NEWS from West Coast Environmental Law -- 20:10 April 7, 1997

Inside...
Electricity Producers Required to Reduce GHG Emissions — New face at West Coast — Update on Bill C-65: The Canada Endangered Species Protection Act — About West Coast Environmental Law — Law Foundation renews support — About the Environmental Dispute Resolution Fund

The Environment — A Low Priority for the Clark Government

ENVIRONMENTAL UPDATE FOR BC: THE YEAR IN REVIEW

Last year, the NDP fared well in their responses to our pre-election survey on ten key environmental issues (Vol. 20:02, May 23, 1996). Their promises were easy to believe because of the Harcourt government's strong environmental record. Yet in the year since Glen Clark became Premier, the government has slashed the budget of the Ministry of the Environment, and except for passage of the long awaited Contaminated Sites Regulations, there has been little action on any of last year's promises.

The government's new promises, while welcome steps individually, do not add up to the comprehensive reform package that the NDP advocated at the beginning of their mandate and that BC was promised in last year's campaign.

The New Environmental Agenda

The recent Speech from the Throne contained three specific environmental promises:

  • To complete the provincial network of protected areas, with an emphasis on marine ecosystems and legislation to protect in law the boundaries of approximately 70 parks. Great news, and a good way to ensure a lasting legacy for the protected areas system that the last government deserves so much credit for.

  • Fish protection legislation. Another welcome announcement, especially if this initiative includes strong provincial standards for riparian zone protection, instream flow licences, more public participation rights in land and water use decisions and increased municipal environmental protection powers.

  • Expansion of the deposit and refund system for beverage containers. BC was the first jurisdiction in North America to legislate a deposit refund system for beverage containers, and the government deserves congratulations for its promise to expand the system.

The Throne Speech also contained a promise for "consultation" on air and water quality.

These promises don't address many of the serious environmental problems that still afflict the province that were identified in last year's survey. The Throne Speech emphasized jobs, jobs, jobs. If environmental initiatives are being overshadowed by this refrain, then the NDP needs to be reminded that it's not necessary to sacrifice jobs for the environment and vice versa. Sustainable development requires both a healthy environment and a healthy economy.

Update on Last year's Survey Questions

Here's an update on some of the key issues from the election survey.

  • Global warming — Although Environment Minister Cathy McGregor has advocated tough national action to reduce greenhouse gases and has promised that BC will do its share, there has been little meaningful action. Adoption of the National Energy Codes for Houses and Buildings, an initiative intended to save homeowners and renters money to which the government has long been committed, appears to have stalled. Although the Province had previously agreed to a plan to start to shift the lower mainland away from motor vehicle dependence, BC Transit plans to purchase less than one-third of the buses necessary to achieve the modest goals. The Municipal Act's growth management provisions fail to ensure more energy efficient urban design neccessary for long term reductions in greenhouse gas emissions. And BC appears to have no policy on how to reduce greenhouse gas and other negative environmental impacts from power generation in the Province (see related story).

  • Water Act — The NDP promised action on this outdated law last year. Some of the required changes can be and should be done in this year's promised fish protection legislation, but a comprehensive overhaul of the Water Act still needs to be done.

    Our groundwater is deteriorating. A Ministry of Environment, Lands and Parks (MELP) Environmental Indicator from February 1997 documents rapidly declining water levels in provincial observation wells, and reports that more than one in three classified aquifers in BC are potentially vulnerable to contamination. Yet BC is still the only province in Canada which does not have comprehensive groundwater legislation.

    Another urgent requirement is for instream flow protection through legal requirements in the Water Act. If the new fish protection legislation does not contain a legal obligation to maintain instream flows for conservation purposes, the law will be ineffective. There are a number of streams and creeks in the province where withdrawal of water by licensed water users decreases stream flows to a level which jeopardizes fish and aquatic wildlife. Again, instream flow protection has long been an NDP promise.

    The third major requirement that WCELA has identified for a new Water Act is a broadened right of appeal, to match that found in other modern environmental laws in the province. Almost any British Columbian can appeal a water quality decision, whereas a water quantity decision can only be appealed by a very narrow class of individuals. Water quantity is equally as important as water quality for fish, and for other environmental reasons.

  • Endangered species — The NDP has made a commitment to pass new endangered species legislation four times. Yet rather than undertaking any public consultation on the issue, or promising new legislation this session to protect endangered species, the current Minister of the Environment is working against increased legal protection for species at risk in BC by quibbling with some of the provisions in the proposed federal Endangered Species Act, which the province alleges intrude on provincial jurisdiction. There is an easy solution — the province can pass its own strong legislation.

