Case closed: Edwards vs DTE Energy

Back in 2005, investigators from Lake Ontario Waterkeeper working with Scott Edwards discovered mercury contamination in the fish and the sediment of the St. Clair River. We had good reason to believe the mercury was coming from coal-fired power plants on the American side of the river, and we went to court to prove it. That case is now over.

The St. Clair River is a 64-kilometre stretch of river linking Lake Huron and Lake St. Clair. On the west side of the river is Michigan, USA. About 600 metres away, on the east side of the river, is Ontario, Canada.

The entire St. Clair River is an “Area of Concern” under the United States’ and Canada’s Great Lakes Water Quality Agreement. Problems on the St. Clair River include restrictions on fish consumption, fish tumours or other deformities, degradation of benthos, beach closings, and loss of fish and wildlife habitat.

One of the contaminants of concern on the St. Clair River is mercury. Mercury is extremely toxic to fish and other aquatic organisms. It can also cause reproductive problems in mammals. Coal-fired power plants have been linked to the presence of mercury in the environment. When they burn coal, mercury is released into the air. This airborne mercury then falls to the earth and the water downwind of the coal plant.

Lake Ontario Waterkeeper's investigation uncovered reasonable grounds to believe that two coal-fired power plants on the west bank of the St. Clair River in Michigan could be contributing significantly to the total mercury loading in the St. Clair River. These two plants are part of one industrial complex owned by DTE Energy.

The Fisheries Act encourages private citizens to lay charges and privately prosecute polluters when the government is not enforcing the law. Edwards, armed with evidence collected by Lake Ontario Waterkeeper staff and volunteers, went to court to prove that mercury pollution was harming fish and fish habitat in the St. Clair River.

As he told the press in 2008, Edwards' goal was a cleaner St. Clair River: “My hope is that this prosecution will result in significant reductions in DTE Energy’s mercury emissions and a cleaner and safer St. Clair River.”

In April 2009, Scott Edwards determined that he had achieved those goals. Before the trial could begin, there were numerous pre-trial proceedings scheduled that would likely have lasted for a year or longer. In the meantime, things started to change on the west side of the river. The State of Michigan announced a new rule that require Michigan power plants to reduce mercury emission by 90% by 2015.

The US Environmental Protection Agency released a plan to issue its own set of rules by fall 2011 that could see mercury reductions come even sooner. DTE Energy itself was making significant efforts at reducing its mercury emissions. The combination of these efforts meant a cleaner, safer St. Clair River would likely be realized even without a verdict. And, in late April 2009, Scott Edwards withdrew the charges.

The early successes in the case established three very important precedents that will benefit all Canadians:

1. The case establishes that a corporation operating in the United States that is suspected of polluting in Canada can be charged under Canadian environmental law in Canadian court.

2. The case establishes that any corporation emitting pollution into the air that falls in nearby waterways and has an impact on fish and fish habitat can be charged under water protection statutes like the Fisheries Act.

3. The case establishes that any corporation polluting waterways in a way that makes fish harmful for human consumption can be charged under the Fisheries Act.

Timeline:

On February 6, 2007, Scott Edwards swore an Information at the Ontario Court of Justice in Sarnia, alleging that DTE Energy Company of the State of Michigan did unlawfully carry on a work or undertaking contrary to Canada’s Fisheries Act. Edwards is a Canadian citizen and an environmental lawyer working for Waterkeeper Alliance in New York State.

On August 9, 2007, the Ontario Court of Justice found that Edwards had a prima facie case based on the evidence presented. However, due to the Justice of the Peace’s concerns about transboundary jurisdiction in the case, Edwards was denied from calling DTE Energy to court for litigation. Disagreeing with this outcome, Edwards filed a mandamus application. A mandamus is a legal tool for getting a superior court to order a lower court to perform a specific duty.

On January 17, 2008, the mandamus application was heard in Sarnia at the Superior Court of Ontario. Based on the established prima facie nature of the case, the Judge issued an order directing the Ontario Court of Justice to summon DTE Energy Company to face charges. A summons was served on June 30, 2008.

On April 27, 2009, the charges were withdrawn in a Sarnia Court.

On April 12, 2010, details of the case's resolution were released to the public for the first time.

This week on Living at the Barricades:

Edwards vs. DTE Energy was one of the most groundbreaking private prosecutions in environmental law. The case against one American coal-fired power plant operator is now closed. We helped to investigate the charges. We tell you how it ended. What it means. Mark and Krystyn speak with Scott Edwards and Doug Martz.

Music in this Show

It Ain't Over Till It's Over - Lenny Kravitz

Get Over It - OK Go

Over the Hills and Far Away - Led Zeppelin

Don't Dream It's Over - Crowded House

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