With the launch of Conservative Senator Nicole Eaton’s inquiry into the “Involvement of Foreign Foundations in Canada’s Domestic Affairs”, increased scrutiny is being focused on the activities of Canada’s charitable environmental groups. In particular, is participating in public consultations, or encouraging others to do so, a political activity forbidden to charities?

The Conservatives have expressed concern about foreign foundations making donations to Canadian charities to influence Canadian law and policy, and whether this puts undue obstacles in the way of major Canadian energy projects. This was apparently triggered by frustration at the large number of registered interveners in the Enbridge Northern Gateway Pipeline Joint Review Panel public hearings. Some of the intervenors receive financial support from US foundations. Northern Gateway would involve two oil pipelines from Northern Alberta oil sands to a proposed Marine Terminal in Kitimat, British Columbia.

The Canada Revenue Agency (CRA) puts severe limits on political activity by registered charities. It’s therefore a reasonable question: is participation in public consultation – consultation required by Canadian laws – a political activity that is forbidden to charities? We think that careful participation in public consultation prior to a government decision is neither “political activity”, nor forbidden to charities.

First, what is a “political activity” for tax purposes? CRA’s Policy Statement CPS-022 – on Political Activities – states that an activity is “political” if the charity:

1. explicitly communicates a call to political action (i.e., encourages the public to contact an elected representative or public official and urges them to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country);
2. explicitly communicates to the public that the law, policy, or decision of any level of government in Canada or a foreign country should be retained (if the retention of the law, policy or decision is being reconsidered by a government), opposed, or changed; or
3. explicitly indicates in its materials (whether internal or external) that the intention of the activity is to incite, or organize to put pressure on, an elected representative or public official to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country.

CRA uses precise language that charitable organizations and their advisors are entitled to rely upon. Both the English and French versions of this policy explicitly limit the scope of “political activity” to activities intended to incite a public official to “retain, oppose, or change” a law, policy or decision, i.e. one  which already exists. Conspicuously omitted from these definitions are activities that incite a public official to make an initial decision. Public consultation and other efforts to influence how a future decision will be made, such as whether to build Northing Gateway, are therefore not included as (forbidden) political activities.

Second, even if public participation were “political”, CRA considers a communication to be a proper part of “charitable activity” if it is subordinate to the charity's purposes and:

• relates to an issue that is connected to the charity's purposes;
• is well-reasoned; and
• does not contain information that the charity knows or ought to know is false, inaccurate, or misleading.

It is also encouraging to note that public participation in an environmental assessment process is not “lobbying”. The Lobbying Act creates specific requirements for those who are paid to try to influence law and policy. According to section 5 of the Act, a person must register as a lobbyist if they are paid to either

 (a) communicate with a public office holder regarding

(i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,

(ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,

(iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,

(iv) the development or amendment of any policy or program of the Government of Canada,

(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or

(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada; or

(b) arrange a meeting between a public office holder and any other person.

Public office holder is broadly defined in the Act, and likely includes the Panel members. A recommendation or decision whether to approve a pipeline, however, is not one of the restricted areas of communication described in section 5. And it is the Panel itself which has arranged the public hearings. Thus, participation in the hearings, or helping someone else to do so, is not “lobbying”.

Nevertheless, Sen. Eaton’s inquiry is going ahead. In her speech to launch the inquiry, she implied that it is “anti-Canadian” to oppose the pipeline and oil sands development that her party supports:

 We need to make it clear that [foreign groups] cannot come here to our country and incite Canadians to turn against us, or even worse, pay agitators to come here and provoke demonstrations and protests against our own country.

This is not a partisan issue, nor is it a regional one. It is certainly not an environmental issue. This is a Canadian issue; a patriotic issue. This is about our sovereignty and economic well-being.

With all due respect to the Honourable Senator, public consultation and environmental assessment are among our most important tools for sustainable development. Inclusivity, and engaging with diverse perspectives, are surely more fundamental Canadian values than unquestioning support for resource extraction.

[And by Meredith James]

According to Natural Resources Minister Joe Oliver,

Anyone looking at the record of approvals for certain major projects across Canada cannot help but come to the conclusion that many of these projects have been delayed too long. In many cases, these projects would create thousands upon thousands of jobs for Canadians…Unfortunately, there are environmental and other radical groups that would seek to block this … Their goal is to stop any major project no matter what the cost to Canadian families in lost jobs and economic growth. No forestry. No mining. No oil. No gas. No more hydro-electric dams.

These groups threaten to hijack our regulatory system to achieve their radical ideological agenda. They seek to exploit any loophole they can find, stacking public hearings with bodies to ensure that delays kill good projects. They use funding from foreign special interest groups to undermine Canada’s national economic interest….

The regulatory system, he concludes, is broken. “It is time to take a look at it. It is an urgent matter of Canada’s national interest.”

What sparked Minister Oliver’s anger? The fact that more than 4,300 people signed up to make submissions to the Joint Review Panel considering the proposed Enbridge Northern Gateway Project, two giant pipelines to carry petroleum from Alberta’s oil sands through the British Columbia mountains to a port in Kitimat, BC., for shipment by tanker to Asia. The Joint Review combines Environmental Assessment (EA) with the economic and commercial issues normally decided by the National Energy Board. The public hearings are scheduled to wrap up by July 2012, but may now take longer.

What is the role of the public in the hearings?

The importance of the public in EA processes is set out in the Canadian Environmental Assessment Act (CEAA) itself. The preamble and purposes of Act set out the federal government’s commitment to facilitate public participation in EA by “any person”. In the often quoted Supreme Court of Canada decision Friends of the Oldman River Society v. Canada (Minister of Transport) [1992] 1 SCR 3, Justice La Forest wrote that environmental assessment is a planning tool that has “both an information gathering and a decision-making component which provide the decision maker with an objective basis for granting or denying approval for a proposed development.” The public contributes to the process both by providing information and by helping to define the public interest.

Public concerns from outside Canada can legitimately help with both these objectives. For one thing, one of the purposes of CEAA, set out in section 4, is “to ensure that projects … do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried out”. Who better to explain to the Panel these extra-jurisdictional effects than those who will be affected by them? And many people outside Canada will be affected by projects, like Gateway, that can materially increase climate change.

As to foreign funding, why would it be ok for foreign-owned multinationals to spend their money promoting the project, while denying foreign donors the right to give money to question the project? Since the issues to be addressed are complex and Canadian intervenor funding is limited, foreign donors may be essential to fund the research and representations that the Panel should hear.

