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BC’s plummeting environmental enforcement

February 28, 2010

Over the past week West Coast Environmental Law has been crunching figures from the province’s Compliance and Enforcement Summaries. These are quarterly reports issued by the Ministry of Environment on how many tickets, convictions, orders and administrative sanctions are being issued by the Conservation Officer Service (COS for short),  the Ministry’s enforcement arm.  What we’ve found is that enforcement action by the province continues to decline.  As with any law, an environmental law is not worth the paper it’s written on if it’s not enforced when people break it.  And increasingly BC is not enforcing its environmental laws. 

The provincial government had assured the public that this problem was resolved.  In 2007 West Coast Environmental Law released No Response.  This report reviewed government enforcement of six main environmental statutes between 1990 and 2005, documenting a collapse in environmental enforcement, with 2004 posting the lowest level of enforcement activity in that 15 year period.  The government’s response was essentially: We have hired new enforcement staff, we’re going to do better. 

And for a while, it did look as if things were getting better.  There were a series of announcements that new conservation officers were being hired.  The province set up a dedicated Commercial Environmental Investigations Unit (CEIU) in 2006 to investigate complicated and large scale environmental investigations, and that unit laid its first charges in 2008. And every provincial budget in the last few years has either increased, or more recently maintained, staffing for the Conservation Officer Service

But there’s a major problem – it’s not working.  Data from the government’s Compliance and Enforcement Summaries demonstrates that after a modest increase in enforcement activity in 2006, enforcement is again declining. Although not all the data for 2009 has been released (as I write this only the first two quarters have been released, although I am advised that the third quarter will be released very soon), unless there is a dramatic increase in ticketing during the second half of the year, this year will see the third lowest level of enforcement action since 1990. 

The Data

Unfortunately, the government’s Compliance and Enforcement Summaries report on different data than No Response, so we’ve dug back into the original data behind that report to generate graphs related to two of the indicators that the province reports on.  The following graph focuses on two enforcement indicators – convictions and tickets.  These are probably the most important enforcement actions for which we have pre-2006 data and which are also reported in the Compliance and Enforcement Summaries. 

Enforcement.jpg

* - The figure for 2009 is based upon a projection based upon the figures released for the first half of 2009.  This blog post will be updated when the final figures for 2009 are released. 

As with No Response we’ve focused on 4 provincial and 2 federal environmental statutes enforced by the Conservation Officer Service:

  • the Environmental Management Act (formerly the Waste Management Act),
  • the Fisheries Act (federal),
  • the Integrated Pest Management Act (formerly the Pesticide Control Act),
  • the Migratory Birds Convention Act  (federal),
  • the Water Act, and
  • the Wildlife Act.

These statutes were selected because of their environmental significance. 

As can be seen in the above graph, overall tickets and convictions for these statutes peaked at more than 3,600 in 1995, but dropped steadily to a little over 1,000 in 2004.  That total rose slightly in 2005, and more dramatically in 2006, peaking at 1,873.  It’s been slowly dropping since with 1,582 tickets and convictions in 2008.  Assuming that there was not a dramatic surge in enforcement action in the second half of the year, the total will probably come in at about 1,400 in 2009.  That’s better than 2004 and 2005, but still a dismal showing compared with every other year. 

And the results are even worse in terms of convictions.  2008 had the lowest number of convictions for offences under these six statutes since 1990 – lower than even 2004 or 2005.  Based on the first two quarters of 2009, this past year might be even lower.  Given the length of this post (and we’re not yet finished) I’m going to discuss the difference between convictions and tickets in a subsequent blog post, but suffice it to say convictions are how you hold really bad violators responsible. 

Why the decline?

As noted above, the province increased funding for enforcement after a series of cutbacks and a low point of funding in 2004.  Moreover, despite the recent budget cutbacks they’ve kept enforcement staff.  But enforcement today, while better than in 2004 and 2005, is still very low compared to historic levels, and is again declining.  What’s going on?

West Coast Environmental Law believes that our analysis in No Response still stands. 

First, although the province has hired new Conservation Officers, it has not maintained funding for the COS or for the Ministry of Environment staff who help the COS do its job.  The COS does not operate in a vacuum.  Conservation Officers depend upon Ministry of Environment field staff, scientists, clerical staff and others to help them operate.  As we pointed out in No Response: 

…[M]any of the positions [within the Ministry of Environment] for scientists, field staff and other staff that supported the COS ha[ve] been eliminated, requiring Conservation Officers to spend more time at their desk, and to manage with less expertise in the field.

