Why It's Harder to Sue Polluters in Canada
In a Q&A, EcoJustice general counsel Devon Page talks about the challenges of bringing successful environmental claims in a country that's far less litigious than the United States.
Since its founding in 1991, Canada's EcoJustice, formerly known as the Sierra Legal Defence Fund, has lodged many groundbreaking legal challenges over alleged violations of specific environmental or public health protections. Most of the time, the target has been the provincial or federal government. The strategy, says Devon Page, the group's top lawyer, is to look for ways to build legal precedent for stronger protections. Recently the group also helped an environmental coalition opposed to the construction of a new $6.3 billion Northern Gateway oil pipeline build a legal case at the quasi-judicial regulatory review hearings. [See "Battle over a Canadian Oil Sands Pipeline Nears End."]
Speaking with senior writer Julie Triedman, Page noted that environmental advocates in Canada face a different set of challenges than their peers in the United States: a basic reluctance to challenge government authority and relatively new environmental protection laws. And 2012 legislation streamlining review of large energy projects and narrowing the scope of protections has just made the group's mission a lot tougher.
The American Lawyer: How did you come to work at EcoJustice?
Devon Page: In the mid-1990s, when I was an undergrad, I helped support myself summers by tree planting in the Tar Sands, northern Alberta's oil fields. When I went back [to the Tar Sands] a second time, I had to replant the same area because the trees had died. It was like a desert on Mars. After law school I worked at a private firm, but in 2001 I got a job as a forestry lawyer at what was then called the Sierra Legal Defence Fund. There were 35 staffers at the time. Now we're 52 staff, including 16 lawyers, with a budget of $5 million. It's minuscule by U.S. standards; EarthJustice, a parallel organization in the U.S., has a budget of $28 million.
TAL: Companies considering investing in energy projects in Canada say the regulatory process creates too much uncertainty and expense. The government of Prime Minister Stephen Harper last year passed legislation that it claims streamlines the process while still affording sufficient environmental protections. Why is EcoJustice opposed to the changes?
Page: The current federal government sees its optimal role as being as small as possible. It defines the public interest as the interests of industry generally, prioritizing resource extraction as the engine of Canada. The two bills, C-38 and C-45, manifested the federal government's intention to get out of the business of protecting the environment except in very narrow circumstances. You might say, 'So what? The provinces could step up to fill the gap.' The problem is, the provinces don't have either the appetite or the resources to do so. Therefore protections have been jeopardized. Many federal protections—the Navigable Waters Protection Act, the Fisheries Act and the Canadian Environmental Assessment Act—have been rolled back significantly.
TAL: How are the challenges you face different than those of your American peers?
Page: My sense is that Americans place a higher value on recourse to the courts than Canadians. Americans treat access to the courts as a key component of their rights. Canadians are far more likely to defer to government actions as representative of their best interests. That manifests itself in a couple ways. Canadians aren't as litigious. And Canadian laws don't enable individual Canadians to challenge government decision making to the extent they do in the U.S.
Canada is also a younger country. A lot of our jurisprudence isn't as developed. Our Species At Risk Act, for instance, dates back only to 2002; your Endangered Species Act dates back to 1973. The environmental regulatory laws here are also generally weaker. The laws prioritize resource extraction over almost any other interest. It's only been in the last 30 years that Canada has begun to pass laws that at least attempt to balance protection of the environment with resource development.
TAL: Given that many of Canada's environmental protection laws are relatively new and untested, what groundbreaking cases is EcoJustice handling that you think could be game changers?
Page: One area is our Species At Risk Act litigation. We've litigated a bunch of cases since 2001, and we've won every one of them. For instance, last year we sued the federal government to protect the endangered Greater sage-grouse, which is approaching extinction across Western Canada. On September 17 the federal government announced that they would introduce emergency measures to protect the bird's prairie habitat because the voluntary protections in place weren't working. This is the first time Ottawa has explicitly stated its intention to introduce emergency protections for an endangered species.
Another groundbreaking case is one we launched in January 2012 against Suncor Energy and the province on behalf of two residents of Sarnia, Ontario, home to Canada's petrochemical and refining industry and one of the 10 most polluted sites in North America. The suit challenges the decision to permit increased air pollution by Suncor. Our overarching goal in this case is to create a precedent that affirms Canadians' right to a healthy environment under the 1982 Charter of Rights and Freedoms, which established a constitutional cause of action for individuals to sue the government when they believe their rights have been violated. The charter is silent on the environment but does include a right to "life, liberty and security of the person." We recently survived the government and Suncor's motion to dismiss and are right now battling over which evidence we will be allowed to introduce.
TAL: You've talked a lot about EcoJustice's government challenges. Do you launch claims against private parties as well?
Page: Probably 99 percent of our caseload challenges government's failure to enforce a law. But we do some tort actions. Most recently, we filed a private prosecution in Toronto against a prominent property developer after thousands of migratory birds flew into the developer's office towers' windows. The case claimed the developer failed to take measures to prevent the bird deaths. Shortly after the trial began last year, the building owner began installing window films to reduce bird strikes.
TAL: How is work at EcoJustice different than lawyering in-house or at a law firm?
Page: We sort of turn lawyering on its head here. The typical practitioner reacts to client demands. At EcoJustice, we are proactive. We try to identify an environmental concern and see if we can design a case around it that will advance precedent. We're not just looking for precedential decisions at the lower count, but asking ourselves, 'How will this play at the Supreme Court?' Often what we'll do is identify legal cases and then go to clients and ask them to retain us.