Environment, Health and Safety Law Committee News

Newsletter of the International Bar Association Legal Practice Division Vol 7 No 1 October 2010

Long established as the trading and commercial hub of the Middle East, Dubai combines the excitement of a bustling commercial centre with the wide open spaces of a luxurious resort. Located at the cross-roads of Asia, Europe and Africa, and offering facilities of the highest international standards combined with the charm and adventure of Arabia, Dubai is sure to be another premier destination for the IBA Annual Conference 2011.

What will Dubai 2011 offer?
• The largest gathering of the international legal community in the world – a meeting place of more than 4,000 lawyers and legal professionals from around the world • More than 200 working sessions covering all areas of practice relevant to international legal practitioners • The opportunity to generate new business with the leading firms in the world’s key cities • Registration fee which entitles you to attend as many working sessions throughout the week as you wish • Up to 25 hours of continuing legal education and continuing professional development • A variety of social functions providing ample opportunity to network and see the city’s key sights • Integrated guest programme • Excursion and tours programme

To register your interest, please contact: International Bar Association 10th Floor, 1 Stephen Street, London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868  Fax: +44 (0)20 7691 6544 www.ibanet.org/conferences/Dubai2011

In this issue
From the Editor Committee officers IBA Annual Conference –  Vancouver, 3–8 October 2010  Our Committee’s sessions 4 5

Newsletter Editor Eric Rieger European Chemicals Agency, Helsinki Tel: +358 9 6861 8649 Fax: +358 9 6861 8930 ericrieger@web.de

Terms and Conditions for submission of articles


Detailed session description: Environmental responsibilities of resource companies under host country and home country laws – the growing demand for extraterritorial liability – case studies and options for reform 9 Conference reports:  IBA Annual Conference –  Madrid, 4–9 October 2009  session reports Corporate disclosure (carbon disclosure 12 programme) Environmental crimes: related damages, case studies and class actions 15 Implementation of the EU Environmental 19 Liability Directive Going green – why the environment matters to young lawyers 22 Biennial Conference of SEERIL  Toronto, 25-28 April 2010 Professional interest Ontario’s Green Energy Act: the answer (to public acceptance) is blowing in the wind

1. Articles for inclusion in the newsletter should be sent to the Newsletter Editor. 2. The article must be the original work of the author, must not have been previously published, and must not currently be under consideration by another journal. If it contains material which is someone else’s copyright, the unrestricted permission of the copyright owner must be obtained and evidence of this submitted with the article and the material should be clearly identified and acknowledged within the text. The article shall not, to the best of the author’s knowledge, contain anything which is libellous, illegal, or infringes anyone’s copyright or other rights. 3. Copyright shall be assigned to the IBA and the IBA will have the exclusive right to first publication, both to reproduce and/or distribute an article (including the abstract) ourselves throughout the world in printed, electronic or any other medium, and to authorise others (including Reproduction Rights Organisations such as the Copyright Licensing Agency and the Copyright Clearance Center) to do the same. Following first publication, such publishing rights shall be nonexclusive, except that publication in another journal will require permission from and acknowledgment of the IBA. Such permission may be obtained from the Head of Editorial Content at editor@int-bar.org. 4. The rights of the author will be respected, the name of the author will always be clearly associated with the article and, except for necessary editorial changes, no substantial alteration to the article will be made without consulting the author.

This newsletter is intended to provide general information regarding recent developments in environment, health and safety law. The views expressed are not necessarily those of the International Bar Association.

International Bar Association
10th Floor, 1 Stephen Street London W1T 1AT, United Kingdom Tel: +44 (0)20 7691 6868 Fax: +44 (0)20 7691 6564 www.ibanet.org
© International Bar Association 2010. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, or stored in any retrieval system of any nature without the prior permission of the copyright holder. Application for permission should be made to the Head of Publications at the IBA address.



Environment Health and Safety Law Newsletter   October 2010


from the editor

Welcome to Vancouver!

Eric Rieger
European Chemicals Agency, Helsinki


.he year 2010 has been quite a .busy and challenging one for .the Committee with two major .conferences on the agenda. In late April, the Environment, Health and Safety Law Committee joined forces with the other committees in the section in this year’s biennial conference of the IBA’s Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) in Toronto, Canada. I think it is fair to say that the quality of the Toronto sessions organised by the Committee and the input given by some of our officers to other Committee’s sessions well reflected the professional expertise and involvement that is so much of the essence if you work in such a specialised legal field as ours. Same country, same goal – this is all there is to say, in a nutshell, on the Committee’s programme for the IBA Annual Conference in Vancouver, the details of which are included in this newsletter. Instead of running through all our activities on the programme let me simply highlight the all-day session our Committee has organised for the Wednesday of the conference week because of its genuine format and organisation. Fuelled by the fact that globalised economy cross-border pollution cases are becoming more and more topics of today’s headlines and tomorrow’s litigation. The stakes and issues involved in these cases will be presented both from a host country’s and resource company’s perspective, followed by a focus on recent cases and policy developments which will also have to address the issue of access to justice: one of the IBA’s core roles.

The Committee has also been busy following up on last year’s Annual Conference in Madrid, which saw some well-attended sessions and discussions, all of which we have documented in greater detail in this newsletter. Moreover, the Committee is proud to announce new Officers who have joined our group during the Madrid agenda setting meeting. If you want to join our work as an Officer or Committee member or if you have ideas and issues that you would like to see addressed at Committee level, please make sure to be heard in Vancouver. The easiest way to get involved is to contact one of our officers. Last but not least, a word on this year’s host city. I have been advised by local colleagues that Vancouver not only offers natural and cultural attractions in abundance, among which the Stanley Park and the Vancouver Art Gallery would be only the most obvious to mention. As far as its rich shopping varieties are concerned, Robson Street, Granville Street and Pacific Centre are the major downtown shopping destinations, and highlight many Canadian and worldwide brands. If artisan goods are what you’re after, make your way to Granville Island and investigate the many local artists and artwork. The culinary side of Vancouver would certainly merit an entire newsletter with its superb blends of Asian and seafood kitchen, and there is a nightlife which offers something for everyone. Enjoy the newsletter. I look forward to seeing you soon in Vancouver!


International Bar Association Legal Practice Division

committee officers

Committee officers
Chair Claus-Peter Martens Rolema, Berlin Tel: +49 (30) 8872 4521 Fax: +49 (30) 881 8460 martens@rolema.de Senior Vice-Chair Bernat Mullerat Cuatrecasas Gonçalves Pereira SLP, Barcelona Tel: +34 (93) 290 5458 Fax: +34 (93) 290 5533 bernat.mullerat@cuatrecasas.com Vice-Chairs William L Thomas Skadden Arps Slate Meagher and Flom LLP, Washington DC Tel: +1 (202) 371 7640 Fax: +1 (202) 661 9170 william.thomas@skadden.com Eugene E Smary Warner Norcross & Judd LLP Grand Rapids, MI Tel: +1 (616) 752 2129 Fax: +1 (616) 222 2129 esmary@wnj.com Secretary David Estrin Gowling Lafleur Henderson LLP Toronto Tel: +1 (416) 862 4301 Fax: +1 (416) 369 7250 david.estrin@gowlings.com Treasurer Glen McLeod Minter Ellison, Perth, Australia Tel: +61 (8) 9429 7444 Fax: +61 (8) 9429 7666 jayne.chance@minterellison.com Regional Representative Asia General Qing Wu Goodcomrade Law Firm (China), Guangdong Tel: +86 (757) 8229 0032 Fax: +86 (757) 8223 8732 wq_goodcomrade@126.com Regional Representative South America Felipe Cousiño Alessandri & Compañia, Santiago Tel: +56 (2) 787 6000 Fax: +56 (2) 787 6076 fcousino@alessandri.cl Regional Representative Africa Eugene Ogogo Odey Odey & Odey Solicitors, Port Harcourt Tel: +234 (0) 803 3384 306 odey_2sols@yahoo.com Membership Officer Ian Roy Sampson Shepstone & Wylie, Durban Tel: +27 (31) 302 0449 Fax: +27 (31) 304 3289 sampson@wylie.co.za Newsletter Editor Eric Rieger European Chemicals Agency, Helsinki Tel: +358 9 6861 8649 Fax: +358 9 6861 8930 e.rieger@web.de Website Officer Ka-ho Felix Ng Haldanes Solicitors & Notaries, Hong Kong Tel: +852 9708 4880 Fax: +852 2845 1637 felix.ng@haldanes.com

LPD Administrator Kelly Savage kelly.savage@int-bar.org

Environment Health and Safety Law Newsletter   October 2010


iba annual conference, vancouver 2010

IBA Annual Conference, Vancouver 2010
Environment, Health and Safety Law

Environment, Health and Safety Law Committee sessions

Chair Claus-Peter Martens  Murawo, Berlin, Germany Health and safety in the workplace – know the rules! A practical guide for managers Joint session with the Employment and Industrial Relations Law Committee. Session Co-Chairs Philip Berkowitz  Littler Mendelson PC, New York, USA Anders Etgen Reitz  Magnusson, Copenhagen, Denmark; Website Officer, Discrimination Law Committee Ignacio Funes de Rioja  Funes de Rioja e Asociados, Buenos Aires, Argentina; Vice-Chair, Discrimination Law Committee Norm Keith  Gowlings LLP, Toronto, Ontario, Canada Pascale Lagesse  Helen McKenzie  Blake Dawson, Sydney, New South Wales, Australia; Secretary, Discrimination Law Committee Dirk Jan Rutgers  DLA Piper, Amsterdam, the Netherlands; Chair, Discrimination Law Committee; Council Member, IBA Global Employment Institute This session will provide an overview of the workplace health and safety considerations that companies with global operations should be aware of including tips and best practices for successfully managing these issues. Speakers from various jurisdictions will provide insight into the following: • the setting and enforcement of workplace health and safety regulatory and criminal standards and the growing trend to increase criminalisation of the enforcement of health and safety laws around the globe; • the discrimination issues related to health and safety in the workplace from a global perspective and the development of company policies on a multinational scale; • the rise in workplace stress, bullying, harassment and

violence following the economic downturn and the responsibility of employers to protect employees from these psycho-social risks; and • how the use of employee evaluation systems to retain only the most productive employees can present a risk to employees’ health and how to balance these types of corporate policies with the need to ensure a safe working environment.

