Compost Facility On Edmonton's West End To Shut Down
Here's a story I've been following for three years, since I moved into the west end: There's a compost facility that has regularly been implicated in stinking up the neighbourhood.
CleanIt GreenIt (CiGi) has operated in west Edmonton, in the industrial park on the southwest side of the Yellowhead and the west leg of the Henday, since 1998. Compost facilities are regulated by Alberta Environment and Parks (AEP) under the Environmental Protection and Enhancement Act.
In order to operate, they require a type of Provincial license - either a 'registration' or an 'approval'. Registrations are relatively summary regulatory processes, whereas approvals involve more detailed regulatory oversight. Initially, CiGi proceeded by way of Registration, and the Province gave it to them. In hindsight, there are issues that have caused AEP to regret that decision.
The context of the west end has changed dramatically over the years. When CiGi opened, there weren't many residential neighbourhoods nearby. Now, much of the west end, on the outside of the Henday, is filling out with residential subdivisions. That part of the city is looking very different these days.
It's The Smell
"It's the smell, if there is such a thing. I feel saturated by it." - Agent Smith, the Matrix
CiGi's most significant issue - and the most direct one for the community - has been odour. Notwithstanding CiGi's attempts to deflect and say that it's not just them, but miscellaneous other possible odour sources in the area, CiGi produces a distinctive sickly-sweet stench. My understanding is that this smell is produced as a combination of gasses from anaerobic decomposition of the waste they take in: Aerobic decomposition supposedly isn't so bad, which means that the biological processes are oxygen-fuelled, but if they don't circulate enough oxygen into their waste, then anaerobic decomposition takes over, a process marked by putrefaction and the release of pungent gasses such as hydrogen sulfide.
The stink is periodic, and there are blocks of time where it might frequently stink intensely, and other blocks of time where I go months without noticing it. As well, there's a geographic element to it: Wind patterns seem to affect some parts of the community more than others. My own experience has been that the smell is rarely strong enough to get into my house, and only occasionally strong enough to particularly bother me outside my house. But there have been times when, walking around the community, it's like crossing a threshold into an invisible cloud of stench, where one second I don't notice anything, and the next second I'm gagging.
So when there are some people who complain about respiratory difficulties and being severely and frequently impacted by the smell, I don't doubt them.
And this has been ongoing for years and years. There have been enforcement action by AEP (or AEW, as it was previously known), AHS, and the City going back at least as far as 2004.
Over the time I've followed the issue, people have repeatedly complained to the City (resulting in charges and convictions under the Community Standards Bylaw) and to AEP. There have also been directions to send the complaints contemporaneously to CiGi, to allow them to investigate. CiGi then sends its own 'patrol' around to see if they smell anything there. (There are plenty of accounts of members of the 'patrols' reporting no odour at a given place and time, while members of the community say the opposite of basically the same place and time. The outcome of the patrols is, at best, self-serving.)
(Me, I doubt the propriety of expecting people to send their complaints directly to CiGi: You're telling them where you live. There are also accounts in the community of CiGi trying to convince complainants to not make complaints to the City or AEP.)
It's not just the smell, though. Other concerns of AEP have been allegations of CiGi taking more waste than permitted, hazardous waste, liquid waste, as well as concerns about groundwater and surface water.
Cancellation
So in March 2021, AEP cancelled the registration, effective June 30, 2022. There was some implication that AEP would consider an approval process, but the existing regulatory framework clearly wasn't getting the job done. (Around the same time, the City was taking steps to bring a court application to enjoin CiGi from operating. That seemed to fizzle, and I assume that the City stopped pursuing the injunction after the registration cancellation.)
CiGi filed an appeal with the Environmental Appeal Board. Just one problem: While the EAB has jurisdiction to hear an appeal from the cancellation of an approval, they don't have jurisdiction to hear an appeal from the cancellation of a registration, as this was. That's fairly straightforward language in the EPEA. The EAB immediately wrote back and said (I'm paraphrasing) "We think you're in the wrong place." In January 2022, they made a decision confirming that they didn't have jurisdiction to hear the appeal.
Then CiGi wrote back to AEP and proposed an extended closure plan that would leave them open until December 2024. In April 2022, AEP said no.
Finally, in June, CiGi applied for an approval - which is a lengthy process, and simultaneously applied for judicial review of the cancellation, seeking to stay the cancellation until the hearing of the judicial review application.
