Pollution and the Tar Sands: The Same Old Story.

All weekend in Alberta the news covered the provincial and federal Environment Ministers toured new pollution monitoring stations in the Oil/Tar Sands.  It reminded me of the consistent sense of deja vu that comes with studying the early environmental movement in Alberta and of a recent presentation I gave at the Directions West conference at the University of Alberta.  Below is a portion of that presentation about pollution monitoring, court cases, and environmentalism in Alberta in the 1970s.

____________________________________________________________

November 1, 1976 STOP announced charges had been laid against Great Canadian Oil Sands Ltd in Fort McMurray for violating the emissions regulations of the provincial Clean Air Act.  For months, researchers with the Environmental Counsel worked on the legal aspects of the challenge and harnessed the experience and expertise of the Toronto based group CELA (Canadian Environmental Law Association).  Lucien Royer, chief researcher for STOP, and other group members spent the time working with university scientists to collect and analyze air samples from GCOS and compare it with projections for SO2 emissions of expanded tar sands development and literature on the damage done to humans and the environment by air pollution.  The sample, taken on May 26, 1977, and analysis became the central evidence for the civil action while the legal research and consultation ensured the correct portions of the Clean Air Act and appropriate precedent were cited.  The specific charge against GCOS was for  “permitting without lawful excuse the emission into the ambient air contaminants of greater density than that permitted by the regulations enacted under The Clean Air Act, S.A, 1971, C. 16.”[1]  This part of the Clean Air Act was targeted because after careful review, STOP determined it to be one of the weakest points in the legislation and intended to use the case to highlight this.

On September 28, 1977 Justice McClung dismissed the Crown’s appeal of the original decision on their challenge to the Clean Air Act.[2]   The judge accepted evidence of emissions exceeding the permissible levels emitted from the main process flare stack, but also accepted GCOS evidence the emission was deliberate and done as an emergency measure after a steam leak in one of the pressure vessels used in the extraction process.  This counter evidence sunk STOP’s case because GCOS was able to argue, and twice convince a judge, the day STOP collected their evidence the steam leak threatened the safety of employees and the excess levels of hydrocarbons their analysis showed was an exception rather than a rule.  In the appeal, an attempt was made to overturn the original decision by citing the lack of a smokeless flare tip – which would eliminate excess smoke emission during a flare – which was necessary under the version of the Clean Air Act in effect in 1976.  However, the court found the detail extraneous to a consideration of legal liability because the environmental safe guards GCOS required to meet were those of the Clean Air Act when their license was issued, not the updated version.

Most would see this verdict as a failure on the part of STOP to achieve political change regarding air pollution at the tar sands.  It is difficult to see the dismissal of charges followed by the dismissal of the appeal any other way.  However, STOP undertook the cases knowing they would lose; in fact, losing was their aim.  The sideways logic of success through failure is well explained in a March 1977 article from the Prairie Star.  The article gave the history of the case as it connected to research STOP conducted to preempt avoidable environmental damage from pollution they foresaw accompanying the 1978 the opening of Syncrude’s first plant.  STOP wished to “test Alberta’s virgin environmental laws in an actual trial situation” so that “the statutes would have to be ‘tightened up’ before Syncrude could be forced to reduce its sulphur dioxide emissions.”[3]  Obviously to do this STOP needed to use evidence from an existing operation and selected GCOS to serve this purpose.  For months STOP lobbied and wrote letter to the government to convince them action was necessary.  Eventually the province agreed and this led to the court case of November 1, 1976 – based largely on the work done by STOP.

STOP’s public interpretation of the case was as a success because it helped them prove a point about the Clean Air Act and other environmental legislation.  The court case, constant lobbying, endless letter writing campaigns, working with Notley and the NDP, was all to prove “the environmental laws of Alberta, as presently drafted, are like Swiss cheese.”[4]  Once the dismissal of charges against GCOS came in, STOP believed it would finally lead to action from the government to create tougher pollution regulation and force companies to adhere to the most recent version of environmental legislation.

