BC LNG: Environmental Assessment
Process for Pipeline Projects
In a previous post, the Environmental Assessment (EA) Process applicable to the proposed BC LNG Export Terminals [was discussed]. Here, we discuss the EA Process applicable to various Pipelines designed to serve the LNG Export Terminals.

Unlike the LNG Export Terminals, where EA jurisdiction has historically been shared between the Federal and Provincial governments, the Pipelines are generally governed only by the BC EA Process, as administered by the BC Environmental Assessment Office (BC EAO). This is largely a result of Federal Regulations (enacted October 24, 2013) which remove from the Federal EA Process any Pipelines which are effectively intra-provincial in nature – as all of the currently proposed LNG Pipelines are. Read the full article by Cameron Anderson and Jonathan Drance with Stikeman Elliott. 

Wind Opponents Lose Health Challenges
around the World
A recent report by the Energy and Policy Institute documents the rejection of anti-wind health claims by 48 courts and tribunals in Canada, Australia, New Zealand, the United Kingdom, and the US. In one anomalous US case, two turbines which had had a known problem were ordered to be shut down 12 hours a day, four hours longer a day than the owner planned.

According to the report, wind opponents' health claims have been rejected in almost all cases.

"Since 1998, 49 hearings have been held under rules of legal evidence in at least five English-speaking countries and four types of courts [and tribunals] regarding wind energy, noise, and health. Forty-eight assessed the evidence and found no potential for harm to human health. The sole outlier is an instructive but unique case..." Read the full article by Dianne Saxe with Saxe Law Office. 

Independent Expert Engineering Review Launched
Following Mount Polley Dam Breach
The Government of British Columbia, with the support of the Soda Creek Indian Band (Xats'ull First Nation) and Williams Lake Indian Band, has ordered an independent engineering investigation and inquiry into the Mount Polley tailings pond breach, and independent third-party reviews of all 2014 Dam Safety Inspections for every tailings pond at a permitted mine in the province.

The independent engineering investigation and inquiry is authorized under the Mount Polley Investigation and Inquiry Regulation, issued pursuant to section 8 of the Ministry of Energy and Mines Act. The investigation will be conducted by a panel of experts that will investigate the cause of the Mount Polley Mine Tailings Storage Facility failure, including geotechnical standards, design of the dam, maintenance, regulations, inspections regimes and other matters the panel deems appropriate. This section also provides the panel with the ability to compel evidence and authorizes the Minister to require the company to cover costs of the inquiry. Read the official government news release. 

New Energy and Mines Annotations Posted
The first of many annotations have now been posted to the energy and mining-related laws. You can identify an annotated section by looking at the annotation icon located on the far right side of each section. For example, if you go to section 19 (2) of the Mineral Tenure Act, you will see a star icon adjacent to the section. Click the star icon to view the Expert annotation. To view all annotations under an Act, click the "View Annotations for this Law" button on the top menu bar. Expect to see many more annotations posted in the coming weeks and months.

Judicial Review and the Forest Practices
Board: A New Alternative
A recent decision of the British Columbia Supreme Court has given an unexpected boost to the status of BC's Forest Practices Board (Board). In Western Canada Wilderness Committee v. British Columbia, two environmental advocacy groups (referred to as WC2), challenged the Minister of Environment's decision not to issue 'Section 7 Notices' under the Forest Planning and Practices Regulation (Regulation) in relation to Coastal Douglas Fir (CDF).

Among other things, section 5(1) of the Forest and Range Practices Act (FRPA) requires that before the Ministry of Forest, Lands and Natural Resource Operations (FLNRO) may approve a forest stewardship plan (FSP) to authorize timber harvesting activities, the FSP must specify intended results and strategies in relation to "objectives set by government." In turn, various objectives set by government are specified in the Regulation. The government's objective for wildlife under section 7(1) of the Regulation is "to conserve sufficient wildlife habitat … for … the survival of species at risk." Read the full article by Jeff Waatainen with Davis LLP and published in the BC Forest Professional Magazine. 

BC Supreme Court Issues Major Award
for Remediation of Contaminated Site
The BC Supreme Court issued a key decision in the area of contaminated sites [on August 25^th], awarding $4.75 million in "reasonably incurred" remediation costs to the plaintiff, JI Properties, Inc. ("JI Properties"). The award compensated JI Properties for money it spent remediating contamination on James Island, BC. This award is the largest of its kind to-date. The decision is potentially precedent-setting, contributing to the development of BC's contaminated sites law in a number of areas. The decision:

• reiterates that "polluter pays" underpins the entire Environmental Management Act ("EMA") contaminated sites regime, by finding the defendant polluter responsible for paying all of the plaintiff's reasonably incurred remediation costs;
• found the limitation period for cost recovery actions under the 1996 Limitation Act is six years and does not begin until all of the costs of remediation are incurred;
• held that comfort letters issued to landowners by the Ministry of Environment prior to the introduction of the EMA are not the same as Certificates of Compliance under the EMA and do not protect a responsible person from liability for remediation costs; and
• applied a broad, purposive approach to evaluating the reasonableness of remediation costs, and accepts that reliance on expert consultants is a strong indicia of reasonableness.

Read the full article by Michael Manhas and Jana McLean with Bull, Housser & Tupper LLP. 

Environmental Appeal Board Decisions
There was only one decision made by the Environmental Appeal Board in the month of August:

Environmental Management Act: Emily Toews; Elisabeth Stannus v. Director, Environmental Management Act [Preliminary Applications – Granted in Part]

New Environmental Annotations Posted
The first of many annotations have now been posted to various environmental laws. You can identify an annotated section by the annotation icon located on the far right side of each section. For example, if you go to the table of contents of the Environmental Management Act you will see a star icon adjacent to the title at the top. Click the star icon to view the Expert annotation. To view all annotations under an Act, click the "View Annotations for this Law" button on the top menu bar. You can expect to see a significant number of annotations posted in the coming weeks, including annotations to forestry-related laws.