The judicial review application is scheduled to be heard in November 2023.
In late June, they got an 'interim' order staying the cancellation for long enough to...argue more fully about whether to stay the cancellation. I would argue that this wasn't appropriate in context. Urgency is part of the test for that, and when the only reason it was urgent was because the applicant waited until the eve of the cancellation to bring the application, that's not a basis to grant that relief. (In one hearing, Justice Feth indicated that he had 'concerns' about the granting of that relief, which I assume was along similar lines to my own, but he wasn't going to interfere with the order of the previous Justice.)
The delay creates a set of broader problems, really. But more on that below.
It was brought back on before Justice Kevin Feth for a full hearing two weeks ago. Last week, he released his decision.
Injunction Hearing and Decision
Ordinarily, to get an injunction pending the final hearing (of judicial review in this case), you need to prove three things: Firstly, that you have a 'serious issue to be tried' - that is, that you're laying out a case that could win. Secondly, that denying you the relief will cause 'irreparable harm' that can't be compensated through payment of money. Thirdly, that the harm you'll suffer is greater than the harm the OTHER party would suffer by granting relief.
Serious Issue to be Tried
Typically, that first stage would mean showing that the original decision-maker was arguably wrong (or, more likely, that the decision was arguably unreasonable), but in this case CiGi faced an additional hurdle, because they only brought the JR application nearly 15 months after the decision was made, and there's an inflexible 6 month limitation period for JR applications. So they needed another way in.
One way around was to try to say "The EAB should have heard the appeal". Basically, that argument is seeking JR of the EAB decision, saying that they should have to decide the appeal before their registration gets cancelled.
Super weak argument, though. CiGi's lawyer made a pitch not-at-all referential to the language of the statute, instead making a loose argument based on the Hansard - the legislative transcript when the EPEA was passed - that the legislative intent was to create a two-tier process.
The EAB is entitled to deference when interpreting its home statute, and the interpretation it made was easily defensible on the merits, so that's not a way in for CiGi.
The Refusal of the Extension
CiGi tried to argue that the refusal of the extension was the refusal of a reconsideration that somehow extended the six month period. There were a few possible mechanisms here, but all problematic.
Basically, CiGi tried to argue that when CiGi refused to extend the timeline, that restarted the six-month timeline for judicial review as a reconsideration decision - basically, that the original decision wasn't 'final' until the refusal to extend.
Firstly, there's no 'reconsideration' power in the EPEA for this type of decision. Once the decision was made, it was largely out of the Director's hands to change.
Secondly, even where reconsideration powers exist, it's something of a two-stage process: The first is that the decision-maker decides whether to reopen the question, and the second is that they reconsider the question. (It's entirely plausible, and not uncommon, for a decision-maker to find that there is a basis to reopen the question, to conduct a reconsideration hearing on that basis, and then come to the same as the original conclusion.)
While a decision made upon reconsideration would be open to judicial review on the merits, a decision as to whether to conduct a reconsideration can't restart the six-month clock, or it would just be an easy end-run around limitations periods. So courts don't let that happen.
They further argued that the refusal itself required a procedurally fair process - raising a separate substantive JR question as to whether AEP should have extended the cancellation date.
The Director does have discretion to extend an 'expiry date' - if, in fact, a registration's cancellation date is an expiry date within the meaning of the EPEA - and one of the interesting things about discretionary powers is that there is an obligation, if minimalistic, to assess whether or not to exercise discretion. However, the Director only had the statutory discretion to extend the expiry date by one or more periods of one year: A 30-month extension as requested would have required three different extensions, and trying to roll that into one would defeat the language of the Act.
In short, neither the EAB decision nor the refused extension presented a serious issue, and the original decision was out-of-time.
Irreparable Harm
While the threat of a business closure does, indeed, present a prospect of irreparable harm, Justice Feth wasn't satisfied that the evidence before him demonstrated a high magnitude of harm. While there was some evidence that an abrupt shutdown would exacerbate costs, the fact that they've been on notice of the cancellation since March 2021, and failed to take reasonable steps to mitigate that effect, made Justice Feth unsympathetic to this.
CiGi also argued that denying relief would render the JR 'nugatory' - basically, if CiGi's already been shut down for 15 months by the time the JR is decided, then even winning the review and setting aside the cancellation won't necessarily allow CiGi to reopen.