Speakers Shalini Agarwal  ALMT Legal, Mumbai, India; Corporate Counsel Forum Liaison Officer, Immigration and Nationality Law Committee Caroline André-Hesse Rossi  Altana, Paris, France Anna-Stefaniya Chepik  Goltsblat BLP, Moscow, Russian Federation Nadia Demoliner Lacerda  Mesquita Barros Advogados, São Paulo, Brazil Donald C Dowling  White & Case LLP, New York, USA; Newsletter Editor, Discrimination Law Committee Philippe François  NautaDutilh, Brussels, Belgium Anke Freckmann  Osborne Clarke, Cologne, Germany Regina Glaser  Heuking Kühn Lüer Wojtek, Düsseldorf, Germany; Corporate Counsel Forum Liaison Officer, Discrimination Law Committee Lukasz Granosik  Ogilvy Renault LLP, Montreal, Quebec, Canada Paula Embro Hogéus  Advokatfirman Delphi, Stockholm, Sweden Dominic Hui  Ribeiro Hui, Hong Kong, China Karen Mitchell  Credit Suisse, New York, USA Akhil Prasad  Fidelity Business Services India Private Limited, Gurgaon, India; Vice-Chair, Corporate Counsel Forum Verónica Raffo  Ferrere, Montevideo, Uruguay Ueli Sommer  Walder Wyss & Partners Ltd, Zurich, Switzerland Rob Towner  Bell Gully, Auckland, New Zealand; ViceChair, IBA Global Employment Institute Angelo Zambelli  Dewey & LeBoeuf Studio Legale, Milan, Italy MONDAY 1000 – 1800 Room 208 & 209, Level 2


International Bar Association Legal Practice Division

iba annual conference, vancouver 2010

Overcoming the problems with transmission – reliability and capacity Joint session with the Power Law Committee. Session Chair Linda Evans  This session will cover the management of intermittent renewable energy sources across a transmission network, securing investment in network extensions and capacity enhancements, the particular locational problems of renewable generation, its impact on transmission networks, and the role of smart grids. Speakers David Knight  Transpower New Zealand Limited, Wellington, New Zealand Juan Francisco MacKenna  Carey y Cía Ltda, Santiago, Chile; Website Officer, Power Law Committee Michelle de Rijke  Bird & Bird LLP, The Hague, the Netherlands; Vice-Chair, Power Law Committee Gail Watkins  Fulbright & Jaworski LLP , Houston, Texas, USA MONDAY 1000 – 1300 Room 207, Level 2 Decommissioning Joint session with the Oil and Gas Law Committee. Session Chair Jean-André Diaz  Total SA, Paris, France; Corporate Counsel Forum Liaison Officer, Oil and Gas Law Committee; Council Member, Energy, Environment, Natural Resources and Infrastructure Law Section (SEERIL) This session will discuss legislative requirements regarding abandonment, decommissioning and clean-up, especially in the UK, which has set a benchmark for others to follow. We will examine the need for a decommissioning security agreement among partners in joint ventures or other parties using facilities, especially in LNG hubs. We will discuss types of security including funds in a trust account, parent company guarantees, and letters of credit, evaluating the pros and cons of each in facing decommissioning expenses. We will also discuss timing of contributions, and posting of security. Aging plants around the world and depletion of reserves present a complex environment in which the lack of resources may pose additional problems, such as default or insolvency of a party and the remedies of other parties. Asset deals are hampered by concerns over decommissioning, as it remains uncertain which companies are to shoulder the costs and liabilities of abandoning old fields. We will discuss all of this and more. Speakers Timothy Martin  ADR Governance Inc, Calgary, Alberta, Canada Scott Rusty Miller  Ogilvy Renault LLP, Calgary, Alberta, Canada Paul Stockley  Bond Pearce LLP, Bristol, England; Publications Officer, Oil and Gas Law Committee MONDAY 1500 – 1800 Room 202, Level 2

A DINNER will be held with the Power Law Committee for members and accompanying persons MONDAY 2030 Gotham Steakhouse Powering the mining industry – what is the industry doing about generating energy for projects? Joint session with the Mining Law Committee. Session Co- Chairs Daniel Altikes  Antofagasta Minerals, Santiago, Chile; Membership Officer; Mining Law Committee Ian Sampson  Shepstone & Wylie Attorneys, Durban, South Africa; Membership Officer, Environment, Health and Safety Law Committee The mining industry is currently one of the most important consumers of energy for their processes. Using conventional sources of energy is becoming more and more difficult due to its scarcity and pricing, as well as to the huge environmental concerns. Mining companies are now facing the challenge of finding new and renewable energy sources which will allow them to be more efficient, cost-effective and more environmentally friendly. This topic is intended to reveal what the mining companies are doing to face this situation and to discover the current trends for new energy sources. Speakers Carol Dixon  Anglo Operations Limited, Johannesburg, South Africa Ramiro Guevara  Guevara & Gutiérrez SC, La Paz, Bolivia Richard M Farmer  Fulbright & Jaworski LLP, New York, USA; Co-Chair, Power Law Committee Mariano Magide Herrero  Uría Menéndez, Madrid, Spain Darrell Podowski  Lang Michener LLP, Vancouver, British Columbia, Canada TUESDAY 1000 – 1300 Room 210, Level 2 Developing mining projects while mitigating adverse impacts Joint session with the Latin American Regional Forum. Session Co-Chairs Florencia Heredia  HOLT Abogados, Buenos Aires, Argentina; Membership Officer Latin American Regional Forum; Treasurer, Mining Law Committee Michael Bourassa  Fasken Martineau DuMoulin LLP, Toronto, Ontario, Canada; Newsletter Editor, Mining Law Committee Mining projects involve a wide range of aspects and impacts on the jurisdictions where they are located. They usually operate for quite a long period of time and therefore a careful analysis of their impact on the environment and the local communities is required.

Environment Health and Safety Law Newsletter   October 2010


iba annual conference, vancouver 2010

Each mining project has unique features and impact, although there are areas of common concern to experts in this field. In this regard, more attention has recently been paid to the social aspects of mining projects, and new terms such as ’social license’ are part of the usual industry vocabulary. This session will address the development of mining projects in different countries of the world and the different experiences and alternatives in mitigating adverse impact from a technical and social perspective, with the focus on issues such as indigenous communities, other local activities or industries, eg tourism, and the use of other scarce natural resources such as water, among other challenging topics. Speakers Daniel Altikes  Antofagasta Minerals, Santiago, Chile; Membership Officer, Mining Law Committee David Deisley  Goldcorp, Vancouver, British Columbia, Canada Hugo Dryland  Rothschild, Washington DC, USA Patrick Garver  Barrick Gold Corporation, Toronto, Ontario, Canada TUESDAY 1500 – 1800 Room 212, Level 2 Environment responsibilities of resource companies under host country and home country laws – the growing demand for extraterritorial liability – case studies and options for reform See page 9 for detailed session information. Fish versus fishermen – who will be extinct first? Session Chair Claus-Peter Martens  Many nations support international efforts to regulate fishery in coastal waters, their exclusive economic zones and the high seas in order to ensure sustainable management of marine resources. Despite good intentions, such regulation often results in fishing fleets seeking new fishing grounds outside regulated and monitored zones. In addition, modern fishing methods considerably increase the size of catches, including bycatch, thereby threatening reproduction and inadvertently depleting natural resources. Thus, it is only a matter of time until either the fish or the fishermen will be extinct. We will discuss these issues with an panel of international experts, including the UN Food and Agricultural Organisation, the EU, and fishing industry representatives. Speakers Donald Baur  Perkins Coie LLP, Washington DC, USA Héctor Rodríguez Molnar  Rodríguez Molnar & Asociados, Madrid, Spain THURSDAY 1000 – 1115 Room 207, Level 2

Post Copenhagen – final turning point in fighting global warming Session Chair William L Thomas  Skadden Arps Slate Meagher & Flom LLP, Washington DC, USA; Vice-Chair, Environment, Health and Safety Law Committee At the end of 2009, the Member States of the UN Framework Convention on Climate Change (UNFCCC) gathered in Copenhagen to discuss the challenges of climate change. Under the Bali Roadmap, the participants intended to agree on binding rules about how to reduce global warming. Yet, the result of this conference was disappointing: not only was the ‘Copenhagen Accord’ not passed unanimously; the parties merely recognised climate change as one of the greatest challenges of the present day. They also stated that measures should be taken to keep temperature increases to below two degrees compared to the pre-industrial era. The result was heavily criticised, since the final document in no way met the high expectations. The challenge is now whether the result of future conferences on climate change, which will take place in Bonn (Germany) and Mexico City in 2010, will be binding rules on how to fight climate change. This session will examine possible results and limits of such conferences from different perspectives. Speakers William M Bumpers  Baker Botts LLP, Washington DC, USA Kenneth Rivlin  Allen & Overy LLP, New York , USA Anne-Marie Sheahan  McCarthy Tétrault LLP, Montreal, Quebec, Canada Gray E Taylor  Bennett Jones LLP, Toronto, Ontario, Canada THURSDAY 1145 – 1300 Room 207, Level 2


