Companies across Canada are struggling to manage a variety of challenges during this difficult time, including their ability to remain in compliance with environmental laws. Gowling WLG (Canada) LLP recently released an important update with regard to environmental laws and obligations during the coronavirus disease 2019 (COVID-19) crisis.
Provided by a team of experienced environmental lawyers, the comprehensive update advises that despite the ongoing operational limits, companies are still subject to multiple environmental reporting requirements. These reporting obligations can include the following:
- Compliance – Reports required under an Environmental Compliance Approval, a permit, a license, or an administrative order;
- GHG Regulations – Reporting in accordance with federal or provincial greenhouse gas (GHG) reporting regulations;
- NPRI Reporting – Reporting emissions and releases according to National Pollutant Release Inventory (NPRI) reporting requirements; and
- Other – Reporting requirements in other environmental legislation that may apply on a case-by-case basis.
These combined reporting requirements can be annual, monthly, on a specific date, or on some other schedule. In some instances, failure to comply with these requirements may constitute an offence.
There are some differences to note provincially. For example, in Ontario, no relief from reporting requirements has been provided by the Ministry of the Environment, Conservation and Parks (MECP) through either order or guidance. However, in Alberta, a Ministerial Order was issued on March 31, 2020 that provides relief from all requirements to report pursuant to approvals, licenses or registrations under the Environmental Protection and Enhancement Act, Water Act and the Public Lands Act, except in respect of drinking water facilities. This suspension will be in place until August 14, 2020 or until it is terminated.
Federally, correspondence from the Minister of Environment and Climate Change dated April 2, 2020 indicated that federal environmental laws would not be waived but that Environment and Climate Change Canada would exercise enforcement discretion to take into account any challenges faced by regulated parties due to the pandemic.
The firm advises that some special considerations in the time of COVID-19 include the following:
- Ensuring companies can meet obligations – Many are hindered by a lack of personnel on site to monitor and collect data, a dramatic shift in operations, a lack of access to hard-copy files stored on site, or a lack of time to compile a report while dealing with this unprecedented situation.
- Verification of upcoming obligations and dates – It is important to have someone closely examine all applicable documents and regulations to verify upcoming reporting obligations and dates. If a company believes that they are at risk of missing a deadline, an extension should be requested in writing well in advance from the relevant regulator.
- Operational limits and emergency amendments – Many companies are being forced to suspend operations or have their workforce work remotely, while other are being asked to ramp up production for critical supplies and services. As a result, these facilities may be at risk of operating outside of their mandated capacity. It is important to review all applicable operational requirements to ensure that no limits are being exceeded. Where exceedances of capacity or limits are found or expected an emergency amendment to the applicable license, permit or approval should be requested immediately. Begin a conversation with the relevant regulator, outlining the reasons that the change is needed.
Environmental law research provided for this update by: Anna Côté, Jessica Boily, Harry Dahme, Alexei Paish, and Mark Youden. Gowling WLG and its environmental law team continues to follow changes to legal requirements and proceedings as a result of COVID-19. For a complete copy of the report or for further information, click here.