Canada

Supreme Court denies leave to appeal in Smith v. Inco

On April 26, 2012, the Supreme Court of Canada denied leave to appeal in the Smith v. Inco class action proceeding. At first instance, the trial judge found that emissions from Inco’s Port Colborne, Ontario, refinery had negatively affected property values in the surrounding region and awarded the plaintiffs $36 million in damages. The Ontario Court of Appeal reversed the trial decision.

For further information, please see our October 2011 EH&S Bulletin and the SCC’s decision.

Proposed streamlining of the federal environmental assessments

Further to the federal government’s recent budget (see our previous EH&S Bulletin), the government recently elaborated on its plans to streamline the federal environmental assessment process for certain major resource projects as part of the government’s Responsible Resource Development initiative. The plans are expected to significantly improve the efficiency of the review and approval process for new large mining, oil and gas, and related infrastructure projects.

For further information, please see our April 2012 Mining and Oil & Gas Bulletin.

Canada and Nova Scotia coordinate efforts to reduce greenhouse gas emissions

The environment ministers of Canada and Nova Scotia recently announced that their governments are working toward an equivalency agreement on coal-fired electricity generation greenhouse gas (GHG) regulations. An equivalency agreement would see any federal requirements replaced by provincial requirements, as long as they achieve an equivalent environmental outcome. For further information, please see the news release.

Ontario

Ministry of Environment proposes changing EASR

As reported in our May/June 2011 EH&S Bulletin, the Ministry of Environment (MOE) has established the Environmental Activity and Sector Registry (EASR), an online registry for certain activities that the MOE identifies as low risk and that no longer require an environmental compliance approval, provided that the activities meet specific requirements and are registered on the EASR. The MOE has already prescribed certain automotive refinishing (including autobody shop spray booths), heating systems and standby power systems as activities that are eligible to be registered on the EASR.

The MOE recently announced that it is considering additional activities and sectors for potential inclusion in the EASR. In particular, the MOE is proposing to allow specific small scale renewable energy projects to register on the EASR. These projects include small ground-mounted solar projects, on-farm anaerobic digestion and landfill gas electricity generation.

This proposal has been posted for a 45-day public review and comment period ending on May 17, 2012. For further information, please see the Environmental Registry.

MOE proposes amending REA regulations and technical guide

The MOE recently proposed regulatory amendments to the Renewable Energy Approval (REA) regulation (O. Reg. 359/09) made under the Environmental Protection Act and to the MOE’s Technical Guide for Renewable Energy Approvals.

The proposed amendments to O. Reg. 359/09 and revisions to the Technical Guide would

  • remove the requirement that written confirmations or comments related to natural and cultural heritage from the Ministry of Natural Resources and Ministry of Tourism, Culture and Sport be made available before a final public meeting for a proposed project, and to require instead that such confirmations and comments be submitted before submission of a REA application;
     
  • clarify the processes and requirements of a cultural heritage assessment and the information that should be included in the heritage assessment report;
     
  • revise the definition of name plate capacity as it applies to solar facilities (the amended definition will clarify that the name plate capacity is the total design capacity of the solar panels or the maximum power output of the inverters, whichever is the lesser);
     
  • clarify how the noise-based wind turbine setbacks in O. Reg. 359/09 will apply to wind projects that were approved before September 24, 2009, but that subsequently needed to relocate a wind turbine;
     
  • require proponents to provide notification to NAV Canada, Transport Canada (when the project is a wind facility) and the owner or operator of oil or gas pipelines within 200 metres of project location, in addition to the stakeholders already outlined in O. Reg. 359/09; and
     
  • require an applicant to notify the Director of a proposed change to a project and to specify that the Director may require a proponent to update project documentation, provide additional notifications and conduct additional public meetings in response to the proposed changes.

For further information, please see O. Reg. 359/09 and the Environmental Registry.

MOE issues filing direction for facilities reporting under certain environmental regulations

On April 11, 2012, the MOE issued a filing direction (the Direction) to the owners and operators of facilities that must submit an annual report through Environment Canada's "Single Window" on 2011 data under the Airborne Contaminant Discharge Monitoring and Reporting Regulation (O. Reg. 127/01), the Toxics Reduction Act, 2009 and its regulation (O. Reg. 455/09) and Greenhouse Gas Emissions Reporting Regulation (O. Reg. 452/09)().

The Direction states that the Single Window is now available for GHG reporting under O. Reg. 452/09, and those reports are due by June 1, 2012. The Direction also states that the National Pollutant Release Inventory (NPRI) module of the Single Window, which accommodates reporting on airborne contaminants and toxics reduction, is currently expected to be available as of May 1, 2012. According to the Direction, the MOE will not take compliance action against persons who fail to meet the June 1, 2012 reporting deadline under O. Reg. 127/01 and the Toxics Reduction Act, provided that the required reports are submitted by June 29, 2012. This date coincides with Environment Canada’s deadline for reporting information under the NPRI.

United States

States sign agreement on offshore wind development

On March 30, 2012, New York, Minnesota, Michigan, Illinois, Pennsylvania and several federal U.S. agencies signed a Memorandum of Understanding (MOU) intended to streamline offshore wind development in the Great Lakes. The MOU signatories agreed to cooperate to create and publish a regulatory roadmap for offshore wind development in the Great Lakes within 15 months.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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