Justice Feth noted that they were, in large measure, the authors of their own misfortune in waiting so long to commence the JR process. However, he found that some measure of irreparable harm had been shown, despite his skepticism about its magnitude.
Balance of Convenience
Justice Feth put a high value on the public interest advanced by AEP's regulatory authority, in a general sense. It's harmful to the public interest to deny AEP the ability to exercise its statutory mandate.
Furthermore, given the nature of the issues experienced in the course of trying to regulate CiGi, there was a compelling case for wanting to meaningfully exercise that mandate in this instance.
The evidence also reveals, including through the history of the Enforcement Order and amendments to it, that the Department made numerous efforts over the years to regulate and address concerns about the composting facility, often with unsatisfactory results.
This analysis makes sense. If the evidence showed that AEP should be able to mitigate its own concerns through taking other regulatory enforcement measures, then that probably shifts the balance of convenience. But the long term persistence of issues despite ongoing enforcement efforts made that less likely.
(Incidentally, this analysis is really close to the merits of the JR in a larger sense.)
CiGi argued that the concerns were overblown, inflated by a local "smear campaign" (i.e. by the "Stop the Stink" Facebook group), and that the local environmental issues might be attributable to other causes.
The 'attack the community' approach annoys me. I've followed that Facebook group for years, and it predominantly serves four functions: Firstly, it provides information to the community of HOW to make their concerns heard - i.e. calling complaints into the City and Province. Secondly, it provides a medium for communications with authorities to be shared with the community. Thirdly, it allows discussions and tracking of data relating to odour - when and where it's identified, associated wind patterns, etc. Fourthly, there's no small amount of griping about the smell - people saying just how affected they are by it.
I've never seen any suggestion that anyone is sending, or should send, false complaints to be capricious or to exaggerate the severity of the problem.
Perhaps more importantly, there's no axe to grind here. Yes, various members of the community wants CiGi shut down. But the reason they want CiGi shut down is because it stinks. To suggest that the complaints are driven by community animus ignores the fact that the community animus is driven only by the subject matter of the complaints.
CiGi also argued that a reduction in complaints over the past period reduces the harm. (This is where the analysis departs from anything resembling 'merits of the JR'. Complaints post-dating the decision can't be used to inform the reasonableness of the decision; however, the ongoing state of affairs does inform the test for an injunction.) Justice Feth got a bit speculative here, and I think he was probably wrong to do so, suggesting that maybe the complaint volume was depressed because of the community's awareness of pending closure, etc.
For my part, I'd say it's probably true that there have been fewer serious odour episodes over the past year or so.
But where Justice Feth went from there is, imho, unassailable:
In summary, even if some improvements have occurred, the changes are too little and too late. The evidence shows persistent and pronounced environmental and regulatory problems when the Cancellation Decision was made and during the time since then.
That's been my take on CiGi. Years and years and years of persistent problems. Sometimes they get a bit better for a block of time, usually in response to serious regulatory measures like enforcement orders or threats of shutdown, but then they get worse again. One of two things is true: Either CiGi is incapable of consistently managing the odour in a way that makes it suitable to exist within the limits of a major city, or it is capable of managing that odour but has generally decided not to.
You're not going to convince me that you're a good neighbour because we go a few months without it stinking. Quite the contrary, if the implied claim is that you've suddenly fixed the ongoing problem, it makes me wonder why you couldn't execute that feat at some prior time.
CiGi made a further 'public interest' argument, suggesting that leaving them open was in the public interest, because they serve an important function by taking in waste, diverting from landfills and giving people an alternative to illegal dumping. (Their counsel also suggested that an abrupt shutdown would make the stench WORSE because they'd no longer be able to afford to properly run the facility and manage the smell. That strikes me as less of a legal argument and more of an extortionist threat.)
I find that to be an interesting question, as to whether an applicant in this instance, seeking to restrain a public regulatory body from carrying out its clear statutory mandate, can raise a countervailing public interest for the balance of convenience. In constitutional challenges, sure, but on a JR application where you're just trying to restrain an ostensibly-constitutional regulatory function?
A JR application can hinge on questions of whether the decision-maker properly considered all the appropriate factors, but finding that countervailing public interests weigh on the balance of convenience at this stage would mean the Court is inserting itself into the determination of regulatory priorities. It would seem to be overreach.
