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November 5 , 2003 (Globe and Mail)

Clean up after yourself

The Supreme Court has just upheld the polluter-pay principle. A pollution tax would drive the message home, says environmental lawyer DAVID BOYD

What is remarkable about the Supreme Court of Canada's latest environmental law decision is not how ecologically enlightened the court is (several cases have already demonstrated its green wisdom), but rather the gap between the principles of law and the on-the-ground application of those principles.

Last week the court ruled on a case involving a site in Quebec contaminated years ago by Imperial Oil. The site was eventually sold, partially cleaned up, and turned into a residential development. When pollution problems returned, Quebec's environment department ordered Imperial to fund a new study about remediation options. Imperial challenged this order in court.

In upholding the Quebec government's order, the Supreme Court agreed with lawyers from the Sierra Legal Defence Fund that the polluter-pays principle is "firmly entrenched" throughout international, federal, and provincial environmental laws. The principle is that if you make a mess, you're responsible for cleaning it up. Hardly controversial -- in theory. But in practice, Canadian individuals, businesses and governments rarely pay for the pollution they create. Consider four examples: motor vehicles, industrial activities, abandoned mines, and agriculture.

Cars, trucks and SUVs spew a range of pollutants into the air, including carbon monoxide, nitrogen oxides, sulphur dioxides, and carbon dioxide. Polluters don't pay -- despite the effect on health (10 times as many deaths in Canada each year as homicides) the economy and environment.

Large industrial operations, such as petroleum refineries, aluminum smelters, chemical factories and steel plants discharge hundreds of millions of kilograms of toxic substances each year, as reported to the National Pollutant Release Inventory. The cost to corporations? Nothing.

Thousands of abandoned mines scar our landscape; many cause continuing pollution problems. Mining companies provide reclamation bonds that cover only a small fraction of the costs of cleaning up these contaminated sites. Four mines studied by Canada's environmental commissioner in 2002 had bonds totalling $23-million, but Ottawa estimates that it will spend up to $680-million to clean up these sites. And taxpayers will get stuck with the bill.

Canadian agricultural operations use thousands of tonnes of chemical pesticides and fertilizers that cause health and environmental damage. Vast volumes of manure from livestock, averaging almost 4,000 kilograms per Canadian per year, also pose health and environmental risks. Again, the polluters don't pay.

Thus, while the Supreme Court is correct that the polluter-pays principle exists on paper in Canadian law, we have a long way to go in translating the principle into action. There are still examples of Canada paying polluters, rather than making polluters pay: consider our continuing subsidies to the oil and gas industry. Our failure to apply the polluter-pays principle means that our economy keeps treating environmental damage as an externality, as though there are no consequences to pollution.

What should polluters pay for? The health-care costs caused by air, water, and soil pollution, and the related economic costs of reduced productivity, and missed school and work (the estimated cost to Canada is billions of dollars due to air pollution alone). More difficult to quantify are damages to wildlife habitat, natural resources and ecological services.

A recent Conference Board of Canada report found that Canada lags behind other industrialized nations on environmental performance. Our governments complain that they lack adequate resources to increase environmental protection. Implementing the polluter-pays principle would generate a substantial source of revenue that could be invested in improving Canada's dismal environmental record, as the Organization for Economic Co-operation and Development has repeatedly pointed out.

An obvious approach would be to use pollution taxes, which set a fee for each unit of pollution generated. The National Pollutant Release Inventory, which already tracks releases of more than 265 toxic substances, could be the basis for a national system of pollution taxes, with higher levies for more toxic, persistent, or bio-accumulative substances. The funds generated by pollution taxes could be used to clean up contaminated sites, address air pollution, water pollution and climate change, or invested in developing cleaner technologies. Pollution taxes offer a strong incentive to reduce releases of toxic substances and switch to safer, cleaner substances.

The Supreme Court deserves credit for boldly encouraging Canadians to shoulder our environmental responsibilities. The court observed that our growing environmental concern reflects not only self-interest in maintaining our quality of life, but "an emerging sense of intergenerational solidarity and acknowledgement of an environmental debt to humanity and to the world of tomorrow." By implementing the polluter-pays principle, Canada can start paying off that environmental debt.

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