Citizens Guide to Environmental Investigation and Private Prosecution


1.0 INTRODUCTION


1.1 The Environmental Bureau of Investigation

The Environmental Bureau of Investigation (EBI), a division of Energy Probe Research Foundation, was established to investigate pollution crimes. In response to requests from local citizens to help stop pollution in their communities, EBI staff and volunteers have meticulously and scientifically investigated pollution concerns, launched campaigns to publicize problems, alerted government regulators, and when necessary, launched private prosecutions. By providing investigative and technical resources, EBI has empowered the public to participate in the protection of community resources. EBI believes that it is imperative to expose pollution crimes and is committed to supporting people who take action to bring wrongdoers to account.

EBI’s first project began in 1996, under the guidance of executive director Mark Mattson (who is now Lake Ontario’s Waterkeeper). At that time, EBI assisted Janet Fletcher, an environmental activist and a member of EBI’s advisory board, and the Sierra Legal Defence Fund (now called Ecojustice) in investigating a closed, city-owned landfill in Kingston, Ontario, that was leaching contaminants into the Cataraqui River. In 1998, the city was convicted on seven counts of violating the federal Fisheries Act. The case went to the Ontario Court of Appeal, which upheld three of the seven convictions in 2003. In 2005, the Supreme Court of Canada turned down the City of Kingston’s request to appeal its convictions. Unfortunately, the city has continued to resist fully cleaning up the site. Despite the city’s defiance, a number of positive impacts have emerged from the prosecution. In March 1997, the day after the charges were laid against it for contaminating the river, the city sent earthmoving equipment to begin cleaning up the site.  Kingston has also begun cleaning up other sites, including a notorious coal tar site. The Kingston case is a precedent-setting one for Ontario and should make it easier in future to prosecute polluters and enforce environmental laws. Under the federal Fisheries Act, establishing a pollutant as a “deleterious substance” is enough to earn a conviction, which means prosecutors didn’t have to prove that the contaminants pouring into the Cataraqui Riverwere toxic to the fish in that river; all they had to do was show that the contaminants concerned were toxic to fish.

In 1997, EBI’s Janet Fletcher and the Sierra Legal Defence Fund laid eight charges against the Ontario government under the federal Fisheries Act and the Ontario Water Resources Act for allowing toxic substances, including arsenic and other heavy metals, to pour out of the abandoned Deloro Mine site into the Moira River and its tributary, Young’s Creek. The charges were the first ever brought by private citizens against the province. In 1998, Thomas Adams, another EBI advisory panel member, laid additional charges against the province for radioactive pollution. In 2001, the province was acquitted based on the defence that it had exercised due diligence in planning to remediate the site. The prosecution did succeed in prompting the Ontario government to take some long overdue protective actions, such as posting signs and fencing the highly contaminated site to protect the public, as well as deer and other game, from the arsenic and radioactive pollution. In December 2004, the Ontario Ministry of the Environment released its plan for a cleanup, announcing it would spend another $30 to $40 million on cleaning up the Deloro site.

In 1999, Lynda Lukasik, an environmentalist in Hamilton, Ontario, laid charges against the City of Hamilton under the Environmental Protection Act and the federal Fisheries Act for discharging polychlorinated biphenyls (PCBs) and toxic ammonia into Red Hill Creek from a city dump. EBI helped Lukasik by gathering evidence, including pollution samples and documents, and the Sierra Legal Defence Fund provided legal representation. The City of Hamilton had apparently known about the problem of leachate leaking from the dump into the creek for years. After the charges were laid, the Ministry of the Environment told the city that it “was required to take the necessary remedial measures to eliminate the seepage of wastes into the Creek,” and the city began a remediation plan. The private prosecution and a separate charge laid by the Ministry of the Environment resulted in fines totalling $450,000 – the largest fines for an environmental crime ever levied against a municipality in Canada.

In 2001, a brief prepared by EBI and the Petitcodiac Riverkeeper prompted Environment Canada to launch an investigation of an old landfill site in Moncton, New Brunswick. The investigation was launched in order to determine whether leachate leaking from the 32-year-old site was harming the Petitcodiac River.  This led to charges being laid against the City of Moncton and related engineers in 2002.  In 2003, the city pleaded guilty to violating the Fisheries Act and was fined a total of $35,000.  A remediation plan costing between $500,000 and $700,000 was also ordered for the site.  In 2004, charges against the engineering consulting firm hired to close the site were dismissed on a technicality. The Crown successfully appealed this decision and a new trial was ordered.  In 2006, the firm and its chief engineer were found guilty of violating the Fisheries Act and were ordered to pay $28,000 in penalties.