  • Environmental Protection Act — The NDP's promise that the Environmental Protection Act (BCEPA) will be "the major environmental protection act of the government" is difficult to believe. No announcement about more action on BCEPA was forthcoming in the Throne Speech. MELP bureaucrats are reluctant to discuss this one.

  • Forest Practices Code — No action has yet been announced on extending the Code to private land. Recent reports on failure to enforce the Code are also troubling. While the new Code is touted as a strong law which will protect wildlife species at risk, not one species has yet been designated under the Code, and the Guidebook to Managing Identified Wildlife, part of the Code, but not yet released, has been the subject of very long unexplained delays.

  • Pulp mill pollution — The NDP said last year it was committed to maintaining the requirement that pulp mills eliminate organochlorine pollution in their effluent by 2002. Yet there are troubling rumours that the standards may be weakened. This was one of the major environmental achievements of the Harcourt government, and it would be a true step backwards if the Clark government were to weaken these regulations.

Other issues that need action also deserve some mention

Wetlands — BC is behind most Canadian governments in having no provincial wetlands policy. A policy is required to protect wetlands at risk in rapidly urbanizing areas. The Water Act does not provide an effective vehicle for protecting wetlands. More is needed. See our 1996 report, Protecting Wetlands in British Columbia — A Citizen's Guide.

Budget and Staff of Ministry of Environment, Lands and Parks — This year's cuts to the MELP budget are another indication of the Clark government's opinion about the importance of environment. Major budget cuts will not result in improved environmental protection if there are not enough people around to do the job.

Marine Oil Spill Prevention — Former Environment Minister Moe Sihota was a strong promoter of oil spill prevention measures. Due to his active intervention, the issue received a lot more study. Unfortunately this study was not matched by more action. The Clark government has decided not to renew funding to the Citizen's Advisory Committee on Oil Spill Prevention, formed in 1991 after the catastrophic Nestucca and Exxon Valdez spills. The government has also not taken any action to develop coastal zone management policies or curb land based sources of marine pollution.

All in all, WCEL and other groups around the province are concerned by the low priority that the Clark government attaches to the environment. Many voters in the last election relied on continued strong performance from the NDP in the area of environmental protection. As this review shows, a lot of work remains to be done.

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Electricity Producers Required to Reduce GHG Emissions

On February 13, 1997, the Oregon legislature's energy committee introduced draft legislation which will require new electricity producers to offset their greenhouse gas emissions. The Oregon bill, along with recent Australian legislation, represents a trend toward legislated greenhouse gas emission standards for electricity producers. As BC moves down a path towards a deregulated electricity market, it must evaluate what laws it needs to minimize greenhouse gas emissions from electricity consumed in the province.

The Oregon bill is expected to be passed into legislation as it represents the consensus recommendations of representatives from labour, business and environmental agencies. If passed it will require new fossil fuel burning electricity-generating facilities to emit seventeen per cent less carbon dioxide (CO2) than the most efficient natural gas plant operating in the US. As more efficient plants are established the standard will become tighter.

Electricity generators can meet the standard by either not using fossil fuels, making technological breakthroughs in efficiency or offsetting their emissions by emission reductions at other locations. Facility operators can either choose to carry out "offset projects" themselves, or pay into a fund which will finance offset projects. The offset projects can include renewable energy projects, energy efficiency projects or projects to increase the carbon stored in forests.

Going one step further

While the Oregon law minimizes the growth in greenhouse gas emissions from electricity production, Australia's largest state, New South Wales, has gone a step further. The New South Wales Electricity Supply Act requires electricity retail suppliers to negotiate greenhouse gas emission reduction strategies with the government. The strategies are to be "based on the principle of achieving the reduction greenhouse gas emissions from electricity supplied to customers in New South Wales as the electricity sector's contribution to achieving the target of reducing greenhouse gas emissions as agreed in" intergovernmental agreements. Those targets are currently stabilization of emissions at 1988 levels by 2000, followed by a twenty per cent reduction by 2005. The strategies are to include plans for increasing energy efficiency, reducing demand for electricity and purchasing energy from sustainable resources.

Retail suppliers are required to publish annual reports on implementation of their emission reduction strategies, the sources of the electricity sold by them, and the emissions arising from the production of the electricity sold by them. The reported emission levels must be independently verified, and the state environment protection authority is required to audit the strategies' effectiveness.