International Bar Association Legal Practice Division

iba annual conference, vancouver 2010

Vancouver session in detail
Wednesday 6 October 2010 1000–1800

Environmental responsibilities of resource companies under host country and home country laws – the growing demand for extraterritorial liability – case studies and options for reform Wednesday 6 October 2010 1000–1800 Session Co-Chairs David Estrin Gowlings LLP, Toronto, Canada Eugene E Smary, Warner Norcross & Judd LLP, Grand Rapids, USA This special all-day programme will provide first-hand details of the rationale and issues surrounding current litigation by host country environmental claimants against resource companies in their home jurisdictions; identify law reforms to improve access to justice for such claimants; provide resource company response to these matters; and involve attendees in debating reforms the IBA might endorse. Issues will include: • How significant are environmental problems caused by foreign-based mining and petroleum companies? • Aren’t internal corporate environmental and social responsibility policies working? • Is meaningful host country access to justice not available to prevent, remediate and compensate for contamination by foreign-based resource companies? • Should foreign-based resource companies be legally required to meet their home country environmental standards in host countries and be legally liable under home country civil and criminals laws for host country contamination? • Is there a principled basis in international law and UN policies for imposing home country environmental standards on corporate citizens in their foreign activities, as well as in facilitating home country civil suits by host country claimants? • What are options for legal reforms and what should the IBA response be to these? Speakers at this special one-day programme, will: • bring first-hand accounts of environmental and access to justice problems in countries hosting foreign-based resource development;

• detail current cases before European and US courts arising from host country environmental contamination claims in Africa and in the Philippines (a case that could also be headed to Canadian courts), and provide insights as to where courts are being pushed to go on these issues; • provide mining and petroleum industry sector perspectives; and • outline the growing rationale for improved access to justice based on international law principles and identify mechanisms for achieving this for host country environmental claims. Speakers include the former Attorney General of Cross River State, Nigeria, American counsel for a Philippine state suing a Canadian mining company in US Courts, a Nigerian environmental lawyer coordinating a Niger Delta farmers’ suit in the Dutch courts against Royal Dutch Shell, the research coordinator for MiningWatch, an internationally active ENGO, a senior Canadian mining industry lawyer, the Chief Environmental Counsel for Chevron Energy, American counsel defending extra-territorial human rights liability claims under the 1789 US Alien Tort Statute, and leading legal scholars who advise government and policy makers on these issues. Attendees will have the opportunity to: • learn about, discuss and debate the issues; • help determine if the IBA should be acting on such matters; and • identify law reforms which should be further examined Background The issue of efficacious access to justice for those negatively impacted by resource developments, and the need for that access to be potentially provided in the home jurisdiction of foreign-based resource companies, is a topic identified at the 2009 IBA Annual Conference as one of significant interest and concern to members of the bar and the judiciary in many developing countries. Access to justice in this context includes not only more accessible statutory and civil redress in home countries but also the potential enforcement of home country environmental standards to prevent foreign environmental harm and redress failure to observe such standards in the host countries.

Environment Health and Safety Law Newsletter   October 2010


iba annual conference, vancouver 2010

1000–1005 Introduction and session overview Claus-Peter Martens Rolema Rechtsanwälte, Berlin, Germany, Chair IBA Environment, Health and Safety Committee 1005–1015 IBA initiatives in extraterritorial liability issues David W Rivkin, Debevoise & Plimpton LLP, New York, immediate past Chair, IBA Legal Practice Division, and originator of the IBA Task Force on Extraterritorial Jurisdiction 1015–1030 Setting the stage: the magnitude of foreign-based resource exploitation in developing host countries David Estrin, Gowlings LLP, Secretary, IBA Environment, Health and Safety Committee Panel I 10:30–12:00 Host country perspectives: environmental impacts by foreign resource corporations – access to justice issues Prince Chima Williams is a Nigerian lawyer and Head, Legal Resources Department, Environmental Rights Action/Friends of the Earth Nigeria. He is coordinating Nigerian plaintiffs in the Netherlands litigation by four Nigerian farmers and fishers, claiming as victims of Shell oil leaks. He actively campaigns nationally and internationally for globally enforceable environmental standards by all business operators to ensure respect for the environmental and human rights of local community people. Nella Andem-Ewa Senior Advocate, Nigeria, brings in-depth insights regarding access to justice issues in developing countries and in international justice systems. Counsel/advocate before the International Court of Justice and a former Attorney General, Cross River State, she has also advised private sector clients, including energy companies. She is founder of Children of Planet Earth. Walter J ‘Skip’ Scott Diamond, McCarthy LLP, Dallas, Texas, was special US Legal counsel to the Office of the President for the Republic of the Philippines and is Attorney for the Philippines Province of Marinduque, which is suing Placer Dome and Barrick Gold in US Courts regarding claims of extensive mining contamination. Aspects of this litigation are now pending before the US Supreme Court. Catherine Coumans PhD, Cultural Anthropology, is Research Coordinator and responsible for the Asia-Pacific Program at MiningWatch Canada. Dr Coumans has worked with NGOs and mining affected

communities in many Asian-Pacific countries, focussing on indigenous peoples affected by Canadian mining companies. She has provided expert testimony on mining in two congressional inquiries in the Philippines, before the Indonesia Constitutional Court, the Canadian Sub-Committee on Human Rights and Democratic Development, and in an amici brief for the U. S. Supreme Court. 1215–1300 Panel II Resource Company Perspectives (part a) (continues after lunch) 1400–1430 Resource Company Perspectives (part b) Robert Wisner McMillan LLP, Toronto, Canada, has been counsel for the Prospectors and Developers Association of Canada before the Canadian House of Commons Standing Committee studying Bill C-300, the proposed Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries Act. He has provided experts opinions on international law and CSR Regulation during the National Roundtables on Corporate Social Responsibility and the Canadian Extractive Sector in Developing Countries. Margaret Hoffman Chief Environmental Counsel, Chevron Law, Houston, Texas, heads the Chevron Environmental Practice Group, which provides legal services to all Chevron business units in Environmental, Health and Safety matters. The group has 24 attorneys and advises client operating in over 150 countries. Prior to coming to Chevron, Ms Hoffman was the Executive Director of the Texas Commission for Environmental Quality. 1430–1630 Panel III Precedents, policy issues and options for preventing and redressing resource company foreign environmental harm and improving access to justice Professor Sara Seck Faculty of Law, University of Western Ontario, London, Ontario, Canada. Professor Seck’s PhD thesis was on the topic ‘Home State Obligations to Regulate Transnational Mining Companies under International Environmental and Human Rights Laws’. She focuses her research, writing and teaching in this area. She has also acted as a contributor to the work of John Ruggie, the Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises. Professor Richard Janda Faculty of Law, McGill University, Montreal, Québec, Canada. Professor Janda is an


International Bar Association Legal Practice Division

iba annual conference, vancouver 2010

Associate Member of the McGill School of Environment, a Senior Research Fellow with the Centre for International Sustainable Development Law, and is the co-author of the recent book Corporate Social Responsibility – A Legal Analysis. He also written an analysis of the need for and efficacy of Bill C-300 ‘Corporate Accountability of Mining, Oil and Gas Corporations in Developing Countries’ for the Canadian Network on Corporate Accountability. Sara Kropf, is a litigation partner at Baker Botts, LLP in Washington, DC. Ms. Kropf’s practice focuses on white collar criminal defence work, internal corporate investigations and complex civil litigation. She defends individuals and corporations in both criminal and civil contexts.

Amongst her cases is a successful defence after federal trial of Drummond Coal Co regarding claims under the Alien Tort Statute arising from the assassination of union leaders by Colombian paramilitaries. She is also the author of the paper ‘Human Rights Litigation Against Multinational Energy Corporations under the Alien Tort Statute’. Note: speakers from earlier in the day are invited to present comments (maximum five minutes) on issues arising during Panel III. 1630–1800 All attendees: Discussion and voting on extraterritorial liability law reform options and recommendations

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Conference reports from IBA Annual conference, Madrid

Conference reports
IBA Annual Conference, Madrid, 4-9 October 2009
4 – 9 Oc tober 20 09


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Corporate disclosure (carbon disclosure programme)
Session Chair Carlos de Miguel Perales: Uría Menéndez Abogados, S L P, Madrid, Spain Speakers Enrique Alonso García Spanish State Council, Madrid, Spain William L Thomas Skadden Arps Slate Meagher and Flom LLP, Washington, DC, USA Manuel García-Ayuso Covarsi ACIF, SC, Seville, Spain

Monday  5 October 2009 Paula Aizpún Marcitllach
Uría Menéndez, Madrid

This session stressed the increasing importance of environmental issues for investors and the benefits to companies for disclosing non-financial information. ‘GHG emissions disclosures: European schemes within the international frameworks’ The first speaker, Enrique Alonso, began by showing the increasing projected effects of emissions on temperature and sea levels for the next century. He then described certain measures taken in Europe and other parts of the world, from the Kyoto Protocol to the UK’s Carbon Reduction Commitment. Mr Alonso addressed the principal milestones relating to climate change. He focused on the Kyoto Protocol and highlighted three aspects: the mandatory obligations, the greenhouse gas (GHG) emissions targets for countries (and the trading system for different accounting units) and the registry system. In December 2007, 187 countries meeting in Bali (the ‘Bali Action Plan’) agreed to initiate negotiations in connection with reaching a crucial and strengthened international climate change deal. In addition, an agenda, with a deadline of December 2009 in the Copenhagen UN Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol Conference

of Parties was approved. In Mr Alonso’s opinion, the main obstacle to a US commitment in Copenhagen would be the bilateral situation vis-à-vis emerging economies and whether such countries can convince the US Government that they have taken or are taking ‘meaningful participation’ in the framework. Mr Alonso stated that the position of emerging economies is that climate change should be solved by those who caused it, specifically, developed countries. Another obstacle is the absence of any clear agreement on the financing scheme promised to developing countries under the UNFCCC and the Kyoto Protocol. The Clean Development Mechanism (CDM) allows emissions-reduction projects in developing countries to earn certified emission reduction (CER) credits, which can be traded and sold to industrialised countries in order for the latter to meet part of their emission reduction targets under the Kyoto Protocol. Mr Alonso stated that the mechanism has stimulated sustainable development and emissions reductions while also providing industrialised countries flexibility in the manner they meet emissions reduction targets. While the private sector has progressed less rapidly than the public sector, Mr Alonso predicted that the importance of environmental issues for private investors will increase. Some of the main benefits of GHG registries for companies would be: managing GHG risks and identifying reduction opportunities, facilitating public reporting and participation in voluntary GHG programmes, participating in mandatory reporting programmes and participating in GHG markets. Certain trends have been observed such as increasing GHG emissions and litigation and greater certainty of investors and

