Sustainability

• Author: Howard Epstein
• Pages: 497-541

497

CH AP TER 11

SUSTAINABILITY1

A. PRELIMINARY

If you’re not pessimistic, you haven’t read the science.

If you’re not optimistic, you haven’t met the people.2

The need to transform our lives to a sustainable basis is widely accepted.

The potential for transformation of our lives to a su stainable basis through

legal mechanisms exists. All levels of government in Canada have some

powers over aspects of the environment. Broadly, these powers are exer-

cised through regulation (forbidding or setting limits on polluting emis-

sions) and environmental asses sment (EA). An EA is a process to con sider

a proposed undertaking in advance to decide whether it ought not to go

ahead or whether it could go ahead but with safeguards. The two senior

levels of government have extensive environmental law regimes in place,

and they should be seen as aspects of their land-use controls. See Chap-

ters 4 (federal) and 5 (provincial) for these discussions.

1 This chapter i s a greatly shortened but also up dated version of the author’s article

“Subsidiar ity at Work — The Legal Context for Sus tainability Init iatives at the

Local Gover nment Level” (2010) 63 Municipal and Planning Law R eports (4t h) 56 .

2 This is what ha s become a popular version of some line s from Paul Hawken’s

book, Blessed Unrest: “If you look at the sc ience that describes wh at is happen-

ing on earth t oday and aren’t pessimi stic, you don’t have the correct data. If you

meet the people in th is unnamed movement and aren’t opti mistic, you haven’t

got a heart.” Paul Hawken, Blessed Unrest: How the La rgest Movement in the World

Came into Being and Why No One Saw It Comi ng (New York: Viking, 20 07) at 4.

LAND-USE PLANNING498

The potential for achieving signif‌icant transformation of the way

we live our lives is enormous at all levels of government, including the

municipal level. All too often, the barriers to change are not those pre-

sented by uncertainty as to what might be a better way of going about

organizing life. Usua lly, in terms of the science or engi neering required,

we already know better ways of organizing our lives — the problem is

not absence of knowledge. More usually, the barriers are political. By

that I mean the bar riers of lack of political will, contests over who will

pay for change and how much, plus the barrier of attachment to the

status quo. This last can mean simple inertia, but more often it means

unwilling ness to change, based on f‌inancial gain t ied to how things are

done now. Transformation, however, is an urgent need.3 In the world

context of global climate change, a deteriorating atmosphere, an abun-

dance of polluted sites in need of remediation, threats to water quality

and supply, loss of good agricultural land, individual and social stress

(contributed to by crowding and poverty and poor living conditions),

and in recognition of the interconnectednes s of all life-support systems,

municipalities —the governmental level usually seen as the closest to

people — can have a signif‌icant role. It is this context within which I

view issues of Canadian land-use planning (LUP) and LUP law.

In this chapter we consider the legal powers municipalities now

have (for example, basic zoning, nuisance, and omnibus powers clau ses)

to advance the cause of sustai nability. The suggestion to be made i s that

even without any alteration in municipal jurisdiction, existing powers

are quite broad. The courts have recognized the environment as a legit-

imate municipal planning purpose.4

B. IN TRODUCTION

Canadian municipalities have a relatively undistinguished record when

it comes to sustainability initiatives.5 No signif‌icant-sized population

3 Indeed, for some, the urgenc y is sometimes manife sted in violence, usually

directed at proper ty rather than people. For a rev iew, see Elżbiet a Posluszna,

Environmental and Anim al Rights Extremism, Terrorism, an d National Security

(Amsterdam: Elsevier, 2015).

4 See Enterprises Sibeca inc v Frelighsburg (Municipality), 2004 SCC 61 [Entrepri ses

Sibeca] and Montréal (City) v Arcade Amuseme nts Inc, [1985] 1 SCR 368.

