Ecojustice Blog – Special Update
Posted on May 25, 2017 (updated: October 9, 2019)
Ecojustice 101: How we pick our cases
Photo by Adam Blasberg
Ecojustice’s mission is to use the courts and power of the law to defend nature, combat climate change, and fight for a healthy environment for all. While we would love to work ourselves out of a job, the reality is across Canada, countless potential legal cases crop up every year related to the protection of nature, climate and our communities. There is simply more work than we can take on.
At any given time, we can have upwards of 60 cases active or in development. Going through the courts requires a lot of hard work, but it’s often a necessary course of action for ensuring our communities, our health and the environment are protected by the full weight of the law.
We are strategic about the cases we take on because we know firsthand that litigation can be time-consuming, extraordinarily expensive, and demand an astounding number of resources. For example, we challenged Enbridge’s Northern Gateway pipeline project and, in partnership with a wide coalition of First Nations, environmental, and labour groups, persuaded the court to overturn the federal government’s approval of the controversial project. It took a decade to secure this major victory — and that’s just one case.
We often get asked how we decide which cases to take to court. Here, we break down the selection process we use to determine which cases to take on.
1) Deciding which issues need our help most
We strive for long-term results that build the case for a better earth, which is why we select cases that have the potential to set precedents and redefine how environmental laws are applied and enforced in Canada.
Is this issue an environmental priority?
Does it meet the following criteria? (Click to expand)
Criteria 1: It is or will become one of the most significant threats to the environment
Case example: Challenging the Fraser Surrey Docks coal transfer expansion
Click to read more about why we chose this case.
If approved, the Fraser Surrey Docks project would see up to four million tonnes of thermal coal carried by open-car rail from Wyoming’s Powder River Basin through Vancouver’s Lower Mainland each year, ultimately bound for export to foreign markets. Our clients don’t want to see their communities become conduits for dirty coal. With doors firmly shut on coal export facilities in Washington State and Oregon, the need to find an export route along the west coast is prompting American companies to look north for ways to get their product to foreign markets. It is critical we stop this dirty coal project in its tracks. Canada cannot continue on its’ path as an environmental laggard on climate action.
Criteria 2: It presents one of the greatest opportunities for significant environmental protection or restoration (including addressing root causes)
Case example: Protecting Canadians from harmful pesticides banned in other countries.
In response to a lawsuit filed by Ecojustice lawyers on behalf of Équiterre and the David Suzuki Foundation, the federal government agreed to review the approval of 383 pesticide products containing 23 active ingredients — including difenoconazole — already banned for use in European countries. Many of them have links to cancer and water contamination. Our work on these ever-present harmful pesticides is ongoing, and we won’t stop until people and the environment are protected from the risks they pose.
Click to read more about why we chose this case.
Criteria 3: It is a prerequisite to succeeding on other environmental or legal priorities, and needs Ecojustice’s legal expertise now
Case example: Defending a right to a healthy environment in Sarnia, Ontario.
Ecojustice lawyers represented Ada Lockridge and Ron Plain, two members of Aamjiwnaang First Nation, in their fight to ensure that the health of people living in one of Canada’s most polluted communities – Sarnia’s Chemical Valley – is protected. The approximately 800 residents of Aamjiwnaag live next to industrial facilities that account for approximately 40 per cent of Canada’s petrochemical industry. In 2011, the World Health Organization said that the people of Sarnia breathe some of the most polluted air in all of Canada.
It doesn’t help that the government doesn’t have clear established rules on considering cumulative effects, rather than the effects of a single emitter. Since working with Ron and Ada, we have deepened our commitment to ensure Ontario has rules on pollution that protect human health.
Click to read more about why we chose this case.
Is this issue a legal priority?
Does it meet the following criteria? (Click to expand)
Criteria 1: It is a root cause of why the law is not enabling significant public protection or restoration of the environment
Case example: How to make a polluter pay.
In April 2008, 1,600 ducks died after landing on a Syncrude tailings pond north of Fort McMurray, Alberta. In the days following the wildlife disaster, both federal and provincial government officials vowed to take action against Syncrude, threatening fines of up to $1 million. Nine months later, when neither government had laid any charges, Ecojustice lawyer Barry Robinson helped a concerned Alberta resident take action. The result? Syncrude was found guilty and agreed to pay $3-million, the largest fine ever secured against an environmental offense in Canadian history.
Click to read more about why we chose this case.