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shareholders regarding the impact of climate change on business activities. The existing reporting systems are either mandatory, such as national and international registries or voluntary, such as the Global Greenhouse Gas Register, the Carbon Disclosure Project and the Climate Registry. Mr Alonso concluded by mentioning some of the steps taken in Europe on this matter, such as the EU Greenhouse Gas Emission Trading System, National Allocation Plans and the Integrated Pollution Prevention & Control System. He applauded the demanding UK Carbon Reduction Commitment, which will enter into force in 2010 and apply to a wide range of organisations. The business of climate: meditations on carbon disclosure The second speaker was our Committee’s Vice-Chair, William Thomas. After raising specific issues such as who the subjects of carbon disclosure are, what is at stake (sustainability, risks, etc) and how much people care about carbon transparency, Mr Thomas explained some of the measures taken in the US and globally. The Securities Act of 1933 and the Securities Exchange Act of 1934, which created the US Securities Exchange Commission (SEC), obligate companies to disclose material information, that is, information a reasonable investor would consider important. Regulation S-K requires the disclosure of: • the costs and liabilities associated with environmental laws, material contingent capital expenditure plans and costs associated with carbon credit purchases; • threatened legal proceedings, including lawsuits based on public nuisance or actions calling for parties to factor climate change into permit decisions; and • known trends, events or uncertainties that are reasonably expected to have a material impact on a company’s financial situation (Items 101, 103 and 303). In June 2009, the Investor Network on Climate Risk renewed an existing petition seeking guidance on climate risk disclosure, including regulatory risks, legal risks, reputation risks and governance risks. A roundtable was held in Washington, DC in July 2009, which explored specific issues, such as whether investors consider environmental compliance, climate change and sustainability issues as important in making investment or voting decisions and if current disclosure

practices with respect to environmental compliance, climate change and sustainability issues are sufficient for investors to make informed investment and voting decisions. The Martin Act, prohibits fraud in connection with the sale of securities and commodities. In September 2007, New York State Attorney General Andrew Cuomo, issued subpoenas under the Martin Act to five major energy companies in connection with information on evaluating the adequacy of climate risk disclosures in their SEC filings. Currently, two of the companies have agreed to disclose the information in the annual summary report to investors (Form 10-K) required by the Securities and Exchange Commission. The US Environmental Protection Agency (EPA) published the Mandatory GHG Reporting Rule, which will require facilities and suppliers to begin monitoring from 1 January 2010 and file their first emissions report by 31 March 2011. This rule requires facilities to report their GHG emissions although it does not apply to certain suppliers of fossil fuels and industrial GHGs nor vehicle and engine manufacturers, which will report at the corporate level. Furthermore, emissions from mobile sources will be included in reports from fuel suppliers and manufacturers of vehicles and engines. Reporting companies will be required to self-certify their emissions reports and the EPA will verify submitted data through audits and investigations. The American Society for Testing & Materials (ASTM) published a draft standard for voluntary financial disclosures relating to climate change in November 2008. The standard was recently balloted within the ASTM and received numerous negative votes. The Global 500 Report prepared and issued by the Carbon Disclosure Project (CDP) in September 2009 achieved the highest level of disclosed emissions and greater detail than ever before on the activities being undertaken by large corporations regarding mitigation of climate change and adaptation. Some interesting details in connection with the report were mentioned, including the 39 per cent increase in the number of Asian companies responding to CDP 2009, the fact that the number of companies responding to the CDP in the BRIC countries (Brazil, Russia, India and China) has doubled since 2008, and that the number of non-respondents to the CDP is less than 100 for the first time. The Climate Disclosure Standards Board (CDSB) was formed in 2007 in response to increasing demands for standardised reporting

Environment Health and Safety Law Newsletter   October 2010

guidelines on the inclusion of climate change information in ‘mainstream’ reports (the annual reporting packages in which certain corporations are required to deliver their audited financial results under the corporate, compliance or securities laws of the territory or territories in which they operate). A Reporting Framework draft was released by the CDSB in May 2009. Companies that adopt the Framework are required to disclose contextual information and climate changerelated information according to the four Reporting Templates of the Framework in the management commentary that accompanies their financial statements. Mr Thomas concluded by providing some thoughts on the future of carbon disclosure. A new standard based on recent trends would likely require disclosure of: • current and future direct and possible indirect GHG emissions; • the company’s strategic analysis of climate change risks and steps to minimise them; • a quantification of material financial impacts from the regulation of GHG emissions; and • the material physical impacts associated with climate change. Mr Thomas stated that exposure to enforcement and litigation, the reputation and the brand of the companies and relations with shareholders and investors are at stake and that companies need to search for ways to find strategic advantages. Corporate disclosure of information on greenhouse gas emissions: empirical evidence provided by scholarly research and future prospects The final speaker, Manuel García-Ayuso provided a view on the non-legal approach to the increasing importance of environmental issues for investors. Mr García-Ayuso stated that GHG emissions must be reduced since global warming is likely to have catastrophic consequences and the impact of business activities on global warming is significant. In his opinion cap and trade emission certificates is the most appropriate way to achieve this goal as opposed to taxes. When investors make decisions, the main issue they take into account is risk. In assessing risks, environmental issues should also be taken into consideration. Although the accounting standards do not require this information, it is advisable that companies provide voluntary disclosures. In this regard, the lack of reliable information on

intangibles may lead to adverse consequences, such as inefficient corporate governance mechanisms, volatility, high cost of capital, high interest rates, information asymmetries, undervaluation, inaccurate forecasts of analysts, unethical behaviour of financial analysts and elevated risk of litigation. Mr García-Ayuso cited the US Emergency Planning & Community Right-to-Know Act of 1986 (EPCRA), which was issued on the basis that the public has the right to know about toxic pollutants. Section 313 of the EPCRA requires annual reports on toxic releases and also establishes civil penalties that may amount to US$27,000 per day. The EPCRA has been attributed to having caused a reduction in toxic releases. This can be explained by some factors, also caused by the EPCRA as self-monitoring by firms, monitoring amongst firms and pressure from the government, environmental groups, the public and the market. Other responses to facilitating companies’ disclosure of information related to environmental issues have come from the UN Conference on Environment and Development, the National Pollutant Release Inventory of Canada, the Pollutant Release and Transfer Registers of the OECD and the General Reporting Guidelines of the Greenhouse Gas Protocol, which establishes standards and guidance for companies and other organizations carrying out a GHG emissions inventories. Furthermore, the mandatory Emissions Trading Scheme of the EU requires Member States create their own registry which must be linked through the Community Independent Transaction Log. Mr García-Ayuso also touched on voluntary frameworks such as the Global Greenhouse Gas Register and the Carbon Disclosure Project. Mr García-Ayuso suggested that factors such as company size, pollution propensity, and fear of future lawsuits may explain companies’ disclosure of information. Other reasons companies may disclose information are based on the fact that it increases corporate reputation, triggers self monitoring and that companies may be anticipating future requirements and implementing them now leads to greater efficiency. Nevertheless, while the scope of mandatory information is particularly limited, voluntary disclosures are usually self-laudatory, heterogeneous, non-comparable and not usually included in corporate brochures. Mr García-Ayuso concluded by pointing out specific challenges for the future.

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Regulatory challenges involve determining the information currently requested by standard setting bodies and the likelihood of harmonised global regulations. Technical aspects should also be analysed, such as what and the manner in which companies measure GHG emissions, measurement costs and the corresponding feasibility for small and medium-sized companies. Other areas that need more attention include the scope of measurement and reporting, the way the data should be reported, the link to corporate financial reports and ensuring that auditors are capable of verifying emissions data. For Mr García-Ayuso, an ideal

approach would involve a global agreement in Copenhagen (in December 2009), a specific harmonising regulation, appropriate enforcement mechanisms, efficient monitoring systems and GHG emissions data included in financial reporting. At the end of the session, there was time for discussion on the future of corporate disclosure. The speakers all agreed that the disclosure issue is experiencing slow development and that it invariably involves political, cultural and technical factors. The speakers also predicted that there would eventually be standardisation and regulation of carbon disclosure.

