Law

In defense of the planet Earth

October 3 1977

Law

In defense of the planet Earth

October 3 1977

Law

In defense of the planet Earth

One of the more dubious privileges once exclusively enjoyed by the wealthy was the prospect of being slowly poisoned by one’s heirs. Democracy has abolished most privilege and even slow death by poisoning has become a public inheritance long since—or at least since 1958, to judge by the most recent findings of the Canadian Environmental Law Association (CELA). According to its book, Public Poisons, due to be released soon, the amount of poison consumed through food, air and water by the average Canadian has increased more than 20 times since that date. It is growing with the addition of more than 500 new kinds of poisons each year.

The public is well acquainted with common industrial poisons such as lead and mercury. But it’s hardly aware just how intimately it knows others such as red dye no. 2, one of five chemicals specially noted. It is a poison added to common foods such as milk and chocolate merely to create the high coloring that advertising has made consumers demand. However, even if people learn that their daily bread could send them reeling, like guests from a Borgia banquet, experience has taught CELA not to expect the public to react by demanding swift, decisive action by government. And no one expects less than John Swaigen, the 33-year-old lawyer who’s prosecuted industry and government both.

“People don’t get upset unless they feel personally threatened,” says the mildmannered Swaigen, most senior of CELA’S three lawyers, who work only on environmental law. Along with students, secretaries, part-time researchers and writers like Mary Lou Goldfarb, author of the poisons book, they lobby in the Ontario legislature, educate the public and media by writing books such as Environment On Trial— which comes out in its second edition this winter—and keep their fellow lawyers up to date by publishing the country’s only environmental law journal. Small wonder the seven-year-old Toronto-based organization is described by its admirers as “an environmental ombudsman.”

Swaigen finds that the public comes forward most often for help with small, localized irritations: the noisy bed-spring factory that was keeping a whole block awake; the lady driver of a Cadillac who emptied her ash tray on the road once too often; and the contractor who took years off the life of a venerable old tree by damaging its roots. The neighbors, the road and even the tree finally won.

On occasion, people turn to CELA as a last resort when government agencies have

failed to help them. In the notorious case of a lead smelter that had been belching poison over the yards and children of a residential Toronto neighborhood as long as anyone could remember, the residents complained to government for at least two years. It took CELA to break through this logjam of indifference, in 1974, by applying the pressure that led to the second stop-work order ever issued in Ontario.

“There’s no point going after Band-Aid solutions,” Swaigen concludes after four years in the courts. “You have to go after the system that creates the problems, and that means going after the government.” His resolve has yet to be tempered by the irony that CELA derives the bulk of its income from the Ontario government, either from research grants or through legal aid, which gives individuals and residents’ associations the funds to go to court—a process that can take years for even the simplest cases. Even so, CELA’S lawyers eke out a mere $11,000 per year, a salary below the national average.

Prosecution of the government is inevitable because, says Swaigen, “the agencies government sets up to regulate business end up becoming mattresses to protect business.” Despite his 120 pounds, John Swaigen has no qualms about showing his heavy intentions by jumping up and down on the mattress, or doing cartwheels on it if the press is watching. “In many cases, the press is a stronger tool than the judiciary,” he says, pointing to CELA’S role in the last Ontario election in June. The campaign stumbled along without issues until allegations were made that Waste Management

Inc. had paid the Conservative Party $35,000 in return for dumping permits at Stouffville and Maple, Ontario. When Premier William Davis moved quickly to snuff the issue by appointing a royal commission to investigate the charges, Swaigen kept up the pressure by leaking information to the press. “We made it impossible for Davis to make the terms of the commission as narrow as he wanted—so narrow as to be pointless.”

In August, Swaigen had to watch stoically as Environment Minister George Kerr put the Environmental Assessment Act through the paper shredder, CELA had been fighting for two years to give the legislation substance, and 32 changes it wanted were made—making it what Swaigen calls “one of CELA’S greatest achievements.” But the government left itself a loophole big enough to drive the Darlington nuclear generator project through, a loophole that, in effect, lets the government ignore environmental assessment on any government project it chooses to exempt. If the public indignation had been greater, Kerr would have been forced to permit assessment of the Darlington project, Swaigen claims. “But it would have been a show trial. I’ve seen documents that prove the project would go through, regardless what the assessment found.”

For CELA to find itself on the receiving end of government secrets shows the respectability the organization has acquired

since 1970, when it was spun off, red hot and eager for confrontation, from the already famous Pollution Probe. An employee of the environment department nostalgically recalls “the good old days” when CELA “made it like the Wild West around here” by constantly attacking the ministry. “They once sent the minister a letter that ordered him to produce a file ‘within three hours of receipt of this letter, or we will take the sherriff and ransack your office, and bring the press along.’ ” Now, there are enough lawyers on CELA’S board of directors, including for-

mer president of the Conservative Party, Eddie Goodman, to staff a blue-chip corporation. Sources within the government are no less surprised than CELA to find Ian Outerbridge, counsel for a host of CELA adversaries (including Toronto Smelters and Refiners), acting on their behalf for free.“I guess he wanted to wear the white hat for a change,” grins Swaigen.

Outerbridge is going before the Ontario Municipal Board at the end of October to keep the 75-foot sheer drop of the Elora Gorge, west of Guelph, from being crucified by a bridge that principally would serve gravel trucks, “CELA is absolutely necessary,” says Outerbridge. “CELA can keep the province honest with its environmental legislation. If politicians so choose, legislation can be nothing more than a cover-up.” Outerbridge winces: “I

shouldn’t use such strong language—nothing more than a palliative.”

If CELA’S road to respectability is now neatly paved, no one there is deceived about the almost impossible odds of the environmental cause. Victories are few, and none is ultimate. When the residents around the Toronto lead smelters finally saw government action, scrubbers were added to the refining stacks to remove contaminants. They proved to be so loud that they created noise pollution instead.

“It’s a long-term proposition,” Swaigen says softly. “But we do win more than we lose.” KASPARS DZEGUZE