This trend toward legislated emission reduction requirements for electricity suppliers is a natural evolution of jurisdictions' earlier ad hoc requirements for greenhouse gas emission reductions. For instance, prior to introducing the legislated greenhouse gas standard, Oregon had awarded rights to establish a new electric generating facility on the basis of which proponent had the most effective plan to offset greenhouse gas emissions. Similarly, New Zealand required the operator of a natural gas burning facility to offset 100 per cent of the emissions from electricity production which was not used to replace electricity from coal burning plants.

Deregulation in BC

BC's energy minister, Dan Miller, has said the province will deregulate the electricity market so that electricity consumers can purchase electricity from competing electricity suppliers. As BC moves down the road to restructuring its electricity market it will need to consider what laws are necessary to minimize the environmental damage caused by our electricity consumption.

In the past, greenhouse gas emissions and other negative environmental impacts of electricity production were minimized through political control over power project development and through a process known as "integrated resource planning" or "IRP." IRP involves a comprehensive review of electrical production and consumption to determine how energy needs can be met at the lowest environmental, social and economic cost.

However, the BC Court of Appeal recently held that the BC Utilities Commission does not have the jurisdiction to require IRP, and both IRP and political control over power project development are difficult to implement in a competitive electricity market. In anticipation of deregulation, BC Hydro is already scaling back on "demand side management" programs like Power Smart. These programs create new "capacity" for new electricity consumers by increasing all consumer's energy efficiency: BC Hydro can use the electricity saved by their customers replace energy wasting fridges with energy efficient fridges to meet new demand without building new dams or expanding the Burrard Thermal generating facility.

Even though these programs may be the least expensive way of meeting new electricity demand, electricity consumers are reluctant to pay for them when given a choice. As BC moves towards a deregulated electricity market, it will need to develop new laws to minimize greenhouse gas emissions and other environmental damage caused by BC's electricity consumption.

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New face at West Coast

We are pleased to announce that Andrea Finch will be joining West Coast as a contract staff counsel in mid April. Andrea is leaving her position at Harper Grey Easton to return to her first career love, environmental law. Andrea brings experience with nonprofits and a strong background and interest in environmental protection. Andrea will be providing summary legal assistance to the public and working on environmental law reform projects with our other staff counsel.

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Update on Bill C-65: The Canada Endangered Species Protection Act

A lot has happened with Bill C-65 since our last newsletter. On March 3, 1997, the federal Standing Committee on Environment and Sustainable Development tabled its revisions to the bill.

Improvements to the bill

In general, despite some key omissions, the Standing Committee's amendments strengthened the bill. Improvements to the bill included:

  • Expansion of the definition of "residence" to include areas used by listed species for breeding, rearing or hibernating, and to include not just individual species, but populations;

  • Mandatory protection of international trans-boundary animal species (there is, however, an equivalency option for the provinces);

  • Emergency orders are mandatory upon emergency listing or reclassification;

  • Recovery plans have legal force within 120 days after a recovery plan is completed or amended, the responsible minister must make regulations for the purpose of implementing the measures included in the recovery plan, including regulations prohibiting activities that adversely affect a species critical habitat;

  • The permitting process has been strengthened slightly. Permits or agreements allowing an activity that will affect a listed species or its habitat will be granted only if (i) all alternatives to that activity that would reduce the impact to the species have been considered and the best alternative adopted (ii) all feasible measures will be taken to minimize the impact of the activity on the species or its habitat or residence, and (iii) the activity will not jeopardize the survival and recovery of the species; and

  • The definition of "species" has been expanded to cover genetically distinct populations.

The bill still needs work

Despite these improvements, the bill is still deficient in key areas. For example:

  • No changes have been made to the listing process i.e. ultimate listing decisions are made by Cabinet. There is no requirement for Cabinet to justify any decision to exclude a species recommended for listing by the Committee on the Status of Endangered Wildlife in Canada (COSEWIC). This is a huge disappointment, and a key deficiency in the revised bill. There is some consolation in that the existing COSEWIC list will be attached as a schedule to the Act, and species on the list will receive interim protection until listed under the Act or Cabinet decision that the species will not be listed;

  • The geographic scope of the bill is still very limited i.e. primarily federal lands and waters;

  • There is still no habitat protection for migratory birds, other than protection of their "residence;"

  • Protection of international trans-boundary species is restricted to animals only there is no protection of plant species outside of federal lands. In addition, protection for trans-boundary species is restricted to individuals and residences; there is no protection of critical habitat;

  • There is still a blanket exemption from the prohibitions of the bill for activities undertaken for national security, safety and health, including plant and animal health; and

  • No change has been made to the citizen suit provision. Even in cases of immediate harm or threat to a species, no action can be taken until there has been a government investigation of the alleged offence, and a court finding that the government's response to the investigation request was unreasonable, or involved unreasonable delay. As currently drafted, the hurdles to commencing an action will effectively preclude most if not all citizen suits.

