Canadian Energy Law : Lawyers & Attorneys for Environmental Energy Law

Larry Cobb and Jim Harbell -

Beginning October 31, 2011, the Ontario Ministry of the Environment’s (the MOE) new online environmental approval application and self-registration system takes effect. As part of the MOE’s new risk-based approach for processing requests for environmental approvals, the new approvals system will focus on the potential risk that the activity in question poses to the environment and to human health.

An Environmental Compliance Approval (ECA) will replace a Certificate of Approval (C of A). Complex or higher-risk activities will follow the new ECA application process, while standardized or lower-risk activities will follow the Environmental Activity and Sector Registry (the EASR) registration process.

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Royal Dutch Shell PLC (“Shell”) has made a move to enter the competition of exporting Canadian natural gas to Asia by purchasing a marine terminal near Kitimat, British Columbia. Shell currently has partners in South Korea and Japan that are the world’s top liquefied natural gas buyers. This move is part of Shell’s “early stage” work to determine whether to construct a LNG export facility to export Canadian resources to Asia. Shell’s newly purchased site is near land where Apache Corp. and partners are poised to construct a $5 billion-plus export terminal, a project that received a regulatory license last week.

Canadian natural gas companies are suffering from low prices as a result of strong supply from all the recent shale gas discoveries in the United States. Canada’s only export customer for natural gas is the U.S. and these shipments to the U.S. have been halved in recent years. However, prices in Asia are far higher than they are in North America.

Shale gas discoveries in British Columbia’s northeast are massive and the industry is of the view that these discoveries would easily supply exports and domestic consumption. Companies such as Shell believe that this shale gas might be left in the ground if exports to Asia are not opened.

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Daniel Suss -

On October 20, 2011, Dalton McGuinty revealed his new, and slimmed down, cabinet. Chris Bentley, former Attorney General of Ontario, was named Minister of Energy, while Brad Duguid, former Minister of Energy, became Minister of Economic Development and Innovation. The energy portfolio came under much scrutiny during the provincial election and Bentley will now be responsible for running Ontario’s FIT program, as well as the negotiations regarding the natural gas plants originally planned for Mississauga and Oakville. In addition, Bentley will oversee the phase-out of coal power generation in the province, expected by 2014, and will be a key decision-maker with respect to the future of nuclear energy in the province.

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Myriam Fortin -

After the coming into force on December 30, 2010 of the Regulation amending the Regulation respecting mandatory reporting of certain emissions of contaminants into the atmosphere, a new draft regulation was published October 5, 2011 (English version / French version), proposing additional amendments intended to harmonize the regulation with requirements of the Western Climate Initiative (WCI), in order to allow a good functioning of the greenhouse gas (GHG) cap and trade system.

The draft regulation proposes emissions calculation methods for twelve industry sectors, being nickel and copper production, ferroalloy production, magnesium production, nitric acid production, phosphoric acid production, ammonia production, electricity transmission and distribution and use of equipment to produce electricity, carbonates use, glass production, mobile equipment, electronics manufacturing, and natural gas transmission and distribution.

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On September 7, 2011, the Alberta Court of Appeal released its judgment, Omers Energy Inc. v. Alberta (Energy Resources Conservation Board) 2011 ABCA 251, with respect to an appeal by Omers Energy Inc. ("Omers") of an Alberta Energy Resources Conservation Board ("ERCB") decision to suspend two well licenses on an oil and gas lease due to a lapse of the lease. The lease contained a suspended wells clause that provided an indefinite extension of the primary term of the lease when a “well that is capable of producing the leased substances is shut-in or suspended".

The Court of Appeal Decision

Omers argued that a suspended well is “capable of producing” for the purposes of the lease whenever the well has the ability to achieve any production flow whatsoever; particularly where there is pressure from the leased substances at the outlet valve of that well or whenever steps can be taken to address the well’s conditions to achieve production flow. 

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Annie Pyke and Kim Lawton -

On this blog we will regularly provide you with information on Canadian and international developments in the regulation of carbon and the creation of carbon trading and taxing regimes. We will of course watch with great interest to see if federal Canadian and further provincial initiatives develop in such spheres but we may find that the international arena moves ahead more swiftly in the near term in meeting the climate change challenge. In this blog entry we briefly consider Australia's proposed carbon tax rules.

Australia’s carbon tax plan has cleared its biggest hurdle to date. Last Wednesday, Australia's House of Representatives (the lower house of parliament) voted 74 to 72 in favour of the regime which will bring about a carbon tax and carbon trading scheme. The bills must still pass the Senate (the upper house of parliament), in a vote set to take place in November, but apparently the government and Green senators have enough votes to ensure the bills will become law. The carbon tax and trading regime is a main component of the Australian government’s plan to cut carbon emissions by 5 percent of 2000 levels by 2020.

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Patrick Duffy -
 
Wind farm developers in Ontario are being threatened with litigation from neighbouring residents who claim property values are suffering because of the perceived health concerns associated with wind turbines.  These claims were recently the subject of an investigation undertaken by the CBC that reported homes near wind farms were selling for less and taking longer to sell than other homes.  The issue has also been raised before the province's Assessment Review Board by property owners seeking to lower their property tax assessments.
 
A recent ruling from the Ontario Court of Appeal in Ellen Smith v. Inco Limited will provide the province's wind developers with  stronger hand in fighting back against such claims.  The claimants in the Inco case alleged that their property values were reduced by nickel contamination that originated from Inco’s refinery in Port Colborne.  They succeeded at trial and Inco was held liable for the tort of nuisance and under strict liability imposed by the rule in Rylands v. Fletcher.   The ruling was notable as the refinery had adhered to the applicable environmental regulations during its operation and the level of nickel contamination did not present a threat to human health or otherwise impact the complainants' ability to use and enjoy their property.  Nonetheless, the trial judge held Inco liable for the loss of property value because the contamination led to a negative public perception about the contaminated land.

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