Public interest standing before the courts: is it different?

The courts have struggled with somewhat similar issues (e.g., cost, delay, whose voices should be heard?) in assessing who should have public interest standing before them. As Justice Cory wrote in Canadian Council of Churches v. Canada (Minister of Employment and Immigration) [1992] 1 SCR 236:

It is essential that a balance be struck between ensuring access to the Courts and preserving judicial resources. It would be disastrous if the Courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by well-meaning organizations pursuing their own particular cases, certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.

In Shiell v. Atomic Energy Control Board, 98 F.T.R. 75, Ms. Shiell sought judicial review of an amendment to Cameco’s operating license for a uranium mine and mill. The court found that, despite her genuine interest and concern about radiation and radioactive waste, she lived several hundred miles from Cameco’s facility, and had no direct personal interest in their operations. The amended license would not affect her differently than any other members of the general public, and so she was denied standing.

On the other hand, in Citizens' Mining Council of Newfoundland & Labrador Inc. v. Canada (Minister of the Environment), [1999] F.C.J. No. 273, the Council did get standing to challenge the Minister’s decision to assess a mine and mill proposal separately from a smelter and refinery proposal. The proponent argued that the applicant could not demonstrate “a real and continuing commitment to environmental issues raised by the developments … given that it was incorporated only three months before these proceedings were commenced, and it had less than a $100 is assets in the month following the commencement of the proceedings.” It argued that the coalition was “merely a shell company formed for the purposes of this litigation” and would not “be subject to any direct impact from the proposed projects that is distinct from the impact on the public at large.”

The Federal Court decided that the applicant raised a serious issue, and that it had a genuine interest in environmental protection. The Council was the only public group to demonstrate sufficient interest and means to mount a court challenge. It was formed “to express a communal concern and to challenge decisions that might otherwise be essentially beyond review.”

The courts can justify keeping a tight rein on intervenors, but good EA requires approval processes for major projects to be open to all. First, hearing participants do often express a communal concern and challenge decisions that might otherwise be essentially beyond review. Second, public hearings are focussed on major aspects of the public interest, and on the proper use of public resources, not on a private dispute between litigants, whose rights should take precedence. Third, the Panel’s mandate is to come to a substantive conclusion while the Court’s role is to protect procedural fairness. Fourth, the governing laws for a public hearing (such as CEAA) are built around a broad role for the public. Fifth, the Panel will make a better decision if provided with a full range of information and perspectives. And sixth, broad participation in the hearings is essential to the legitimacy of the ultimate decision.

Conclusions

In our view, the regulatory system for approving major projects may be broken, but not because of foreign donors or participants. There is a fundamental disconnect between governments and proponents (who usually think of EA as an obstacle, relevant only to how to build a project) and environmental, community and aboriginal groups (who often focus EA on whether to build a project). Everyone is frustrated:

• proponents, because the hearings take so long and cost so much, and because applications are occasionally rejected or delayed (eg Keystone XL); and
• Members of the public, because almost everything is approved, regardless of the evidence they offer.

Gateway is almost certain to end up in the courts, if for no other reason than the large number of overlapping aboriginal claims, which the government will find it hard to steamroll. But Minister Oliver has signalled that his government will do whatever it can to make resource project approvals faster, whatever the cost to the theory or practice of EA. Are allegations of foreign interference just a smokescreen for whatever is coming next?

[with Meredith James]

Is it acceptable for legal pollution levels to be higher in some neighbourhoods than in others? In the US, pollution is often concentrated in areas of colour, including the famous Cancer Alley. Changing this is called “environmental justice”, and is an important priority for US EPA Administrator Lisa Jackson.

(Ecojustice has framed the same issue as a Charter challenge in its work on behalf of two members of the Aamjiwnaang First Nation. It argues that Ministry of the Environment ongoing approval of multiple sources of pollution surrounding their Sarnia reserve violates their rights to life, liberty and security of the person and to equality.)

To date, Ontario courts have considered the issue at least twice. In Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (ON SCDC), the Ontario Environmental Review Tribunal had granted neighbours of a cement manufacturing facility leave to appeal permits, issued by the Ministry of the Environment, allowing Lafarge to burn tires, as fuel, at its cement manufacturing facility. This was the 1^st facility in Ontario authorized to burn tires as fuel, and ministry staff had accepted Lafarge evidence that they could do so safely. At the time, Ontario had large numbers of discarded tires and no clear plan for dealing with them, other than a desire to avoid another uncontrolled tire fire. Ministry staff intended to closely monitor the Lafarge experience, and to use it as a pilot project for tire destruction; meanwhile, tire burning would be banned in the rest of the province.

The test for granting leave, under the Environmental Bill of Rights, required that “no reasonable person” could have made the decision appealed from. Lafarge argued that this test had not been met, and sought judicial review from the Ontario Superior Court of Justice (Divisional Court). The court upheld the ERT decision, and Lafarge eventually abandoned its proposal.

In upholding the decision, the court seemed to imply that it was inherently unreasonable to have different levels of pollution permitted in different parts of the province. At paragraphs 66 – 67, Justices Lederman and Swinton wrote:

The Tribunal found there was a failure on the part of the Directors to take into account “environmental consistency”. In the context of the [Environmental Protection Act], the Tribunal was of the view that consistency means that facilities should be regulated as necessary to limit environmental effects to a consistent level across Ontario. It concluded that a reasonable, prudent person with knowledge of the law, policies and surrounding facts would not expose the residents of Bath to the effects of tire burning activity, especially when the Ministry was considering banning such activity in the rest of the province. It was within the realm of reasonableness for the Tribunal to conclude that it would be discriminatory to the community of Bath to potentially expose its residents to the effects of a tire burning process while at the same time considering not permitting it anywhere else in the province.

Accordingly, it was reasonable for the Tribunal to conclude that it appeared that there was good reason to believe that the decisions to approve the Lafarge [Certificates of Approval] are decisions that no reasonable person could make so as to expose local Bath residents to potential environmental impacts, when no other Ontario community is subject to such impacts.

This year, however, the Ontario Court of Appeal accepted without complaint a Ministry of the Environment decision to permit 40 times more historic nickel contamination in soil in Port Colborne than in the rest of Ontario.

