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BC Seeks Feedback on Second Phase of the Spill Response Regime

WRITTEN BY:

Bennett Jones LLP

David Bursey, Radha Curpen, and Sharon Singh

[co-author: Charlotte Teal, Articling Student]

Phase-2 to BC’s Spill Response Regime

The British Columbia government is moving forward with the second phase of spill regulations, announcing further stakeholder engagement on important elements, such as spill response in sensitive areas and geographic response plans. The government will also establish an independent scientific advisory panel to recommend whether, and how, heavy oils (such as bitumen) can be safely transported and cleaned up. While the advisory panel is proceeding, the government is proposing regulatory restrictions on the increase of diluted bitumen (dilbit) transportation.

The second phase engagement process follows the first phase of regulatory overhaul introduced in October 2017, when the Province established higher standards for spill preparedness, response and recovery.

Photo Credit: Jonathan Hayward/Canadian Press

Feedback and Engagement

The Province is planning an intentions paper for the end of February 2018 that will outline the government’s proposed regulations and will be available for public comment.

In particular, the Province will seek feedback on:

  1. response times, to ensure timely responses to spills;
  2. geographic response plans, to ensure that resources are available to support an immediate response that account for the unique characteristics of sensitive areas;
  3. compensation for loss of public and cultural use of land, resources or public amenities in the case of spills;
  4. maximizing application of regulations to marine spills; and
  5. restrictions on the increase of dilbit transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.

What this means for industry

This second phase was planned follow up to the October 2017 regulations. Many of the proposed regulatory changes have been part of ongoing stakeholder discussions for the past few years. However, the prospect of permanent restrictions or a ban on the increased transportation of dilbit off the coast of B.C. and the prospect of further regulatory recommendations from the independent scientific advisory panel creates uncertainty for Canada’s oil sector.

The government’s emphasis on environmental concerns related to bitumen and its recent initiatives to restrict oil exports to allow time for more study of marine impacts will further fuel the national discourse on how to export Canada’s oil to international markets from the Pacific Coast.

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This article was first published on the Bennett Jones LLP website.

About the Authors

Key Developments in Environmental Law in Canada from 2017

A book on the developments in environmental law in Canada during 2017 was recently published by Thomson Reuters.  Edited by Stanley D. Berger of Fogler Rubinoff LLP, the book includes a number of interesting chapters related to contaminated sites and the issues raised in the Midwest Properties Ltd. v. Thordarson (“Midwest”) court case.  The Midwest case is part of a possible trend in Canada toward awarding damages based on restoration costs rather than diminution in value.  If nothing, else the Midwest Case has introduced uncertainty to the law of damages in contaminated sites cases.

In the chapter written by Natalie Mullins, a litigation partner in the Advocacy and Environmental groups in the Toronto office of Gowling WLG, on the evolution and current state of law on damages in contaminated sites, she states that despite being explicit about awarding compensatory damages only under section 99 of the Alberta Environmental Protection Act (“EPA”) and not at common law, the Alberta Court of Appeal may have implied that restoration costs are the default measure of damages in contaminated sites cases.  She also explores some other critical issues that have arisen post-Midwest, such as:

  • Whether diminution in value is still relevant to the measure of damages;
  • What it means to “restore” a real property;
  • How the court can take a proactive role to ensure that awards made to benefit the environment actually meet that objective; and
  • How defence counsel might prevent similar awards in the future, and how plaintiff’s counsel might use the case to obtain significant damages for their clients.

An interesting point raised by Ms. Mullins in her contaminated sites chapter is that in recent court cases, highlighted with Midwest, court decisions may be paving the way for plaintiffs to recover very significant damage awards for the contaminated of their sites that grossly exceed their actual loss and, in certain circumstances, may be completely unwarranted.

Ms. Mullins questions if the Midwest decision has created the potential for litigants to profit off purchasing contaminated sites and for defendants to face double jeopardy following judgment at trial.

The book is available at online for $144 (Cdn.).