September 27, 2004

CEC probe sought as groups claim Canada, U.S. fail to enforce environmental laws

In the first of two submissions received this month by the Commission for Environmental Co-operation (CEC) of North America, the Friends of the Oldman River (FOR), a citizens' environmental group based in Rocky Mountain House, Alberta, claims that Canada is failing to effectively enforce sections 35, 37 and 40 of the federal Fisheries Act and section 5(1)(d) of the Canadian Environmental Assessment Act (CEAA).

The group maintains that the federal government's 1998 "Decision Framework for the Determination and Authorization of Harmful Alteration, Disruption or Destruction of Fish Habitat" is not authorized by, or compatible with, the Fisheries Act or the CEAA. It further claims that the Department of Fisheries and Oceans (DFO) has been avoiding triggering the CEAA by providing advice outside the Fisheries Act.

The submission notes that between April 1, 2001 and March 31, 2002, the Minister of Fisheries and Oceans (DFO) was involved in 12,427 referrals and provided 6922 letters of advice to project proponents. These letters, it says, were unlawful because they were not authorized under section 35 of the Fisheries Act and because no environmental assessment was conducted as required by section 5 of CEEA before the letters were issued. Issuing advice constitutes taking an action that enables the project to be carried out, says the submission.

FOR is asking the CEC to prepare a factual record in response to its submission. This would not be the first: the group sought, and obtained, a factual record in response to a previous submission made in 1997. However, FOR says the factual record, made public in 2003, dealt only with the Sunpine Forest Products forest access road and did not address the submission's larger focus, namely the general failure of the federal government to comply with and enforce Canada's environmental laws.

In the second submission, more than half a dozen leading Canadian and U.S. environmental organizations have joined in claiming that the U.S. is failing to effectively enforce the federal Clean Water Act against coal-fired power plants for mercury emissions which they say are degrading thousands of rivers, lakes and other water bodies across the U.S. The submitters include Friends of the Earth Canada, Friends of the Earth-U.S., Earthroots, Centre for Environmentally Sustainable Development, Great Lakes United, Pollution Probe, Waterkeeper Alliance, and the Sierra Club (U.S. and Canada).

In their petition, the groups state that the number of fish consumption advisories for mercury has risen from 899 to 2,347 since 1993, and that, according to the U.S. Environmental Protection Agency (EPA), 35% of the total lake acres and 24% of the river miles in the US are now under fish consumption advisories. They contend that the EPA "is allowing both nonpoint and point source discharges of mercury from coal-fired power plants that are contributing to a steady degradation of the nation's waterways as evidenced by increasing mercury fish advisories and the effective withdrawal of existing uses (fishable) of many of these water bodies." These discharges, they add, include both air emissions of mercury, which fall back to the earth in the form of precipitation or as dry particles, and direct discharges to water.

The submitters assert that mercury discharges to air and water contravene provisions of the Clean Water Act enacted to prevent degradation of national waters. These include the National Pollutant Discharge Elimination System (NPDES) provisions under section 402 of the act and the water quality standards provisions under section 303 of the act

They say the U.S., through the EPA, is failing to effectively enforce these provisions by: issuing NPDES permits or delegating the issuing of State Pollutant Discharge Elimination System (SPDES) permits which allow continuing point-source discharges of mercury into U.S. waterways; approving inadequate state antidegradation policies and implementation procedures that fail to safeguard water bodies; and failing to use its authority to require states to pass Total Maximum Daily Loads (TMDLs) for mercury where water quality standards are not being met or a beneficial use has been lost, and to issue its own TMDLs where state action is inadequate.

The CEC Secretariat is analyzing both submissions to determine whether they meet the requirements of Article 14 of the North American Agreement on Environmental Co-operation (NAAEC). Article 14 allows any person or nongovernmental organization to submit a claim alleging that a NAFTA partner has failed to effectively enforce its environmental law. Following a review of the submission, the CEC Secretariat may investigate the matter and pursue a factual record of its findings.

The submissions, SEM-04-004/Oldman River III and SEM 04-005/ Coal-fired Power Plants, may be viewed on the "Citizen Submission on Enforcement Matters" section of the CEC Web site, www.cec.org.

In addition, the CEC last week released its overall work plan for gathering relevant information for a factual record on the Montreal Technoparc submission (ELW August 30, 2004). The submission asserts that Canada is failing to effectively enforce section 36(3) of the federal Fisheries Act against the city of Montreal in connection with the discharge of contaminated groundwater from the city's Technoparc site to the St. Lawrence River. The plan calls for work to begin in October, with a draft factual record to be submitted to the CEC Council by May 2005. A final version should be ready by August 2005, and the Council may make the factual record public within 60 days thereafter.

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