Smith v. Inco, 2011 ONCA 628, was a class action by thousands of Port Colborne residents who alleged loss in property value due to public concern about potential health risks from nickel contamination on their property. The nickel came from Inco’s nickel refinery, which had operated from 1918 to 1984, and had been the economic engine of the entire town. In accordance with the standards of the day, Inco emitted refinery dust (nickel oxide) into the air from a giant smoke stack, much of which settled on its neighbours.

The emissions complied with legal requirements at the time, and Inco shut the refinery nearly two decades before the class action began. However, by the time of trial, Ministry Standards under regulation 153/04 set a limit of 100 ppm (for coarse soils) to 200 ppm (for medium/fine soils) in residential areas supplied with municipal drinking water. In industrial areas, the levels are 270-340 ppm. 25 Port Colborne homes had exceeded 8,000 ppm. Per a Ministry order, Inco remediated 24 of those 25 properties ( the plaintiff, Ellen Smith, refused to permit Inco to cleanup her home). The Ministry of the Environment selected 8,000 ppm as a level that was allegedly “below any potential risk” to either adults or small children. Numerous homes were left with contamination between 100 and 8,000 ppm.

At trial, the neighbours had been awarded $36 million, based on both nuisance and Rylands v. Fletcher. The trial judge had ruled that all nickel from Inco’s refinery in the soil became a nuisance if public concern about potential harm adversely impacted the properties’ market values years later. He also ruled that Inco was strictly liable, because its nickel refinery was a “non-natural” use of the refinery lands.

The Court of Appeal disagreed on every front. First, they held that Port Colborne properties had not actually lost any value due to the nickel contamination. Second, they dramatically cut down the potential use of the popular environmental tort Rylands v. Fletcher, by limiting it to unexpected and unintended mishaps, not intentional emissions, and by ruling that operating a refinery in a properly zoned location was not a “non-natural” land use.

Third, they greatly reduced the scope of nuisance claims that are based on historic contamination. Although Inco admitted that the nickel was there, and had come from its refinery, there was no proof of any current health risk. Inco had complied with MOE’s order to clean up 25 homes with more than 8000 ppm of nickel in their soil. According to the MOE, the 8000 ppm benchmark was low enough to prevent any risk to health. How then, asked the court, could the mere presence of nickel below this level “damage” the affected properties? They did not even mention that a much lower benchmark for permissible soil contamination applied in the rest of the province.

Admittedly, the Lafarge case dealt with future emissions, while Smith v. Inco dealt with the historical residue of past industrial activity. But it’s hard to understand why that distinction is relevant to this question. Air and water pollution levels do vary from place to place– for example, mountains and forests typically have cleaner air than highways or industrial areas. Is it unreasonable for regulators to allow different levels of pollution in different places, and if so when? Does this contravene the preamble to Ontario’s Environmental Bill of Rights,1993, S.O. 1993, ch. 28: “The people of Ontario have a right to a healthful environment”? Or not?

We should be talking about it.

The police cannot force someone to talk and then use the answers against them; can environmental regulators do so?

The courts have always allowed them to. In 1969, the Ontario Court of Appeal convicted Strand Electric [1968 CarswellOnt 291, [1969] 1 O.R. 190, [1969] 2 C.C.C. 264] of failing to maintain a scaffold in good condition contrary to the Construction Safety Act. The only evidence against the company was an oral statement made by its supervisor to a government inspector, a statement that he was required to make under the Act. The Court ruled that since the Company had a legal duty to answer the inspector’s questions, its staff were obviously authorized to make the statement in question, and it was admissible against them.

At the time, the courts did not seem much troubled by compelling someone to answer questions, and then using the answers to prosecute them:

In Marshall v. R., … a case involving the admission, on a charge under the Criminal Code, of statements made by a motorist to a police officer, that he was obliged to make by reason of the then s. 110(5) of the Highway Traffic Act , Cartwright, J., now C.J.C., said …:

"It has long been settled that statements made under compulsion of a statute are not by reason of that fact alone rendered inadmissible in criminal proceedings against the person making them; it is sufficient on this point to refer to Walker v. R., ….

"[I]t is his duty under s. 110, to furnish the officer with such information concerning the accident as the officer may require, and the information which he gives in fulfilment of this duty can be used against him if he is tried for criminal negligence. If it is thought undesirable that such anomalies should exist, they can be removed only by legislative action."

Since that time, many companies and individuals have been prosecuted and convicted of environmental offenses, based on oral and written statements that they were compelled by statute to make. Environmental laws — municipal, provincial, and federal — are replete with obligations to report and to confess regulatory breaches of all kinds. Recent amendments to the Environmental Protection Act and the Ontario Water Resources Act have broadened, even further, the powers of environmental officers to require individuals and companies to answer their questions (see section 157.0.1). But the admissibility of these answers in subsequent prosecutions should now be reconsidered.

In June, the Ontario Court of Appeal ruled that statements compelled by the Highway Traffic Act can no longer be used as grounds for a police officer to demand that a suspected drunk driver blow into a screening device, under the Criminal Code. 

The key issue is whether statements compelled under the Highway Traffic Act, R.S.O. 1990, c. H.8 are admissible in a criminal trial. Specifically, are the statements admissible for the purpose of establishing that an officer had grounds to make an approved screening device demand, or does such use violates the right against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms?

The accused, Stephen Soules, had been involved in a motor vehicle accident. He therefore had a statutory obligation under the Highway Traffic Act to report the accident to a police officer, and to furnish the officer “with the information concerning the accident as may be required by the officer”. In response to police questioning, Mr. Soules identified himself as the driver of his vehicle. Mr. Soules testified that he answered this question only because he understood that he was required by law to do so.

The officer suspected that Mr. Soules had alcohol in his system and made an approved screening device demand, which Mr. Soules failed. He was arrested for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood and subsequently failed two breath tests.

Mr. Soules was acquitted of drunk driving on the ground that his s. 7 Charter rights had been violated. Without the statutory compulsion, Mr. Soules would not have answered the officer’s question. Without Mr. Soules’ admission that he’d been the driver of his vehicle, the officer would not have had reasonable grounds to make the screening device demand. Without evidence that Mr. Soules had failed the screening device, the officer would not have had grounds to require him to give samples of his breath.

According to the Court, section 7 of the Canadian Charter of Rights and Freedoms guarantees all citizens the right to choose whether or not to speak with police. If they are stripped of their right to silence by statutory compulsion, their answers cannot be used against them in subsequent criminal proceedings and “exclusion of the evidence is compulsory”. If police wish to use information acquired from a motorist for criminal proceedings, “the information cannot derive from the duty of the motorist mandated by the statutory provisions”.

