Passion and doggedness are essential for Canada's environmental lawyers.
Passion and doggedness are essential for the lawyers who lead Canada's environmental non-profits.
Nothing about practising environmental law in the non-profit sector is easy, and that includes finding a place to park your desk. Theresa McClenaghan, executive director and counsel of the Ontario-based Canadian Environmental Law Association, may have been active in the field for 25 years, but she has only recently arrived at a solution she is happy with for housing her legal aid non-profit.
After decades of moving between lofts and other marginal accommodation, CELA recently took up residence in an aging office tower on University Avenue in downtown Toronto. The space became financially feasible as a result of many larger, richer organizations decamping south to the shiny new towers overlooking Toronto harbour. CELA, along with seven other publicly funded specialty legal clinics, have formed a co-op and now have linked freshly designed offices over two spacious floors that allow them to save money by pooling resources, among other mutually supportive activities. Wryly, McClenaghan notes that the most recent move is a great relief for some of the older lawyers: “We have a 15-year lease, which means we probably won’t have to move again in our careers.”
That struggle just to find proper office space reflects the huge challenges, on many fronts, facing lawyers who work in not-for-profit environmental law organizations. While Canada now has a clutch of such non-profits scattered across the country, they remain underfunded and understaffed. At the same time, they are massively overextended in terms of the demands on their time and resources, an issue that has intensified as the public, government and private sector focus more and more attention on the environment, from climate change to pipelines to the concerns of indigenous communities.
Yet, while members of the public, media, government — and even the private bar — often look to these non-profits for guidance when the latest bad news about toxic chemicals or water quality or endangered species hits the headlines, the internal hurdles facing them often go unseen — and unappreciated. “That is the critical issue,” says Meinhard Doelle, professor and associate dean, research, at the Schulich School of Law at Dalhousie University in Halifax and a founder of the 10-year-old non-profit East Coast Environmental Law Association. Doelle points out a fundamental problem: There is rarely any individual or organization that has a self-interest in protecting Mother Nature, a key gap in an adversarial system. “With many other social issues, there are organizations or individuals that have lots of money, on both sides,” Doelle says. “When it comes to environmental issues, that often isn’t the case.”
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So, why do these lawyers do it? It can’t be for the much-lower-than-average pay, the long hours, the burnout, the complex litigation files fought against lavishly funded opponents, not to mention the need for constant outreach to maintain the trickle of financial support from government, private donors and the ever-shrinking resources of law society foundations. Like all of the litigators interviewed for this article, McClenaghan points to early childhood experiences. “My father worked at TransCanada pipelines,” she explains. “I grew up on pipeline compressor stations all across the country. So we lived in, basically, the wilderness in northern Ontario and the Prairies, and I was very devoted to the outdoors.” By the time McClenaghan reached university, she was committed to working in environmental protection.
But initially, law was not part of the plan. It was while completing an undergraduate science degree that McClenaghan began to think that a legal education could provide powerful tools to fight the battles she saw ahead. A preference for litigation showed itself early, and McClenaghan focused as much of her training as possible on courtroom skills and environmentally related subject areas in the early ’80s, when there were very few dedicated environmental law programs at Canadian law schools.
“I made my own specialty,” she recalls. “So, if I did property law, I made my paper about water rights. In legal history, I made my paper about indigenous treaties and land rights. In international business transactions, I made my paper about natural gas exports from Russia, which were under a ban at the time.”
McClenaghan spent several years in a private general litigation practice, partly for family reasons, and finally joined CELA full time in 1998. She has been the group’s executive director since 2007. During her 25-year career as an environmental law litigator, McClenaghan has acted on files ranging from the mid-1990s Walkerton Inquiry into tainted drinking water, which garnered international attention and led to tough new legislation in Ontario, to matters dealing with pesticides, green energy, air quality and, more recently, the safety of nuclear power plants and radioactive nuclear waste disposal.
