The government’s role is to police the environmental laws and take action against companies and individuals that commit violations. But who polices the government? In many cases, the burden of bringing government violations to light and ensuring that they’re addressed falls on the public and environmental groups. Environmental activist groups typically exercise this function when they think the government isn’t fulfilling its legal duties under the environmental laws. A recent federal court case in which environmental groups accused the federal Minister of the Environment (MOE) of violating the CEPA by not collecting and reporting certain pollution information from mines is a perfect illustration of how an environmental group can use the courts to compel a government agency to implement the environment laws as required.
THE CASE
What Happened: Canada’s National Pollutant Release Inventory (NPRI) provides a publicly available inventory of industrial and commercial pollutants released into the environment. Created by the federal CEPA, NPRI data comes from required annual disclosures of pollutant releases into the environment by major facilities. The government exempted certain mining facilities and activities from NPRI reporting requirements. Specifically, such facilities don’t have to report their pollutant emissions or transfers of pollutants to waste rock storage areas (WRSAs) and tailings impoundment areas (TIAs), which pose hazards to human health and the environment. And in some mining communities, houses were built directly besides WRSAs and TIAs. So environmental groups sued the federal government, claiming that the MOE violated its duty under the CEPA by failing to collect and report this pollution information from Canadian mines in the NPRI.
What the Court Decided: The Federal Court of Canada ordered the federal government to immediately begin reporting mining pollution data from 2006 onward to the NPRI.
The Court’s Reasoning: The court noted that behind this lawsuit was an extensive history of consultation and discussions between government and various groups, dating back to at least 1992, on how on-site transfers and releases by mining facilities to TIAs and WRSAs should be reported. But after 16 years, there was “still no clear indication from the Minister as to how and when this important information is going to be gathered and provided to the Canadian public.” The court went on to say that it’s “clearly unsatisfactory that such an important part of the pollution picture in Canada is not being reported to the public under CEPA.”
That being said, the court explained that it still needed to determine whether the environmental groups had a legal basis for insisting that the government begin collecting and reporting this data. Section 48 of the CEPA requires the Minister to create a “national inventory of releases of pollutants.” But are on-site releases and transfers by mining facilities to TIAs and WRSAs “releases of pollutants”? The court said they are. Noting that environmental protection in Canada has moved incrementally towards greater inclusiveness, the court said it can’t see how toxic deposits, releases and transfers to TIAs and WRSAs aren’t a deposit or release of a pollutant into the environment in accordance with the ordinary and grammatical use of the word “pollutant,” as well as the overall purpose of the CEPA. Thus, the court concluded that “releases of pollutants” in Section 48 of CEPA must include releases and transfers of materials to TIAs and WRSAs.
The court rejected the government’s argument that the MOE had the discretion to decide which pollutant information to collect and to report to the NPRI. If the MOE has such discretion, then the NPRI can’t fulfill its role under the CEPA and won’t give the people of Canada a full and accurate picture of the releases of those pollutants that pose environmental and health risks. Therefore, the court concluded that the CEPA required the MOE to provide information to the public through the NPRI about releases and transfers to tailings and waste rock disposal areas by mining facilities [Great Lakes United v. Canada (Ministry of Environment), [2009] F.C.J. No. 484, April 23, 2009].
ANALYSIS
The court in Great Lakes United was very critical of the MOE, describing the Canadian government’s pace on addressing the issue of mine pollutant reporting as “glacial” and scolding the government for turning a “blind eye” to the issue and dragging its feet for “more than 16 years.” Without such pollution information being readily accessible, the Canadian public can’t participate in the debate or fully gauge the environmental and health concerns that arise from the pollutants in on-site TIAs and WRSAs, it added.
Bottom line: The public and environmental groups wield a lot of power when it comes to the enforcement of environmental laws. In Great Lakes United, they wielded this power against the government. Another way environmental groups wield their power is by taking action against companies they feel are violating environmental laws. Although lawsuits and other proceedings by environmental groups can be inconvenient and costly, the active role that these groups play has an important and overall positive impact on the effectiveness of the environmental enforcement system.
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