If statements made by statutory compulsion under the highway Traffic Act cannot be used against the author in a subsequent criminal prosecution, why should statements made by statutory compulsion under the Environmental Protection Act be admissible in a subsequent environmental prosecution? The penalties and other consequences can be at least as great. And surely the public interest in reducing carnage on the roads is comparable to the public interest in environmental protection. I look forward to the Court of Appeal answering this question.

How much noise must neighbours of a highway put up with?

As noted by Geneviève Lay here on Slaw recently, The Québec Court of Appeal has certified the Carrier class action by neighbours of a major Québec freeway, the Laurentian Highway (Highway 73) north of Québec City. I'd like to add a bit to her reportage here.

The neighbours have been complaining about noise from the highway since 1985, which (they say) interferes with outdoor use of their properties and requires them to keep their windows closed at all times. Even with the windows closed, their sleep is disturbed and they must endure noise comparable to an intense bombardment.

In 1985, the Ministry of Transport agreed to pay half the cost of a noise protection barrier if the municipality paid the other half; while the municipality eventually consented, the barrier was not built.

In 1998, the Transport Ministry adopted a province-wide policy for installing noise reduction barriers along highways generating noise louder than 65 dB. Again, however, the local municipality was required to pay half the cost. The same time, municipalities were asked to use the zoning powers to achieve appropriate separations between highways and sensitive land uses. For zoning purposes, the acceptable level of noise in sensitive zones was set at 55 dB. Municipalities were required to bear the full cost of such zoning measures.

In 2007, a study commissioned for the Ministry of Transport confirmed that 10% of the homes along the Laurentian Highway received more than 65 dB of noise; 42% received more than 55 dB. Nothing further was done.

The neighbours then commenced a class action, claiming that they were being exposed to an abnormal level of noise, beyond what the Civil Code requires them to tolerate. (In common law terms, this is substantially equivalent to a claim for nuisance.) They also claimed breaches of the Québec Environmental Quality Act and the Québec Charter of Rights and Liberties. While the trial judge refused to certify the action, the Court of Appeal disagreed. They ruled:

1. It was premature to determine whether the province can claim statutory immunity for noise from the highway;
2. The neighbours have a heavy burden of proof, requiring expert evidence about the effect of the nuisance and its impact on the residents, but they should have an opportunity to offer this evidence;
3. Nuisance does not require proof of fault by the Ministry of Transport;
4. The residents may allege fault by the Ministry, given its failure to act even once in possession of the study documenting noise in excess of its own criteria, and notwithstanding the requirements of the Environmental Quality Act;
5. The trial court does have the power to issue an injunction, if the neighbours’ claims are proved;
6. There are sufficient common questions between the different class members to justify a class proceeding;
7. The proposed group, namely those who had lived within 300 m of the trunk of the highway within the past three years, was a reasonable class.

The Court of Appeal concludes that class actions are an important tool for environmental justice relating to noise [my translation]:

Protecting the environment is a responsibility entrusted to all citizens, although the state is called upon to play an increasing role in this area of activity. Noise pollution is no exception. The class action procedure makes it easier to ensure implementation of the protections afforded by the law against various environmental hazards. At the same time, thanks to the strength of collective action, it creates a just balance between the people who suffer the consequences of a violation and the offender, who often has much greater resources. Thus, conduct that is judged reckless, unreasonable or illegal is more easily brought within the reach of civil enforcement.

Public works often impose heavy losses on those in private property nearby. Under what circumstances should they be compensated? That should have been the question in Heyes v. Vancouver, now Susan Heyes Inc. (Hazel & Co.) v. South Coast B.C. Transportation Authority 2011 BCCA 77. Alas, it was not – Heyes was decided on whether the transit builders had been at fault.

Ms. Heyes’s company designed, made and sold maternity clothing in Cambie Village, Vancouver. Her business was severely disrupted during construction of the Canada Line, a regional transportation system connecting downtown Vancouver, the City of Richmond and the Vancouver International Airport. The Canada Line was built by a public-private partnership (“P3”), using federal, provincial, municipal and private funds, right through Cambie Village. Despite rosy promises of little disruption, Cambie Village was hamstrung by construction and road closures for more than three years, although none of their property was expropriated. Ms. Heyes (and allegedly her neighbours) each lost hundreds of thousands of dollars. They would have had little or no damages had the P3 used another, more expensive construction method. Should the P3 compensate her (and them)?

Ms. Heyes sought compensation in nuisance. She won $600,000 at trial, but lost it all at the Court of Appeal. The court agreed that three years of disruptions constituted a nuisance, and that Ms. Heyes had suffered heavy losses as a result. But, they held, the P3 was immune because they had statutory authority to build the Canada Line in the particular way that they did, and that Ms. Heyes’ damages were an inevitable consequence of this method.

Why is this the right question? Why should Ms. Heyes and her neighbours be left to suffer just because the P3 acted without fault? Why is fault the right benchmark for compensation when private parties suffer for the public good? Fault is irrelevant to the law of injurious affection, the usual way in which compensation is provided for damage from construction of public works. Why was it the key question for Ms. Heyes? According to Justice Sutherland, concurring in the Court of Appeal:

[182] It is not clear to me that there was the sort of right here as would support a claim in nuisance based on interference with access. Indeed the claim appears more as one sounding in injurious affection. However a claim for injurious affection could not be advanced in this case because the necessary statutory framework for such is not present. 

But in the parallel class action, (brought by other businesses in Cambie Village), Gautam v. Canada Line Rapid Transit Inc., the Supreme Court of British Columbia certified identical claims for injurious affection, precisely in case the defendants were protected from a claim in nuisance by the defence of statutory authority:

[47] Either an owner or a lessee of property, other than a lessee of residential property under a lease having a term of less than one year, may assert a claim based on injurious affection…

[48] The claim in respect of injurious affection may be advanced against any defendant in whom a power of expropriation has been vested by statute but not exercised. The claim may be capable of pursuit notwithstanding that the defendant is protected from a claim in nuisance by virtue of the statutory authority defence. The claim of injurious affection will therefore only be relevant if the defendants are absolved of liability for any nuisance they are found to have caused because of the protection afforded by the defence of statutory authority.

