Tuesday, February 17, 2009

Environmental liability - La responsabilité environnementale et la réparation des dommages environnementaux

I read with dismay the article in the Globe and Mail regarding how the people in the town of Shannon, Quebec contracted high levels of cancer due to the contamination of the water supply with the chemical solvent trichloroethylene (TCE) a "probable carcinogen". The town is located near the Valcartier military base and a class-action suit has been launched by as many as 2,000 people. Who is reponsible? Answer: the federal government. The federal government, and more specifically the Department of Defense, knew about the TCE contamination as far back as 1978 but did not take any remedial action. SNC Technologies, who has also been named in the class-action suit, dumped daily 45-gallon drums of TCE over many years in large manufactured lagoons that eventually contaminated the nearby soil and underground water supply.

This is an environment and health disaster more so as the perpetrator is our government, the people who are supposed to protect the interests of their citizens and nation. Canada has a poor history of using the precautionary principle which can be described as follows:
"The precautionay principle is a culturally framed concept that takes its cue from changing social conceptions about the appropriate roles of science, economics, ethics, politics and the law in a pro-active environmental protection and management".

O'Riordan and Cameron further note the following on the precautionary principle:
"...it is a rather shambolic concept, muddled in policy advice and subject to whims of international diplomacy and the unpredictable mood over the true cost of sustainable living". A few sentences later, the authors note: "Precaution continues to evolve because of the peculiar requirements of adjusting to global environmental stresses and strains".

Due to the continuing and relentess destruction of our natural and physical environment (toxification of ecosystems, huge gamble with future climate, soil erosion, etc.), global environmental change stimulates the precautionary in three ways, according to O'Riordan and Cameron: (1) the requirement of collective action, (2) the requirement of burden sharing, and (3) the rise of global citizenship.

An example of this outcome is found in the judgement of the Supreme Court of Canada over St. Lawrence Cement Inc. in November 2008. In this case, St Lawrence Cement was ordered to pay a $15 million in damages to a Quebec City neighborhood (Beauport) even though the company was in environmental compliance. The class action lawsuit concerned dust and noise pollution which, according to the company, met all EHS standards and regulations but nonetheless caused the neighboring resident's proprty values to decrease. This confirms that a no-fault liability regime does exist in Quebec --as it exists in the European Union through the Directive on Environmental Liability.

Under the EU Directive, all installations listed under Annex III and are subject to the Integrated Pollution Prevention and Control Directive (IPPC) are liable for environmental damage. In Canada, this is equivalent to those companies and installations listed in the National Pollutant Release Inventory (NPRI). Although Canada does not have an Environmental Liability Directive, the Supreme Court's judgment has paved the way for the establishment of a similar regime.

So what is a company to do? From a risk management point of view, my advice would be to include the following:

- integrate sustainability at the core of the business

- re-examine EHS policies and procedures and look at ways to go beyond the current regulatory requirements

- biodiversity mapping around the operating facilities

- expand community relations and stakeholder engagement

- change the corporate mindset from a "need to do" to a "want to do", especially for management

- employee education and training on environment across the company (incorporate this particularly within HR)

- outreach with customers and suppliers regarding products being used in the supply chain (substitute those hazardous and toxic substances as required under REACH)

As I write this post, "The Chemical Company" Dow comes to mind . A word of caution to Dow Agro Sciences where the company is seeking seeking a $2-million settlement from Canada over Quebec's ban of the company's weed killer 2,4-D (see Montreal Gazette article). In a recent e-mail exchange with Megan Durnford who released a film regarding the pesticide ban, she wrote that "Dow AgroSciences is concerned about its investment rights. What about Canadian childrens' right to grow up in a safe environment? If Dow has its way, there will be a big chill on anti-pesticide activism across Canada".

Forget about the Love Canal tragedy. Citizen action being undertaken today pale in comparison. Canadian industry should not ignore these tell-tale signs and start to live up to their obligations.

Watch this space...

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