Articles 2020

Secured creditors should engage with the debtor, environmental and insolvency professionals as quickly as possible to protect their investment in collateral. Secured creditors will also need to consider whether it makes sense to risks of regulatory orders if they commence an insolvency process as there is a risk that there will be no distribution to creditors after satisfying environmental obligations.

The Ontario Toxics Reduction Act, 2009 (TRA) provided cost-effective benefits that were distinct and broader in scope than the federal Chemicals Management Plan under CEPA. The TRA had potential to make large reductions in toxic discharges over time, particularly if more of its provisions were brought into force. Despite this, however, Ontario proposed to repeal the TRA by the end of 2021. Doing so, significant transparency in toxics reduction could be lost, as well.

This article provides an overview of the limitations of the Cap and Trade Cancellation Act, 2018 (the “CTCA”) and recommendations for its implementation in 2019 and beyond. It discusses the public consultation process leading to the enacted CTCA as well as the Ministry of Environment, Conservation and Parks’ compliance with the Environmental Bill of Rights.

What level of information does a proponent need to start an EA? This question was addressed in Carhoun and Sons Enterprises ltd. v Canada (Attorney General) . A regulatory authority has considerable discretion when exercising its decision-making authority to issue authorizations under the CEAA when a project proposal is submitted. Early referral of an incomplete application would mean completed applications would have to await processing of incomplete applications to their detriment.

OBA section editors interview David McRobert, former In-house Counsel and Senior Policy Advisor at the Environmental Commissioner of Ontario, 1994-2010.

In Eagleridge International Ltd. v. Newfoundland and Labrador, following a change of government, the new provincial Minister of Environment and Conservation withdrew approval for the construction of a gravel road intended to facilitate mineral exploration on lands and ordered that the project be subject to a full environmental assessment (EA). Eagleridge was entitled to proceed in accordance with the release from the full EA granted by the Minister before the change in government.

In October, Canada published new regulations prohibiting the import, sale, and use of all forms of asbestos, as well as the manufacture, import, sale, and use of products containing asbestos filaments. In addition, under amendments to the Environmental Protection Act, Canada now prohibits the export of asbestos in all its forms. This article gives an overview of the affected industries, exceptions and activities not covered, as well as the new import and use permit regime.

The Court of Appeal in the Hague upheld the District Court's order that the Netherlands reduce CO2 emissions by 25% relative to 1990 levels by the end of 2020. The Court concluded that "a reduction obligation of at least 25% by end - 2020" is in line with the State's duty of care." The Appellate Court rejected the argument that there were multiple pathways to achieving the higher threshold of 2oC and concluded that the technology to achieve these pathways was uncertain and unrealistic.

The Fisheries Act remains the only legislation that directly addresses the protection and conservation of fish and fish habitat. Significant amendments to the Fisheries Act are underway through Bill C-68, now before the Senate. Some of the most important will restore the broad habitat and fish protections that were removed in 2012. This article reviews what changed in 2012, why those changes occurred, and what protections Bill C-68 proposes to restore to the Act.