Tuesday  6 October 2009 Enrique Rodríguez Celada
Uría Menéndez, Madrid

Environmental crimes: related damages, case studies and class actions
Session Chair William L Thomas Skadden Arps Slate Meagher and Flom LLP, Washington, DC, USA

UK The first speaker was Paul Emerson of Lamb Chambers, London, England. Mr Emerson provided important information about the EU Directive on the protection of the Environment through Criminal Law (Directive 2008/99/EC) as well as the improvements carried out in the UK for the protection of the environment. Over the past 30 years, the EU has implemented several measures to improve the quality of the environment. These include the creation of the European Union Network for the Implementation and Enforcement of Environmental Law, which helps to provide a framework for policy makers and enforcers, as well as the EU Forum of Judges for the Environment. In this context, the adoption of the EU

Directive was proposed to establish a minimum standard among member states regarding the prosecution of environmental crimes. More specifically, the Directive was aimed to ensure that all serious breaches of EU environmental legislation (either intentional or negligent) were to be deemed as criminal offences subject to prosecution by national courts. In this sense, a ruling of the European Court of Justice issued on 23 October 2007 confirmed that the Commission was entitled to require sanctions for environmental damages but not to determine the type and level of penalties. The said Directive has not yet been transposed in the UK. However, the country has recently taken important steps regarding the protection of the environment, including: • implementation of the EU Batteries Directive; • implementation of the EU CLP Regulation (‘Hazardous Substances CHIP’); • obligation to join producer compliance scheme to be implemented by November 2009;

Environment Health and Safety Law Newsletter   October 2010

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• Changes Carrier Broker Registration (waste control); • Carbon Capture an Storage CCS; and • Climate Change Act 2008. Moreover, there are many recent convictions obtained by the Environment Agency, specially in cases regarding illegal waste dumping, misuse of landfill sites and illegal elver fishing. Mr Emerson concluded the presentation by discussing the UK regulations with regard to class actions. As a result of the Justice Report published in July 1996, new rules were added in Part 19 of the Civil Procedure Rules. These rules have created a system for a Group Litigation Order (GLO) so that when claims give rise to common or related issues of fact or law, the court has the power to make a GLO enabling it to manage the claims in a coordinated way. The Management Court controls the procedure and deals with issues such as the transfer of claims in other courts or the appointment of a lead solicitor. Nevertheless, some problems have arisen as a result of this new regulation, for instance, in some cases individual rights have been sacrificed for the interest of the group. Examples of class actions cases in the UK are Owen v Min Defense (2006 EWHC 990), Hobson v Ashton Slack Solicitors (2006 EWHC 1134), and T v Nugent Care Society (2004 EWCA 51). Spain The next speaker was Guillermina Yanguas of Uría Ménendez, Madrid, Spain, who gave an overview of the Spanish laws governing the protection of the environment from criminal, administrative and civil law perspective. Like Mr Emerson, Ms Yanguas also addressed the impact of the above mentioned EU Directive (2008/99/CE) in Spain. The Spanish Constitution of 1978 has recognised the right of everyone to live in ‘an environment adequate for human development’ and has established the correlative duty of public authorities to conserve such an environment. In this respect, article 325 of the Spanish Criminal Code sets forth the basic environmental crime, which requires the concurrence of the following elements: • a breach of legislation or other general rules protecting environment (STS 29 January 2007); • that cause or carry out, directly or indirectly, emissions, discharges, radiations, extractions, excavations,

siltation, noises, vibration, injections or deposits (STS of 7 February 2007); and • that could seriously damage ecosystems (STS 14 April 2004). The perpetrator of the crime may be convicted to a maximum of four years imprisonment, the payment of a fine and a disqualification to perform in a specific profession. This penalty can be higher in cases of aggravated offences such as the creation of a risk of serious damage to human health or emissions of ionising radiation. There are also aggravating circumstances such as the falsification or the hiding of information, the creation of a risk of irreversible or catastrophic deterioration, etc. It should be noted that Spanish courts are now applying an stricter approach since they no longer require the existence of a ‘concrete risk’ but just a conduct deemed suitable to generate that risk. In addition, although at the moment the Spanish legal system does not hold legal persons criminally responsible for the offences committed in the course of its business, the future transposition of the EU Directive 2008/99/CE will lead to the legal entities being considered liable for certain environmental crimes. On the other hand, damages arisen from actions against the environment are mainly regulated by: (i) the general provisions of the Spanish Civil Code for tort liability; and (ii) the Spanish Law 26/2007 of October 23 on Environmental Liability, which establishes an administrative proceeding to repair environmental damages (identifying the damages included and those excluded), the obligations of the operator causing the damages (prevention, avoidance, reparation and notification of the damages) and the imposition of a financial guarantee for those companies carrying out certain activities. The civil liability may consist in the restitution, reparation of the damage and the indemnification for material and non material damages. Italy The third speaker of the session was Riccardo Cajola, of Cajola & Asociatti, Milan, Italy, who outlined the main features of the Italian environmental legislation as well as the impact of certain EU regulations in this legal area. As it is the case in Spain, the Italian Constitution contains the basic provisions for the protection of the environment and EU

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and domestic regulations provide the legal framework for such protection. In particular, the EU Directive 35/2004/EC, based on the OECD ‘polluter pays’ principle, provides with a definition of damages to the environment (distinguishing between damage to protected species and natural habitats, water damage and land damage) and calls for a regime of relative strict liability in relation to occupational activities which present a risk for human health or the environment. Like the previous speakers, Mr Cajola also mentioned the important EU Directive 99/2008, which Italy has not yet implemented. In Italy, the environmental protection is a diffuse interest on behalf of which individuals are not in a position to act directly. In this respect, the Code of Environment establishes that anybody who causes a damage to the environment by carrying out an unlawful action or by omitting mandatory actions is liable to restore the previous environmental situation or, by failing to do so, to pay an equivalent monetary compensation for damages to the country. However in 2002, following a long judicial battle arising from the Seveso accident at the ICMESA plant in 1976, the Italian Court of Cassation recognised the personal dimension of the environmental damage and awarded an autonomous compensation for the emotional distressed suffered by the individuals. Mr Cajola continued describing Italian environmental legislation in greater detail. He particularly highlighted the role of the Ministry of Environment which has the power to plead compensation for damages to the environment in both civil and criminal law proceedings and, alternatively, can act directly by issuing administrative injunctions to restore the previous situation or by imposing administrative sanctions. It was also pointed out that compensation can be obtained by way of remedial actions (which are different depending on the nature of the damage occurred) or, if necessary, through pecuniary compensation. Mr Cajola concluded his presentation addressing the issue of waste dumping, which is expressly prohibited in Italy, and the illicit traffic of waste, which is actually considered as a felony, the Calabrian Coast case. EU class actions The above-mentioned views on the EU and domestic regulations regarding the protection of environment were completed by the

speech delivered by Antoinette Collignon, lawyer at Beer Advocaten and President of the Pan European Organisation of Personal Injury Lawyers (‘PEOPIL’), in Amsterdam (the Netherlands). She analysed the use of class actions and collective redress among EU member states. At the beginning of her presentation, Ms Collignon focused on the advantages of the use of class actions in relation to the protection of the environment at the national and EU level. She identified concrete functions of the class action: • it establishes a technique whereby claims of many individuals can be resolved at the same time; • it eliminates the possibility of repetitious litigation; and • it provides small claimants with a method of obtaining redress without the burden of costs. Having said that, Ms Collignon outlined the implementation of this class action (not limited to environmental issues) in some European countries. Sweden It was the first European state to introduce an opt-in class action. Under Swedish law there are three forms of class action: (i) private class actions, initiated by a person belonging to the class and having a claim of his own; (ii) organisational class actions, initiated by consumer or labour organisations; and (iii) public class actions, initiated by a government appointed authority. The Netherlands In August 2005 the Collective Settlement of Mass Damages Claims Act became effective and allowed associations representing the interests of injured parties to negotiate a settlement, which will bind all injured parties unless they wish not be bound (opt-out option). In addition, the Dutch Civil Proceedings Act also allows actions from associations representing the injured parties and it is also possible to combine individual actions. Denmark In 2008 Denmark introduced the use of group actions which can be brought by individual claimants, a private consumer association or institution (for instance, the Danish Consumer Council) or a public authority such as the Consumer Ombudsman.

Environment Health and Safety Law Newsletter   October 2010

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Norway The Act Relating to Mediation and Procedure in Civil Disputes became effective in January 2008 and allowed the opt-in and opt-out of class actions brought by individuals. Finland The Group Action Act of 2007 introduced a group action that can only be brought by the Consumer Ombudsman in cases of mass consumer dispute. Portugal An action popularis may be brought on behalf of the public at large, although there are some limitations to the award of damages. Spain According to the Law of Civil Procedure, consumers associations, bodies legally constituted to defend the ‘collective interest’ and groups of injured parties may bring actions to protect the interest of an unascertainable group of consumers suffering damages. An opt-in mechanism is provided for injured parties but there is no opt-out mechanism. France There are two types of collective actions regulated under articles L 421-1 (damage to the collective interest of consumers) and L 422-1 (damage to an specific group of individuals) of the Consumer Code. These group actions can only be brought by registered consumer associations. Germany In 2005, the KapMuG legislation was passed allowing the use of class actions for the litigation of certain capital markets transactions and therefore excluded other civil law proceedings. This KapMuG contains a ‘sunset clause’ by virtue of which it will automatically cease to have effect on 1 November 2010, unless otherwise decided by the legislator. Italy Italy has no class action legislation for claims for damages or money. However, consumers

associations can file claims on behalf of groups of consumers to obtain judicial orders against corporations that are causing injuries or damages. Greece Since 2007, consumer associations not only can sue for injunctions and ‘moral damages’ but also once a judgement is final, the consumers can rely on such ruling and claim payment in accordance with their individual losses. After this summary of some European States' regulations on class actions, Ms Collignon ended her presentation describing the EU legislation regarding collective redress: the ‘green paper on consumer collective redress and the white paper on damages actions for breach of the EC Antitrust rules of 2008’. USA Finally, Eva O’Brien of Fulbright & Jaworski LLP, Houston USA, ended this session by giving an overview of some criminal penalties that are contained in the major US environmental statutes and explained nine key principles that serve to understand environmental prosecutions in the United States. In this respect, it is important to highlight the following statutes and penalties mentioned by Ms O’Brien: • Comprehensive Environmental Response, Compensation and Liability Act, 42 U S C 9603 and 9604e – relates to failure to report specific ‘releases’ into the environment, which may carry a maximum US$10,000 fine or one-year prison sentence; • Resource Conservation and Recovery Act, 42 U S C 6928d-e – governs ‘hazardous waste’ generation, treatment, storage and disposal and establishes fines of up to US$250,000 and a maximum of 15 years jail sentence; • Clean Water Act, 33 U S C 1319c: it regulates the discharge of pollutants into waters and contains the imposition of up to $250.000,00 fine and 15-year prison sentence; • Clean Air Act, 42 U S C 7413c – maximum US$1 million fine and 15-year prison sentence; and • Alternative Fines Act, 18 U S C 3571 – maximum US$250,000 fines for individuals and US$500,000 for corporations. As anticipated, Ms O’Brien ended the session’s final presentation by explaining the

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nine key principles referred to above and related cases: 1. ‘Prosecution can result in significant prison terms’ Unites States v Lucas (S D Miss, No 1:04cr60GuRo, 25 February 2005) and United States v Elias (269 F 3rd 1003 ‑ 9th Cir 2001 -, as amended cert denied, 537 US 812-2002-). 2. ‘Fines against the corporation can be large’ United States v Tyler Pipe Co (E D Texas, NO 6:05-cr-00029, 22 March 2005) and United States v Overseas Shipholding Group (OSG). 3. ‘Even a negligent act can trigger criminal liability’ United States v Hanousek (176 F 3d 1116 -9th Cir 1999- cert denied, 528 US 1102 -2000-). 4. ‘The government will climb the corporate ladder if warranted’ Unites States v Hansen, 262 F 3d 1217 (11th Cir 2001 -per cunium-, cert. denied, 122 S Ct 23 26, 2327 -2002-).