It’s not enough to just ensure that there are Conservation Officers in the office; funding for non-compliance program staff is required, yet funding for the Ministry of Environment as a whole has taken a hit over the past few years.  The Ministry’s own Compliance and Enforcement policy recognizes that non-compliance program staff, and other staff in the Ministry, play an important role in detecting and dealing with environmental violations.  I’ll be at BC’s 2010 budget lock-up on Tuesday (March 2nd) and I’ll be looking to see whether the province is maintaining funding for compliance and enforcement. I’ll also be making the point that they can’t cut staff from across the Ministry and expect the COS to function properly. 

Second, again as noted in No Response, many of the environmental laws enacted by the BC government in the past decade are difficult to enforce effectively.  he government during this period adopted a “results-based” approach that requires industry to comply with government-set results, and this approach requires that the COS have base-line data (data collected from in the field) and more scientific experts in order to assess whether an Act has been violated or not. The results-base approach cannot and does not effectively enforce the law when there is a lack of base-line data and scientific experts. 

Third, the government’s policies tend to emphasize working with violators to achieve “voluntary compliance”.  West Coast acknowledges that the most recent Compliance and Enforcement policy, updated in May 2009, does seem to have an improved appreciation for the role of enforcement in achieving compliance as compared to previous versions. However, the government continues to focus on compliance while only occasionally resorting to enforcement activities.  While there clearly is a role for encouraging compliance, as pointed out in No Response, academic and law enforcement officials agree: “aggressive enforcement strategies need to first be in place to increase compliance with laws, and to better protect the environment.”  

After No Response was published in 2007 it was suggested to me by a former member of the COS that West Coast had not recognized that the COS had undergone a major shift away from a focus on law enforcement.  Ben Parfitt made a similar point in his 2005 Commentary, Disarming BC’s Conservation Corp, which discusses an internal government memo that instructs the COS to: 

… create a more business oriented presence with respect to the proposed commercial/industrial CO unit, through such means as limiting the use of firearms, power of arrest, uniforms and the use of force. For example, officers dealing with commercial/industrial clients should wear business attire and be unarmed.

And example of this soft-approach to compliance might be inferred from the 3rd Quarter Compliance and Enforcement Summary for 2007.  The Summary reports that the fish farm company, Marine Harvest, was found to have been discharging waste into Victoria Lake without authorization.  The government’s solution?  The company was ordered to “submit all outstanding information that had previously been requested from the company in order to complete a discharge application.”  While Marine Harvest presumably complied with this order and applied for permission to discharge its waste into Victoria Lake, there is no record in the Compliance and Enforcement Summaries of any other consequence for the fish farm company; it is possible that the company was given a “warning” or “advisory” – both compliance measures that do not show up in the Summaries and which have no real teeth. 

The government states that its main goal is compliance, rather than enforcement.  While there will always be cases in which it does not make sense to ticket a person who mistakenly broke the law despite their best efforts, the government’s approach suggests that environmental offences aren’t really that bad as long as the offender shapes up.  The government’s Compliance and Enforcement Summaries and other publicly available information provide no evidence that this type of compliance-first approach is actually working to reduce environmental crimes and increase compliance.

So what?

A declining line on a graph seems very abstract.  What does the failure to detect environmental violations and enforce environmental laws mean in the real world?  Ideally a strong compliance and enforcement program prevents problems before they occur, by ensuring that would-be violators know that they will probably be caught and that there will be serious consequences.  Consequently, enforcement helps prevent environmental offences before they occur. 

When you don’t have a good compliance and enforcement program you expect to see people knowingly breaking the law with little expectation of being caught. 

Consider, for example, the July 2009 massive fish kill on the North Alouette River.  The fish kill may have been caused by a cranberry farm installing a water pump without the necessary Water Act approvals.  This case may well result in charges, but only because of the fish kill and the high level of public attention that the Alouette River Management Society (ARMS) has brought to the case.  What is transparently clear is that the operator had no concerns about carrying out operations in a sensitive stream despite the fact that it did not have the necessary government approvals.  When asked about the farm’s decision to install a pump without the required licence, Rick Matis, General Manager of the Golden Eagle Group, is quoted as stating simply “We took a chance on that.” 

Do you have other examples of people violating environmental laws who were confident that they wouldn’t get caught or provincial laws that are not being enforced?  Please tell us about them in the comments section below. 

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