November, 1998
| Inside This Issue: |
1 |
Emissions Trading |
2 |
Y2K |
3 |
Taxes or Fees |
4 |
We're Moving (Yes, Again) |
Emissions Trading
The Kyoto Protocol on Climate Change is creeping towards its effective date, despite
the US Senate's threat not to ratify it without "meaningful participation" by
developing countries. The G-77 countries, such as China and India, strongly object to this
demand; to date, only Argentina has offered a "voluntary commitment".
Nevertheless, President Clinton took advantage of Argentina's gesture to sign the protocol
this month.
While the Protocol may not come into force for some time, its existence has given a
huge boost to interest in emissions trading, both internationally and domestically.
On October 30, Ontario adopted one of Canada's first statutes to authorize emissions
trading. As part of Bill 35, The Energy Competition Act, 1998, the Environmental
Protection Act was amended to authorize regulations "establishing programs for
the use of economic instruments including emissions trading, for the purpose of
maintaining or improving existing environmental standards and designating a body to
administer the programs" All details and principles are left to the regulation stage.
Another appendix amended the Energy Board Act. It now authorizes regulations to
control the use of emission credits in the electricity sector, and to require disclosure
of the emissions created when electricity is generated. Other provisions, not yet in
force, will allow the Energy Board to require emissions reporting as a condition of a
licence to sell electricity. This will encourage marketing of "green
electricity", as already happens in the US.
At the federal level, the first legislative authority for emissions trading will be
provided by Bill C-32, the proposed Canadian Environmental Protection Act. This
Bill will authorize a tradable emission credit scheme for emissions from "vehicles,
engines or equipment" (s. 162). The details will be determined by regulation. The
Bill calls for a closed trading scheme, i.e. one based on government emissions standards.
Credits may be created either by reducing emissions so that vehicles, etc. "more than
meet the requirements of those standards", OR by purchasing credits directly from the
government. Credits may then be used to meet emissions standards, or traded "in the
prescribed manner".
Y2K
Worried about Y2K? Well, we won't fly anywhere on January 1, 2000. The CIA has
apparently advised its employees to stock up on candles and blankets, and all Canadian
Armed Forces leaves have been cancelled for 4 months. Good to know they're taking
precautions, I guess.
Closer to home, all businesses should note that due diligence requires them to be
prepared for Y2K. Pollution due to a Y2K failure will be an offence, unless all
reasonable efforts are made now to detect and correct it. Environment Canada has expressly
warned businesses to ensure that their process and pollution control equipment will
continue to work in 2000. (cont., p.2)
"Impairment of operations resulting from Y2K problems will not be accepted as
justification for contravening federal laws or regulations." See www.ec.gc.ca/year2000 for details. The provinces
are expected to follow suit.
The same approach is being taken in the US. The new The Year 2000 Information and
Disclosure Act grants limited liability protection for sharing information about Y2K
problems and solutions. However, there is no legal protection for failures due to Y2K
problems. The Act may be found by entering the bill number (S.2392) at http://thomas.loc.gov/home/c105query.html.
Meanwhile, the first Y2K litigation is already moving through the courts, including a
class action on who should pay the cost of software /equipment upgrades. If you need help
reviewing your Y2K preparedness, or determining who should pay for any necessary upgrades,
please call us.
However, there is one thing you don't need to worry about: our legal services.
We do all legal work on Macintosh computers, which have always used four figure dates, and
are therefore immune to Y2K. We do, reluctantly, use an IBM for billing, but the billing
software (PCLaw) is reported to be Y2K compliant. There were weak spots, though, even in
our small office, such as the software in our fax machine. Moral: no one can take Y2K for
granted.
Taxes or fees?
In Re Eurig Estate, the Supreme Court of Canada has ruled that Ontario cannot
raise revenues through "fees" imposed by regulation. "Fees" can only
be charged to recover the cost of a service provided. Anything more is a "tax"
and must be specifically authorized by the Legislature.
This important decision will provide new grounds to limit federal and provincial
"cost recovery" proposals, and could cost governments millions.
We're Moving (Again)!
In early December, 1998, we'll be moving to a new office, with a lovely view over the
city. Please come see us at Suite 1506, 355 St. Clair Avenue West, Toronto, M5P 1N5. It's
close to the St. Clair West subway and the Ministry of the Environment head office, as
well as Forest Hill Village. Our telephone, fax and email addresses will remain the same.
And we''ll still offer free client parking!
Please come and help celebrate our new location on January 20, 1999. This would also be
a good chance to meet our office manager Mala Dhawan, her assistant Elena, and articling
student Linda Klaamas, who will be called to the Bar in February.
Questions? Call us!
66 Russell Hill Road, Toronto, Ontario M4V 2T2
(416) 962 5882 Fax: (416) 962 8817
email: dsaxe@envirolaw.com. For back copies, go to: http://www.envirolaw.com
Questions? Call Dianne Saxe!
- 66 Russell Hill Road Toronto, Ontario M4V 2T2
- (416) 962 5882
- Fax: (416) 962 8817
- e-mail: dsaxe@envirolaw.com
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