5. ‘Prosecution can extend to non US citizens’ M/V Myron N case. 6. ‘You need not be formally designated as a corporate officer to be charged as one’ Unites States v Iverson (162 F 3d 1015 -9th Cir 1998-). 7. ‘Environmental harm is not a prerequesite for prosecution’ United States v Nielsen W D Missouri 4:09-cr00189-SWH (filed 12 June 2009, plea entered 31 August 2009). 8. ‘Many Environmental Statutes offer “Bounties” to whistleblowers’ United States v OMI Corporation D N J (2:04-cr-00060-KSH -filed 21 January 2004, sentence entered 6 August 2004). 9. ‘Laying to the company’s lawyer can result in prosecution’ United States v Rivard, United States v Kaplan and United States v Zar (all decided on 8 April 2004).

Thursday  8 October 2009 Felix Ka-ho Ng,
Haldanes Solicitors & Notaries, Hong Kong

Implementation of the EU Environmental Liability Directive
Speakers Dr Claus-Peter Martens, Murawo, Berlin, Germany Bernat Mullerat, Cuatrecasas Gonçalves Pereira SLP, Barcelona, Spain Mr Eric Rieger, Heuking Kühn Lüer Wojtek, Frankfurt am Main, Germany Mr Ian Sampson, Shepstone & Wylie Attorneys, Durban, South Africa Mr Eugene Smary, Warner Norcross & Judd LLP, Grand Rapids, United States Mr David Estrin, Gowling Lafleur Henderson LLP, Toronto, Canada

Despite a lengthy gestation period, the EU Environmental Liability Directive (‘the Directive’) left conceptual puzzles that have caused difficulties in its implementation by EU Member States and of application by authorities, operators, third parties and insurance companies alike. The present predicament is predominantly driven by the fact that the Directive ventures into highly sophisticated national legal and doctrinal traditions.

It was against this backdrop that the Chair of the Committee, Dr Claus-Peters Martens, and Senior Vice-Chair, Mr Bernat Mullerat, led a panel of international experts to examine the added value and the drawbacks of the Directive, including the problem of transposing the Directive within the national legal systems of Member States. A roundtable discussion was held on at Palacio Municipal de Congresos (Campo de Las Naciones) in Madrid, which was wellreceived with active participation of and invaluable input of the audience from all over the world. Dr Martens (Germany) and Mr Mullerat (Spain) An overview of the Directive Dr Martens, Mr Mullerat and Mr Rieger kicked off the roundtable discussion by giving a overview of the Directive within the European legal

Environment Health and Safety Law Newsletter   October 2010

framework. Issues included the ‘polluters pay’ principle, sustainable development, financial liabilities of operators upon breach, cleaning up and preventive measures, and the establishment of common framework for prevention and remedies with reasonable costs to the society. Dr Martens took the view that the Directive was rather complex and somewhat controversial. In a large country with complicated regulatory framework such as Germany, the Directive is likely to give rise to a plethora of complaints by NGOs. Both Dr Martens and Mr Mullerat agreed that while the Directive encourages EU member states to look into environmental issues in their respective jurisdictions, it would be very difficult to achieve a compromise among various interested groups in a particular jurisdiction and amongst various EU member states. Dr Martens and Mr Mullerat analysed the nature of liabilities for breach of the Directive – a public law liability with civil law elements, rather than absolute and strict liability as what might have been believed by many. While operators are deemed to be liable under Annex III of the Directive, they may seek exculpations within the framework. Mr Eric Rieger (Germany) The European Environmental Liability Directive – German Act on Environmental Damages Mr Rieger gave a presentation from a German perspective. He started the discussion by providing an outline on the EU Directive and its implementation in Germany through the Act on Environmental Damages (USchadG). In line with the Directive, the Act aims at avoiding and seeking remedies to potential environmental catastrophes by making the originators liable. It is a public law liability which protects environmental assets only, instead of personal, property or economic assets Mr Rieger went on to discuss the concept of ‘environmental damage’ and the occupational activities with absolute liabilities (such as waste management, handling and transportation of substances etc), those with fault liabilities together with the relevant exempted scenarios. In the event of a breach of the Act, the originators are required to provide relevant information relating to their breach, to avert a danger and to take remedial action. They also bear the costs arising from the necessary measures with no maximum limit of liability in general.

Mr Rieger’s concluding remarks were that enterprises should keep in touch with authorities regarding the practical implementation of the Directive in cases of doubt. This could prevent the premature intervention by the NGOs that would carry significant prejudicial media coverage and minimise room for negotiation with the authorities. Mr Ian Sampson (South Africa) A comparative overview of South African Environmental Liability laws and the EU Directive on Environmental Liability Mr Sampson gave a different insight to the roundtable discussion by providing a comparative overview of the environmental liability laws in South Africa and the EU Directive. He discussed the history of constitutional environmental rights in South Africa, explored the implications of the Natural Environmental Management Act 107 of 1998, and discussed the recent developments in this realm, including the amendment of the Act in 2009. Regarding the salient differences between the EU Directive and the South African law, Mr Sampson was of the view that the EU Directive has seemingly refined, defined and limited liability standards, whilst the South African law is written in the most broad terms with very low levels of enforcement. The poor enforceability in South Africa is due to poor enforcement skills and department budget constraints, together with the local concept that environmental laws prohibit economic growth. Eugene Smary (United States) CERCLA and the EU Environmental Liability Directive compared Mr Smary led the audience to the realm of the US law by providing an interesting account of the ‘Love Canal’ incident which took place in Niagara Falls, where chemical factories were dumping waste into the Canal. After November 1980, there were initiatives by then US President Reagan to set up a ‘superfund’ to finance cleaning up the canal and to seek reimbursements from polluters. This triggered the birth of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under the CERCLA, cleanup was the priority. CERCLA responded to

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a perceived need for a superfund to provide the government with resources to respond to growing national concern over releases of hazardous substances and perceived threats to human health and the environment. On the other hand, cost recovery was secondary. Strict joint and several liabilities combined with broad cost recovery and contribution provisions were intended to ensure that the polluters (or at least someone who was affiliated with the site) paid for the cost of cleanup and replenished the superfund. Mr Smary compared the EU Directive with the US CERCLA under the following headings: Retroactivity The EU Directive is prospective, but it has a 30-year limitations period from the time of post-enactment emission or incident that causes environmental damage. CERCLA was passed in 1980 and is retroactive. Liable parties The EU Directive is relatively narrow in its application and applies only to ‘operators’. CERCLA imposes strict, generally joint and several, liability on four very broad classes of parties: owners, operators, transporters, and arrangers. Cost recovery and contribution The EU Directive provides relatively narrow cost recovery. A government may initiate cleanup and then recover the cost from a liable operator. If there is more than one operator, then the operators can make arguments to apportion liability and allocate damages among themselves. In contrast, CERCLA provides expansive cost recovery with the backup of the Superfund.

Mr David Estrin (Canada) A comparison of Environmental Liability and the ‘polluter pays’ principle in Canadian law and in the EU Environmental Liability Directive Mr Estrin concluded this conference session by sharing the Canadian experience in solving environmental issues. The Supreme Court of Canada recognised in the landmark case of Imperial Oil the principle that assigns responsibility to past polluters to remedy current contamination and imposes the direct and immediate costs of pollution on them. This is a principle found in all federal and provincial environmental legislation. The Canadian law covers a wide range of responsible persons, including owners or previous owners of pollutants, persons in charge of the source of pollution and persons causing discharge of pollutants etc. It is a scheme of strict liability, absolute liability together with joint and several liabilities. Mr Estrin provided a comparative analysis between the Canadian law and the EU Directive. In the EU Directive, operators and polluters are regulated whilst the Canadian law covers a broader range of actors. Unlike the Canadian position, the EU Directive carries no retroactive effect relating to past events of environmental concerns. In relation to the scope of law, the EU directives targets ecological damage while the Canadian law concerns personal injuries, private property, economic losses and damage to natural environment. As to the nature of pollutants, the EU Directive targets the biological pollutants and the Canadian law is limited to physical and chemical pollution. Further, the Canadian law lacks the detailed guidance in Annex II of the EU Directive in handling the remedy of environmental damage. This conference was concluded with further roundtable discussions with participants on national implementations of the EU Directive or similar environmental legislations, together with broader issues such as climate change, the Kyoto Protocol and the Copenhagen Climate Conference.

