Can an Environmental Protection Act Prohibit All Conduct That Makes Others Uncomfortable?

New blog. New law practice. Not especially new environmental protection challenges.

Almost twenty years ago, Justice LaForest of the Supreme Court of Canada wrote in Friends of the Old Man River Society v. Canada, [1992] 1 S.C.R. 3:

"The protection of the environment has become one of the major challenges of our time. To respond to this challenge, governments and international organizations have been engaged in the creation of a wide variety of legislative schemes and administrative structures.  In Canada, both the federal and provincial governments have established Departments of the Environment, which have been in place for about twenty years."  

That "wide variety" is what created that discipline of "environmental law." Twenty years before Old Man River, there were lawyers who occasionally had something to do with the environment, but it would have been rare for any of them to call themselves "environmental lawyers." There still aren't many of us.

Fast forward twenty years. What's changed and what's the same? Lots more environmental regulations now on the books. Pretty much everyone still agrees protecting the environment is a good thing. And other than for voluntary "green" initiatives, there still really aren't all that many tools available except for the relatively inexpensive passing of a myriad of laws and regulations (thus the growing stack of regs),  and the relatively expensive enforcement of those laws (thus the debate about whether or not things on the ground have actually improved).

Where agreement starts to break down is in how broadly those laws should be worded, and to what degree that wording is consistent with overall legislative purposes. In an ideal world, all we'd need are two word environmental protection laws: "DON'T POLLUTE." Thus if what you're doing isn't pollution, you could keep doing it - at least from an environmental perspective - and if it is pollution, you'd have to stop voluntarily, or be made to stop.

But alas, we don't live in such a world. Despite its pithy main purpose of "to contribute to sustainable development through pollution prevention," the Canadian Environmental Protection Act, 1999 (CEPA) is 356 sections and 253 pages long; the Alberta Environmental Protection and Enhancement Act (EPAA) states its purpose as "to support and promote the protection, enhancement and wise use of the environment" and does manage at least to be about 100 sections and pages shorter than CEPA; the Ontario Environmental Protection Act (EPA) has a scant 196 sections, and says most simply that its purpose is "to provide for the protection and conservation of the natural environment," but still comes in at 217 pages. I know size isn't everything, but wordiness obscures clarity, regardless of whether it's at a dinner party or in legislation (and no, I don't want anyone commenting on the length of this post).

My personal frustration back when I was a Federal Environmental Prosecutor was one shared by others working in the enforcement field: narrowly defined regulations which explicitly prohibited the release of a few substances or the damaging of particular parts of the environment (like fish habitat), combined with an Everest-topping burden of proof beyond a reasonable doubt, combined to make many an environmental prosecution unviable. By saying essentially: "nothing is pollution, except this stuff," it became difficult to go after harmful conduct that hadn't been regulated in minute detail.

But some environmental legislation goes to the other extreme, essentially prohibiting in a vague way all conduct that might have some kind of adverse affect on the environment. Now I know there is an argument to be made that everything we humans do could at a stretch amount to "pollution." But the difficulty is that in prohibiting everything, in a sense you are prohibiting nothing, and you certainly aren't offering clear direction to your citizens about what they can and can't do.

For instance, s. 15 of the Ontario EPA instructs: "Every person who discharges a contaminant or causes or permits the discharge of a contaminant into the natural environment shall forthwith notify the Ministry if the discharge is out of the normal course of events [and] the discharge causes or is likely to cause an adverse effect." No problem, you think, surely they must have some list of contaminants and adverse effects so that the public can know what amounts to pollution? Think again.

The only direction the EPA provides is that: "'contaminant' means any solid, liquid, gas, odour, heat, sound, vibration, radiation or combination of any of them resulting directly or indirectly from human activities that causes or may cause an adverse effect" and "'adverse effect' means one or more of,

(a) impairment of the quality of the natural environment for any use that can be made of it,(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business."

So could a person passing gas which causes olfactory discomfort to another person constitute an offence? From the way the EPA is worded, it seems possible. Environmental lawyer Diane Saxe thinks "a refrigerator falling off the back of a truck and hitting a passing car" might be captured by the EPA, and asks why it would bother itself with such unfortunate but unenvironmental events.

The Alberta EPPA offers a more concise definition surrounding pollution: "'adverse effect' means impairment of or damage to the environment, human health or safety or property" and creates its discharge offence threshold at "significant adverse effect." True, one doesn't want endless fights over what is and isn't significant along the lines of - "only 2 deaths, well that's hardly significant!" - but at least it engages the law beyond the point of mild discomfort from flatulence.

In November of this year the Ontario Court of Appeal will be hearing arguments in R. v. Castonguay Blasting, due to the Court rejecting the Crown's argument that "the Crown will simply not prosecute in absurd circumstances that were not intended to be captured by s. 15 of the EPA." The court expressed strong views (for a court) on the subject:

"I disagree. In my view the relative breadth of the duty to report is an issue that is potentially relevant to a broad range of activities beyond blasting. Moreover, the duty to report is a proactive duty imposed on members of the public requiring direction from the statute as interpreted by the court, as to when this duty will be triggered. The respondent’s suggestion of an after-the-fact prosecutorial discretion would not provide adequate guidance to members of the public on how they can meet the regulatory requirements of the EPA. In other words, if a member of the public makes a conscious decision not to report on the assumption that the ministry would view the incident as inconsequential and that decision differed ultimately from the subjective assessment of the crown, that person would only learn of this when they were charged. This approach is unacceptable. The public must be able to make a more informed decision as to their obligation to report. I cannot accede to the respondent’s contention that prosecutorial discretion alone is a sufficient answer to any uncertainty in the scope of the duty to report. The interpretation of the duty to report is thus an issue with great importance to the public."

Stay tuned for the result, likely due sometime in early 2012. The court still won't likely tell us what is and isn't pollution - and really that's the job of our legislators anyway - but hopefully will clarify that everything we do that adversely affects someone else doesn't lead to an environmental offence.