Before charges were laid against the City of Kingston, leading lawyers and academics generally agreed that environmental groups would be hard-pressed to acquire the meticulous expertise and credibility required to win cases in court. Instead, they said, environmentalists should try to influence governments to better manage pollution. As a result, few environmental groups ever tried the criminal courts, and when they did, they rarely expected to succeed.  Now that a precedent has been set that shows environmentalists can stop pollution through investigations and prosecutions, EBI hopes more citizens will keep these options in mind as they seek to protect the environment.


1.2 The Citizens Guide to Environmental Investigation and Private Prosecution

This guide will provide you with some of the knowledge required to investigate pollution and to force polluters to comply with environmental laws. Pressuring governments to take action and relying on experts for information are necessary courses of action, but private environmental investigations can also play an important role in stopping pollution.  Such investigations can provide solid evidence that can then be presented to the media, government regulators, and if necessary, court.

Government inaction

In the past two decades, society has spent a great deal of time and resources identifying and monitoring pollution, but governments have not directed the necessary funds toward stopping it and protecting citizens. One example of the problems this underfunding has caused is that Ontario environmental investigators responsible for investigating radioactive contamination had no way of measuring its existence before the Deloro charges were laid in 1997.  The province authorized the purchase of Geiger counters only after the case was underway.

In Ontario during the 1990s, the provincial government laid off hundreds of environmental enforcement and abatement officers.  The provincial government also closed three environment laboratories (London, Kingston, and Thunder Bay) and significantly reduced the Environment Ministry’s budget (by 42% between 1995 and 19971).  The number of federal and provincial investigations and charges dramatically decreased.  Although the province has increased its commitment to enforcement in recent years, severe problems remain.

Although laws exist to protect our environment, they often remain unenforced.  In Ontario, the government does not adequately enforce the federal Fisheries Act, leaving lakes and streams unprotected and vulnerable.  Nor does it rigorously enforce the provincial Environmental Protection Act or the Ontario Water Resources Act, both key to regulating discharges to the province’s air, land, and water.  Government agencies usually use environmental law enforcement only as a last resort, following years of negotiation and compromise with polluters, during which time the environment suffers.  Even the best environmental laws will not make a difference if no one enforces them.

Citizen action

In the face of government inaction regarding environmental investigation and law enforcement, the environment desperately needs citizens’ help.  Thus, the public needs to learn what to look for in the field, where to obtain information, how to collect evidence, and how to use the information to get results.

Many books on environmental health impacts are available, but most fail to explain sampling for potential legal action.  Books on environmental law focus on court procedures and often skim the surface of the evidence gathering process that precedes it. This guide combines information from these texts and other environmental books and guides (see the bibliography) with the hands-on experience acquired by EBI during its investigations.  Since we aim to add to, and not repeat, what others have written, we will make references to other texts throughout.

Given EBI’s familiarity with Ontario’s court system and regulations, this guide makes frequent use of Ontario examples, but you can apply the basic principles offered to most locations.

Private prosecutions

Private prosecutions can be an effective means of forcing polluters to abide by environmental laws.  In Canada, everyone has the right to initiate a private prosecution against a person, or an entity, who allegedly violates the Criminal Code or a legislated statute that provides for penalties for violation.  A private prosecution involves an individual, or a group of individuals, gathering evidence of a wrongdoing and laying charges against the alleged offender.  Neither the police nor government enforcement agencies need be involved, but you should welcome and encourage them to participate.  In a private prosecution (unlike suits under common law), the individual or group who lays charges need not have suffered injury or loss.

Critics have suggested that individuals and environmental groups, such as EBI, who launch environmental prosecutions are “bounty hunters” and “in it for the money.” Yet, for the most part, there are no provisions in environmental legislation (including the Environmental Protection Act and the Ontario Water Resources Act) for awarding a portion of any fine to the informant. Only two statutes – the Fisheries Act and the Migratory Birds Convention Act – include provisions for paying half of the fine (if one is granted) to the party that launched the prosecution (the other half goes to the federal or provincial government). Legislators wrote these provisions into the acts to encourage the public to participate in the protection of community resources. Nevertheless, the financial costs of investigation and legal proceedings generally far outweigh the gains.

A prosecution’s main goal is to stop a specific environmentally harmful activity. It may also discourage the accused and other polluters from continuing other environmentally damaging activities. The fines alone are not the main incentive for polluters to change their ways; the costs of a court-imposed cleanup, other penalties, and negative publicity tend to be far more persuasive.

You should not take the right of private prosecution lightly. If you plan to lay charges against an individual, a company, or a government, make sure you obtain all the relevant facts and bring your complaint forth in good faith.  Do not abuse the process by beginning frivolous, vexatious, or trivial actions.

As Elizabeth Swanson and Elaine Hughes warn in their book The Price of Pollution, private prosecutions can be “onerous, time-consuming, emotionally draining, costly and risky.”2  Don’t do it alone.  Get advice and support from scientists, lawyers, local environmentalists, university professors, and community groups.

