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Any klutzy shopper knows the rule: if you break it you pay. And if you happen to drop your coffee on it, well, you pay, too. How is it, then, that Ontario corporations that “accidentally” spill harmful pollutants into our air, waterways and soil have managed to evade that rule? Easy – no one stops them.
Enter the province and Bill 133, introduced last October. If it passes, corporations guilty of spilling toxins into our environment would finally have to cough up major coin to compensate communities for the mess.
Trouble is, a steady barrage of big-money lobbying led to a bizarre move: the Libs have quietly scuttled 133 off to an all-party committee where observers expect it will be gutted next week without public debate. Enviros are crying industry interference. But here’s where it gets dicey: none of them really liked the bill from the start, and now they’re stuck in a bit of a paradox. No one wants to complain too loudly about 133’s shortcomings, knowing full well that manufacturers would be happy to sink it altogether .
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No doubt a system shakeup is needed. Under the present laws, paltry fines of a few thousand dollars might be imposed by courts months or often years after an actual chemical spill. That financial slap on the wrist is even less of a deterrent for businesses, since it still can be written off their taxes in this province. (The feds closed the loophole at their level just a few months ago.) Meanwhile, communities downstream from a toxic outpouring have been left to pay for cleanups out of their own pocket. The good news is that the new Spills Bill would introduce on-the-spot environmental penalties of up to $100,000 a day to feed a community compensation fund. It would also reverse the onus so that companies have to prove they didn’t break the law, and general rejigging would make it easier to lay charges and get convictions for a broader list of offences.
But some, like Bob Huget of the Ontario division of the Communications, Energy and Paperworkers Union, say existing loopholes in 133 would allow corporations to slither off the hook. He says the section imposing fines of up to $20,000 a day on employees is only going to allow higher-ups to offload punishments onto workers. “That’s akin to making a front-line assembly worker responsible for a defective product that the corporation produced. It makes absolutely no sense whatsoever.”
But what if workers’ actions actually triggered a spill? Aren’t they partly to blame? Huget, whose union represents many workers in pulp and paper and the petrochemical industry, says, “We have safety procedures and we follow them. But at the end of the day, if a process mishap occurs, I can’t for the life of me see how we would be responsible in the same way that a corporation would be, in so far as it has designed the facility, decided what products to use and is fully aware of the environmental impacts of what it does.”
Huget might be in luck. Industry happens to agree with him on this one. Of course, when the business lobby frets about individual employees being targeted, they’re talking about CEOs and boards of directors. Perhaps that’s why murmurs from the environment minister’s office have indicated that this is one amendment they’re willing to move on. Art Chamberlain, spokesperson for Ontario Environment Minister Leona Dombrowsky, will only say, “We’re prepared to deal with this.”
But the scapegoat clause isn’t the only issue worrying activists. Under the proposed bill, corporations facing big cash penalties can enter into secret negotiations with the environment ministry to whittle down the penalty or wipe it out altogether.
“We want those negotiations made public,” says Paul Muldoon, executive director of the Canadian Environmental Law Association. “We want downstream interests to have a real say in that settlement and negotiation,” especially considering cancelled penalties will mean less money for cleanup.
What troubles some critics the most, however, is that the government is banking on this bill as its primary pollution prevention measure.
Says NDP enviro critic Marilyn Churley, “They’re touting [Bill 133] as their big environmental centrepiece, but they’re just going with the same old approach to dealing with pollution – that is, end-of-pipe fining of guys who can still write it off, instead of forcing industries to come up with plans to stop polluting in the first place. It’s not doing anything whatsoever to reduce Ontarians’ exposure to pollution.”
Churley points to jurisdictions like Massachusetts, which passed toxics reduction legislation back in 89 and has since seen a 42 per cent decrease in chemical usage and a 97 per cent decrease in emissions amongst companies using harmful chems.
Meanwhile, back on this side of the border, Rick Smith, executive director of Environmental Defence Canada, says pollution across Canada has increased by about 49 per cent between 1995 and 2002. “And that’s legal pollution, air emissions and water releases that companies are legally allowed to do under their permits.” Targeting illegal spills, as the bill does, would have a very limited impact.
And it doesn’t help that the bill would only apply to the top 140 polluters. “A lot of pollution happens on a smaller scale,” says Rob Wright of Sierra Legal Defence Canada. “Spills by smaller companies would definitely fall below the bar.”
Still, how much should one criticize a fledgling bill when it could be watered down to uselessness? Then again, staying quiet might mean we get stuck with a bad law.
