In an article in early January 2020 by the Canadian Environmental Law Association (CELA), they wrote, “As the New Year approaches there are numerous environmental issues that will continue to command the attention of litigators and legislators across Canada.” The article then lays out why it will be a busy year for environmental issues in Canada. In closing, they state, “For these and other reasons, 2020 is shaping up to be a busy (if not intriguing) year for environmental lawyers and their clients across Canada.”
While it was only written months ago (January 2020), in terms of current events, it’s almost ancient history. We don’t know how their overall prediction may play out, but they certainly got the “intriguing” part right.
Environmental Prosecutions “Down Sharply”
Long before the global pandemic upended even the best of business plans, there was concern being raised about prosecution of environmental laws in Canada.
As recent as May of this year, CTV News published an article, “Investigations, prosecutions for polluting in Canada down sharply since 2015.” In this article, they state, “Environment Canada has been doing fewer inspections, investigations and prosecutions over the last five years to enforce a law protecting people from toxic chemicals and air pollution.” Also see CBC News: Inspections, Prosecutions for Polluting in Canada Down Sharply Since 2015.
NDP MP Laurel Collins states, “It’s wild that there was only one investigation that led to a prosecution in 2018 and 2019.” I think most Canadians would be surprised to hear that. I don’t think anyone thinks there is only one company violating.”
Federal Inspections Down
The article also references a report that shows that federal inspections are down. “…total inspections the department (Environment and Climate Change Canada) is doing has also dropped substantially, from 3,898 in 2015-16, to 1,608 in 2018-19.”
The CTV article also comments on the Canadian Environmental Policy Act (CEPA). “The government is also well behind schedule in reforming the Canadian Environmental Protection Act. The law has to be reviewed every five years. The last review began in 2016 and was completed by the House of Commons environment committee in June 2017.” We discussed the 87 recommended changes to CEPA in a blog in January 2018.
With all of the above said, there was some recent enforcement action. From Environment and Climate Change Canada: “On May 21, 2020, Scamp Industries Ltd., a fuel supplier based in Western Canada, was fined $200,000 in the Provincial Court of British Columbia after pleading guilty on June 17, 2019, to five counts of transferring petroleum products into a storage-tank system where storage-tank-system identification numbers were not visible.” Like some of the other enforcement actions we have previously mentioned, this violation was not due to actual release to the environment, it was administrative in nature.
Future of Enforcement
What the long-term future looks like with respect to prosecution of federal or provincial environmental laws is anyone’s guess. However, we suspect that economic upheaval caused by COVID-19 will be a factor, at least in the short term.
Regardless of federal or provincial plans for enforcement, environmental assessments, remediation, and permitting are still happening on a daily basis across Canada… and, if “this is you,” we can help. Please contact me at 519-979-7300, Ext. 114, with your environmental questions or concerns.