Access to Environmental Justice: Costs and scientific uncertainty raise barriers to protecting communities

03 Oct Access to Environmental Justice: Costs and scientific uncertainty raise barriers to protecting communities

Access to Environmental Justice: Costs and scientific uncertainty raise barriers to protecting communities

For Access to Justice week in Alberta (https://www.albertaaccesstojustice.com/) the ELC looks at how access to justice plays out in the environmental context.

What is Environmental Justice?

Environmental justice, sometimes called environmental racism, is “the intentional siting of hazardous waste sites, landfills, incinerators and polluting industries in areas inhabited mainly by Black, Latinos, Indigenous Peoples, Asians, migrant farm workers and low-income people.”[1] Following from this definition, access to environmental justice requires “the fair and consistent distribution of environmental benefits and burden, without discrimination on the basis of socio-economic status, race, ethnic origin, or residence on an Indigenous reserve.”[2] In the United States, studies found that chemical or waste companies specifically chose Black or immigrant neighbourhoods in which to locate their projects, with no particular resource connection to those areas, making environmental racism easy to identify.[3] The United States has since spent time incorporating environmental justice ideas into their government policy and while it may not be successful, they do have a significant head start in comparison with Alberta.

In Alberta and other parts of Canada, inadequate access to environmental justice predominantly affects Indigenous communities. Unlike in the United States, Indigenous people in Alberta often already live where the resources are located which limits a company’s ability to move the project site to a different location. As such, this means that, rather than environmental racism being evident through the siting of toxic sites or polluting industries, it is embedded in the decision-making process for the sites. This results in the government sanctioning activities that resulted in marginalized communities bearing more environmental burdens than other, more privileged communities.

Access to Environmental Justice

In general, access to justice issues are underpinned by the recognition of specific substantive and procedural legal rights (or a lack thereof) and the costs associated with participating in legal processes.   A key procedural right is standing, that is a right to appear before a court or an environmental tribunal. If a person does have standing they may still not have all the rights to make the process fair. These rights include a right to know the facts of the case, a right to present evidence and cross examine others’ evidence, and a right to have the reasons of decisions. The opportunity to exercise these rights turns on the costs of participating in the process and of producing evidence. If these costs are too high, they present a barrier to access to justice.

These access issues can play out in specific ways in environmental matters whether before the courts or provincial tribunals (such as the Alberta Environmental Appeals Board or the Alberta Energy Regulator). Two specific areas of concern that impact access to environmental justice are costs (both of the legal process but also the costs of producing and bringing evidence) and evidential uncertainty.

Costs arise in environmental justice issues in a stark way. Often hearings or court cases addressing environmental matters are required to deal with science in an adversarial process which devolves into “a battle of the experts”. The costs of experts can be significant. Further, an expert may need to conduct his/her own research to specifically address the matter being heard. This can add further costs. While, in some instances, these expert costs may be covered in the process, it is not unusual for a party to bear some or all costs of necessary experts.

The “battle of experts” can be exacerbated by a legal requirement to demonstrate causation (i.e. proving that establishing that activity “x” resulted in harm “y”). There can be a high degree of uncertainty in evidence due to natural contributions to a specific harm, cumulative effects, a general inability to clearly establish that a harm was caused by a specific operation or polluting activity. The nature of scientific inquiry and the evidence it produces can make raising doubts in an adjudicator’s mind (particularly if they have no scientific training) relatively easy.

The same uncertainty that can drive up costs associated with bringing evidence can also contribute to undermining other aspects of access to environmental justice. This is particularly the case when one considers the scope of hearings and whether a party is granted standing where issues of cumulative effects are in play. The incremental impact of one activity may not be sufficient to grant a party standing and it may also limit the scope and approach to a hearing.

Environmental Justice n Alberta

There are several case studies which reveal the difficulties in accessing environmental justice by Indigenous peoples located in Alberta. These case studies illustrate the barriers presented with procedural costs, and evidential uncertainty (“battle of experts”). Environmental justice theorists might argue that these barriers are particularly high for small, less powerful, less wealthy, Indigenous communities.

