Environment Canada Issues Warnings to Industry, Forgoes Prosecution, Documents Show

The federal government has repeatedly decided to forego prosecution for oil, gas and pipeline industry violations, according to Environment Canada documents released to Postmedia News through Access to Information legislation.

According to the documents the federal government issued 'warning letters' to companies like Devon Canada, a tar sands oil producer, and Gibson Energy, a midstream pipeline operator, after two separate oil spills proved the companies' respective facilities were in violation of the federal Fisheries Act. Violations of this sort can attract fines of up to $1 million, or three years imprisonment, the letters warned.

According to Postmedia's Mike De Souza, letters of this kind were sent to several companies in Alberta, Saskatchewan and Quebec for various offenses including the pollution of air and water as well as inadequate emergency preparedness and shoddy record keeping.

Environment Canada indicated warning letters are effective in gaining industry's attention. Prosecutions, on the other hand, are both expensive and time consuming. Yet, the released documents suggest that when it comes to monitoring and enforcement of industry's actions, the government may not be acting in the public's interest.

"Our goal isn't to prosecute for the sake of prosecuting (or) make the numbers look good in that sense," Heather McCready, a manager from the ministry's enforcement branch, told Postmedia. "Our goal is to bring people into compliance as quickly as possible."

"It's about protecting the environment. It's not about racking up points. So a warning letter can be a very effective tool to do that."

The Canadian Association of Petroleum Producers (CAPP), Canada's largest oil and gas lobby group, suggested the provincial and federal governments use a "compliance oriented approach" of enforcement to minimize risk.

However, Parliament's environment watchdog, Scott Vaughan the federal Commissioner on Environment and Sustainable Development, released an audit of Environment Canada in 2011, claiming the department's enforcement program is "not well managed to adequately enforce compliance with the Canadian Environmental Protection Act."

The conclusion of Vaughan's report stated Environment Canada did "not have adequate information on whom it is regulating and who is not complying" with the Act and that in many cases there was "no evidence that the Directorate had applied key management controls intended to ensure that enforcement officers carry out their enforcement activities…or that enforcement officers followed up on their enforcement actions to verify whether violators returned to compliance."

Environment Canada, the report held, was not in any position to know if its methods had improved compliance or minimized risk to Canadians and the environment, because the department simply wasn't monitoring its own activities, adequately training its employees or engaging in enforcement planning and targeting.

Vaughan told Postmedia: "Warning letters can work. There's absolutely no doubt (about that)." Adding, that one would "need to go back and figure out if the problem has been fixed."

Environment Canada's capacity to do so has been increasingly diminished after a series of funding cuts – millions of dollars worth – have rid the ministry of enforcement officers trained to test pollution and gauge the nature of an offense according to existing public health and safety standards.

Existing environmental legislation also took a significant hit last year with the passage of Omnibus Budget Bill C-38 which significantly reduced federal oversight of industrial projects while speeding up the process of their approval.

According to De Souza, Environment Canada officials "initially declined to answer questions about the nature of its warning letters in July 2012, prompting Postmedia News to make multiple requests for the records related to the oil and gas industry using federal access to information legislation…Environment Canada took about five months to process the access to information requests and release its warning letters."

Environment Canada also rejected the findings of Vaughan's audit, claiming the Department "disagrees with the audit's contention that the issues indentified prevent the Department from planning its enforcement activities to effectively target the highest risks to human health and the environment." Based on this contention Environment Canada wrote, "the Department does not accept the enforcement audit findings or conclusions."

Yet Vaughan maintains Environment Canada lacks the resources to monitor and enforce environmental regulations. According to Postmedia, "Vaughan concluded that inspectors needed special training to enforce 30 existing regulations on toxic substances but did not have this training for 16 of the listed substances and were lacking some critical laboratory facilities required to do their jobs."

As Vaughan stated, "there are some big gaps…Putting more money into something in itself doesn't necessarily make it fixed. So we said you have some pretty big gaps and you need to fix those gaps."

"There are some nasty stuff that these regulations (are intended to control) – asbestos, dioxins and furans – things that have been listed as toxic," Vaughan said. "They harm human health, they potentially cause cancer and so the regulations are there. Having a regulation on paper only goes so far and you need inspectors and you need a system to go in to make sure they have the full force of the law."

As the recently released documents demonstrate, however, Environment Canada's regulation remains largely on paper, where issued warnings take the place of strengthened monitoring, enforcement and, crucially, prosecution of polluters.

Vaughan recently announced his decision to resign from his position as Commissioner on Environment and Sustainable Development, two years before the end of his term. Vaughan has been treated with "disrespect" by the Harper government, while former governments met with him regularly for briefings and to discuss his reports.

Last spring, Environment Canada Minister Peter Kent suggested Vaughan's 2012 report, which discussed federal policies on climate change and contamination, was not credible.

Vaughan will take on a new position as president and CEO of the International Institute for Sustainable Development.