Modern law on injurious affection, the proper balance between public benefits and private costs, has been developing for nearly two centuries. It was first triggered in London during the 19th century, when massive public sewers were urgently undertaken to fight cholera, by keeping faecal matter out of drinking water. There was no compensation paid then- the disruption was widely shared, everyone’s toilet contributed to the cholera problem, and everyone benefited from having it solved. Landowners who were particularly hard hit just had to bear their losses.

The public mood changed later in that century, when railroads were being built. Railroads were a public good, but not as indisputable a public good as freedom from cholera. Also, railroads were built in fewer places than sewers, so the benefits and burdens of railroads were less uniformly distributed. Compensation was first allowed for those who physically lost property to the public work, whether by sale or expropriation, including for “injurious affection” to the remaining lands. Later, compensation was also sometimes awarded to those neighbours who suffer particular damage from the construction of a public work, even if none of their own property was taken. This is called by the awkward name “injurious affection where property is not taken”, and its scope is far more controversial. 

This same compromise is incorporated in the Expropriations Acts of many provinces. What about BC?

The BC Expropriations Act provides elaborate Compensation Procedures for those whose property is expropriated, in whole or in part. In fairly clear language, it provides for disturbance damages, partial takings, properties with limited markets, and frustration of leases. But it is puzzlingly indirect when it comes to injurious affection where no property has been taken:

41 (1) In this section, "injurious affection" means injurious affection caused by an expropriating authority in respect of a work or project for which the expropriating authority had the power to expropriate land.

(2) The repeal of the Expropriation Act, R.S.B.C. 1979, c. 117, and the amendments and repeals in sections 56 to 128 of the Expropriation Act, S.B.C. 1987, c. 23, are deemed not to change the law respecting injurious affection if no land of an owner is expropriated, and an owner whose land is not taken or acquired is, despite those amendments or repeals, entitled to compensation to the same extent, if any, that the owner would have been entitled to had those enactments not been amended or repealed.

 (4) Without limiting any other provision of this section, the BC Transportation Financing Authority has no greater liability to compensate an owner for injurious affection than does the minister responsible for the administration of the Transportation Act.

As a result, Ms. Heyes sued in nuisance, and lost on the frustrating, and arguably irrelevant, ground that the P3 had been without fault. It is not yet clear what impact her loss will have on the Gautam class action.

In 1994, Ontario adopted the grandly named Crown Forest Sustainability Act (CFSA). A long, bruising environmental assessment (the Timber Management EA) had shown that we were ravaging Crown forests with a short term focus on extracting the most timber now, damaging the future of the forests and everything that lived there. It will be better now, the government said. The CFSA begins with impressive (if wordy) promises:

1. The purposes of this Act are to provide for the sustainability of Crown forests and, in accordance with that objective, to manage Crown forests to meet social, economic and environmental needs of present and future generations. …

The government must set up four manuals¹ to guide forest management. Key is the Forest Management Planning Manual, which:

2. (3) … shall provide for determinations of the sustainability of Crown forests in a manner consistent with the following principles:

1. Large, healthy, diverse and productive Crown forests and their associated ecological processes and biological diversity should be conserved.

2. The long term health and vigour of Crown forests should be provided for by using forest practices that, within the limits of silvicultural requirements, emulate natural disturbances and landscape patterns while minimizing adverse effects on plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values.

According to the CFSA, all logging on Crown land will be governed by a Forest Management Plan (FMP) approved by the Minister of Natural Resources (MNR), who “shall not approve” a FMP unless he/she:

is satisfied that the plan provides for the sustainability of the Crown forest, having regard to the plant life, animal life, water, soil, air and social and economic values, including recreational values and heritage values, of the Crown forest²

and which complies with the Planning Manual.

Almost 20 years later, have our Crown forests become sustainable? Alas, no.

Our firm provides pro bono legal counsel to a small, hardworking environmental charity devoted to Algonquin Park, Algonquin Eco Watch (AEW)³.

They are logging Algonquin Park?

Despite its importance to tourism, Algonquin Park is the only Ontario park which is being logged. That might be (barely) tolerable if the logging were truly sustainable, but (according to AEW) it is not. Despite all the promises, we are still damaging the future of this precious place, for short term economic gain.

Forestry in Algonquin Park is managed by the Algonquin Forestry Authority, a Crown Corporation. Every 10 years it proposes an Algonquin Park Forest Management Plan, for approval by MNR. Last year, MNR approved a plan for logging in 70% of the park until 2020. MNR insists that the plan complies with all government rules, including the Crown Forest Sustainability Act, 1994, the Provincial Parks and Conservation Reserves Act, 2006, the 2004 Forest Management Planning Manual (FMPM) for Ontario’s Crown Forests (2004), and the Class Environmental Assessment for Timber Management on Crown Land in Ontario.⁴ Sounds good, doesn’t it?

In fact, according to AEW’s experts, the plan allows the private companies that log the park to significantly reduce wildlife habitat, old-growth forest, and everything that depends on them. For example, slow growing trees like hemlock, which provide critical winter cover for some species, have never recovered from massive cutting to build the Toronto subway half a century ago. Now, they will be further cut, instead of trying to re-establish their traditional range. Old-growth pine has been redefined to allow elimination of the ecologically significant larger, older trees; astonishingly, the Forestry Authority claims that the trees would die early if they were not logged. According to AEW:

Historically, Algonquin Park contained extensive hemlock stands and large, old growth red and white pine, and red spruce. The FMP does not restore these ancient ecosystems; rather it reduces both wildlife habitat and biodiversity and moves the Park towards becoming an industrial forest, not a protected area. Algonquin Park deserves better.

The plan admits that it will slash the habitat of species that depend on old growth, like the pileated woodpecker. But both MNR and Ministry of the Environment say this is perfectly ok with the Crown Forest Sustainability Act. And AEW’s every attempt to challenge the underlying science has been rejected, in favour of supplying more wood to local sawmills now.

Thus, the Act does not provide real accountability for the promises of sustainability. Forest management plans can be challenged if they fail to comply with the Forest Management Manual, but the Act and the Manual are more process than content. That is why a plan to slash wildlife habitat and old-growth forest can be called “sustainable”, and “in accordance with the Manual”, regardless of its actual effect on the trees, the animals, the water, or the park.

Theoretically, the CFSA provides a right of appeal. MNR decisions to approve a Forest Management Plan can be appealed, as provided in the regulations.⁵ But there are only two CFSA regulations, and neither authorizes such appeals.⁶ 

And if we do this to Algonquin Park, imagine what we are doing to the rest of the province. Aren’t you glad we have “Crown Forest Sustainability”?