Environment Health and Safety Law Newsletter   October 2010


Going green – why the environment matters to young lawyers

Thursday  8 October 2009 Eric Rieger
formerly Heuking Kühn Lüer Wojtek, Brussels


his session of the Young Lawyers’ Committee was chaired by Eric Rieger of the German law-firm Heuking Kühn Lüer Wojtek and included five panellists giving presentations on the topic. Claus-Peter Martens of Murawo, Chair of the Environment, Health and Safety Law Committee, also welcomed the audience and stressed the increasing importance of environment law for the legal profession. The first speaker of the panel Héctor Rodriguez from the Spanish law-firm Rodriguez Molnar & Asociados began his presentation ‘A personal history of environmental practice’ by outlining motives and personal benefits relating to the practice of environmental law. Besides the high social value linked to environmental protection, the advantages from an environmental practice stem from the interdisciplinary character of environmental law. Due to its intermingled profile, it may also help to attract more work to other areas of practice of the firm. Another consequence of this aspect is the wide diversity of actions possible, as Mr Rodriguez explained. Furthermore, the presentation discussed, on the one hand, the main environmental concerns at community level, such as green house gas emissions, inefficient use of energy resources or the increasing waste production and main corporate/industry concerns in the environmental realm, on the other, with regard to the increasing demand for health and safety measures or the increase of decentralised regulations entailing a growing administrative burden for corporations. The second panellist to speak about the appeal of environmental law for young lawyers was Casper Herler of the Finnish law-firm Hammarström Puhakka Partners. In his presentation Mr Herler pointed out that environmental legal practice is to be regarded as a niche knowledge and, thereby, implying that wide opportunities exist to achieve recognition within this field. Against this background, it was further mentioned

that green issues often involve a ‘learning by doing’ approach since not everything is completely covered by literature. This also adds to the professional challenge associated with the legal practice in environmental matters by referring to the circumstance that clear-cut answers are not always available. Mr Herler’s presentation was followed by the one of Covadonga del Pozo who has specialised in environmental and energy law. In her speech Ms del Pozo emphasised the good business opportunities to be found in the environmental field of law which, at the same time, provide personal satisfaction. Another appealing element in terms of environmental law according to Ms del Pozo is the emergence of influential case-law. Subsequently, the Canada-based lawyer Robert Wakulat spoke about his personal career path into the subject of environmental law. In doing so, Mr Wakulat clarified that he has not pursued a traditional legal practice but has rather focused on the more specific issues of energy and climate change which allowed him to combine practical considerations, such as the perspective of establishing a viable business, as well as personal interests and motivation. In addition, Mr Wakulat regarded mentorships involving senior support or educational programmes as appropriate opportunities to gain experience for young lawyers and, therefore, to develop further expertise. Another piece of advice provided by the speaker for young lawyers who aim to establish themselves in the environmental area is to engage in networking activities, for example mentioning ‘Green drinks’ events, and to follow people with the same background by use of modern media equipment such as Twitter. The last speaker of the session, Daniel Vázquez García from the Spanish law-firm Uría Mendéndez, gave insight into legal developments under the environmental framework at the European and national level in Spain. Especially the EU’s evergrowing regulatory policies with regard


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Biennial Conference of Seeril

to emission, noise, waste disposal or conservation of natural habitats has left its mark on Spanish environmental laws in terms of enactment and implementation. Yet, as described by Mr Vázquez García, the different layers of legislation, ie, European, national, regional and local, add to difficulties when it comes to the implementation of environmental legislation. In the Spanish case, lack of enforcement and the fact that even noncompliance is cheaper for Spanish firms than compliance with environmental regulations renders implementation faulty. Apart from the lack of a ‘sustainable development’ in Spain, Mr Vázquez García referred to the range of industrial sectors affected by environmental law, like automobile, chemical

or pharmaceutical industries, which reflects the broad scope of opportunities for lawyers linked to environmental practice. The Chair thanked the panel and the audience, who participated vividly in discussions following the presentations, for their valuable input. He concluded that environmental law offers interesting business opportunities for young colleagues and rewards them with challenging mandates, which often require unprecedented counselling. As the scope of issues dealt with is rather significant and legislation and technical developments evolve quickly, acquiring a sound specialisation and ongoing training appears to be of the essence for environmental lawyers.

Biennial Conference of SEERIL
25–28 April 2010, Toronto, Canada


fficers of the Environment, Health and Safety Law Committee were active organisers, panellists and participants in this year’s Biennial Conference of the Section on Energy, Environment, Natural Resources and Infrastructure Law (SEERIL) on Challenges for Resources in a Changing World, which took place in Toronto in April. SEERIL and its six committees organised, with substantial assistance from the Toronto host committee, varied, topical and interesting sessions covering all of the Section’s areas of focus. Special attention was placed on subjects of current importance to Canadian interests, notably the topics on the Arctic region and the oil sands. In summary, the Conference anticipated emerging developments worldwide in the energy and natural resources areas, including the interplay among the various constituents: regulators, investors, lenders, NGOs and local peoples. Moreover, several sessions further analysed these challenges and tensions with an attempt to extract, analyse and formulate lessons to be learned. Participants agreed that quite a few of Toronto’s sessions, therefore,

marked a departure from the standard format, which was widely well received. In greater detail, our Committee was in the driving seat for the following sessions: • 27 April – Beyond Carbon Session Co-Chairs John Williams of Duncan & Allen, Washington DC; Secretary-Treasurer, IBA Power Law Committee and William Thomas of Skadden Arps Slate Meagher & Flom, Washington DC; Vice-Chair, IBA Environment, Health and Safety Law Committee set the stage with putting forward the following questions to the panellists and session committee members, including Ian Sampson of Shepstone & Wylie, Durban, our Committee’s Membership Officer: - How should we determine the appropriate mix between carbon based energy resources and other alternatives? - Are current laws and regulations helping to achieve that appropriate mix? - What complexities come into play in different world regions, and in cross-border trade in energy? - What is the future of carbon-based fuels in the energy resource portfolio?

Environment Health and Safety Law Newsletter   October 2010

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• 27 April – Going Green Our Committee Chair Claus-Peter Martens of ROLEMA, Berlin discussed with a selected panel, the effects and issues concerning ‘green’ energy and clean technology, such as solar (DESERTEC), wind, hydro, biomass, hybrid propulsion, alternative fuels (ethanol, biofuels, biodiesel). Panellists kicked off their presentations with latest developments and focused then on their relevant legal and business implications. The following Committee Officers were panellists in sessions that were organised by the other SEERIL Committees: • David Estrin of Gowling Lafleur Henderson, Toronto, Ontario, our Secretary, spoke on nuclear challenges and opportunities. Together with the other panellists David addressed the legal, environmental and

financial challenges and opportunities unique to the development of a nuclear plant in a global economy by drawing on his own experiences. • Claus-Peter Martens was called on the session panel ‘Governance, regulation and policy’, which dealt with the role of national and international policies, resolving (international) conflicts, the role of NGOs and other factors. • Eugene Smary of Warner Norcross & Judd, Grand Rapids, Michigan, Vice-Chair, IBA Environment, Health and Safety Law Committee joined the Session on ‘Where will the water flow?’ on Tuesday afternoon of the Conference. The panel acknowledged water scarcity and quality as major issues and elaborated on the impact of water use on oil, gas and mining projects.

Ontario’s Green Energy Act: the answer (to public acceptance) is blowing in the wind
Background This year marks the centenary of publicly owned electricity in the Canadian province of Ontario. On 11 October 1910, Sir Adam Beck held the first of many ceremonial ‘switch-on’ events by pressing a switch that lit up a street sign proclaiming power ‘For the People!’ Beck was a manufacturer, who was simultaneously a municipal mayor and a member of the Conservative Party of the provincial legislature (which was then permitted). He became an early advocate of harnessing Ontario’s hydro resources at Niagara Falls to promote economic development by building the world’s largest hydro power plant and stringing wires across southern Ontario.1 The province’s manufacturing sector threw its support behind this plan to alleviate the adverse impact of the monopolistic nature of the province’s prevailing energy supply and generation industry. Following a power crisis which had been brought about by an inadequate supply of

Robert J Wakulat, BComm, JD
Renewable Energy & Business Sustainability, Toronto

coal,2 the government faced a public uproar. The Conservative premier responded by appointing Beck the first chairman of the Hydro-Electric Power Commission in 1906. Beck sought the support of the province’s citizens through a series of public referenda. Only after debating and voting on how their money would be spent, did he receive the green light to create the world’s first publicly owned electric utility. In 1910, Niagara began providing a clean, cheap and reliable foundation for a modern Ontario economy. As the province’s electricity needs grew, it replicated the Niagara facility by developing 70 other hydro plants.3 Therefore, for the first half of the 20th century, Ontario was able to run its economy solely on clean, low-cost and renewable power. However, the province eventually decided to meet growing demand for power by building coal and nuclear plants. This approach has only recently abated as the province began reconnecting with its green power roots and

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the desire to get communities involved in the development of electricity generation. Overview of Green Energy and Green Economy Act The Ontario government’s passage of the Green Energy and Green Economy Act 2009, SO 2009, Ch 12 (GEGEA) on 14 May 2010 represented a significant step toward furthering an emerging green energy policy focus.4 The GEGEA is omnibus legislation that involves 21 separate Acts by introducing new legislation, repealing and amending existing legislation. The GEGEA sets high level policy, while policy implementation and much of the detail is being enacted through new provincial regulations and Ministerial Directives. It is intended to achieve three main objectives including: • stimulating the economy through the creation of 50,000 ‘green collar’ jobs; • fostering a culture of conservation; and • facilitating the expansion of renewable resources. Some of the key components of the GEGEA designed to promote the achievement of these objectives include:5 • Feed-in-Tariff (FIT) and microFIT (less than 10kW) programmes – allowing individuals, businesses and communities to sell renewable energy to the grid at guaranteed prices with price adders for community and Aboriginal projects; • Domestic content requirements – sets a percentage for how much of a particular project must be produced in Ontario. Currently, requirements are 25 per cent for wind projects over 10 kW (increasing to 50 per cent on 1 January 2012), 40 per cent for microFIT solar PV and 50 per cent for larger solar PV projects (both increasing to 60 per cent on 1 January 2011); • Renewable Energy Facilitation Office – promoted as ‘a one-window access point to assist renewable energy project proponents’;6 • Streamlined approvals – implementation of a seamless, streamlined Renewable Energy Approval (REA) process for renewable project proponents by amending the provincial Environmental Protection Act7 under O Reg 359/09. Previously, a proponent had to obtain several different provincial approvals (eg, Certificates of Approval for air and noise emissions, waste disposal systems, sewage system works, water taking permits, etc.)

