A confidential mess: The problem with confidentiality when cleaning up pollution

23 Sep A confidential mess: The problem with confidentiality when cleaning up pollution

A confidential mess: The problem with confidentiality when cleaning up pollution

Case comment re Imperial Oil Limited v Calgary (City), 2013 ABQB 393 (CanLII).

When a polluter contaminates the environment should we know exactly what is being done to address that harm?  I would argue that we should, as environmental contaminants do not respect contractual boundaries or temporal boundaries, nor do they fit tightly into geographic or jurisdictional compartments.  This question underlies the recent court decision of Imperial Oil Limited v Calgary (City).  A detailed review of the decision is provided by Linda McKay-Panos in her blog (at ABlawg).

The decision deals with the issue of disclosure of a mediated agreement between Alberta Environment and Sustainable Resource Development (AESRD) (or Alberta Environment as it then was) and Imperial Oil in relation to mediation requirements surrounding the contaminated lands of Lynnview Ridge in the City of Calgary.  The judgment overturns the decision of the Privacy Commissioner to disclose the agreement.  The mediated agreement arose through Alberta Environmental Appeal Board process that followed two environmental protection orders (EPO) under the Environmental Protection and Enhancement Act.  The court decision details how various sections of the Freedom of Information and Protection of Privacy Act support non-disclosure of a remediation agreement made between the parties that voluntarily entered into mediation. The decision belies failures in our laws regarding the need to recognize that transparency in environmental decisions is central to sustainable development. How can we measure our ability to protect the environment and ensure “balance” between social and economic goals when matters are dealt with confidentially?

There are several issues that may arise from maintaining confidentiality over remediation agreements, even when they were arrived at through mediation.

First, there is a public interest in knowing the extent and nature of remediation of contaminated lands.  This goes not only for landowners, as the City of Calgary is in this case, but for the public more generally.  Environmental policy choices, and more broadly, societal and political choices can only be made when there is an informed citizenry.

Second, AESRD decisions and actions in relation to ensuring environmental protection should be fully transparent and be subjected to judicial oversight.  By keeping matters confidential or privileged the department and the proponent effectively pull a shroud over the nature and content of remediation and environmental protection measures.  Environmental assurance of having a clean and protected environment becomes a mere catch phrase when the public is not able to scrutinize such decisions and, on occasion, challenge them.

Third, the issue of confidential mediated settlements with AESRD may result in strategic litigation from those who are subjected to regulatory orders, such that the department feels compelled to seek a mediated settlement, wherein responsibilities, timelines and outcomes are altered and potentially diminished.  In effect, the initial regulatory action, in the form of Environmental Protection Orders, while justified, may be whittled away by uncompromising polluters.

Whether any of these broad concerns are real or merely perceived in a given instance is really the point; without transparency there is no real way to know.

A partial fix is justified in the short term, namely, our laws should be amended to mandate disclosure of mediated agreements where the matter has previously been the subject of a regulatory enforcement order (such as an EPO).

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