Kearl Oil Sands Environmental Assessment

The issue of environmental justice was raised after the approval of the Kearl Oil Sands Project near Fort Chipewyan in northern Alberta. The Kearl Oil Sands Project was a large Imperial Oil development, proposed in 2007, that included open pit mines, an ore preparation site, and a bitumen processing facility and which required both a provincial and federal environmental assessment.[4]

During the Kearl Oil Sands Project assessment process, spokespeople from surrounding reserves raised serious concerns about contamination, concerns that arose after elder’s started reporting less fish in the river, oily residue in the water, and higher rates of cancer and disease in the community. This was not the first time the community voiced these same concerns, in fact they had been doing so since early licensing hearings for the project, as far back as 2003.[5]

Following those earlier concerns, studies were conducted which looked at the connection between certain chemicals found in these oil sands projects, such as arsenic, and cancer rates – including those types of cancer being found by elders in the community. One particularly troubling study, commissioned by Suncor, found that the risk of cancer from exposure to inorganic arsenic in the region was 452-453 out of every 100,000 people. Notably, the level considered acceptable by public health officials is 1 out of every 100,000 people – 450 times less.[6]

Despite these community concerns, after both assessments were complete, a report concluded that the project was not likely to cause significant adverse environmental effects.[7] The otherwise extensive report committed very little discussion and rationale for the human health issues that were raised (with only given 2.5 out of 115 pages discussing the issues and the concerns of Fort Chipewyan residents warranting only 13 lines). The community raised concerns that the report did not give enough weight to their issues nor did the community believe it gave sufficient weight to the studies connecting the pollution with high cancer rates.[8] For example, with respect to the risks associated with increased inorganic arsenic, the report simply stated that it was expected that Imperial Oil would take the appropriate actions to address the matter.[9]

The Joint Panel’s report’s conclusions raised a couple of questions:

(1) Would the decision makers have awarded more weight to the community’s concerns if they were from an urban environment, say Edmonton or Calgary?; and

(2) Would it would have made a difference if the community was wealthy and politically powerful?[10]

Environmental justice theorists would argue that one of the reasons why the health of Fort Chipewyan residents was not given significant weight in the report’s concluding remarks on the project was because they were a small, less powerful, and less wealthy, Indigenous community. [11]

Fort McKay

The Fort McKay community is facing similar issues as they deal with ongoing air pollution. For example, during the summer of 2016, a plume of toxic chemicals was released from a nearby oilfield plant and ended up drifting towards the community.[12] The plume contained hydrogen sulphide and hydrocarbons, both of which can result in negative health impacts.[13] Unfortunately, despite this risk, the community was not notified of the plume until hours after it occurred, reducing their ability to effectively respond. These plumes are common for the community and inadequate monitoring systems often leave community members without the necessary information with which to monitor and manage their health.[14] Additionally, despite the numerous air quality advisories in the area, Alberta Environment and Parks has not made any changes or updates to air quality standards or monitoring in the area.[15]

Beaver Lake Cree Nation

The Beaver Lake Cree Nation is suing the governments of Canada and Alberta for the cumulative impact of development in area of Treaty 6 and the impacts on the Nation’s treaty rights. The case was launched in 2008 and has yet to go to trial.[16] A central issue for the Nation was having the funds to advance their claim. The costs associated with bringing this matter to trial are significant and the Nation sought an award of advanced costs to allow its case to proceed. An award of advanced costs is a “rare and exceptional” measure that results in the public purse or private party advancing funds to support the advancement of public interest litigation.[17]

On September 30, 2019 the Alberta Court of Queen’s Bench did award advance costs, which will assist in having the matter proceed.[18]   The cumulative effects of development authorized by both the federal and provincial government and the impacts on exercise of Treaty rights will likely be central in the trial. (It is noteworthy that similar cases that look at the interconnection of cumulative effects and number treaties are proceeding involving the Blueberry River First Nation in Treaty 8 (Yahey v. British Columbia (S151727)) and Carry the Kettle First Nation in Treaty 4 in Saskatchewan (QBG3225)).

What about environmental justice in the rest of Canada?

These stories share a strong similarity with the issues facing the Aamjiwnaang First Nation living in Sarnia, Ontario (the Chemical Valley). The Chemical Valley is an area in Southern Ontario which is home to about 40% of Canada’s entire chemical industry, making it one of the most polluted areas in the country.[19] The people living in the Sarnia area are surrounded by more than 60 large industrial facilities. Air pollution comes not only from these Canadian facilities but also travels across the border from the United States.