¹ These manuals are prepared in accordance with section 68 of the CFSA, approved by the Minister, and are regulated in accordance with section 69(1) 29.

² At s. 9(2)

³ For more information about AEW, see http://www.algonquin-eco-watch.com/about.html

⁴ As this was as extended and amended by MNR’s Class Environmental Approval for Forest Management on Crown Lands in Ontario (MNR-71/2). The MNR’s Class EA documents are at http://www.mnr.gov.on.ca/en/Business/Forests/2ColumnSubPage/STEL02_164531.html

⁵ At s. 12

⁶ O. Reg. 167/95 “General” and O. Reg. 160/04 “Independent Forest Audits”. CFSA at s. 69(1)4 states that the Lieutenant Governor in Council may make regulations governing appeals under section 12; furthermore, section 69 (3) states that such a regulation may ‘designate of establish the person or body to hear the appeals’.

Morally, legally, financially, environmentally: can we really create huge unprecedented risks in pursuit of our own comfort, and manage them successfully? I am coming to agree with Thomas Homer-Dixon that our destructive capacity has far outstripped our ability to manage or even understand it:

As our world has become more complex, we have, in fact, moved from a world of risk to a world of uncertainty. In a world of risk, we have data at hand that allow us to estimate the probabilities that any given system we are working with will evolve along certain pathways, and we can also estimate the likely costs and benefits associated with evolving along one of those pathways or another. In a world of uncertainty, we simply don’t have a clue what is going to happen. We don’t have the data to estimate the relative probabilities that the system will evolve along one pathway or another; in fact we don’t even know what the possible pathways are. And we certainly can’t estimate the costs and benefits that will accrue to us along different pathways.

 But we keep pretending that better planning, better management, more training is all we need; plus some public punishment of the occasional offender. The US National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling falls into this trap, I think. They review, in painstaking detail, the pervasive arrogance, stupidity, and greed that led to the Gulf explosion and spill last spring. They recognize that future spills, such as in the Arctic, could do even more damage. They demand massive reform and far more regulation. And at the end, they call happily for lots more offshore drilling; after all, then it will be safe. 

The Commission claims to recognize that “complex systems almost always fail in complex ways”. But its conclusions take the usual arc from blame to reassurance, punctuated by the familiar chorus of “never again”:

• The explosive loss of the Macondo well could have been prevented.
• The immediate causes of the Macondo well blowout can be traced to a series of identifiable mistakes made by BP, Halliburton, and Transocean that reveal such systematic failures in risk management that they place in doubt the safety culture of the entire industry.
• Deepwater energy exploration and production, particularly at the frontiers of experience, involve risks for which neither industry nor government has been adequately prepared, but for which they can and must be prepared in the future.
• To assure human safety and environmental protection, regulatory oversight of leasing, energy exploration, and production require reforms even beyond those significant reforms already initiated since the Deepwater Horizon disaster. Fundamental reform will be needed in both the structure of those in charge of regulatory oversight and their internal decisionmaking process to ensure their political autonomy, technical expertise, and their full consideration of environmental protection concerns.
• Because regulatory oversight alone will not be sufficient to ensure adequate safety, the oil and gas industry will need to take its own, unilateral steps to increase dramatically safety throughout the industry, including self-policing mechanisms that supplement governmental enforcement.
• The technology, laws and regulations, and practices for containing, responding to, and cleaning up spills lag behind the real risks associated with deepwater drilling into large, high-pressure reservoirs of oil and gas located far offshore and thousands of feet below the ocean’s surface. Government must close the existing gap and industry must support rather than resist that effort.
• Scientific understanding of environmental conditions in sensitive environments in deep Gulf waters, along the region’s coastal habitats, and in areas proposed for more drilling, such as the Arctic, is inadequate. The same is true of the human and natural impacts of oil spills.
• We reach these conclusions, and make necessary recommendations, in a constructive spirit: we aim to promote changes that will make American offshore energy exploration and production far safer, today and in the future.

 A generation ago, environmentalists fought for environmental assessment of major projects, a process that has undoubtedly helped manage many smaller risks. But environmental assessment, at least as it is currently designed, only makes sense in a world of risk; it cannot work in a world of uncertainty, where “we simply don’t have a clue what is going to happen”. We mustn’t fool ourselves that more planning, more regulation, more environmental assessments will solve our problems and prevent future spills like this. They won’t.

Ecojustice, formerly Sierra Legal Defence Fund, has launched a lawsuit on behalf of Aamjiwnaaang First Nation members, Ron Plain and Ada Lockridge, alleging that the cumulative effects of government approved pollution in Sarnia’s Chemical Valley amounts to a violation of their human rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The case is an application for judicial review, attempting to strike down Ministry of the Environment action that allowed Suncor to increase production (and presumably emissions) from its refinery in Chemical Valley. Suncor had been required to limit production at the facility by a Provincial Officer’s Order, which was revoked in April without consultation with the First Nation. Ecojustice argues that this action failed to take into account the cumulative effects of all Chemical Valley pollution on the people who live downwind, and their particular stake in local emissions. It is essentially a demand for environmental justice for the disadvantaged, a concept that has grown dramatically in strength in the US in the last few years, and which is a major focus of the Lisa Jackson, current head of the US EPA.

Ecojustice has made available both a media backgrounder, "Chemical Valley—Sarnia, Ontario" [PDF] and the application [PDF] in the action.

Ontario’s current system of authorizing air and water pollution was never designed to manage cumulative and synergistic impacts, and does not do it well. The entire concept of cumulative effects raises difficult scientific, regulatory and legal issues that no Canadian jurisdiction has really come to terms with, and which still will be troublesome under the new approvals regime adopted last week (see my recent blog post on the new rules). Nor have we developed any concept of environmental justice. The Ecojustice lawsuit may trigger an important and long overdue review of this challenging area. In addition, it may influence the province’s struggle to develop a coherent response to First Nations demands for consultation and accommodation on a wide variety of environmental issues, including air permits.

In Friends of the Earth – Les Ami(e)s de la Terre v. Canada (Governor in Council) 2009 FCA 297 [leave to appeal dismissed 2010 CanLII 14720 (S.C.C.)] , the Federal Court of Appeal let the Canadian government get away with open defiance of a statute of the Parliament of Canada,the Kyoto Protocol Implementation Act, 2007 (KPIA).

