Environmental liability and environmental litigation were in the news again recently. Below we share our observations regarding a couple of these developments.
Environmental Liability in Ontario
The first observation relates to the question of Ontario’s policy related to addressing liability for impacted soil and groundwater. The Environmental Commissioner of Ontario, Dianne Saxe, discussed the issue of “environmental policy” in the province about a year ago. As Ms. Saxe said, the Province has been “picking innocent people and making them pay.” She went on to say, “We need a plan and we need a policy.”
To this point, we have noticed various approaches to addressing environmental liability over the years. You may recall that in the case of Kawartha Lakes, the Province held the municipality, who had no involvement in the spill, liable for the cleanup on municipal property.
The Province has also successfully pursued former directors of insolvent companies to pay for environmental cleanup (see: “Innocence” When it Comes to Environmental Liability Means Nothing).
The province of Ontario has proposed a different liability approach at a site in Hamilton, Ontario. As reported by the CBC and other news outlets, the province of Ontario will assume the environmental legacy associated with the US Steel Canada (Stelco) site in Hamilton, Ontario.
The agreement (pending court approval) is intended to save jobs at the Stelco site and involves Bedrock Industries (US) purchasing the company and committing $80 million to help fund the cleanup of the site. The Province will provide additional funding to remediate the site. This additional cost is unknown, but according to some of the news releases, it could be substantial.
While we don’t know the specifics of the potential agreement, we hope the new plans for the Stelco plant will be beneficial for the facility (including jobs and pensions), the community, and the province of Ontario.
Perhaps as this deal is finalized, new ideas will emerge to address environmental liability (note: see Hamilton’s Environmental Remediation and Site Enhancement page for more information on the City’s Brownfields Program).
Environmental Litigation in 2017
A second observation was a post by the Canadian Bar Association, “Environmental Litigation will be big in 2017.” Environmental litigation, they write in the article, “promises to make headlines in 2017…” They offer five trends to watch this year, including one involving indigenous land rights.
Late in 2016, the Supreme Court of Canada heard two appeals from communities who are disputing authorizations given by the National Energy Board (NEB). In Nunavut, the Inuit of Clyde River are looking to overturn a permit granted to a Norwegian consortium that have been authorized to conduct seismic testing in Baffin Bay. In Ontario, the Chippewas of Thames River are seeking to undo an authorization given to Enbridge to reverse and expand the flow in a pipeline.
In both cases, the communities have argued that the Crown did not engage in “meaningful consultation before the NEB gave authorization…” Recent Supreme Court rulings have highlighted the duty to consult with First Nation communities regarding development projects.
How environmental liability or environmental litigation will play out in 2017 may be closely linked to a number of factors, including, but not limited to, the economy and local and national politics.
As always, we’ll do our best to keep you informed on our observations regarding environmental issues, changes to cleanup criteria, and changes to other environmental regulations.
Finally, if you are not receiving our monthly environmental newsletter, which includes environmental regulatory information as well as announcements regarding our free technical seminars, contact Alan Hahn (ahahn@dragun.com) and he can add you to our mailing list. Also, you can reach me (cpare@dragun.com) at 519-979-7300.