What the EU can teach Canada about environmental liability
In terms of holding industrial polluters liable, European environmental law already sets the bar for the rest of the world.
According to the results of a Eurobarometer survey released last week, the vast majority of Europeans believe that responsibility for environmental protection should be shouldered by big companies, industry, national governments and Brussels. A full 83% percent see European legislation as the best vehicle to facilitate this—and they are right to do so.
Especially when industrial pollution is concerned, European environmental law already sets the bar for the rest of the world. The EU’s legal framework shifts the burden to companies by default, meaning they’re held accountable and can be forced to pay for the ensuing clean-up following regulatory violations. This standard has been anchored in law since the Environmental Liability Directive (ELD), based on the “polluter-pays” principle and preventive principle, was codified in 2004.
The “polluter-pays” principle should be a common sense approach in all countries claiming to be environmental champions. But unfortunately, this is not always the case. Its absence as the default legal recourse is particularly stark in Canada, a country whose Primer Minister, Justin Trudeau, was elected in 2015 on his promises to fight climate change and protect the environment.
Canada behind the curve
After more than four years in office, Trudeau’s record on these promises is not reassuring. His decision to purchase the controversial Trans Mountain pipeline from Kinder Morgan in order to increase oil exports is considered a painful betrayal by environmentalists. Then, clashes between First Nation tribes and police over a natural gas pipeline connecting the East with the West coast further blighted his image in the eyes of First Nation chiefs and dragged the country’s environmental conflicts into the limelight.
To make matters worse, Ottawa has also shown a concerning inability to tackle environmental pollution effectively or prevent it altogether. The main reason for this is the blatant lack of a functioning enforcement mechanism of existing environmental laws, meaning that those who break them—particularly industrial polluters—aren’t being held to account for their actions. Slammed as “not well-managed” enough to achieve its objectives, with the responsible government department often ignoring infractions in order to keep in line with Ottawa’s “priorities”, Canada’s authorities are toothless paper tigers.
Case in point is the pollution scandal surrounding paper producer Paper Excellence’s subsidiary Northern Pulp, which has been pumping toxic effluents into the Boat Harbour territory in Nova Scotia for decades. Home to the Pictou Landing Nation, the area is an important marine ecosystem and spawning ground to several fish species.
Although activists and First Nation representatives mark Paper Excellence liable for the environmental catastrophe, the company has largely avoided responsibility, with the consequence that the Canadian taxpayer will most likely be on the hook for the environmental clean-up. However, Northern Pulp currently owes the province more than $85 million—a lot of money that could help cover the eventual cleaning costs.
The ELD shows its teeth
The fact that the Nova Scotian government has to chase down a multinational company for clean-up funds exposes the absurdity of a system that lacks clear, locked-in provisions for how to effectively compel industrial polluters to pay for their unlawful actions.
There are many lessons to be learned for Canada, and perhaps Ottawa could find some inspiration in the way the EU’s ELD tackles such issues – after all, holding industrial polluters accountable is at this policy’s core. Among others, the ELD covers liability in case of damage to protected species and natural habitats, as well as water and land damage. In practice, this includes a laundry list of offenses, such as defunct waste management operations, installations that release pollutants into the environment, and the deliberate release of genetically modified organisms.
Since its full implementation in 2010, the positive impacts of the ELD have been felt across the EU, where offenders are—more often than not—unable to wiggle themselves out of their responsibility. During the first reporting period form 2007 to 2013, the ELD was applied to 1,245 cases, with those numbers rising as the policy developed until now. Among them, a reference case for the ELD leading to swift environmental justice has been that of Hungarian aluminium producer Magyar Alumínium Zrt (MAL) case of 2010.
In October that year, the western dyke of a MAL reservoir filled with aluminium waste collapsed. The resulting deluge of highly alkaline red mud flooded settlements across parts of western Hungary, and contaminated the Marcal, Rába and Mosoni-Duna rivers. Water pollution even reached as far as the cross-border Danube river. All told, the disaster killed ten people and injured 286 others, destroyed thousands of hectares of soil, and made community water sources undrinkable.
An investigation of the disaster revealed several checks and reporting obligations that MAL had failed to complete – including, most tellingly, a yearly inspection of the condition of the reservoir wall. For its negligence, MAL management was arrested and sentenced to prison, while the company had to pay nearly €420 million in 2011 for neglect and to cover the environmental cost. The firm went bankrupt in 2013.
Not perfect, but better than the rest
It’s true that the ELD can justifiably be criticised for its vagueness under certain circumstances and for sometimes clashing with pre-existing environmental laws on national or local levels. However, it still provides sufficient legal clarity to allow swift action to hold those responsible to account, including coverage of often steep clean-up costs that would otherwise need to be shouldered by the taxpayer.
But perhaps ELD’s biggest value as an example lies in its preventive character, rather than solely in its provisions for tackling catastrophes already under way. While there are inarguably gaps to be filled, the EU model should be appreciated as a roadmap for Canadian lawmakers, before it is too late.