According to the federal government, its defiance is no business of the courts, because the obligations in the KPIA are “not justiciable”. The Federal Court of Appeal agreed, but with the thinnest of justifications.

This country signed and ratified an international convention on the control of climate change, the Kyoto Protocol. In so doing, Canada accepted obligations to the other countries of the world, which became legally binding when the Protocol came into effect. These obligations required Canada to reduce our greenhouse gas emissions; we have not done so.

The KPIA is a statue which requires the Canadian government to take certain steps to comply with its international obligations under the Protocol:

1. The Minister of the Environment must prepare and publish a Climate Change Plan to “ensure” Canada’s compliance with its obligations under the Protocol (s. 5 KPIA);
2. The Governor in Council must publish proposed regulations for public consultation, with statements setting out anticipated GHG reductions from proposed regulatory changes (KPIA ss 8, 9); and
3. The Governor in Council must then enact, amend or repeal regulations necessary to ensure Canada’s compliance with the Protocol. (KPIA s. 7).

Since the Canadian government chose not to comply with any of these requirements, Friends of the Earth (FOE) filed three applications for judicial review by the Federal Court. The three applications were heard together and dismissed. Justice Barnes ruled that Canada’s obligations under KPIA are non-justiciable, because (in his view) the Act uses permissive language, deals with discretionary matters, and provides an alternative remedy in its reporting requirements. The Court of Appeal agreed, but are these arguments defensible?

The court accepted Canada’s argument that the task of “ensuring” compliance with the Kyoto Protocol would be difficult and complex, involving many political and economic decisions. They were clearly uncomfortable with the, admittedly unusual, fact that the minority Parliament had passed legislation against the will of the executive. They seemed to fear being asked to issue a mandatory order on how to implement the KPIA, a huge political task that the government itself had declined to undertake.

But in doing so, they misunderstood the question before them, and shirked an essential job that the Federal Court was created to do.

A fundamental principle of the Canadian legal system is that everyone, including the government, is governed by the law. A key function of the Federal Court is to enforce this fundamental principle. There is, of course, a balance to be struck between the role of the executive and the role of the judiciary; not every government decision is amenable to judicial review. Justiciability is the principle that courts use to ensure that they decide only clear legal questions; they should not intervene in cases that they lack both the institutional capacity and the moral legitimacy to decide.

The court was not asked to decide whether Canada should comply with the Kyoto Protocol; this decision was made twice by the Canadian Parliament: first in ratifying the Protocol itself, and second in adopting the KPIA. Nor was the court asked to decide how Canada should comply with the Kyoto Protocol; the KPIA leaves his responsibility precisely where it belongs, with the government of Canada in consultation with other interested stakeholders.

The court was asked, instead, to decide three much narrower questions: has Canada complied with the specific obligations set out in sections 5, 7 and 8 of the KPIA? Do Canadian courts have the institutional capacity and the moral legitimacy to determine whether the Government of Canada has complied with s. 5, 7 and 8 of the KPIA?

In my view, these are precisely the sorts of question that our courts do have the capacity and the legitimate right to decide. The doctrine of justiciability is part of a check and balance system that ensures that the government operates within its constitutionally mandated scope. It cannot and should not be invoked to excuse government defiance of a specific federal statute. The rule of law requires governments, above all others, to obey the law. The Federal Court of Appeal should have required our government to comply with the KPIA.

[A fuller version of this article will appear in the Journal of Parliamentary and Political Law.]

One of the most wrenching questions in environmental law is who should pay for historic contamination which was legal at the time. There is no moral difficulty in holding today's polluters responsible for the consequence of their acts. But historic contamination, the unintended result of perfectly lawful conduct, is different. Inco has been ordered to pay $36 million in damages for lost property value, after 2000, due to nickel emissions before 1984 that were legal at the time: Smith v. Inco 2010 ONSC 3790

Is this just?

The rule of law is an essential part of the fundamental bargain that allows societies to live together. One key element of the rule of law, as explained by influential political theorist Joseph Raz, is that laws should be prospective, rather than retroactive:

[T]he literal sense of the rule of law”… has two aspects: (1) that people should be ruled by the law and obey it, and (2) that the law should be such that people will be able to be guided by it… The law must be capable of being obeyed… If the law is to be obeyed, it must be capable of guiding the behavior of its subjects. It must be such that they can find out what it is, and act on it….

 All laws should be prospective, open and clear. One cannot be guided by a retroactive law.….

Observance of the rule of law is necessary if the law is to respect human dignity. Respecting human dignity entails treating humans as persons capable of planning and plotting their future.…

 The violation of the rule of law… when the appearance of stability and certainty which encourages people to rely and plan on the basis of the existing law is shattered by retroactive lawmaking… Often it is analogous to entrapment: one is encouraged innocently to rely on the law and then that assurance is withdrawn and one’s very reliance is turned into a cause of harm to one. . .

There can be good reasons for retroactive laws. For example, in R. v. Finta [1993] 1 S.C.R. 1138, the Supreme Court of Canada upheld sections of the criminal code that retroactively prohibited war crimes and crimes against humanity. Finta, a lawyer and captain in the Royal Hungarian Gendarmerie, carried out the Nazi order to go confine, rob and deport to concentration camps 8,617 Hungarian Jews. He did so in accordance with a decree of the Hungarian Ministry of the Interior. Expert opinion at trial was that this decree was manifestly illegal, and that a person trained in Hungarian law must have known so at the time.

According to the Supreme Court, the rule against retroactive law is a key principle of justice. Nevertheless, it was just to retroactively prohibit crimes against humanity:

 Since the internationally illegal acts for which individual criminal responsibility has been established were also morally the most objectionable and the persons who committed them were certainly aware of their immoral character, the retroactivity of the law applied to them cannot be considered as incompatible with justice. Justice required the punishment of those committing such acts in spite of the fact that under positive law they were not punishable at the time they were performed. 

But how far should we extend this, in the absence of moral fault? Seven years ago, our Supreme Court allowed governments to issue retroactive cleanup orders to past polluters. Imperial Oil v. Quebec 2003 SCC 58 involved a petroleum depot that operated lawfully from 1920 to 1973. Imperial Oil sold the depot, as is, in 1979. The purchaser demolished the buildings, and resold the land to a developer at a nice profit. The developer twice cleaned up the land to the satisfaction of the Quebec Ministry of Environment and Wildlife, obtained a provincial certificate of authorization and a building permit, and then built a subdivision. Imperial Oil was not involved in this process, or notified of it.