This guide is just one of many resources available to help you.  Several environmental organizations have lawyers on staff and can offer invaluable assistance (see Section 3.2).

Enforcing Environmental Law: A Guide to Private Prosecution, by James S. Mallet, staff counsel at Alberta’s Environmental Law Centre, provides an in-depth guide to the legal technicalities of the private prosecution process in Canada.  Mallet’s overview covers pre-hearing preparation to trial and appeal.  Alternatives to private prosecution and supplementary action are discussed, as well as suggestions for finding assistance and investigating and documenting cases.  Information on offences and penalties is also provided.

Alternatives to private prosecution

Environmental investigations may lead to private prosecutions, but other options may be more appropriate depending on the case and your resources.  Various common-law options can be explored.  Civil suits have traditionally been used to obtain legal remedies for environmental harms.  However, with the increased development of legislation in the environmental field, common-law cases are often becoming less viable.  They also expose plaintiffs to potentially high court costs – although these risks may be moderated through class action suits and contingency fees.  For more information on common law options, see Property Rights in the Defence of Nature, Environment on Trial, and Environmental Harm: Civil Actions and Compensation.

Private citizens can also play an important role in environmental protection by reporting offences to government agencies, which may not have the resources to instigate an investigation of a particular problem but may be able to use evidence presented by citizens as a basis for further investigation or prosecution.  Another option is gaining media attention through press releases, videos, and so on; often merely exposing the polluter to public scrutiny can trigger abatement measures.

As experienced investigators and environmental lawyers, we hope this guide will inspire you to undertake investigations in your own communities.


1.3 Steps to environmental investigation

Environmental investigations can be complicated, but following these steps will make the process easier.

Step 1: Identify pollution source (see sections 2.0 and 3.0).

Step 2: Obtain documents (see section 4.0).

• Internal and external correspondence, reports, minutes of meetings, and other notes held in the public domain

• Remedial Action Plan (RAP) reports

• Certificates of Approval

• Monitoring data released by the company, regulatory agencies, or other sources

• MISA data (Municipal Industrial Strategy for Abatement)

• NPRI data (National Pollutant Release Inventory)

• Environment Registry information

• Inspection results and non-compliance reports

• Certificates of Incorporation

• Previous studies (check the public, university, or government agency libraries)

• Company’s annual reports and other public documents

(Not all of these documents will be needed in the beginning or in every case. For help on how to access government-held information and records using the Access to Information Act, see Section 4.1.)

Step 3: Determine whether something has been or is being done about the problem.

• Contact local environmental groups (see Sections 3.1 and 3.2).

• Check the Environmental Registry under Ontario’s Environmental Bill of Rights (see section 4.7).

• Contact a lawyer (preferably a public interest lawyer or someone willing to work pro bono).

Step 4: Identify potential contaminants.

• From documents you’ve obtained, and with the information in section 2.0, identify the contaminants that may be present at the site.

• Contact the Canadian Association for Environmental Analytical Laboratories for a list of accredited laboratories in your area.

• Contact the laboratories to confirm the tests they perform and their prices and to obtain instructions on how to take and handle samples.

• Decide where you will send your samples.

Step 5: Go on field and sampling trips (see section 5.0).

• Make a preliminary visit to the site.

• Take notes on each visit.

• Select sites for sampling if appropriate.

• Take samples using appropriate containers and safety equipment.

• Implement a chain of custody for the samples.

• Videotape and photograph sites.

Step 6: Analyze and test samples (see section 5.6).

• Have samples analyzed and/or tested for toxicity.

• Compare the results with other information and guidelines (see section 4.0 and Appendix D).

• Approach experts with the information gathered and ask their opinions.

Step 7: Make a violation table.

• By creating a violation table (see Appendix E for an example), you and your lawyer can judge whether an offence has been committed. Consider potential legal defences that may be available to the polluter (e.g., due diligence) and determine whether further investigation may be necessary before proceeding with legal action.

Step 8: Contact the appropriate regulatory agency and make a formal complaint (see section 7.0).

• Determine which agency oversees the type of environmental offence that has occurred.

• Bring your information to the agency. This may be the final step for some of you.

• Another option in Ontario is to apply for an investigation through the Environmental Commissioner of Ontario under the Environmental Bill of Rights (see section 7.1).

• Whether you stop here or pursue the matter further through legal means, you may want to make the evidence you have gathered public through the media (see section 8.0).

Step 9: Proceed with legal action (see section 9.0).

1. Gary Gallon, “Environment Budget Cuts Are Astounding,” Toronto Star, Jan 15, 1998.
2. Elizabeth Swanson and Elaine Hughes, The Price of Pollution, (Edmonton: Environmental Law Centre [Alberta] Society, 1990), 178.


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