Law and Dis-Order
Inka
Milewski
Science Advisor
Conservation Council of New Brunswick
March 2007
ocelyn
White (not her real name) enjoys walking her dog along a neighbourhood
brook. One day she notices a bulldozer clearing land near the
brook. She finds out the developer who hired the contractor
doesn't have a watercourse alteration permit from the New Brunswick
Environment Department. Jocelyn contacts the Department but
nothing happens. She calls the federal Department of Fisheries
and Oceans in Moncton and they come survey the brook for fish.
Eventually, the province gets involved and issues the developer the
required permit.
Each year, New Brunswicks's six
regional environment offices respond to thousands of environmental
complaints reported by the public.1 (The department
doesn't refer to them as complaints but rather as
"occurrences" or "files".) In 2003-04, the
number of environmental issues handled by the Department jumped by
140% (Figure 1), reflecting a
change in reporting. The statistics now include problems
identified during audits of industrial operations, annual air quality
monitoring, and other routine investigations by departmental staff, as
well as public complaints and emergencies.
The majority (65%) of environmental
problems involve air and water quality issues and watercourse and
wetland alterations (Figure 1).
Other types of problems include leaking oil tanks, unsightly premises,
illegal garbage dumps, and e. coli in drinking water.
Who commits environmental crimes and
is anyone punished?
In 2003-04, Weyerhaeuser, the operator
of an oriented strand board mill in Miramichi, released over three
times (or approximately 80 tonnes) more formaldehyde from the
facility's stack than permitted under their Approval to Operate.2
Formaldehyde is a recognized carcinogen and is suspected of
causing developmental, immunological, kidney, neurological,
respiratory, and skin diseases. The following year Weyerhaeuser
again violated their permit to operate. Formaldehyde releases
were two-and-a-half times over the limit. They exceeded the
formaldehyde limit again in 2005-06. No Ministerial Orders,
warnings, or fines were levied against the company.
Weyerhauser plant.
(photo: National Pollutant Release Inventory)
Weyerhaeuser is not the only industrial
polluter in the province to violated pollution laws. The best-
documented example is the lead smelter in Belledune. Heavy
metals discharged from the facility violated provincial and federal
pollution laws for decades.3 The company was never
charged or fined and not a single warning or Ministerial Order was
issued.
Based on departmental statistics,
almost all (98%) violations of industrial Approvals, air quality
standards, and problems reported by the public go unpunished (Figure
1). In any given year, less than 1% of the environmental
complaints or violations result in charges being laid against a
company or individual. The department opts instead to negotiate
and compromise with polluters. The trend over the past 10 years,
by both provincial and federal environment departments, is away from
prosecutions and fines towards Ministerial Orders and warnings.
Environmental crimes are not
victimless.
Public health and the environment
suffer each time an individual or a company illegally releases
pollutants into the soil, atmosphere, lakes, rivers, or ocean.
As Rachel Carson wisely pointed out in her landmark book, Silent
Spring, the contamination of humans and the planet is not the result
of a single event but innumerable small-scale events. In 1962
she wrote, "[l]ike the constant dripping of water that in turn
wears away the hardest stone…Each of these recurrent exposures, no
matter how slight, contributes to the progressive buildup of chemicals
in our bodies and so to cumulative poisoning".4
It is difficult to evaluate whether the
policies of the Department of Environment result in a cleaner,
healthier environment because the province does not produce an annual
state of the environment report. The Department of Health, on
the other hand, publishes a report every five years that documents the
health status of New Brunswickers. Between 1993 and 1998, the
number of deaths from cancer increased by 10.3% and the number of
deaths due to endocrine-related diseases and immune disorder increased
by 28.5%.5 Deaths due to diseases of the nervous,
respiratory, digestive, and urinary/genital systems increased by
29.7%, 23%,52.6% and 26% respectively. Meanwhile, the release of
all classes of pollutants (greenhouse gases, carcinogens, endocrine
disrupting, reproductive, and respiratory pollutants) in New Brunswick
almost tripled between 1995 and 1998.6
Belledune smelter.
(photo: National Pollutant Release Inventory)
Some may argue that it's very difficult
to demonstrate an absolute 'cause and effect' relationship between
exposure to pollutants and increased disease rates. However,
scientific research examining these links is growing. It will be only
a matter of time before the evidence linking diseases and cancers to
specific pollutants will be overwhelming, just as the scientific
evidence linking smoking to cancer and greenhouse gases to climate
change is now overwhelming.
Enforcement statistics and examples
like those found in this article fuel a widely-held public view that
federal and provincial environmental laws are not adequately enforced
and that governments are soft on polluters. Almost daily reports
of environmental and pollution-related health problems demonstrate
that the public can't depend on governments to uphold environmental
laws or to enact new laws to prevent further poisoning and destruction
of the planet. New Brunswickers (as well as all Canadians) need
to take bold and creative actions if they are to succeed in pressuring
governments to enforce environmental laws.
One option citizens have is to take
matters in their own hands through private prosecutions. Every
Canadian citizen has the right to initiate legal action against an
individual or company who is allegedly breaking federal or provincial
environmental laws. This type of legal action can be launched by
an individual, or a group of individuals, and involves gathering
evidence of a wrong-doing and laying charges against an alleged
polluter. The creation of new civil institutions like
environmental bureaus of investigation and law clinics can help
citizens with these types of prosecutions.7
For years, the province has been asking
members of the public to become stewards of the environment and to
help report environmental problems. Citizens are doing their
job. Isn't it time the province did its part?
Notes:
1. Information and statistics were obtained from the Department of
Environment Annual Reports. Annual Report from 2003- present can be
found online on the Department's website under publications. Reports
previous to 2003-2004 can be obtained from the Department of
Environment library.
2. Information on Weyerhaeuser's compliance record can be found in the
Department of Environment's 2003-04, 2004-05, and 2005-06 Annual
Reports.
3. Milewski, I. 2006. Dying for Development: The legacy of lead in
Belledune. Conservation Council of New Brunswick, Fredericton. 95 pp.
The document can be downloaded in French or English for free from the
Conservation Council's website: www.conservationcouncil.ca
4. Carson, R. 1962. Silent Spring. Reprinted in 1987 by Houghton
Mifflin Company Boston. p. 173.
5. New Brunswick Department of Health and Wellness. Health Status of
New Brunswickers. Third Report 1989-1993, Table 8. Total Number of
Deaths from Seventeen Major Disease Classifications, p. 36 and Fourth
Report 1994-1998, Table 5. Total Number of Deaths from Seventeen Major
Disease Classifications, p. 36.
6. According to data compiled by PollutionWatch (http://www.pollutionwatch.org/home.jsp)
which is based on data from Environment Canada's National Pollutant
Release Inventory (NPRI) (http://www.ec.gc.ca/pdb/npri/npri_home_e.cfm),
2.25 million kilograms of pollutants were released to the atmosphere
in New Brunswick. In 1998, 6.18 million kilograms were released. These
figures are incomplete because not all industrial operators are
required to report their releases to the NPRI.
7. For more information on private prosecutions and citizen-based
environmental investigations visit the website of Ontario's
Environmental Bureau of Investigation, a nonprofit division of Energy
Probe Research Foundation (http://www.e-b-i.net/ebi/index.cfm),
and read their citizen's guide (http://www.e-b-i.net/ebi/guide.html).