But while pursuing their work on substantive environmental issues, lawyers at these non-profits often get pulled off into many other energy-sucking functions. Too often, they find themselves spending huge chunks of their time, sometimes 40 to 50 per cent, depending on the organization, performing tasks not directly related to their legal work. Those activities can include public speaking and fundraising, community outreach, media enquiries on breaking news, lengthy grant applications and education. The latter might even include vetting the pleadings of private sector lawyers who require assistance, for instance, with drafting documents for plaintiffs in a class action.
Jessica Clogg, executive director and senior counsel at West Coast Environmental Law in Vancouver, laughs a little when asked whether so many competing demands can create a fed-up feeling at times. “Sometimes, the scale of the challenge can feel large. You may work very, very hard and there still may not be the time or the resources to do everything that you think could be helpful,” she says. “But, no, I don’t get fed up. There’s still too much work to do.”
Clogg, a 22-year veteran of WCEL, set her sights on her current profession while growing up in a wilderness area near Mission, B.C. She recalls her childhood distress at the clear-cutting forestry practices then carried out in the area, the resulting erosion and flooding and the limited ability of First Nations communities to make their voices heard. By chance, at 15, she heard a lawyer from an international committee speak on the issue, a spark that eventually led her to Osgoode Hall Law School at York University and a joint masters/LLB in law and environmental studies. Looking back on her early passion for social change and her teenage conclusion that law was the way to achieve it, she is rueful: “I sometimes say I was still in tie dye when I hit law school.”
On top of all this, the work is likely to be subjected to sudden, often probing public attention. Clogg recalls the abrupt onset of media demands when the government of former prime minister Stephen Harper rolled back environmental protections in 2012. Many key changes were deeply buried in a 400-page omnibus bill headlined by the federal budget. “A reporter had gotten a leaked copy, and he called me every half hour, looking for comment,” Clogg says, recalling the need to be up to speed on the proposals in a highly compressed time frame.
But that, as she notes, is part of the job. “Being in the media spotlight, your submissions, your legal opinions, will be publicly released and there will be a different level of scrutiny. You have to be up for that, perhaps even enjoy that, because it is a reality of this area of practice.” And there is little room for error. “I expect my lawyers here to be really impeccable in their work,” Clogg says, “because I know the scrutiny they are going to be under. Just being very, very prepared, knowing the law and knowing the facts better than anybody is a pretty good antidote for any criticism.”
David Estrin is one of Canada’s most senior lawyers practising environmental law, with decades of experience that range widely from non-profits to academic appointments to private practice. He is the co-founder and co-academic director of the Environmental Justice and Sustainability Clinical Program at Osgoode Hall Law School, a founder of CELA (in 1971) and counsel to Gowling WLG. While some members of the public, government and private sector firms may view this type of environmental activism as extreme or lacking in balance, that is not a view he shares. For one, these clinics use and adhere to the existing justice system. “They don’t push radical [agendas] in the courtroom, because they know they won’t be listened to,” he notes.
Indeed, he says, their efforts are part of an evolution in the justice system that is long overdue, a shift aimed at improving access to justice. “There are many things that could be changed in the legal system, and need to be changed, if there is going to be better access to climate justice. Organizations should go out and articulate that,” Estrin says. “The current system we’ve inherited, when it comes to trying to get into court on climate change, doesn’t work really well. We have a system where people who are suffering from climate change, [such as] indigenous communities or communities that may be flooded out on coastal areas, [can’t afford legal support]. It’s not a just system. It’s tilted towards those who continue to emit these contaminants.”
