Friday, December 7, 2012

The supreme court is wrong on this one

It turns out in Canada, polluters don't pay after all, especially bankrupt polluters. Even bankrupt polluters that are now operating under a different name. In spite of a federal law.

I need to backtrack a bit here. Unlike the USA, the Canadian Supreme Court are not a bunch of partisan hacks who make decisions blindly by ideological background. While the Prime Minister of the day makes the final choice, there are avenues for input from other stakeholders. Yes, technically the Governor General makes the decision. Picky picky picky. They are well known for making decisions that are grounded in the law, and trying to balance the conflicting rights of the various parties.

Here is the actual ruling. Yeah, like you're going to click on that and read more than 100 paragraphs of legal reasoning. Did I ever tell you that one of my lawyer buddies has actually argued a case before the Supreme Court? Not the whole thing, no, but she had been working this particular case (NWT egg marketing board against somebody or other) since being an articling student. She had video of it, and we spent part of a weekend watching the case being argued. Here is another summary of it in case you want more detail than I provide below, but not as much as the legal reasoning.

Yes, we are one of the very few people who have actually watched the Court in action, and even better, we got blow by blow commentary from our buddy. It was much more interesting than it sounds. I loved how the various justices just cut the lawyers off when they were tired of hearing them talk. (Not our buddy.)

The court voted 7 to 2. Essentially the appeal by the province was denied, and it has to get in line with the other creditors. That because they couldn't attach a monetary value to the work to be done to remediate the properties, and that the Province hadn't started the work and might never start it, and hadn't even budgeted for it. There was a bit in there about "insolvency is hardly ever a deliberate choice" by corporations, and that doing so still does not extinguish their environmental obligations. I suspect that insolvency is in fact a frequent choice by companies to attempt to escape their obligations.

I think I've got it right. So much legal reasoning is expressed in a difficult way, almost like arguing the negative. But in any case, it's clear that remediating damage to the environment is no more important than ordinary obligations to other creditors. So as far as what the law says, you have to believe that they made the decision based on law. These are some of the most well respected and learned judges in Canada.

However, my instant reaction on hearing the judgement was "That's not right". In law, it might be right, and probably is given what they said. But in the wider world, it's wrong. Here's why.

When a company goes bankrupt, the creditors line up for the remains. The bankrupt entity owes money, goods, or services to other companies and people. There is an established order as to who gets what, and in what order. It's monetary.  In a larger sense though, environmental remediation is for society itself. The people and environment closest to the industrial site have the most to gain or lose from the remediation being performed or not, but if it's left to a government to pay for the remediation, it affects all of us. Our taxes have to pay for that cleanup, instead of something useful. An unmediated industrial site is a huge liability to the nearby municipality as no other corporate entity will want to set up a business there until the remediation issue is addressed. There may be health risks that we don't know about yet.

The Court argued that forcing compliance to remediation orders would shift the cost to the creditor third parties, rather than the polluter, but in my mind that's the point. Some of those creditors are shareholders, and therefore the owners of the mess. They should pay. I'm not so sure about people that sent products and services to the entity with the expectation of being paid, and are being left holding the short end of the stick.

When you take a step back, and look at it, the bankrupt company should be obligated to clean up the mess they made. After all, their profits over the years are what produced the mess. Only fair that whatever assets are left be used to clean up.

And yes, there is a bit of anti-corporate bias happening here. Corporations are NOT people. They should not have the rights of people. Where the rights of a corporation and a real person conflict, the corporation should lose, every time. Corporations have only one motive, profit. Everything they do is subordinate to that. Even situations where they are "donating" money to worthy causes, there is a calculation made. The corporate managers decide that a certain amount of money spent on a worthy cause is good for their corporate image, which enhances the profits.

Corporations should not have the right to contribute to political parties, and any money spent  advocating a position during elections should be completely disclosed. Their lobbying and other efforts to influence government should be completely public. Big corporations should pay more tax, and efforts to hide it off shore should be vigorously dealt with. How do I define big? More than 150 people. Employees, contractors, whatever you want to call the people paid by the corporation. Everybody, no matter how they get paid, or the route the money takes.

Corporations make noises about treating people right and providing safety programs because it's finally sunk in that doing so is cheaper than dealing with injured or pissed off employees. Still, it's another calculation to figure out exactly how much they should do. Very few corporations willingly pay their people any more than they have to, and try to push back on wages at every opportunity. Mostly they can do this because the ones at the top are all about "Fuck you Jack, I've got mine" because they don't know the people at the bottom of the pole. But when there is only 150 people in a company, you will know everybody fairly quickly.

I've worked for one of the biggest companies on earth (BP right after the Amoco takeover) and some tiny ones. I was one of 3 employees in one company I worked for. Trust me, there is a huge difference between the two. I would far rather see more smaller companies, even if it is economically "inefficient". There is more to life than an efficient economy.

At work I had won a chair massage for neck and shoulders. In fact I was on a massage table, and this nice lady clutched the acupuncture pressure points firmly. It felt really good; pity it didn't last longer. I only wish I could have got her to work on my hips. They are loosening up a bit, but even an attempt to spin didn't work out so well. Just where the hip flexor anchors is the tender spot. Stretched, and used the ball strategically.

Busy weekend coming up. There is a long list of things to do. Good thing none of it involves malls. Or elevators. I've been shaking my head at the elevator goings on. And the choices people make about stopping to chat. Granted it's the social party season and all, but some of us have places to be, and would like to get there BEFORE Christmas.


  1. Excellent rant, Keith, and I agree wholeheartedly! Hope the hips feel better soon.

  2. Glad you liked it! Never know with political rants, and the Supreme Court isn't exactly a catchy blog title. Hips are better in the morning, worse in the evening after sitting much of the day. With any luck an active day tomorrow will be good for them.


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