Is a Minimal ‘Adverse Effect’ on the Environment Enough for a Violation?

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Whether environmental incidents such as spills constitute violations often turns on whether they “adversely affected” the environment. The environmental laws typically define “adverse effect” broadly, such as impairment of or damage to the environment, human health or safety, or property. So does this definition mean that any damage at all—no matter how minimal—is enough for an environmental violation? Not necessarily. Here are two cases from Alberta and Ontario in which companies successfully argued that they shouldn’t be punished for adverse effects on the environment that were trivial or minimal.

RELEASE OF PCBS ≠ VIOLATION

FACTS

The 2001 World Championships in Athletics (the “Games”) were held in Commonwealth Stadium, which is owned by the City of Edmonton. During the Games and on three occasions, insulating oil containing polychlorinated biphenyls (PCBs) dripped from stadium lights when their capacitors broke. The oil fell onto several spectators and the stadium itself. As a result, the government charged the city with violating Alberta’s Environmental Protection and Enhancement Act by releasing a substance (i.e., PCBs) that causes or may cause a significant adverse effect.

DECISION

The Alberta Provincial Court dismissed the charges, ruling that the releases of PCBs were trivial or minimal violations.

EXPLANATION

PCBs are highly toxic and pose significant risk of harm to humans and animals when released into the environment. But very little oil containing PCBs was actually released in this case. So the court said the prosecution needed to produce expert evidence to prove that such a small quantity was capable of causing an “adverse effect,” which is defined by the Act as “impairment of or damage to the environment, human health or safety or property.”  The PCBs were in liquid form. There was no evidence that the substance remained in the air. It dripped onto several spectators, who suffered no adverse effects, and onto the stadium, where the concrete absorbed it completely. Based on this evidence, the court concluded that there was “no real possibility” that the release of PCBs had or could have an adverse effect on the environment or the health and safety of the spectators. And even if there was such a possibility, the court said the de minimis principle should apply—that is, the law shouldn’t concern itself with trivial or minimal violations.

R. v. Edmonton (City of), [2006] ABPC 56 (CanLII), Feb. 17, 2006

SPILL OF CAUSTIC SODA ≠ VIOLATION

FACTS

A pressure seal on the tank of a truck transporting caustic soda  ruptured in an industrial area, discharging 70 gallons of caustic soda onto the road. The truck driver immediately stopped and cleaned up the spill. In addition, an environmental remediation contractor cleaned the spill area, including the road and catch basin. Still, the chemical distribution company transporting the soda was charged with violating Ontario’s Environmental Protection Act by discharging into the natural environment a contaminant that caused or was likely to cause an adverse effect.

DECISION

The Ontario Court of Justice dismissed the charge, ruling that the spill was too trivial or minimal to constitute a violation.

EXPLANATION

The company argued that the spill didn’t cause and wasn’t likely to cause an adverse effect as defined by the law and, in the alternative, any adverse effect it did cause was so trivial that it shouldn’t result in a violation. The court agreed. It acknowledged that caustic soda can pose a threat to the environment and human health. But there was no evidence that the spill damaged plant or animal life, entered the water table or caused lasting damage to the road surface. Local businesses near the spill weren’t evacuated. And although the road was closed to general traffic, people who worked in the area were allowed to pass. Thus, the court concluded that, in this case, “the only evidence of any adverse effect is so trivial or minimal that it should not attract penal consequences.” In addition, there was no likelihood of adverse effects based on the circumstances of the spill.

R. v. UBA Inc., File No. 4460 999 07 8393 00, ON Ct. of Justice, June 2, 2009 (unreported decision)