One step forward, two steps back

The Standing Committee's amendments to the bill provoked opposition from various sectors, including BC resource/industry groups, and the BC government. In response to this opposition (much of which revealed a failure to have actually read the bill), the government is proposing a set of amendments to the bill which will weaken or remove many of the Standing Committee improvements. Given that the Canada Endangered Species Protection Act is one of if not the key environmental initiative of this federal government, this is disturbing news indeed.

What you can do

Caribou

Bill C-65 will now not be tabled until after the Easter recess. Your support is urgently needed to ensure that the bill is strengthened and passed before the next election. Please contact your federal MP and indicate that (i) you support strong federal endangered species legislation (ii) you do not support the proposed government amendments to the bill and (iii) you want them to vote in favour of amendments which will strengthen the bill.

If you have any questions about the federal legislation, please contact Kate Smallwood, the Campaign Coordinator for the BC Endangered Species Coalition by phone at (604) 601-2507, or by email at ksmallwood@wcel.org.

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About West Coast Environmental Law

The West Coast Environmental Law Association (WCELA) began as the Vancouver Environmental Law Centre in the summer of 1974, to provide a legal advisory service regarding environmental problems.

The Centre was incorporated as a Society in 1975, and assumed its present name, the West Coast Environmental Law Association later in the same year. During 1975 and 1976, the Association began emphasizing environmental legal education and expanded its legal advisory and representation programs throughout the province.

In 1977, the Association's educational activities were assumed by the newly-incorporated West Coast Environmental Law Research Foundation (WCELRF), a registered charitable organization. Since 1977, WCELA and WCELRF have continued to grow.

In 1989 the West Coast Environmental Dispute Resolution Fund (the EDRF) was established, to promote the rational resolution of environmental disputes in BC and alternative methods of dispute resolution, such as multi-sector negotiations.

What we do: our mission

The mission of the West Coast Environmental Law organizations is to provide legal services, research and education to promote protection of the environment and public participation in environmental decision-making.

To carry out this mission, we work in five areas: legal aid, law reform, legal research, legal education, and a library.

Legal aid

We provide free legal advice on environmental issues that affect British Columbians. We represent clients in environmental legal matters, or we refer them to other environmental lawyers. We also operate the Environmental Dispute Resolution Fund (EDRF), which provides financial assistance to groups and individuals to hire environmental lawyers and specialists to help settle environmental concerns.

Law reform

British Columbia and Canada's environmental heritage deserves all the protection we can give — and more. West Coast's lawyers and staff are constantly working toward creating new environmental laws, and toward improving existing laws, to help protect the environment for the benefit and enjoyment of all Canadians, and for all generations to come.

Legal research

West Coast lawyers research laws for environmental impacts — both negative and positive. Legal research is often the first step toward the creation of a new environmental law, regulation or policy. We examine laws in Canada, laws from around the world, international treaties, trade agreements, and other policies and regulatory mechanisms. We look for examples of what works, and what doesn't, and we try to uncover environmental areas and issues that have yet to be addressed by law.

Legal education

West Coast promotes public awareness of environmental legal issues through the books, guides and newsletters that we publish, the West Coast web site, and through public speaking, information booths, media interviews and editorials. Recent West Coast books include a hands-on guide to protecting wetlands in BC, and several guides explaining the legal tools available to those wishing to protect private land.

Library

We maintain an extensive, publicly-available, reference library of environmental and legal materials. A valuable resource on environmental protection, the library currently holds over ten thousand publications, many of which are unavailable anywhere else. As part of the library, we also maintain a world wide web site, at http://vcn.bc.ca/wcel, which holds on-line copies of West Coast's publications and newsletters, an extensive collection of links to other environmental and legal resources on the Internet, selected environmental statutes and publications, and a fully searchable index of our library and web site.

Why should you support us?

We can't do this work without you! We are part of the foundation of environmental protection in BC — join us, become a member, and help us put together the building blocks of environmental protection in BC. Without the laws protecting the beauty that surrounds us, the goal of environmental conservation becomes that much harder to achieve. When you read about key decisions protecting BC's environmental treasures, or when the government announces new laws to protect our environment, it's likely that West Coast Environmental Law was there, lending a helping hand. When polluters are fined for harming the environment, it's thanks to laws that West Coast helped create. Help us keep up our efforts.

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Law Foundation renews support

West Coast Environmental Law is grateful to the Law Foundation governors and staff for their continued support of our work. At its annual granting meeting in March, the governors again committed core funding for West Coast operations and the grants made by our Environmental Dispute Resolution Fund.

