Jul. 14, 2010 - Issue #769: Musician’s Survival Guide

Environmental fallout

What does Syncrude's guilt in the deaths of 1600 ducks mean for environmental law?

Six months after over 1600 ducks had been found dead on Syncrude's Aurora tailings ponds, no action had been taken. Government charges had not been laid, no investigation was announced, and while non-profit organizations brought continued attention to the issue, no action was being taken. In talking with his coworkers at the Sierra Club and Ecojustice, Jeh Custer knew a law had been broken and decided to take it on himself. "We had been talking about how an environmental protection law had been broken," Custer explains.

With the help of some legal expertise from EcoJustice and a shoe-string budget, Custer launched a private prosecution against the multi-million dollar oil company. It's that decision which led to last month's ruling finding Syncrude guilty of failing to prevent toxic substances from coming in contact with birds in the region.

"It's good to know Syncrude is guilty and it's official now that they're a corporate criminal," says Custer. "I hope it sets a precedent where governments are failing to protect the best interests of the people, and enforce environmental protection laws."

"The trial revealed a lot of the flaws in the government's regulatory regime." Greenpeace campaigner Mike Hudema explains. For environmentalists and environmental-law experts the case is a monumental decision in holding corporations accountable to the law created to protect the environment. 

Adam Driedzic, staff counsel at the Environmental Law Centre in Edmonton, explains this was a case of an operator not complying with laws that already were in place and that enforcement is really the issue at hand: "One of the things that needs to change is the discretionary enforcement. Both the province and the feds have stronger environmental powers than we've seen used." 

Driedzic points to past incidents of animal deaths in the tailings ponds, as well as the continued environmental record of Canada internationally. 

Currently at the international level Canada has twice as many environmental complaints filed by citizens as the US does. The Commission for Environmental Cooperation, created as part of the North American Agreement on Environmental Cooperation to assist in the enforcement of environmental law, has 27 citizen submissions bringing attention to environmental enforcement issues here in Canada, one of which is against the tar sands.

For Hudema, who observed the majority of the trial, the most revealing element of the case was when the federal prosecutor argued that not only was Syncrude guilty of failing to prevent contact of toxic substances with the surrounding environment, a strict reading of the federal migratory birds act meant tailings ponds should not exist in the region at all because of their damage to the surrounding environment—something Syncrude used to foretell the end of the tar sands industry.

The argument this ruling would bring down the tar sands industry is not only viewed as hyperbolic by both Hudema and Driedzic, but they're reluctant to predict that this will impact environmental enforcement at all. "What it should lead to is a much more thorough investigation into the tar sands industry and more stringent regulations and environmental enforcement and monitoring. But we're not seeing that," explains Hudema. "At the end of the day Syncrude will pay some sort of fine, or creative sentencing, but business will go on."

At the court level Driedzic doesn't believe there will be a mass movement of every operator being shut down, as Syncrude hyperbolically predicted during their defense. "There's not necessarily increased chances of future convictions, because each operator will be able to argue due diligence on their behalf," says Driedzic.

Driedzic and Custer are in agreement that this case will have two possible impacts. First, sentencing could put some weight behind the guilty verdict. With great flexibility at his disposal, the judge could impose some hefty fines, anywhere from $800 000 into the millions. (As the legislation is based on convictions on a per incident basis, each bird could be interpreted as an individual incident.)
Unfortunately, it could also turn out to be a negotiated sentence, what Hudema terms, "creative sentencing," which would result in donations to a research group on a much smaller level. Driedzic is hopeful the fine will be enough to deter future violations. "The sentence needs to deter future harms, because that's the point of environmental law," he says.

Where the greater gain could be is the incidents of citizen-initiated enforcement cases. "This was a massive victory for public participation," says Driedzic. While the Attorney General has the decisive say in how private prosecutions go forward, the fact that the trial resulted in a guilty charge may encourage the legitimacy of citizen-initiated prosecutions.

"Unfortunately in Alberta we have a federal and provincial government who seem unwilling to take these corporations to court when they break environmental laws, so it becomes inherent on the citizens to take these cases to court," explains Hudema. "The guilty verdict means there is a bit of a precedent set for these cases to go forward."

Custer is equally subdued in his predictions: "This is a good thing in moving forward environmental justice and there's still obviously a lot of work to do, but it's a step in the right direction." V

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