After spilling PCBs into a tributary of the St. Lawrence River, Hydro-Québec was charged under the Canadian Environmental Protection Act (CEPA). The utility responded by arguing that CEPA, the major Canadian statute regulating dangerous chemicals, was unconstitutional.
The case was eventually appealed to the Supreme Court of Canada (SCC). Acting on behalf of Pollution Probe and Great Lakes United, and together with the Canadian Environmental Law Association, we were granted leave to intervene in the case. We argued that the federal government could make environmental protection laws under its criminal law power. The SCC ruled that the federal government has the power and a duty to address environmental threats and, for the first time, that the Constitution’s criminal law power could be used to protect the environment (R.v. Hydro-Québec,  3 S.C.R. 213).
We intervened on behalf of our clients because a win by Hydro-Québec would have jeopardized the ability of the federal government to create and enforce environmental laws. Furthermore, a Hydro-Québec win would have bolstered the dangerous trend of “devolution” of federal environmental protection powers to the provinces, which threatens to leave Canada with a weak and fragmented patchwork of environmental protections.
What does this victory mean?
This landmark victory affirmed the constitutionality of the Canadian Environmental Protection Act, a critical environmental law. The SSC also clearly stated that the federal government has both the power and the duty to address threats to Canada’s environment.