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.”3  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.