INTRODUCTION ENVIRONMENTAL LAW

CML 3369

SEPTEMBER 9,2013

Stephen Hazell M.Sc. LL.B.Sarah Jackson B.Sc. J.D.

Introductions • Who are we?? • Stephen – Senior Counsel, Ecovision

Law, Senior Advisor, Nature Canada • Executive Director of 3 national

environmental groups (Sierra Club Canada, CPAWS, CARC)

• Director Regulatory Affairs, Canadian Environmental Assessment Agency

Introductions

• Sarah - Counsel, Ecovision Law• Articled with Ecojustice UOttawa clinic• Ph.D. candidate University of Dundee

Introduction (cont’d)• Outline of Course - expectations,

course materials, evaluation• Requirements – exams, papers, class

participation, interactive exercises • Input from students on expectations• Global ecosystem change and

consequences for human well-being• Historical development, current status• Ecological, ethical dimensions

Overview of Course

• Ecology, History, Theory and Ethics• Constitutional Law, Aboriginal Rights • Civil Liability for Environmental Harm• Criminal Law: Regulatory Offences• Corporate Environmental Obligations• Judicial Review of Administrative Action• Environmental Regulations, Approvals• Environmental Rights, Public

Participation

Overview of Course (cont’d)

• Toxic Substances Law• International Law • Environmental Assessment Law• Endangered Spaces and Species Law• Economic Instruments• Climate Change Law• Toward Sustainability Law

Materials

• Benidickson Environmental Law (4th ed)• Cases, legislation, articles on line

Blackboard Learn

Evaluation

• Class Participation (30%); if major paper (20%)

• Interactive Exercises (10% each) two required; if major paper, one required

• Exam (70% if no paper; 40% if minor paper; (20% if major paper)

• Minor Paper (optional, 30%)• Major Paper (optional, 60%)

Evaluation (cont’d)

• Paper Topics: Due Monday October 7• Papers Due: Monday December 2

Class Participation

• General Class Participation (5%) • Attendance (5%)• Interactive Exercises (10%) each:

• Civil Liability Moot• Interested Party Moot• Enforcing Remedial Orders Moot• Climate Treaty Negotiations • Constitutionality of CEAA 2012 Moot• Species at Risk Act Prosecution• Parliamentary Debate on

Carbon Pricing

Why Environmental Law? • Protecting ecological services in

fact of mounting human demands will be defining issue of 21st century

• Opportunities to make Canada a more sustainable society

• Corporate community, governments, academe will need lawyers to navigate laws to protect natural capital, ecological services

Those Awful People

The Global Ecological Crisis

• Human actions are systematically reducing the life-supporting capacity of Earth’s ecosystems even as rising human populations and consumption are making heavier demands on those ecosystems

• Ecological footprint analysis (invented by Bill Rees UBC, conducted by WWF) shows that 1.5 “Earths” needed to support current human population at current consumption levels

• Earth’s natural capital is being drawn down

The Global Ecological Crisis• Average ecological footprint per person:

– Canadian 7.6 global ha– American 9.6 global ha– Frenchman 5.6 global ha– Afghan 0.1 global ha

• Several planet Earths will be needed to maintain current global population at developed country standards of living

Climate Change is Real

• Warming of the climate system is unequivocal” and is “mainly due to human activities.” – Intergovernmental Panel on Climate Change (lPCC) 2007

• Catastrophic consequences are projected if GHG emissions allowed to continue unchecked – IPCC 2007

Canada: A Leading Carbon Polluter

• Canada’s GHG emissions increased from 596 Mt CO2 (1990) to 710 Mt (2012)

• GHG Emissions (tonnes per capita):– Canada 14– United States 20– United Kingdom 10 – China 2– India 1

GHG Concentrations in the Atmosphere

• CO2 concentrations have risen from 280 ppm (pre-industrial) to 403 ppm (2010)

Why is the Atmosphere Changing?

“The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land use change while those of methane and nitrous oxide are primarily due to agriculture.”

IPCC 2007

Canada the Tar Nation: Why our GHG Emissions are Increasing

• Alberta’s tar sands oil production is increasing dramatically:– 1 million barrels per day (2004)– 2.45 million bbl/day (2013)– 5.2 million bbl/day (2030)

• Tar sands oil produces 3.2 - 4.5 times the GHG emissions as conventionally produced oil in Canada and U.S.

• Tar sands oil production is the single largest factor in the growth of Canada’s GHG emissions (17 MT in 1990 to 50 MT in 2010)

2003 – 2012: Warmest Decade Ever

• World warmed by 0.8 degrees C. since Industrial Revolution, mostly since 1970s

• 10 warmest years on record occurred in last 14 years• Canada’s North warming even more rapidly than

global average

Extreme Weather Events • Droughts (Australia, United States) and extreme

precipitation events: Mumbai, New York (Superstorm Sandy), Pakistan, Toronto)

• Hurricanes have increased in severity and duration by 50% since the 1970s

• Insurance losses from extreme weather have increased 15-fold over three decades

Ecological Changes • Extent of Arctic sea ice in September declined 50%

between 1979 and 2012 and could disappear altogether in one to two decades

• Glacier melting (Rockies, Himalayas, Andes, Alps) means lower summer river flows.

• Escalating melting of Greenland and Antarctic glaciers could drive sea levels metres higher

• Lower water levels in the Great Lakes and the St. Lawrence River

• Boreal forest burning• Invasive species• Mountain pine beetle

Climate Change as a Security Threat

• “Climate change acts as a threat multiplier for instability in some of the most volatile regions of the world” --Military Advisory Board to U.S. Pentagon 2007

• “Projected climate change will add to tensions even in stable regions of the world.”