Our particular thanks go to program director Pat Pitsula and liaison governors Vera Radyo and Karl Warner. The Law Foundation of BC has been providing critical financial support to West Coast Environmental Law for many years, and we are pleased that the Law Foundation continues to recognize the important role we play in the protection of the environment.

The Law Foundation of BC is itself supported by the interest earned on lawyers' pooled trust accounts across the province. The Law Foundation exists, under provincial statutory authority, to use its funds to support law related programs in BC that provide legal aid, legal education, law reform, legal research, and law libraries.

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About the Environmental Dispute Resolution Fund

Since its inception in 1989, West Coast's Environmental Dispute Resolution Fund (the "EDRF") has helped community organizations throughout the province resolve environmental disputes. With the generous support of the Law Foundation of BC, the EDRF has provided over a million dollars in financial assistance to community groups.

In most cases, EDRF help starts with a routine call for advice to our office. West Coast lawyers provide not only legal assistance, but also offer advice on working with various levels of government, agencies and local media to obtain information, assistance and support to resolve the environmental issue in dispute.

If the environmental issue is one that will require ongoing legal assistance, our EDRF liaison lawyer, Patricia Houlihan, may suggest that your group submit a funding application to the EDRF Management Committee. This committee is composed of West Coast Board members and meets monthly to consider applications. The funding application is a simple form and is accompanied by a project budget and a letter from the lawyer the group wishes to retain, outlining the legal issues and potential course of action. Lawyers who accept EDRF funding agree to work on a partially pro bono basis (reduced fee); the Fund pays $50 per hour for legal fees plus approved expenses. This means that your lawyer will be working for considerably less than his or her usual rate. In some limited cases EDRF funding is also available to hire experts such as fisheries biologists, hydrologists or foresters.

EDRF funding is available for community organizations who are involved in multi-stakeholder processes such as Local Resource Management Plans, alternative dispute resolution processes, tribunals such as the Environmental Appeal Board, or litigation. There are some restrictions on what funds can be used for: EDRF funding is not available to support a cost award against you or your group, for defence in contempt proceedings arising from civil disobedience, for general office overhead, advertising, newsletters, or for past expenses.

With EDRF support, community organizations throughout the province are able to actively participate in environmental decisions. EDRF funding assisted the Nechako Environmental Coalition in its opposition to the Kemano Completion Project, and assisted both the Peace Country Environmental Protection Association and the Williams Lake Environmental Society in their efforts to ensure that community health would not be adversely affected by industrial air emissions. With EDRF assistance the Residents for a Better Port Moody were able protect a wetland area from development. More recently, the EDRF is working with Environmental Watch who opposes Howe Sound Pulp and Paper's air emissions permit amendment which would increase the release of fine particulate, a major factor in lung disease. It is also supporting the Friends of Cypress Provincial Park Society's attempt to have the government reconsider the Park Master Plan, or at least mitigate the impact of the proposed resort development.

If you would like more information about the Fund or wish to make an application, please call West Coast at (604) 684-7378 (or 1 800 330-WCEL, if you're outside the Lower Mainland) and ask to speak to the EDRF liaison lawyer. We will explain how the Fund works and whether your group's proposal might be acceptable. We will also send you the application form. Our liaison lawyer will work with you on your project, identify environmental legal issues, help complete the application process and make sure that your funds are dispersed as budgeted.

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WCELRF, 1001 ­ 207 West Hastings, Vancouver, BC, V6B 1H7, Canada.
Phone (604) 684­7378; fax (604) 684­1312; 1-800-330-WCEL; email: admin@wcel.org; home page: http://vcn.bc.ca/wcel/
NEWS from West Coast Environmental Law (ISSN #1204-4326), copyright 1997. Printed on 100% recycled paper (not secondarily bleached or de-inked). Published by the West Coast Environmental Law Research Foundation and represents the work of the non-profit West Coast Environmental Law Groups:

  • West Coast Environmental Law Research Foundation (WCELRF) does research and education and maintains an environmental law library.

  • West Coast Environmental Law Association (WCELA) provides legal representation and promotes law reform.

  • The West Coast Environmental Dispute Resolution Fund Society (WCEDRFS) provides assistance and funding to citizens to help solve environmental problems in their communities.

The mission of the West Coast Environmental Law groups 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 West Coast Environmental Law.

West Coast staff and project workers are: Morgan Ashbridge, Chris Heald, Patricia Houlihan, Catherine Ludgate, Alexandra Melnyk, Linda Nowlan, Chris Rolfe, and Kate Smallwood.


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