Environmental Regulators Getting More Vigilant

Environmental Regulators Getting More Vigilant by James Mahony, June 20, 2012, Daily Oil Bulletin
An Edmonton lawyer who defends companies charged with environmental “crimes” summed up his advice yesterday for anyone considering playing on the edge of laws affecting the environment. “You can pay me now, or you can pay me later,” Stuart Chambers told a Calgary business audience, explaining his workload has been bolstered recently by the notably more proactive approach prosecutors — both federal and provincial — have taken in pursuing environmental offences in Alberta. While fines and warnings were once typical, criminal prosecutions are more common now, with fines soaring well above the modest sums of years past. As well, increased vigilance by regulators has come as interest groups — typically, environmentalists — and the media more closely scrutinize companies’ operations in the resource sector. Now, when a company errs, it’s more likely to hit the evening news, Chambers told the Canadian Institute’s conference on Environmental Law & Regulation in Alberta. “The ducks at Syncrude Canada Ltd. made CNN,” he noted in reference to the 2008 incident on the company’s northern Alberta tailing ponds. As well, he cited other trends affecting producers and oilfield service firms, among other players in the province’s oil and gas sector. One is a growing tendency for environmental regulators to pursue criminal charges against companies, with no willingness to spare contractors, sub-contractors or employees who happen to be caught in the web. In addition, it’s becoming more common now for individuals, whether employees or executives, to be prosecuted, in addition to the company itself. Like an earlier speaker, Chambers cited a recent Alberta case in which an individual was convicted of a criminal offence. In a similar case, a manager got a four-month jail term for lying to regulators. “We see enforcement as being ever-more prevalent,” Chambers said, noting that maximum penalties on a range of environmental offences have been increased across the board. In many cases, prosecutors will charge companies with so-called “strict liability” offences. Unlike common criminal offences like theft, prosecutors need not prove the offender intended to commit the offence, he said. With a strict liability offence, the prosecutor need only prove the facts underlying the offence, say, a release of toxic effluent in a river. Once the facts are proven, the onus shifts to the accused — typically, the company — which must then raise a defence of due diligence, in effect, showing it took all reasonable steps to avoid committing the offence. … “A due diligence defence cannot be constructed after the fact,” he said. “In order to have [that] defence, you need to have your system in place [before the incident].” … Earlier in the day, Alberta Crown Prosecutor Peter Roginski outlined some of the conduct likely to get his attention, when it comes to environmental incidents. Apart from the adverse consequences of the incident itself, such as a spill, he said any evidence that a company, its executives, employees or agents — including contractors — have shown deceit, falsification or misrepresentation is a red flag for prosecutors. [Emphasis added]