by Dianne Saxe and Meredith James

Toronto, 13 December 2011 - Is it acceptable for legal pollution levels to be higher in some neighbourhoods than in others? In the US, pollution is often concentrated in areas of colour, including the famous Cancer Alley. Changing this is called "environmental justice", and is an important priority for US EPA Administrator Lisa Jackson.

(Ecojustice has framed the same issue as a Charter challenge in its work on behalf of two members of the Aamjiwnaang First Nation. It argues that Ministry of the Environment ongoing approval of multiple sources of pollution surrounding their Sarnia reserve violates their rights to life, liberty and security of the person and to equality.)

To date, Ontario courts have considered the issue at least twice. In Lafarge Canada Inc. v. Ontario (Environmental Review Tribunal), 2008 CanLII 30290, the Ontario Environmental Review Tribunal had granted neighbours of a cement manufacturing facility leave to appeal permits, issued by the Ministry of the Environment, allowing Lafarge to burn tires, as fuel, at its cement manufacturing facility.

This was the 1^st facility in Ontario authorized to burn tires as fuel, and ministry staff had accepted Lafarge evidence that they could do so safely. At the time, Ontario had large numbers of discarded tires and no clear plan for dealing with them, other than a desire to avoid another uncontrolled tire fire. Ministry staff intended to closely monitor the Lafarge experience, and to use it as a pilot project for tire destruction; meanwhile, tire burning would be banned in the rest of the province.

The test for granting leave, under the Environmental Bill of Rights, required that "no reasonable person" could have made the decision appealed from. Lafarge argued that this test had not been met, and sought judicial review from the Ontario Superior Court of Justice (Divisional Court). The court upheld the ERT decision, and Lafarge eventually abandoned its proposal.

In upholding the decision, the court seemed to imply that it was inherently unreasonable to have different levels of pollution permitted in different parts of the province.

At paragraphs 66 - 67, Justices Lederman and Swinton wrote:The Tribunal found there was a failure on the part of the Directors to take into account vironmental consistency". In the context of the [Environmental Protection Act], the Tribunal was of the view that consistency means that facilities should be regulated as necessary to limit environmental effects to a consistent level across Ontario.

It concluded that a reasonable, prudent person with knowledge of the law, policies and surrounding facts would not expose the residents of Bath to the effects of tire burning activity, especially when the Ministry was considering banning such activity in the rest of the province. It was within the realm of reasonableness for the Tribunal to conclude that it would be discriminatory to the community of Bath to potentially expose its residents to the effects of a tire burning process while at the same time considering not permitting it anywhere else in the province.

Accordingly, it was reasonable for the Tribunal to conclude that it appeared that there was good reason to believe that the decisions to approve the Lafarge [Certificates of Approval] are decisions that no reasonable person could make so as to expose local Bath residents to potential environmental impacts, when no other Ontario community is subject to such impacts.

This year, however, the Ontario Court of Appeal accepted without complaint a Ministry of the Environment decision to permit 40 times more historic nickel contamination in soil in Port Colborne than in the rest of Ontario.

Smith v. Inco, 2011 ONCA 628, was a class action by thousands of Port Colborne residents who alleged loss in property value due to public concern about potential health risks from nickel contamination on their property.

The nickel came from Inco's nickel refinery, which had operated from 1918 to 1984, and had been the economic engine of the entire town. In accordance with the standards of the day, Inco emitted refinery dust (nickel oxide) into the air from a giant smoke stack, much of which settled on its neighbours.

The emissions complied with legal requirements at the time, and Inco shut the refinery nearly two decades before the class action began. However, by the time of trial, Ministry Standards under regulation 153/04 set a limit of 100 ppm (for coarse soils) to 200 ppm (for medium/fine soils) in residential areas supplied with municipal drinking water.

In industrial areas, the levels are 270-340 ppm. 25 Port Colborne homes had exceeded 8,000 ppm. Per a Ministry order, Inco remediated 24 of those 25 properties ( the plaintiff, Ellen Smith, refused to permit Inco to cleanup her home). The Ministry of the Environment selected 8,000 ppm as a level that was allegedly "below any potential risk" to either adults or small children. Numerous homes were left with contamination between 100 and 8,000 ppm.

At trial, the neighbours had been awarded $36 million, based on both nuisance and Rylands v. Fletcher. The trial judge had ruled that all nickel from Inco's refinery in the soil became a nuisance if public concern about potential harm adversely impacted the properties' market values years later. He also ruled that Inco was strictly liable, because its nickel refinery was a "non-natural" use of the refinery lands.

The Court of Appeal disagreed on every front. First, they held that Port Colborne properties had not actually lost any value due to the nickel contamination. Second, they dramatically cut down the potential use of the popular environmental tort Rylands v. Fletcher, by limiting it to unexpected and unintended mishaps, not intentional emissions, and by ruling that operating a refinery in a properly zoned location was not a "non-natural" land use.

Third, they greatly reduced the scope of nuisance claims that are based on historic contamination. Although Inco admitted that the nickel was there, and had come from its refinery, there was no proof of any current health risk. Inco had complied with MOE's order to clean up 25 homes with more than 8000 ppm of nickel in their soil.

According to the MOE, the 8000 ppm benchmark was low enough to prevent any risk to health. How then, asked the court, could the mere presence of nickel below this level "damage" the affected properties? They did not even mention that a much lower benchmark for permissible soil contamination applied in the rest of the province.

Admittedly, the Lafarge case dealt with future emissions, while Smith v. Inco dealt with the historical residue of past industrial activity. But it's hard to understand why that distinction is relevant to this question.

Air and water pollution levels do vary from place to place- for example, mountains and forests typically have cleaner air than highways or industrial areas. Is it unreasonable for regulators to allow different levels of pollution in different places, and if so when? Does this contravene the preamble to Ontario's Environmental Bill of Rights,1993, S.O. 1993, ch. 28: "The people of Ontario have a right to a healthful environment"? Or not?

We should be talking about it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Specific Questions relating to this article should be addressed directly to the author. This article first appeared in envirolaw.com and is reprinted here with the kind permisson of the author.