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Local Governments and Clean Air

February 14, 2010

Dianne Saxe, an Ontario environmental lawyer, writes about the efforts of the municipality of Oakville to regulate air pollution and to block plans for a proposed power plant.  “Spurred by opposition to a new gas-fired electric power plant, the Town of Oakville has opened a new front in the long battle over the role of municipalities in controlling pollution.”

In essence Oakville wants to require large polluters not to just get provincial government approvals, but also municipal approvals. 

Can BC municipalities follow the lead of Oakville?  Even municipalities with poor air quality have generally been reluctant to go head to head with industrial polluters – that’s essentially the complaint from some residents of Prince George – one of the worst airsheds in the province.  But can local governments play this role?

First, it’s worth noting that one local government already does.  The Greater Vancouver Regional District (aka Metro Vancouver) is in a unique position in the province in that the province’s Environmental Management Act explicitly empowers it to pass bylaws regulating air pollution and, in fact, to take over many of the province’s regulatory powers under that Act. 

In general Metro Vancouver seems to have been more proactive in pressing for reductions in air pollution than the provincial Ministry of the Environment often is, although to my knowledge a formal comparison has never been done. 

Second, despite a perception on the part of many municipalities that air emissions are a provincial responsibility – beyond the authority of a local government –  in BC municipalities do have fairly extensive powers to regulate to protect the environment, human health and to prevent nuisances. 

cover.jpgThis issue is discussed in West Coast Environmental Law’s 2006 publication, The Clean Air Bylaws Guide.  In most cases the bylaws created by BC municipalities have focused on individual, rather than commercial, emissions – through anti-idling bylaws, anti-backyard burning bylaws, etc.  However, as we point out in the Bylaws Guide, municipal powers go further, and could extend to bylaws that more directly regulate commercial air pollution. 

The basic rule is set out in both the Community Charter and in the Environmental Management Act itself: a municipal bylaw is invalid if it is inconsistent with a provincial law; however, there is no inconsistency as long as it is possible for a person to comply with both the municipal bylaw and the provincial law.  In other words, a local government may adopt additional, or more stringent, standards in its laws, but may not authorize pollution that is illegal under the provincial laws. ...

However, there are also … circumstances in which a conflict may arise with provincial regulation under the Environmental Management Act. … [T]he Act allows the Minister of Environment to declare that a conflict exists between a bylaw and the requirements of the Environmental Management Act and its operations.  If the Minister makes such a declaration, then a bylaw that imposed additional or more stringent requirements will become invalid. …

That being said, there may be very good reasons that a local government will not want to duplicate the efforts of the provincial government. There are gaps in provincial regulation – sources of pollution which are not regulated at all, the failure to determine the appropriate location of a polluting industry, etc. Local governments may be well advised to consider how to fill these gaps, as well as ways in which it can complement, rather than duplicate, provincial regulation.

The Community Charter, which gives municipalities the power to regulate in respect of health, the environment and nuisances, also allows the province to limit these powers in cases where there is a potential overlap or conflict between municipal and provincial rules.  However, while there are fairly significant restrictions limiting the enactment of bylaws related to the environment, there are fewer limits for bylaws enacted under the public health powers and none at all aimed at regulating a public nuisance.   These restrictions are discussed in more detail in West Coast’s Clean Air Bylaws Guide.

In BC there does not appear to be any reason in principle that a municipality could not enact a bylaw similar to the one that Oakville has adopted.  There would be an obvious risk that the province would declare that such a bylaw conflicts with the Environmental Management Act, thereby invalidating it.  There is a further possibility that the province would change the rules under the Community Charter to further limit the powers of municipalities to regulate in this area. 

Even if the bylaw survived the above, there would be a good chance such a bylaw would be challenged in court.  However, I think that the municipality should be able to defend the legality of a bylaw enacted to protect public health or to prevent nuisance conditions. 

Members of the public concerned about air pollution should not allow themselves to be brushed off by local governments with the response that “air pollution is a provincial matter”.  There are good reasons for local governments to be careful about regulating air pollution, but it is not true that they cannot do so. 

Andrewblogphoto.jpgBy Andrew Gage