I have a saying that goes like this: “The only people who benefit from environmental litigation are lawyers and consultants”. Recent experiences I have had in this area have again proven me right! The…
I have a saying that goes like this: “The only people who benefit from environmental litigation are lawyers and consultants”. Recent experiences I have had in this area have again proven me right! There is a need for companies to think more about how they can influence public perception and help protect the environment from future impacts, instead of having costly court battles due to “paper infractions”. These often have had a negligible effect on the environment.
In recent years, pulp and paper companies and other industries (including farmers) have been charged for discharging “a deleterious substance into waters frequented by fish”. This is the wording of the Federal Fisheries Act used to press legal charges against corporations and their owners. It is one of Canada’s most powerful pieces of environmental legislation. Obviously, it needs to be taken seriously given the potential consequences of being found guilty of the offense (heavy fines and jail time under exceptional circumstances such as gross negligence).
STEP-BY-STEP TOWARDS THE COURT ROOM
Most trials I have been involved with have started with complaints from the public or environmental organizations. The complaint triggers an environmental investigation that leads to the discovery of certain deficiencies about a company’s environmental performance. The investigation continues until much environmental data is collected and finally charges are laid. I know of one company that received visits from an environmental inspector every weekday for about one year. Every day the inspector would pore through environmental records and files. The company was eventually charged with over 50 environmental violations.
Typically, the prosecuting party (e.g. Environment Canada) will advertise that a certain company has been charged for environmental violations and press releases will appear in various newspapers, on-line news services and on the radio. This type of news has an immediate negative effect on public perception and the company is viewed as a polluter. Shareholders and clients of the corporation may also become concerned due to negative image and the potential impact on business.
Once charges are laid, the company must decide if it will contest the charges in court, whether it will plead guilty or attempt an out-of-court settlement. Although court battles are not recommended, some companies may not have much of a choice to protect their interests. Out-of-court settlements that result in some environmental benefits are always more productive (e.g. funding for local environmental improvements and conservation, commitment to ISO 14001 registration).
LESSONS LEARNED IN COURT
My recent court experience tells me that the following are essential:
A good defence lawyer with relevant environmental experience;
The most technically competent expert witnesses you can find (previous court experience is key);
A well prepared case for cross examination of the Crown witnesses (with many references to key documents).
Recent charges under the Fisheries Act have focused on effluent toxicity. The Crown witnesses present evidence relating to sampling and testing and the fact that the material was discharged into fish-bearing waters. The defense, in recent trials, has focused on demonstrating errors in sampling, shipping and testing. Some key points that defense lawyers have raised are:
Sampling, testing and shipping of toxicity samples (for rainbow trout and Daphnia magna) must be done exactly according to the Environment Canada test method if they are to be reliable;
Certain laboratories are currently not following all the “must” requirements of the test method and this may influence test results;
Laboratories must have an accredited quality system in place to conduct the tests and produce reliable data (e.g. accreditation by the Canadian Association of Environmental Analytical Laboratories).
Mills should be aware of this and consider carefully screening toxicity test data and doing a third party audit of contract laboratories. The toxicity test reports can also yield useful data to help understand effluent treatment plant operations when linked with daily operational data.
IDEAS TO AVOID COURT
Legal battles may be avoided by ensuring the following:
1) Compliance with all regulations under normal operating conditions;
2) Demonstrating due diligence by putting in place measures to prevent pollution and react cost-effectively if problems occur;
3) Good communication with regulatory authorities and the public, so that environmental concerns are addressed as quickly as possible.
In reality, complaints are triggered based on public perception and companies are charged because of political pressure, not true environmental concerns. In fact, the environmental information released to the media during legal trials is rarely accurate. Hence, there is a lot to be said for a pro-active environmental communications campaign to educate all stakeholders in the company’s environmental improvements, a description of environmental impacts and future plans to address them. An effective way to avoid negative public perception is to educate people about the facts by using “Fact Sheets” about mill operations, making presentation to employees, local community groups and environmental organization, government representatives and schools. The presentations should include simple explanations to describe the key environmental issues (e.g. odor, effluent treatment, effects on the nearby river, landfill operations), environmental improvements over the last 10 years (e.g. investments, improvement in measured environmental indicators) and future plans for environmental protection.
As for compliance, it is not a choice. Compliance audits should be done regularly and the company needs to make resources available to address the issues. One of the most useful tools that companies should have in place to prevent and minimize environmental problems and non-compliance is a recognized environmental management system based on a standard such as ISO 14001. Remember to put in place a functional system that will help your employees improve environmental performance, instead of aiming for registration as a goal. Some current ISO 14001 systems are not helping companies the way they should.
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