvements which would enhance the efficacy of the regulation. For example, the regulation should be amended to ensure that the AOX plans (and any amendments) are publicly available for review and comment. Similarly, the goal of zero discharge of AOX must be explicitly enforceable (i.e. companies must be expressly obliged to comply with the plans once approved by the government and failure to comply must be made an explicit offence). With these and other amendments, CELA is confident that the regulation can truly live up to its billing as one of the toughest pulp and paper regulations in the world.
-- Rick Lindgren, CELA (reprinted with permission from Intervenor)
Canada has recently entered into preliminary discussions with Mexico and the United States on the contents of a North American Environmental Agreement, the so called NAFTA parallel agreement on the environment. The parallel agreement has the potential to mitigate many of the negative effects NAFTA will likely have on the environment.
Governments in the three North American nations have assumed that increased trade from NAFTA will necessarily lead to greater wealth which will necessarily lead to an improved natural and human environment. While certain forms of trade have the potential to encourage sustainable development, NAFTA fails to do so. In many ways it encourages unsustainable development. It may also limit the Canadian government's powers to regulate environmental matters.
WCELA recently completed a brief with recommendations about provisions that could be incorporated in a parallel agreement, to ensure Canada's continued ability to protect the environment in the context of a North American free trade area. The brief does not endorse free trade, but suggests means by which NAFTA can be made palatable from an environmental perspective.
WCELA recommends that a parallel agreement should provide for:
NAFTA provisions regarding reducing "non-tariff barriers" through harmonization of environmental protection and health standards to international levels must also be clarified. Under NAFTA Canada can only adopt standards higher than international standards if they can be scientifically justified and if they reflect a consistent level of protection.
It is essential that the need for scientific justification does not overshadow the need for taking a precautionary approach in light of scientific uncertainty. A parallel agreement should specifically incorporate the precautionary approach into NAFTA and provide that domestic standards made in good faith are permissible even if they are relatively more stringent than generally applicable domestic standards.
If you require further information or would like a copy of the full text of WCELA's brief please contact our office at 684-7378.
The BC Branch of the Canadian Bar Association has recently added an environmental law section to the provincial lawyer referral program.
The Lawyer Referral Service has now been operational for 36 years. The lawyers who participate in the program do so voluntarily and agree to charge only $10 for a half-hour consultation.
The objective of the program is to encourage the public to seek legal advice early. The lawyer referral consultation assists persons in determining if there is a legal problem in the first place, what is involved, how long it should take to solve the problem and about how much it will cost.
Last year, the program made 50,000 referrals. The referral service is based in Vancouver but referrals can be made throughout the province.
Contact the BC Branch of the Canadian Bar Association at 687-3221.
The purity of the drinking water in South Langley depends on local land use decisions. The members of the South Langley Ratepayers' Association (SLRA) draw their water from a local aquifer identified as vulnerable to contamination. Over the last ten years they have fought a number of proposals -- from garbage dumps to golf courses -- that threatened their groundwater quality and supply.
Existing environmental laws are poorly adapted to ensure groundwater protection. The provincial Water Act does not apply to groundwater. No other federal or provincial legislation is aimed at groundwater protection. The common law only gives meaningful remedies after contamination has occurred.
While excessive nitrate levels in Fraser Valley wellwater have been recorded for years, until recently no action has been taken to develop guidelines to protect groundwater. Only now, under pressure from groups such as the SLRA and Washington State health officials concerned with transboundary contamination of their drinking water sources, have Environment Canada and the provincial Ministry of Environment, Lands and Parks taken steps to develop guidelines for the protection of groundwater.
It is essential that legislation be introduced to protect both the quantity and the quality of groundwater. In the United States legislation has required the development of plans for the protection of groundwater, and in both the United States and other provinces strict land use regulations apply to aquifer areas. These regulations include restrictions and prohibitions on the application of pesticides and fertilizers in areas susceptible to groundwater contamination.
The SLRA's most recent battle has been over a proposal for a residential and golf course development in a mined-out gravel pit in South Langley. The proposed development is situated on an aquifer which supplies water not only to local residents but also to the towns of Blaine and Birch Bay in Washington State. The SLRA's primary concern has been over the leaching of pesticides and nitrates through the thin layer of sand which remains between the surface and the aquifer.
With help from the West Coast Environmental Dispute Resolution Fund, the SLRA has repeatedly raised groundwater concerns with Langley and the federal and provincial governments. Both the Ministry of Environment, Lands and Parks and Environment Canada have advised Langley that a Fraser Valley groundwater protection plan and more information are necessary before the golf course project can receive their blessing.
The SLRA was also successful in ensuring that a review of the developer's environmental assessment was conducted by an independent hydrogeologist. The hydrogeological review identified a number of weaknesses in the environmental consultant's report.
While the Langley Council has put the project on hold for now, they may allow it to proceed despite the warnings of provincial and federal environment ministries. This possibility underlines the need for effective groundwater protection legislation in British Columbia. The provincial government has promised a new Water Management Act which will regulate groundwater.
WCELRF Newsletter, copyright © 1993, is published by the West Coast Environmental Law Research Foundation. This issue was produced by Bill Andrews, Morgan Ashbridge, Benita Bellrichard, Ann Hillyer, Kelly Lamorie, Catherine Ludgate, Murray Mollard, Linda Nowlan, Denice Regnier and Chris Rolfe. Subscription information is below. WCELRF does research and education and maintains an environmental law library. The West Coast Environmental Law Association provides legal representation and promotes law reform. The mission of WCELRF and WCELA is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law Associationand West Coast Environmental Law Research Foundation. Donations to WCELRF are tax creditable.
WCELRF, 1001 - 207 West Hastings, Vancouver, BC, V6B 1H7, Canada.
Phone (604) 684-7378; fax (604) 684-1312.