from a number of ministries and the host municipality. The REA consolidates the various environmental and health and safety requirements in the Ministry of the Environment (MOE) along with a service guarantee which promises that approved projects will receive all of their permits within six months of an application; • ‘Right to connect’ – priority access to the electricity grid for renewable energy projects that meet technical, economic and other regulatory requirements; • Conservation and demand management – requires the industry regulator to ensure local utilities meet individual CDM targets by enabling ratepayers to reduce peak demand, as well as overall electricity consumption; • Smart grid – directives (and future regulations) to implement a smart grid that will facilitate the connection of smallscale generation and a two-way flow of information; and • Community power – enable local and Aboriginal communities to build, own and operate their own renewable energy projects. The fundamental changes required by the Ontario electricity industry to build ‘the sustainable communities of tomorrow’ will necessitate an unprecedented collective effort from the government, local utilities, regulators and the province’s energy agencies.8 They will be expected to identify and address barriers that stand in the way of producing the outcomes envisioned by the GEGEA in a timely and transparent manner. It is a challenge that has already begun. Energising community participation The spirit of Beck’s community outreach is found in the government’s desire to put an emphasis on making green energy accessible to a broader cross-section of Ontarians. Grounding acceptance of the GEGEA in local and Aboriginal communities is a strategy designed to ensure long-term support for the Act. These new participants are being encouraged to develop generation with the following incentives: • Price adders – Aboriginal and community participants will receive a higher FIT tariff per kWh dependent upon their level of economic interest in a project; • Lower security obligations – Aboriginal and community participants with an economic interest greater than 50 per cent in a project will enjoy reduced security payments. For

Environment Health and Safety Law Newsletter   October 2010

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example, a reduction to the Application Security of CA$5 per kW from between CA$10-CA$20 per kW of contract capacity; • Amended legislation – the government amended existing legislation to create ‘Renewable Energy Cooperatives’ that may be used as project vehicles for Aboriginal and community involvement. • Energy partnerships programmes – Aboriginal and community power proponents are eligible to take advantage of the Aboriginal Energy Partnerships Program (AEPP) and Community Energy Partnerships Program (CEPP) respectively. These programmes provide funding grants for pre-development work (AEPP) and enumerated design and development activities and regulatory approval costs (AEPP, CEPP). Aboriginal groups will also be able to access an Aboriginal Renewable Energy Network – a web-based resource intended to promote learning about the development of renewable energy generation facilities and share knowledge and best practices – and the Aboriginal Community Energy Plan programme, which will assist with the development of CDM plans. Storm clouds on the horizon Despite a commitment to working with and enabling communities to again participate in the development of energy generation in Ontario, the government has discovered a small yet organised level of opposition to its new energy policy.9 Perhaps the concerns around wind energy development best epitomise the challenges mounting against the government. They include: • Limited municipal participation – the GEGEA has amended the Planning Act10 to exempt renewable energy projects from the ambit of local planning instruments (eg, municipal zoning by-laws, development permit regulations, municipal official plans, demolition control by-laws and provincial plans. This is designed to fast track and simplify the approval process. However, it has contributed to a conspicuous backlash, primarily focused on wind projects, among the residents of potential host municipalities. • Health and environmental concerns – some rural residents have expressed anxiety about the impact of wind turbines on human and animal health including migratory birds and bats.

• Inadequate appeal process – there are now limited appeal rights available to contest an REA. A third party right of appeal to the Ontario Municipal Board (OMB) has been replaced by a limited right of appeal to the Environmental Review Tribunal under the EPA that requires the appealing party to establish the undertaking would cause either serious harm to human health or serious and irreversible harm to plant life, animal life or the natural environment.11 The process implicates wind, solar and bioenergy facilities with exemptions for smallscale wind and solar projects.12 The intensity of opposition to these aspects of the GEGEA has manifested itself in at least two significant developments. First, approximately 20 municipalities have endorsed a municipal bylaw that seeks to control wind turbine development based on health concerns. They have grounded the basis for their decision in the Canadian Charter of Rights and Freedoms,13 which calls for ‘the protection of life, liberty and security of person’ under Section 7. Second, the lawsuit Hanna v Attorney General for Ontario 14 was launched soon after the Act’s introduction. The plaintiff is seeking a declaration that would strike down sections of O Reg 359/09 authorising REAs for wind projects. This would prevent the construction of almost all new commercial wind projects. The plaintiff argues that the REA process defies the precautionary principle to permit wind energy development without further study of its alleged health effects. Moreover, the regulation is alleged to have been created without adequate consideration of the Environmental Bill of Rights and contrary to the MOE’s Statement of Environmental Values. Government response It should be noted that the provincial government has, if not directly, undertaken some initiatives to blunt the criticism of the GEGEA’s opponents. Some of the more significant developments include: • Off-shore wind approvals – the MOE released a discussion paper proposing a new regime for off-shore wind approvals with a 60-day public review and comment period.15 A key feature is a minimum five kilometre shoreline exclusion zone designed to: (i) minimise any adverse impact on drinking water quality; (ii) maintain noise below 40 decibels; (iii) protect public safety of near-shore activity


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participants; (iii) preserve ecological health in affected waters and; (iv) avoid impeding Great Lakes commercial shipping. Most significantly for Aboriginal communities, the policy will require developers to assess potential impacts on Aboriginal heritage. • Health study – Ontario’s Chief Medical Officer of Health concluded in a recent report, ‘[a]ccording to the scientific evidence, there isn’t any direct causal link between wind turbine noise and adverse health effects.’16 The report reviewed existing scientific evidence on the potential health impact of wind turbines and offered these additional conclusions: - Sound levels from turbines at normal residential setbacks is not sufficient to cause hearing impairment or other direct adverse health effects; although, some people might find it annoying; - Low frequency sound and infrasound from current turbine models are well below the pressure sound levels at which known health effects occur; - Community engagement at the outset of planning for wind turbines is important and may alleviate health concerns about wind farms; and - Concerns about fairness and equity may also influence attitudes towards wind farms and allegations about effects on health. • REA appeal process consultation – earlier this year, the government sought stakeholder feedback on the draft rules of the REA appeal process and provided a draft guide to the public regarding the process. • Advisory panel – although largely constituted to provide advice on the evolution of the microFIT programme, the creation of an advisory panel made up of industry, consumer and academic representatives can only serve to improve the government’s understanding of community and citizen concerns with the GEGEA. Sunny outlook? Ontario’s new energy policies have attracted both acclaim and opprobrium, which were reliable predictions, given the transformational nature of the GEGEA. The Ontario Government could do worse than hearken back to the methods employed by Sir Adam

Beck a century ago to secure support for his monumental undertaking. Beck demonstrated the value of consulting with and receiving the support of the citizenry before tackling the entrenched interests of his day. After a few missteps, it appears the government is returning to the consultation business in the spirit of the province’s forefather of community power. An organised coalition of concerned citizens will likely continue to make noise into the foreseeable future but the incentives provided to usher in meaningful community power generation offer a strong riposte. It is now up to the citizens of Ontario to determine whether power is truly in the hands of the people.
Notes 1 David Suzuki and Paul McKay, ‘Give Back Power to the People’, online at www.sqwalk.com/blog2006/000706.html, 13 March 2006. 2 Ibid. 3 Ibid. 4 The Canadian Government is organised in three tiers. Each of the federal, provincial and municipal levels has their own legislative and regulatory powers. Under the Constitution Act, 1867, UK, 30 & 31 Victoria, c three provincial governments wield jurisdictional control over the exploration, development, conservation and management of non-renewable resources, as well as the generation and production of electricity. 5 Bruce B Campbell, ‘The Changing Role for the IESO Under the GEGEA’, Ontario Bar Association, 10 November 2009. 6 Ministry of Energy and Infrastructure, ‘Renewable Energy Projects: About REFO’ MEI, online at www.mei.gov.on.ca/en/ energy/index.php?page=refo_about. 7 R S O 1990, c E 19 [EPA]. 8 John Loucks, ‘Ontario’s Electricity Distributors and Implementation of the Green Energy and Green Economy Act, 2009’, Ontario Bar Association, 10 November 2009 at 5. 9 See e.g. Tyler Hamilton, ‘Wind Farm Opponents Turn Up the Heat’ The Toronto Star, 30 October 2008 and James Murray, ‘Opposition to Green Energy Act Growing’ netnewsledger.com, 20 April 2010 [‘Opposition to Ontario’s Green Energy Act appears to be growing. Today, The Oppose Belwood Wind Farm Action Group (OBWF) is joining Wind Concerns Ontario and community groups from over 50 other municipalities, in a campaign to restore the rights of local municipalities and their citizens to have any say in the industrialisation of rural Ontario through massive wind turbine projects.’] 10 R S O 1990, c P 13. 11 Environmental Protection Act, ss. 142.1(3). 12 Small-scale REA-exempt projects include land-based wind turbines of 3 kW or less, any rooftop solar projects and groundmounted solar projects less than 10 kW. 13 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11. 14 2010 ONSC 4058 (CanLII). 15 Ministry of the Environment, ‘Discussion Paper: Off-Shore Wind Facilities Renewable Energy Approval Requirements’ online at www.ene.gov.on.ca/envision/env_reg/er/ documents/2010/011-0089.pdf. 16 Chief Medical Officer of Health, ‘The Potential Health Impacts of Wind Turbines’, Queen’s Printer for Ontario, May 2010.

Environment Health and Safety Law Newsletter   October 2010