Cumulative Pollution a Charter Breach?

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 Suncor had been required to limit production at the facility by a Provincial Officer’s Order, which was revoked in April without consultation with the First Nation.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.