Offshore drilling benefits from
an enormous hidden subsidy
Continued From Page 14
of spills. Making spills illegal, with serious penal-
ties, does encourage organizations to improve
their environmental management. Ever since
John Braithwaite’s pioneering research in Aus-
tralian coal mines in the 1980s, it has been clear
that thorough, well-documented management
systems can help. It was differences in manage-
ment, communication, and the methodical appli-
cation of precautions that distinguished coal
mines having high death rates from those where
employees went home at night. These differen-
ces were elaborated into environmental manage-
ment systems, like ISO 14000, that are now
widely adopted around the world.
But accidents still happen: the Challenger; the
Exxon Valdez; Three Mile Island, not to mention
Environmental law’s most durable successes
have probably been bans: on DDT, so that egg
shells would stop collapsing beneath mother birds;
on the slaughter of whales; on PCBs. Banning
CFCs stopped the destruction of the ozone layer.
The ban on cod fishing halted further destruction
of our once great cod stocks, but not until they had
been devastated by “regulated” fishing. Promises to
be careful just don’t seem to last for long.
But we can’t ban everything. In fact, we don’t
seem to be able to ban very much for long. The
national wildlife refuge in Alaska has been
under constant attack, despite the extreme
sensitivity of its fragile and irreplaceable caribou
herds. The American moratorium on offshore
drilling was lifted just weeks before the Gulf oil
spill, as part of President Obama’s campaign to
pass a badly needed climate change bill. (A drill
rig immediately set off for Alaska.) And enforce-
ment is a constant challenge, as we saw this
spring when a Chinese oil tanker plowed into a
banned area of the Great Barrier Reef, gushing
oil into its critical ecosystem.
Environmental assessment (EA) was supposed
to help us figure out, among other things, which
risks of failure we cannot bear. But it doesn’t work
very well. For example, we build nuclear plants,
with nowhere to put the waste. If BP had con-
ducted a fuller EA of its well, it would probably
still have obtained its permit. EA also does a poor
job of comparing real-life trade-offs. If the U.S.
blocks offshore drilling, but remains dependent on
oil, it will have to keep buying that oil overseas,
from hostile countries. That means constant move-
ments of crude across the oceans in tankers, which
have their own frequent spills. It also transfers tril-
lions of dollars to those hostile countries and
entangles the U.S. in foreign wars. It will be a
dreadful irony if the BP oil spill prevents the U.S.
from reducing its dependence on oil, and its con-
tribution to climate change.
Dianne Saxe is an environmental law specialist
and heads the environmental law boutique Saxe
Law Office in Toronto.
An oddity in Environmental Law
Will Mr. Floatie resurface?
We may not have seen the last of Mr. Floatie, the wide-eyed, bow-tied
fuzzy brown poop puppet.
James Skwarok first donned the poop costume in 2004 to bring
attention to Victoria’s dumping of untreated sewage — including human
waste — into the ocean. In 2006, the B.C. government ordered the Vic-
toria area to develop a sewage treatment plan. When the area’s regional
government agreed to proceed with a land-based secondary sewage
treatment facility, Skwarok packed up Mr. Floatie and stored the cos-
tume in a safe location.
Recently, a citizen’s group has been looking for support to reassess the
regional government’s treatment plan, according to Saanichnews.com.
If the group’s message catches on, Skwarok said he is ready to bring Mr.
Floatie out of retirement. — Natalie Fraser
PHOTO COURTESY OF PEOPLE OPPOSED TO OUTFALL POLLUTION
Cost estimates for remediation are seldom predictable with confidence from the outset
Continued From Page 14
In many contaminated land
disputes, the cost and duration of
the remediation required are
uncertain, presenting significant
challenges for the settlement of
the dispute. How can the impacted
party be sure that the polluter will
be able to meet a remedial obligation over an uncertain period of
time? Today’s era of financial
uncertainty puts in issue the ability of even the world’s largest corporations to meet such an obligation, and the direct corporate
covenant or corporate parental
guarantee may not have the
strength tomorrow that would be
Furthermore, the workplan and
related cost estimates for contam-
inated site remediation are seldom
predictable with confidence at the
outset. Usually the remediation
workplan is an interactive pro-
cess—the delineation of the con-
taminated area, horizontally and
vertically, often occurs on a step-
wise basis over time. Similarly, the
remedial approach and the remed-
ial methods are often refined as the
project proceeds and site condi-
tions determined in the field.
Mark Madras is a partner at
Gowling Lafleur Henderson LLP
in Toronto. He is a certified spe-
cialist in environmental law.