In 1994, homeowners found hydrocarbons in the soil exceeding new residential standards. They sued the developer for building the subdivision and the City for issuing the building permit; the Ministry was added as a third party for approving the original cleanup. The matter became political.

To resolve its own political and legal problems, the Ministry ordered Imperial to prepare a cleanup plan. Imperial considered this unfair, and appealed. Among other things, the construction of the subdivision had made a cleanup much more expensive. The Supreme Court of Canada rejected their appeal, ruling:

1. Polluters owe a debt to future generations
2. Retroactive ‘polluter pay’ is fine, and
3. Cleanup orders don’t have to be fair

However, a different analysis should apply to historic contamination in the context of civil remedies, the enduring common law struggle to reconcile competing interests and principles. Administrative orders are: 

• issued by regulators 
• in the name of the public interest 
• on the basis of clear statutory authority. 

In contrast, civil suits, including class actions, generally: 

• seek financial benefits 
• for individuals
• without clear authority. 

But in Smith v. Inco, Justice Henderson of the Ontario Superior Court again chose retroactive liability, sweeping aside any meaningful limitation period for historic contamination. He found Inco liable of committing private nuisance and Rylands v. Fletcher, sixteen years after the plant closed. 

Why didn't the limitation period protect Inco from the Port Colborne class action, Smith v. Inco (formerly Pearson v. Inco)? According to Justice Henderson, because of the discoverability principle. Everyone knew about the nickel refinery, and could easily have known that there was nickel in the soil in town. But most didn't know it would affect the value of their properties. In fact, the nickel may not have affected property values.

But then there was a chain reaction, none of which was caused by Inco. The MOE did a study of the effect of nickel on plants. In Sept 2000, they published it. To protect themselves, real estate agents started to disclose nickel in local real estate transactions. And, according to Justice Henderson, that started the limitation period for loss in property value from running all over again.

If that's all it takes, the same chain reaction could happen in many other places. There is TCE in Barrie and Cambridge, PAHs and many other things in Toronto and nickel in Sudbury. Petroleum hydrocarbons have been spilled almost everywhere. Land near busy roads has lead and salt. Agricultural land may have pesticides. No one can count any longer on the limitation period having run for any of it.

The Inter American Commission on Human Rights has agreed to hear a precedent-setting case against the United States based on environmental racism. Heavily polluting industries are often concentrated in poor areas, typically occupied by minorities. In the United States, these minorities tend to be black. The Canadian equivalents may be First Nations communities, such as the reserve just downwind of Sarnia’s Chemical Valley.

 Mossville and Cancer Alley

The IACHR case relates to an African American hamlet named Mossville, Louisiana. Fourteen heavy industries lie between Mossville and its neighbour, Westlake, including an oil refinery, a coal burning power station and several vinyl chloride manufacturers. In 1998, the Agency for Toxic Substances and Disease Registry (ATSDR) confirmed that Mossville residents have dioxin levels in their blood three times the national average. Dioxin is one of the most powerful toxins people have ever created.

A 2001 study confirmed that fish in Mossville waters, yard soil and indoor dust all exceed regulatory cleanup standards. Unsurprisingly, Mossville residents also report high levels of health problems, including cancer, respiratory ailments, and diseases affecting the kidney and liver. There are plausible connections between these diseases and their documented dioxin exposure. A 2007 study [PDF] concluded that the types of dioxins found in the residents’ blood are the same types emitted by six of the local industries. Mossville is also heavily exposed to other toxics, such as PCBs, PAHs, toluene, lead and mercury.

The fourteen plants near Mossville all have legal permits to operate, and now appear to be complying with those permits. (Previous legal action by the Mossville residents forced Louisiana to crack down on those who did not; several were fined.) The permits are based on valid state laws, which comply with rules established by the federal EPA. This is what leads the Mossville residents to the IACHR: it’s the government that seems to be at fault, not the individual companies.

 Is it racism?

Mossville residents, represented by the Advocates for Environmental Human Rights say it was racism to put fourteen heavy industries so close to their homes. Mossville is not an incorporated municipality, so planning decisions are made for them by the County, known as the Calcasieu Parish. Most of the Parish is rural, and white; Mossville is less than 1% of the population. The plants were established decades ago, when Louisiana was unapologetically racist. While there may be no intentional racism now, Mossville residents say they are suffering from the real, if unintentional, effects of living next to a cluster of heavy industries, a burden not imposed on other residents of the Parish. 

They also say that state and federal governments have done little or nothing to help them. American laws against racial discrimination have been interpreted to mean intentional discrimination, not acts that result in a discriminatory effect. American privacy laws do not govern pollution. And American sovereign immunity laws prevent them from suing the federal government without its consent.

Will the IACHR help?

It has taken the Mossville community five years to persuade the IACHR to hear their case, over the fierce opposition of the federal and Louisiana governments. This spring, the IACHR finally agreed to permit Mossville Environmental Action Now to argue that the United States government has breached two articles of the American Declaration of the Rights and Duties of Man: 

Right to equality before law.

Article II. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Right to protection of honor, personal reputation, and private and family life. 

Article V. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life.

The IACHR is not permitted to hear cases that could plausibly be resolved under domestic law. It therefore refused to hear the Mossville complaints about alleged violations of the right to life and the right to health; these, it ruled, had to be brought in American courts under the American Clean Air and Clean Water Acts. But the IACHR takes a broader view of the right to equality before the law and the right to privacy and inviolability of the home than American courts do. They interpret the right to equality to include protection against discriminatory effects, not just against intentional discrimination. And although the IACHR has previously ruled that the right to privacy does not include protection against pollution, the commission has now decided to reconsider.

What does it mean?

International bodies, such as the IACHR, have very slow processes, and no direct power to enforce their decisions. However, they have significant “soft power”, and are generally taken seriously by democracies. If the IACHR decide that it is a serious breach of human rights to allow the cumulative effect of lawful pollution to affect human health in nearby communities, the US EPA will have to change how it regulates cumulative effects. Environmental justice, and the effect of industrial clusters on minority groups, is already an important priority for Lisa Jackson, the current Administrator of the EPA. Condemnation of US conduct by the IACHR would make this an even higher priority for the Obama administration. 

And where US environmental regulation goes, we usually go too.