It was about ten months ago in our first blog of 2019 that we shared news of two environmental fines:
- A pulp and paper company was ordered to pay $3.5 million for violations of the Fisheries Act.
- A seafood company was fined $115,000 for contravening the Canadian Environmental Protection Act.
It was just the next month in our February 28th blog where we again shared more enforcement news: Syncrude paid $3 million for violating the Migratory Birds Act, and Green For Life (GFL) paid $300,000 – not for an actual release, but for an administrative issue that was a violation of the Tetrachloroethylene Regulations (dry cleaners).
Throughout the year, there were stories of enforcements and fines. And while we used to sit up and take notice if the fine approached six figures, now seven-figure fines are not unusual.
What’s going on?
Non-Compliance is Getting More Expensive
We are not the only ones asking this question. In a recent blog by Miller Thompson, Penalty Creep: What is going on with Environmental Fines Across Canada?, they look closer at the penalties for environmental offenses in Canada.
In their blog, they note the $2.7-million fine levied against Kirby Offshore Marine Operating, LLC for violating the Fisheries Act. This fine, “…represents the largest fine that has ever been imposed following one single spill incident of a deleterious substance into water frequented by fish.”
The blog, which is authored by four lawyers at Miller Thompson, asks, “…are the fines now being handed out for environmental offenses rising faster than inflation?” They also look at whether these higher penalties are changing behaviours.
Environmental Enforcement Act
Miller Thompson points out that the (federal) Environmental Enforcement Act (2009) established mandatory minimum fines for individuals and corporations. For example, corporations can be fined $6 million, and the mandatory minimum is $500,000 (for “designated offences”). Under the fine regime, all fines are doubled for second and subsequent offences.
The authors of the blog also point out that provinces have increased their maximum fines. Under Ontario’s Environmental Protection Act, “The maximum fine levels were almost doubled in 2005…” They also state, “The three provinces which have been the most consistent with users of fines to enforce compliance with environmental laws are Ontario, British Columbia, and Alberta.”
“In particular, Ontario has always been one of the most active jurisdictions in terms of enforcement of environmental laws by way of fines; of the total $26 million worth of environmental fines issued by both provincial and federal governments from 1991 until 2010, a whopping $14 million was collected in Ontario alone.”
The blog by Miller Thompson provides a deeper dive on these enforcement trends.
The Width and Breadth of Environmental Laws
Environmental protection laws and enforcement of those laws and regulations are continuing to evolve at the federal and provincial levels. Further, there is an increasing awareness that environmental laws don’t just apply to “smoke-stack industries.”
For example, recent regulatory changes (or clarification) make it clear that activities such as dewatering or “taking water” may require a permit to take water. The management of excess soils from construction activities are taken seriously, and compliance with environmental regulations affects everyone from municipalities to green energy.
Each month we share tips and updates on our 10-Second Environmental Compliance Checkup page to try to increase awareness and avoid non-compliance.
Environmental laws and regulations and the penalties associated with these rules will continue to evolve. Keeping a watchful eye on these changes and understanding the applicability to your company will require vigilance and a good team of advisors, legal and technical.
If you need assistance with an environmental matter, contact me at 519-979-7300, Ext. 114.