In 2012, Ecojustice, brought an application for judicial review on behalf of two members of the Aamjiwnaang First Nation whose community is located in one of the most polluted areas of theChemical Valley.[20] The motion argued that the staggering amount of air pollution from industrial facilities in the area, combined with the increase in air pollution that would come from a newly approved Syncrude facility upgrade, was causing serious health problems in the Aamjiwnaang community. The community membersasked for an update to the Ontario legislation designedto prevent future pollution ‘hot spots’.[21] They argued that the decision to approve further air emissions (including the approval for increased refinery operations at a Syncrude plant) does and will infringe upon the Aamjiwnaang’s section 7 and section 15 Charter rights[22] (respectively, rights to “life, liberty and security of person” and aboriginal and treaty rights).

In the Chemical Valley, the cumulative effects of numerous regional polluters were not considered in the approval process for each individual facility. This meant that each new development or emissions permit was treated as though it was the first or only one in the area.[23] Over time, the Chemical Valley becamean oversaturated airshed, receiving air pollutants from many sources, and was no longer a pristine airshed. . This approach ignores that the cumulative effects of many emitters can have a significant impact on the health and the environment for those living there.[24] Further, litigation to address cumulative effects is particularly challenging because it can be so hard to pinpoint where emissions are coming from. Looking through an environmental justice lens, this case is even more complicated given that there is a concentration of toxic sites in an Indigenous community.

(Another clear example of environmental racism in Canada’s recent history can be found in the circumstances surrounding the community of Africville in Halifax – for more information see the Canadian Museum for Human Rights and here.)

A special focus of Environmental Justice: Climate Justice

More recently, environmental justice advocates have set their sights more specifically on climate justice. Climate justice looks at how the effects of climate change have disproportionately affected minority groups and low-income communities on both a national and global scale.[25] Given that many of the disproportionately impacted groups (lower income communities or developing countries) have contributed less to climate change overall, this is a particularly important perspective. Encouragingly, idea of climate justice is picking up steam among Democratic presidential candidates in the United States; many of whom have started to incorporate the theory of environmental justice into their proposed climate change and environmental plans.[26] Although the Government of Canada does not yet have a published environmental justice plan, there are numerous non-governmental organizations and other groups in Canada working toward the goal of climate justice.

How can we work towards more environmental justice?

One way that is often cited as a path to achieving increased environmental justice is by including the right to a healthy environment in the Canadian Charter of Rights and Freedoms. This is not a new idea and in fact was on the table during the drafting of the Charter in 1978. At that time, Canadian Environmental Law Association argued for the inclusion of “the right of the individual to environmental quality and environmentally sound planning.”[27] David Boyd, a legal scholar and Special Rapporteur on human rights and the environment, has advocated for the inclusion of this right into our Charter. He has argued that doing so would improve Canada’s environmental record; acknowledge the importance of environmental protection and rights for Indigenous legal systems; and bring Canada in line with many other UN member nations who already have a constitutionally protected right to a healthy environment (among other things).[28] It would also empower individuals to fight for their own environment and would provide those facing environmental racism another recourse to pursue change, thereby increasing their access to environmental justice.

At the provincial level, recognition of a substantive right to a clean and healthy environment could also be used to address some of these challenges. As one example, the ELC has proposed an Environmental Bill of Rights for Alberta.

Overall, environmental justice is a complicated matter which requires more than increased funding for legal aid (although that would a good start). Increased access to environmental justice requires structural changes, as well as adoption of an intersectional view when making laws and decisions in the environmental realm. Striving for improved access to environmental justice is vitally important and would have positive effects on community health, quality of life, and access to equal opportunities.

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[1] Dr. Benjamin F. Charles Jr., “Toxic Wastes and Race in the United States: A National Report on the Racial and Socio-Economic Characteristics of Communities with Hazardous Waste Sites” (1987) Commission for Racial Justice United Church of Christ at xiii online: https://d3n8a8pro7vhmx.cloudfront.net/unitedchurchofchrist/legacy_url/13567/toxwrace87.pdf?1418439935.

[2] Shirley Thompson, “Flooding of First Nations and Environmental Justice in Manitoba: Case Studies of the Impacts of the 2011 Flood and Hydro Development in Manitoba” (2015) 38 Man LJ 220 at 222.

[3] Brett Bundale, “Weekend Focus: The toxic sites of Nova Scotia racism” (25 April 2015) The Chronicle Herald.

