Environmental Law 2020: Looking Down the Road

By Richard Lindgren, CELA Counsel

This article was originally published online in The Lawyer’s Daily by LexisNexis Canada on December 23, 2019

As the New Year approaches there are numerous environmental issues that will continue to command the attention of litigators and legislators across Canada.rick_192x192

These issues include air and water pollution, renewable energy, sustainable resource management, waste diversion, plastics reduction, clean-up of contaminated sites, protecting species at risk, conserving wilderness areas, and ensuring drinking water safety in Indigenous communities and Canadian municipalities.

However, the most worrisome matter by far is climate change, which poses significant threats to public health, the economy, and the environment throughout Canada and elsewhere on the planet. These well-known threats include increased drought, heat waves, wildfire, flooding, sea level rise, ocean acidification, habitat loss, disease, and food insecurity.

Accordingly, climate-related litigation and legislative developments will again dominate public, political and legal discourse in Canada in the coming year. At the same time, there are several other key matters that merit close scrutiny by environmental practitioners in 2020.

Constitutional Cases

In March, the Supreme Court of Canada will hear two appeals that challenge the constitutionality of the federal carbon pricing regime under the Greenhouse Gas Pollution Pricing Act. In 2019, the Courts of Appeal for Saskatchewan and Ontario upheld this legislation on the basis of the federal government’s residual “peace, order and good government” power.

The Alberta Court of Appeal recently completed its own constitutional reference on this federal law, but it is unknown whether the Court’s opinion will be released before or after the Supreme Court proceedings.

In addition, the Alberta Court of Appeal is holding a separate reference that will be heard later in 2020 to consider the constitutionality of the federal Impact Assessment Act, which was enacted by Parliament several months ago, as discussed below.

Climate Action and Climate Justice

Under Canada’s division of legislative powers, the federal and provincial governments both enjoy ample authority to address climate change mitigation and adaptation.

Nevertheless, it is reasonable to anticipate further debate in 2020 on whether – or to what extent – these governments are using their respective powers in an effective and timely manner to reduce greenhouse gas emissions and to secure a just transition to the low-carbon economy.

In this context, Canadian municipalities will likely become increasingly interested in using their own suite of decision-making powers (e.g. land use planning, transportation infrastructure, local energy plans, etc.) to help make communities more resilient to climate change impacts.

Similarly, more cities across the country will declare “climate emergencies,” while others will continue to explore the option of suing Big Oil in relation to losses, damages or expenses incurred as a result of climate change.

Moreover, since climate change disproportionately affects low-income individuals and vulnerable communities, it is reasonably foreseeable that more aggrieved persons may turn to Canadian civil courts for redress in 2020.

For example, various Charter-based claims against the federal and provincial governments have already been commenced by youths across Canada. These cases will slowly make their way through the legal system in 2020 and beyond.

While these claims have not yet been adjudicated on their merits, it appears likely that concerned Canadians will follow the growing worldwide trend of seeking increased judicial accountability for governmental inaction in relation to climate change.

Toxics Regulation

While climate change is the predominant issue on Canada’s environmental agenda, there are other upcoming regulatory developments that will be relevant to the environmental bar in 2020.

For example, the recent mandate letters from Prime Minister Trudeau to the federal Environment Minister and Health Minister clearly prioritize the “strengthening” of the Canadian Environmental Protection Act, 1999.

In 2017, the Standing Committee on the Environment and Sustainable Development issued a comprehensive report containing 87 recommendations on how to improve this Act, particularly in relation to the regulation of toxic substances. Notably, the Committee recommended that the Act should be amended to include a public right to a healthy environment.

In 2018, the federal response to these recommendations was essentially deferred until after the general election in October 2019.  However, given the current minority government situation, it will be interesting to observe whether the Committee’s sweeping recommendations will be fully adopted by Parliament in 2020 or thereafter.

Environmental Assessment

Some provincial premiers continue to call for the repeal or overhaul of the Impact Assessment Act (Bill C-69), which establishes a new process for evaluating and approving major projects that may adversely affect areas of federal interest.

In reply to such demands, the federal government has recently insisted that the Act will not be reopened in 2020, but stated that the Act’s implementation could be adjusted through regulations, policies and guidance materials.

This open-ended statement has prompted environmental groups to fear that the federal government may inappropriately exempt even more energy projects from the Impact Assessment Act in order to appease disgruntled provinces.

For these and other reasons, 2020 is shaping up to be a busy (if not intriguing) year for environmental lawyers and their clients across Canada.