The hope STOP had for changes to the environmental legislation quickly turned to frustration as a second court case they were involved with led to more dismissed charges.  This case was again against GCOS but focused on the Clean Water Act and pollution to the Athabasca River from tailings ponds.  The evidence for this case were samples take from a drainage dyke, the interface pipe that discharged liquid into the river, and downstream and upstream of the dyked area.  In a laboratory, fish were introduced to the four samples and their health carefully observed to show no mortality in the upstream and downstream samples but some in the dyke and interface samples.  The judge, McClung who also proceeded over the Clean Air Act challenge, followed a precedent set in British Columbia and dismissed the charges because he could not find proof beyond a reasonable doubt that the GCOS pollution caused the fish to die.  This was based on the assertion “there was no evidence that any species the ‘frequented’ the river was deleteriously affected.”  The species used in the laboratory, Brook Stickleback or Rainbow Trout, do not frequent the river so could not be accepted as bioassays.  This judgment was a blow to any attempt to show holes in the Clean Water Act similar to those proven to be in the Clean Air Act and there is little in the STOP records about the issues of water pollution in the tar sands after the decision on January 10, 1978.

Immediately following the first court challenge, STOP was hopeful the Alberta government would finally take suggested changes to environmental legislation seriously and create stricter limits and better enforcement.  It appeared their years of work had finally made tangible political change as the government set about reviewing existing legislation.  In the summer of 1978 a report release jointly by the Alberta Government and Environment Canada concluded there was technology available two years earlier, when Syncrude applied for their license, that if the Clean Air Act had made mandatory would have reduced the company’s SO2 emissions by 58 to 78 long tons a day.  STOP’s newsletter hailed this as validation of the work they did and vindication for attempts by Syncrude and the government to dismiss their reports: “We were told we didn’t know what we were talking about. Syncrude said we were ‘Crazies’ and the provincial government called us ‘Headline Grabbers’.  Well…now its out!!! History has vindicated us again.”[5]  The clincher for STOP was the finding Syncrude could install the necessary technology without a drastic redesign of the plant – which they and the government had used as a reason not to force the use of the technology.  The write-up in the group’s newsletter attracted the attention of Environment Minister David Russell, who wrote to STOP to say “that if Syncrude violates Alberta SO2 standards that he will require the company to take ‘appropriate action to comply with the regulations’.”[6]  However, STOP was not gullible enough to accept the line and reminded members of previous statements from the Minister to the same effect and that GCOS was in the news again for violating SO2 emissions regulations.  STOP, at this point, had nearly a decade of experience working with the government and knew, as numerous articles and presentations attest, when it came to the environment immediate economic gain always won out.  Louise Swift, former president summed up the need for skepticism in light of the continued violations from GCOS thus; “Should we really expect the public to believe that the treatment will be any different for Syncrude?”[7]  By November 1978, STOP had set up a tar sands taskforce to review Syncrude’s SO2 emissions and was looking for volunteer help as Syncrude and government arguments against the implication of emissions reducing technologies became less and less convincing.[8]


[1] J. McClung, R v. Great Canadian Oil Sands Ltd.  [1977] A.J. No 700, 9 A.R. 86, Alberta District Court Judicial District of Edmonton, September 28, 1977, paragraph 1.

[2] STOP did not initiate the appeal of the original decision.  As Royer noted in the April 7, 1977 (page 5) issue of The Gateway “It is not STOP that is initiating the ‘appeal’.  The Crown is doing this.  It is one thing to say STOP pressed to have the law suits launched in the first place, but it is quiet another thing to give us credit for the appeals.”

[3] –, “A Victory for STOP,” Prairie Star, March 23, 1977.

[4] Idib.

[5] STOP Newsletter, July 1978, 1.

[6] STOP Newletter, September 1978, 2

[7] Ibid.

[8] STOP newsletter, November 1978, 3.

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About Lauren Wheeler

Just a reformed history phd student working as a public historian and staying connected with the environmental history world from remote Edmonton. Requires coffee, music, laughter, and regular escapes to less Edmonton-like places.
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