5 For an internationa l exploration of what municipalit ies have been attempting

to do, see Eran Feitels on, ed, Advancing Sustainability at the Sub -National Level,

The Potential and Limita tions of Planning (Burlington, VT: Ashgate, 20 04). For

an America n account, see John R Nolon, Protecting the Environment through

Land Use Law (Washingt on, DC: Environmental Law In stitute, 2014). See also

Sustainability 499

centre in Canada has a comprehensive range of programmes. The em-

phasis seems to be, where programmes do exist, on limiting them to

municipally owned property or on voluntary compliance by the private

sec tor.6 The municipal record i s undistinguished in comparis on not only

with the possibilities demonstrated in other places to be achievable, but

in comparison with the global need, in comparison with Canada’s no-

torious wastefulnes s, and, as I hope to demonstrate, in comparison with

what the law now lends itself to.7 To take the most pressing example,

energy and the move to reduce greenhouse gas emissions,8 the two sen-

ior levels of government have led in grappling with setting targets and

adopting plans to achieve these t argets.9 I am not intending to suggest

Norman Chr istensen & Lissa L eege, The Environment and You, 2d ed (Hoboken,

NJ: Pearson, 2016), especially Chapte r 16 “Urban Ecos ystems.”

6 It is not the case that Ca nadian municipal sust ainability progra mmes are absent.

And some of the init iatives are signif‌ic ant: Vancouver has approved an EcoDen-

sity Chart er that includes a requirement t hat for any new building needi ng a

rezoning, const ruction must meet Leadersh ip in Energy and Environment al

Design (LEED) stan dards — see online: http://former.vancouver.ca/commsvcs/

ecocity/pdf/ecodensity-charter-low.pdf; other examples are Calga ry’s light rail

system powered by w ind-generated electricit y, a landf‌i ll gas-to-energy project

in Hamilton, a nd a rate structure for water that c osts more per unit as consump -

tion increas es in Edmonton. In British Colum bia, some 174 local govern ments

have targeted be coming carbon-neutral, a polic y pursuant to the Climat e Action

Charter of t he provincial government, t riggering eligibi lity for special fundin g,

including rebate of c arbon taxes.

7 For two essays re viewing what has bee n accomplished and what is possible i n

Canadia n cities, see Trevor Price, “Sustai nable Cities” and Edmund P Fowler &

Franz Har tmann, “City Environm ental Policy: Connecting the D ots,” both in

Edmund P Fowler & David Siege l, eds, Urban Policy Issues: Canadian Perspec-

tives, 2d ed (Don Mil ls, ON: Oxford University Press, 2 002).

8 This trend is driven by a combi nation of factors: global clim ate change, energy

insecur ity, fossil f uel depletion and associated i ncreases in costs, and t he devel-

opment of new technologie s.

9 The main federal statute i s the Kyoto Protocol Imple mentation Act, SC 2007, c 30.

The legal limit s of the federal government’s commitm ent to Canada’s Climate

Change Action Plan we re recently explored in Frien ds of the Earth v Canada (Gov-

ernor in Council), 2008 FC 1183, aff’d 2009 FCA 297 in wh ich the court conclud-

ed at para 46 (FC): “the Court ha s no role to play reviewing the re asonableness of

the government’s re sponse to Canada’s Kyoto commitments w ithin the four cor-

ners of the KPIA.” Provi ncial statutes include the C limate Change and Emissions

Management Act, SA 2003, c C-16.7; Climate Change and Emissions Red uctions Act,

CCSM c C135; and the Environmental Goals a nd Sustainable Prosperity Act , SNS

2007, c 7. The various st atutes set targets, not all of wh ich are likely to be met:

see, for example, Patr ick White, “Saskatchewan B acks off Climate Targets” The

Globe and Mail (23 April 20 09) A7. See also Pembina In stitute, “Highlights of Pro -

vincial G as Reduction Plans” (August 2009), online: w ww.pembina.org/ r eports/

highlights-of-provincial-greenhouse-gas-reduction-plans.pdf.