Making things more difficult, it appears that lawyers who do wish to practise in this area require an unusual level of personal commitment. That includes a willingness to become knowledgeable in non-legal areas, many with a science component. That can include diving into the molecular composition of pesticides, absorbing the oral legal traditions of First Nations communities or finding novel ways to enforce existing laws. Lisa Mitchell, the only full-time staff lawyer at ECELAW in Halifax, grew up in rural areas and had early ambitions to be a veterinarian. She became a lawyer instead and then did a masters in environmental studies, including many science courses, all with a view to environmental protection. Now, with many years of private practice behind her and acting as both the executive director and senior lawyer for the clinic, she still spends much time educating herself about the science of the issues ECELAW takes on. She also acts as fundraiser (it does not get legal aid), communications professional, government liaison and public outreach. “It is certainly big,” she says, when asked about the range of functions her role entails.
As head of one of the most thinly funded environmental non-profits, Mitchell has also learned how to be creative. A current push to establish a new bill of environmental rights for all provinces was recently launched in Nova Scotia with the assistance of the Wooden Monkey, a local restaurant whose owner sits on the board of ECELAW. “We look for people who are really passionate about the area and who have varied interests,” Mitchell says, noting that connections like this in the community can assist on less traditional but effective fronts, such as using social media to reach potential supporters.
Mitchell speaks from experience about the years of dogged effort that achieving even one victory can require. She notes a recent, innovative strategy to move forward in a stalled dispute over allegations of contaminated drinking water in Harrietsfield, a tiny community on the Chebucto Peninsula. With the assistance of Mitchell and ECELAW, local resident Marlene Brown spent more than six years writing letters, complaining to the provincial government and taking various legal steps to get action on her concerns about tainted water in her community. Getting nowhere, Brown, with a private lawyer and the assistance of ECELAW, launched the first private prosecution in Nova Scotia on an environmental issue. Then, in July, the province’s Public Prosecution Service took over the prosecution. “This was after really struggling to get the government to take this forward,” Mitchell says. “[The private prosecution] seemed like the only option.”
Indeed, the complex, sometimes delicate balancing act between these non-profits and governments may be the single most challenging relationship these lawyers negotiate. While seeking legislative reform, for instance, they may easily find themselves suing the same governments they are hoping to persuade.
CELA’s McClenaghan views the relationship as a viable and necessary one, in which both the government and the public value CELA’s lack of a pecuniary interest in the outcomes. “People appreciate that CELA does on-the-ground case work, as well as test cases and law reform,” she says. “Government is calling on us all the time, just like the other specialty [legal aid] clinics, to join advisory committees or to give them some input on a particular law reform initiative.”
And McClenaghan points to CELA’s reputation for pragmatism, with a focus on incremental changes, such as those to limit air pollution over decades, not years. While steel mills may be polluting, for instance, and their emissions are in need of close monitoring, steel is needed to make windmills, she notes. “We can be very pragmatic because we know you can’t completely solve everything in an instant, so you need to make advances all the time.”
Clogg, also a seasoned litigator and campaigner on behalf of environmental protection, puts more emphasis on the carrot and the stick approach. “You have to create sufficient pressure to get government to talk to you and to have enough leverage to achieve the changes you want,” Clogg says. “The crux of government relations is about relationships, though. You can maintain strong relationships by honest communication, [for instance], by giving government officials a heads up before you do things.”
Part of a successful strategy, she adds, is acknowledging constraints on government while at the same time helping supply the information it may need. “They need to have the political space to move in the direction that we want them to go,” Clogg says, “or even those [directions] that are consistent with their own policy or mandate.
“That’s the dance of it,” she adds. “But they are not unrelated. It would be very naive to think you could come to the table and be taken seriously if you did not have the weight of political or legal or financial leverage behind you.”
At least one environmental non-profit has made the decision to focus the majority of its efforts on litigation as a tool to obtain objective decisions and raise the profile of environmental issues. Ecojustice is entirely funded by private donations and is the largest environmental non-profit in Canada, with offices in Ottawa, Toronto, Calgary and Vancouver. Under executive director Devon Page, the board and staff decided several years ago to refocus on litigation, with law reform remaining a key priority. Recent successes include a lawsuit launched in 2016 on behalf of the World Wildlife Fund, which sought an order for the federal government to remove Shell Canada’s long-expired 1971 oil and gas exploration permits in Lancaster Sound, part of a proposed new federal marine park in the far north. The matter was settled in August 2017 when Shell voluntarily relinquished 30 permits, allowing the boundaries of the park to be expanded.