• “Conditions in already fragile areas will erode as food production declines, diseases increase, clean water becomes increasingly scarce, and large populations move in search of resources”

Millenium Ecosystem Assessment (2005) World Resources Institute• Ecosystem services essential to human well-

being• “Over the past 50 years, humans have

changed ecosystems more rapidly and extensively that in any comparable period of time in human history largely to meet rapidly growing demands for food, fresh water, timber, fibre and fuel” “substantial and largely irreversible loss in the diversity of life”

Millenium Ecosystem Assessment • Ecosystem changes have “contributed to substantial

net gains in human wellbeing and economic development” but “at growing costs in the form of degradation of many ecosystem services”

• “The degradation of ecosystem services could grow significantly worse during the first half of this century”

• The challenge of reversing the degradation of ecosystems while meeting increasing demands for their services can be partially met . . . But this involve significant changes in policies, institutions and practices”

Global Trends to 2020 • Global economic growth may stall indefinitely• Increasing scarcity of oil, water, natural resources• Accelerating costs of fossil fuels through cap-and-

trade regulations, carbon taxes, growing demand• Increasingly unpredictable and extreme climate

with related disruption of freshwater supplies, crop failures, forest fires

• Geopolitical instability (environmental refugees, conflicts over oil and gas, water)

• More emergencies resulting from climate disasters• Tens of millions of deaths annually from starvation,

dehydration, and climate diseases • Cocooning by the affluent

The Challenge for Environmental Law

• Law must rise to the challenge of “ensuring the restoration of essential natural capital and of protecting the common rights of all to the ecological services essential for civilized existence”

• Environmental law: links to other fundamental justice issues of poverty, racism, sexism, economic inequality

One Earth, One Chance

A Brief History of Environmental Law

• Forest/fisheries conservation laws and anti-pollution laws (Fisheries Act) 1860s

• Market hunting (bison, passenger pigeon) led to wildlife management laws late 1880s

• National parks:Yellowstone1872, Banff 1885• Navigable Waters Protection Act 1906 • U.S. Governor’s Conference, Conservation

Commission (Roosevelt, 1908) • Commission of Conservation (Laurier, 1909)• Boundary Waters Treaty 1909• Migratory Birds Treaty 1916

A Brief History of Environmental Law (cont’d)

• Ontario’s Conservation Authorities Act, Planning Act 1946

• Rise of environmental awareness in 1960s• Silent Spring Rachel Carson 1962• The Population Bomb Paul Ehrlich 1968• “Tragedy of the Commons” GarretHardin1968• The Limits to Growth Club of Rome) 1972• U.S. National Environmental Policy Act 1969,

Clean Air Act 1970; Clean Water Act 1972

A Brief History of Environmental Law (cont’d)

• Pollution agencies (Environmental Protection Agency, Ontario Ministry of Environment, Environment Canada) early 70s

• Greenpeace (Vancouver), Canadian Environmental Law Association established (Toronto) 1970

• Term “environmental law” appears as index entry between 1972 and 1975

• Canadian Environmental Law Service 1976

A Brief History of Environmental Law (cont’d)

• First generation environmental laws (1970s) “Dilution is the solution”– control of waste deposited on land or discharged

into water – recognition that common law remedies (e.g., torts)

inadequate or sometimes too effective (riparian rights cases)

– focused on local environmental harms

• Clean Air Act, Fisheries Act amendments, Ontario Environment Protection Act, Endangered Species Act

A Brief History of Environmental Law (cont’d)

• Great Lakes Water Quality Agreement 1972• United Nations Conference on the Human

Environment, Stockholm 1972• “Should Trees Have Standing?” Christopher

Stone 1974• Berger Inquiry “Northern Frontier, Northern

Homeland 1974 - 1977

A Brief History of Environmental Law (cont’d)

• Trio of Catastrophes (Bhopal 1984, Chernobyl 1986,Exxon Valdez 1989)

• Environmental Assessment Review Process Guidelines Order in Council 1984

• World Commission on Environment and Development: Our Common Future 1987

• Montreal Protocol on Substances that Deplete the Ozone Layer (CFCs) 1987

• Intergovernmental Panel on Climate Change 1988

• National Round Table on Environment and Economy 1988

A Brief History of Environmental Law (cont’d)

• Second generation laws (1980s, 1990s)– focus on persistent toxic substances – regional harms (pollution knows no borders)– environmental issues are complicated – development projects should be assessed based

on science to determine their advisability– increased understanding of threats to species,

ecosystem processes

• Canadian Environmental Protection Act 1988, Ontario Environmental Protection Act 1990, Canadian Environmental Assessment Act 1992

A Brief History of Environmental Law (cont’d)

• Canada-U.S. Air Quality Agreement (acid rain) 1991

• UN Conference on Environment and Development (Earth Summit),Rio Declaration, Convention on Biological Diversity)1992

• North American Free Trade Agreement, with North American Agreement on Environmental Cooperation 1994

• Kyoto Protocol 1998• Species at Risk Act 2002

A Brief History of Environmental Law (cont’d)

• Third generation laws– focus on sustainability – global harms (biodiversity, CFC damage to

stratospheric ozone layer, anthropogenic climate change)

– Integration of environmental factors together with social and economic)

• Federal Sustainable Development Act 2008• Sustainability assessments under CEAA

(Mackenzie Gas Project, Prosperity Mine)

A Brief History of Environmental Law (cont’d)

• Fourth generation laws 2009 - ?– Provinces to have primary if not exclusive

authority to manage natural resources including related environmental effects

– Navigable Waters Protection Act amended 2009, 2012

– Canadian Environmental Assessment Act amended 2009 then repealed in 2012, replaced by CEAA 2012

– Fisheries Act, amended to weaken fish habitat protection provisions 2012