Criteria 2: It presents an opportunity for enabling the law to address threats to significant environmental protection or restoration
Case example: Protecting our seas from aquaculture viruses.
Infectious Salmon Anemia virus (ISAV) is an internationally reportable virus that has killed millions of salmon and caused massive losses to aquaculture industries in Chile, eastern Canada, and Norway. There is significant concern that ISAV and other diseases found in open net fish farms can spread to wild salmon and could cause catastrophic losses in BC.Our work with wild salmon is dedicated to ensuring there is adequate oversight of aquaculture projects. Wild salmon are a keystone species in B.C., and they are important to its ecosystems and communities. Many wild animals, including eagles and bears, depend on wild salmon for survival. A significant disease outbreak in our wild salmon would be catastrophic. As such, it is extremely important that our wild salmon are protected from exposure to diseases at fish farms.
Click to read more about why we chose this case.
How will this case help change the future?
Read more.
There is no shortage of resources behind plundering the planet, and in any long-term battle, every move has to be strategic. What will the world look like if we’re successful in a case? Will it be easier to defend against future threats with the precedents we set today?
The questions we ask ourselves before proceeding on a case demand that we examine gaps in the law, and existing challenges to how and whether they are enforced. Our decision-making model is predicated on the idea that the tools we have to protect the environment ought to be used and expanded.
Can this case help advance the goals set out in our 2017-2020 strategic plan?
Read more.
Ecojustice works in three program areas: Climate change, healthy communities, and nature. Under the leadership of our program directors, work in each area is governed by an overarching goal.
| Healthy Communities | Toxic-free, empowered communities. |
| Nature | Canada’s biodiversity and ecosystems are protected and restored. |
| Climate Change | Greenhouse gas emissions are within scientific imperatives, and Canada is low carbon. |
When an Ecojustice lawyer or scientist has an idea for a new case, or when we receive legal inquiries from concerned citizens, community groups, or public interest groups, we screen those potential cases against the goals set out in our strategic plan. That’s not to say we won’t look outside of those areas in special circumstances. We also take into consideration whether this issue is so significant that we should take the case on anyway.
2) Case development: Getting down to work
Once we’ve determined that an environmental issue warrants Ecojustice’s involvement, we begin the case development process. This typically involves gathering information, researching, and building the legal theory we will bring forward in the appropriate court. This is also where we start identifying the clients we will represent in the case. Thanks to the generosity of Ecojustice supporters, we represent every one of our clients free of charge.
A special alchemy of legal theory, fact pattern, clients, and timing make for the ideal case. As a result, we can spend weeks, months, even in some special cases — years developing a case before it launches. Some of our legal victories end up going through multiple levels of court and appeal processes before being finalized, which a testament to the dedication of Ecojustice staff and the durability of the cases we build.
3) Gut check
Once a case is developed, we review it to ensure we have the resources and organizational commitment to see the case through to the end. From firsthand experience, we know that court cases can be long, arduous processes that demand a ton of financial and human resources. Luckily, some of Canada’s best and brightest environmental experts work at Ecojustice. And it’s thanks to the support of people like you that they get to do what they do.
The final test for proceeding on the case is approval by our board of directors. During case review, we have our common goals and the future of the earth in mind. Determining the long-term benefits or challenges presented by a case is not always easy, which is why we’re grateful we can count on the experts on our litigation committee for their advice and support.
4) Launch!
Once a case has been developed and approved, it’s time to fire up the rest of the organization. While our legal team gets ready to file the case, our fundraisers get on the phone to secure gifts to support this work, our communicators start developing a strategy to get the word out to the world, and our operations team ensures we have the people in place who make all this happen.
What happens to the work that doesn’t get selected for litigation?
Despite our best efforts, limited resources and the lengthy nature of a legal challenge mean we cannot take on everything (though it would be nice!) Occasionally, circumstances change and we are eventually able to take on a case. As an environmental law charity, we do our best to take on as many cases as possible, keeping our lawyers and staff busy (and people and companies who threaten the environment on their toes.) In situations where we cannot take on a case, we put folks in touch with another organization we think can help, or refer them to other counsel.
What can I do to help?
Ecojustice functions because of the dedication and generosity of supporters and donors who believe in the work we do. We would not be where we are today without our supporters: Whether you’re a monthly donor, someone who signed an advocacy action, or a passionate social media follower helping spread the word about our work — thank you! Every one of your contributions helps us build the case for a better earth.
Stay tuned!