For Ecojustice staff lawyer Kaitlyn Mitchell (no relation to Lisa), the size and funding depth at Ecojustice, as well as the tighter focus on litigation, means relative freedom from the fundraising and other activities that can eat up precious time and energy. True to the pattern of litigators in this field, she recalls a childhood love of — and concern about — nature, one that led to the early focus that eventually helped her obtain a non-profit position in her field, where jobs are notoriously hard to come by.
After obtaining her LLB with a certificate in environmental law from Dalhousie, Mitchell worked as a summer student at Ecojustice and then landed an articling position at CELA. She joined the staff in 2010 and now focuses on environmental rights issues, both in terms of the campaign to achieve a national environmental bill of rights and related litigation. After a decade practising exclusively in the non-profit sector, she says it is both highly satisfying and, at times, a struggle: The services are free, the demand is huge and it’s tempting to take on yet another meritorious claim. “There’s a serious risk of burnout,” Mitchell says.
What might help is more firepower on the non-profit side or even more stable funding. Both Estrin and Doelle have suggestions on that front. Estrin notes that costs rules could be updated, so principles that originated in 19th-century commercial law — loser pays — are modified to protect plaintiffs from ruinous financial punishment should they lose. Doelle points to law foundations, and the legal profession in general, as potential sources for more funding.
But more than that, both note the need to stand back and adopt a wider perspective — or pay another kind of price in the future. “You need to take a big-picture perspective,” Doelle says, beyond that of particular companies or governments worried about being sued if they lend support to environmental non-profits. “You have to recognize that it’s a critical function in our society, if we are going to take environmental issues seriously. Unchecked discretion and power doesn’t serve any of us,” he says. “We need to be supportive of levelling the playing field and ensuring that people are held to account for complying with the environmental laws that we have.”
And should the sector shrink — or simply cease to exist — the gap is likely to be a yawning one. “Not that we have perfection now, but [such a failure] would really leave [those with major environmental issues] unrepresented,” Estrin notes. “Companies and governments [that] propose things often don’t think necessarily about the impact their initiative or proposal may have on a community. But it’s very difficult for people to think about using the legal system, let alone to consult a lawyer in a normal practice, unless the lawyer is prepared to act on a pro bono basis. It’s essential for access to justice on environmental issues that these programs exist and, in fact, be enhanced.”
CELA’s McClenaghan, looking back on 25 years of effort, with many victories and many disappointments, puts it more bluntly. “It’s all hanging by a thread. We can see, in international events generally, that the whole system of democracy is much more fragile than people realize. It means that we have to fight hard to achieve citizen participation rights and to maintain them and use them well and improve them. It does not take much to disrupt those rights.”
For now, at least, funding for most of these groups seems stable, if not adequate. And while, for staff, there can be many frustrating days, Kaitlyn Mitchell, like the other litigators in this article, seems more buoyed by her work than burdened. What is most crucial, they suggest, is that non-profits like theirs stay the course. “Sometimes, it seems that, because there’s so much going on, so many problems facing the environment, that we are at risk of the general public reaching a point where they feel powerless or overwhelmed and less motivated to act,” Mitchell says. “So, we need to always articulate our work, explain what the problem is, but also in a way that makes people feel hopeful and that there is something to be done.”
That’s not to say that optimism should be overstated, she says. Referring to clients who are sleepless over toxic chemicals in their communities or who are struggling with breathing problems related to nearby smokestacks, Mitchell advocates a balancing act familiar to many professionals. “It’s hard to know that you are not going to fix the problem for everybody, unfortunately, and you need to stay motivated. I think that’s probably the emotional burden. It’s probably the hardest part of the job: to take it, understand it and let it motivate you instead of letting it destroy you.”