Sunday, July 1, 2018

Protection for polluters

“Roast Yard no. 2” in Copper Cliff (c. 1903),
providing a good idea of the damage the heap roasting inflicted on the local environment
(City of Greater Sudbury Heritage Images, Copper Cliff Museum Collection, CC0115)
Mark Kuhlberg and Scott Miller recently published "'Protection to the Sulphur-Smoke Tort-feasors': The Tragedy of Pollution in Sudbury, Ontario, the World’s Nickel Capital, 1884–1927" in the Canadian Historical Review. First, the abstract:
While there are many tales of mining companies polluting the Canadian communities in which they have operated, Sudbury’s early history stands out. It is arguably the most extreme example of an industry dictating to government how the latter dealt with the local pollution problem–in this case, sulphur dioxide emissions. The capstone achievement was the creation of an extrajudicial solution to the problem that permanently suspended the legal rights of residents seeking redress for their grievances. Moreover, the Ontario government was duplicitous in this affair–namely, by zealously luring settlers to the region in an effort to develop farming there even though it was acutely aware of the local pollution problem. Finally, this story is truly tragic because the pollution need never have happened to the extent that it did. The provincial politicians knew full well that the means existed–within a short jaunt of Sudbury no less–to mitigate the problem, but the politicians refused to force the mining firms to adopt them. Retelling Sudbury’s story thus highlights how the Ontario government’s decision to grant the mining firms practical impunity to pollute the local environment–both human and non-human–was a matter of political choice.
The article details the many legal tactics taken by the mining companies to avoid an injunction that might shut down their operations, the most extreme of which was the "extrajudicial solution" mentioned above. Said solution was one which has also reared its head in recent times - compulsory arbitration. The article explains the Ontario Act to Provide Compensation for Damage caused by Sulphur Fumes of 1921 (citations omitted):

Instead of taking their cases to court, the claimants were now forced to go before a government-appointed arbitrator, who would unilaterally determine if damage had been suffered and, if so, calculate its scope. Most importantly, there could be no appeals from the arbitrator’s decision. Moreover, the statute covered all actions “pending or untried,” thereby wiping out... lawsuits that were both still before the court and potentially the precursor to the long-awaited injunction. In one dramatic swoop, the government had killed any chance of the latter ever being realized.
[E]ach passing day left the farmers... desperate for any compensation at all, a prostrate position that the mining companies exploited to pressure them to settle their disputes for mere pennies on the dollar. The few who saw the process through to the end were awarded meagre compensation. Remarkably, the government revised the statute a few years later to further benefit the mining firms. Thereafter, the industry would collectively be charged a maximum of $5,000 annually to cover the costs of the arbitration process, a puny price to pay for its licence to pollute. Robert H. Murray was appointed arbitrator, and, from the outset, he doled out measly awards. He handed out an average of $37 per claimant in 1924 and paid out no compensation at all to 39 per cent of those who sought it. The following year, even though mining production was rising, Murray issued an average award of $29, while 25 per cent of those who sought reparations received nothing. Murray would continue this pattern of dispensing meagre compensation for his thirty-plus year career as sulphur fumes arbitrator (1924–57). 
There's lots more in this article, take a look.

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