[4] Alberta Energy and Utilities Board and the Government of Canada, “EUB Decision 2007-013: Imperial Oil Resources Ventures Limited, Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) in the Fort McMurray Area” (27 February 2007) online: https://www.aer.ca/documents/decisions/2007/2007-013.pdf.

[5] Natalie J. Chalifour, Bringing Justice to Environmental Assessment: An Examination of Kearl Oil Sands Joint Review Panel and the Health Concerns of the Community of Fort Chipewyan 21 J of Env L & Prac 32 at 37 [Natalie J. Chalifour].

[6] Ibid at 40.

[7] Ibid at 52.

[8] Ibid at 52.

[9] Ibid at 52.

[10] Ibid at 54.

[11] Vann R, Newkirk II, “Trump’s EPA Concludes Environmental Racism is Real” (28 February 2018) The Atlantic online: https://www.theatlantic.com/politics/archive/2018/02/the-trump-administration-finds-that-environmental-racism-is-real/554315/.

[12] Natalie J. Chalifour, supra note 9 at 54

[13] Emma McIntosh & Mike De Souza, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands” (8 April 2019) Canada’s National Observer online: https://www.nationalobserver.com/2019/04/08/news/how-alberta-kept-fort-mckay-first-nation-dark-about-toxic-cloud-oilsands.

[14] Ibid.

[15] Ibid.

[16] See JFK Law Corporation, “Beaver Lake Cree Nation Awarded Advanced Costs to Continue Treaty Infringement Case”, online: http://jfklaw.ca/beaver-lake-cree-nation-awarded-advanced-costs-to-continue-treaty-infringement-case/

[17] See Anderson v. Alberta (Attorney General), 2019 ABQB 746. A copy of this decision can be found online through Beaver Cree First Nation’s legal counsel’s website at http://jfklaw.ca/wp-content/uploads/2019/10/Anderson-v-The-Queen-Final_1.pdf

[18]

[19] Elaine MacDonald & Sarah Rang, “Exposing Canada’s Chemical Valley – An Investigation of Cumulative Air Pollution Emissions in the Sarnia, Ontario Area” (October 2007) EcoJustice at 5 online: https://ecojustice.ca/wp-content/uploads/2015/09/2007-Exposing-Canadas-Chemial-Valley.pdf [Elaine MacDonald & Sarah Rang].

[20] Ibid.

[21] EcoJustice, Press Release, “Chemical Valley residents demand new law for Ontario’s Pollution Hot Spot” (30 October 2012) online: https://www.ecojustice.ca/pressrelease/chemical-valley-residents-demand-new-law-for-ontarios-pollution-hot-spots/.

[22] Ada Lockridge v Director, Ministry of the Environment, Her Majesty the Queen in right of Ontario, as represented by the Minister of the Environment, The Attorney General of Ontario and Suncor Energy Products Inc, Ontario Superior Court of Justice, Court File No 528/10.

[23] Elaine MacDonald & Sarah Rang, supra note 20.

[24] Ibid at 19.

[25] Sustainable Development Goals, “Climate Justice” (31 May 2019) United Nations online: https://www.un.org/sustainabledevelopment/blog/2019/05/climate-justice/.

[26] Sean Collins, “Julian Castro’s Green New Deal frames climate as a civil rights issue” (4 September 2019) Vox News online: https://www.vox.com/policy-and-politics/2019/9/4/20849093/julian-castro-2020-democratic-primary-climate-change-green-new-deal-civil-rights-justice; Lisa Friedman, “Kamala Harris and Alexandria Ocasio-Cortez Release Climate ‘Equity’ Plan” (29 July 2019) The New York Times online: https://www.nytimes.com/2019/07/29/us/politics/kamala-harris-aoc-climate-change.html.

[27] Toby Vigod & John Swaigen, “Brief to the Joint-Senate/House of Commons Committee on the Constitution of Canada Bill C-60” (29 September 1978) Canadian Environmental Law Association, online: https://cela.andornot.com/archives/media/docs/FONDS%20CELA/SOUS-FONDS%20Publications/SERIES%20Other/FILE%20CELA%20briefs%20and%20responses%20to%20government%20consultations%20Other/ITEM%20Brief%20on%20Bill%20C-60/Brief%20on%20Bill%20C-60.pdf.

[28] David R. Boyd, “The Constitutional Right to a Healthy Environment” (28 February 2019) LawNow online: https://www.lawnow.org/right-to-healthy-environment/.