Overall Notes
There are a few themes running through Justice Feth's reasons: Firstly, he seems satisfied that AEP had legitimate concerns about continuing to allow CiGi to operate. While the community has been somewhat dissatisfied by the delay in real action, it really vindicates AEP's approach when their history of enforcement attempts is treated as a substantive factor on balance of convenience.
Secondly, to the extent that they'll suffer from not getting interlocutory relief, CiGi's delay in bringing judicial review, and in not taking steps to prepare for the shutdown otherwise, made them the authors of their own misfortune. It seems like CiGi largely sat on its hands until the shutdown is imminent, and then went to court to say that shutting them down abruptly was inappropriate.
CiGi had excuses for the delay, but they were hollow. For example, they argued that applying for judicial review while also appealing would have been premature. Noting, fairly, that the EAB had pointed out the jurisdictional issue at an early stage, Justice Feth suggested that the prudent thing to do, at minimum, would have been to file the JR application to preserve rights. Nor had they filed an application for a new Approval until the eve of the shutdown.
From an outside perspective, I can only speculate that the delay was tactical: Knowing that the chance of succeeding on the JR was low, they delayed in bringing the JR application in the hopes that they could get an injunction, in a bid for time. Even if they genuinely believed that the revocation of a registration was appealable (which I could accept as an understandable error if the EAB hadn't told them right away that it wasn't) or that they'd get an extension from the Director (despite the fact that the closure plan they proposed was wildly ambitious), nothing explains the months-long delay before filing after both of those hopes fell through.
If it wasn't a deliberate gamble, playing for time, you'd have most likely seen the JR application filed no later than September 2021, and - if necessary - an application for interlocutory relief filed no later than April 2022.
I can't entirely rule out the prospect of an error by counsel, but CiGi retained a fairly well-respected firm, so I wouldn't jump to that without some real basis. Given the choice between "They chose to wait" versus "They dropped the ball", I'd presume the former.
And they got to continue their operations for almost two months past the cancellation date, so the play for time wasn't completely unsuccessful, but I doubt that extension is really what they hoped for.
Further Thoughts on Delay
Given the overarching concerns about delay, my thinking is that it goes into a different framework beyond any of those applied by the court.
Even if the test for an injunction were satisfied, it's still what we call 'discretionary' relief for the court to grant. While that discretion has to be exercised in a principled way, the effect is that there are equitable defences to the relief. Delay is one such defence, and seems an appropriate consideration in this instance: When a party had full notice of the decision roughly 15 months in advance, and nothing materially changed in the mean time, waiting until the 11th hour to start the process raises a question, even if the test were otherwise satisfied, of "why did you wait this long to start the process?" Given the duration of the JR proceeding, it's likely that the duration of the interlocutory period could have been significantly reduced or even eliminated altogether had they proceeded expeditiously; requiring interlocutory relief by reason of your own delay is, it seems to me, sufficient reason to deny that relief altogether.
A Bad Draw for CiGi
Judicial review engages concepts of what we call 'administrative law'. As a former labour lawyer, Justice Feth would be well acquainted with admin law. Makes it much harder to engage in any legal prestidigitation when the judge actually knows the area of law.
When CiGi pointed to a case talking about reconsideration that referred to authorities involving the Labour Relations Board, Justice Feth was immediately cognizant of the fact that the LRB has an express statutory reconsideration power, distinguishing that discussion from the case at hand.
He was also well aware of the mechanics of reconsideration, and that a mere request for reconsideration can't restart a limitations clock on the merits.
He knew readily that the EAB was entitled to deference in its interpretation of its home statute - a point that CiGi contested, and that even the Province's lawyer wasn't taking, even though Vavilov is quite clear on the matter.
(To be fair, under older versions of 'standard of review', the jurisdictional question would have been a matter of pure law that wouldn't have been entitled to deference, and many of us lawyers are skeptical of the propriety of delegating questions of statutory interpretation to be definitively decided by administrative tribunals. But Vavilov prevails, for the moment.)
If they choose to appeal - though it's tough to meaningfully appeal a denial of interlocutory relief - it'd be an uphill battle for them. Justice Feth's assessment of evidence for the balance of convenience is entitled to deference. While I could probably make an argument (were I so inclined) that he erred by making speculative inferences, it'd be tough to argue that the error (if it was an error) rises to a level calling for appellate intervention. Moreover, the findings in respect of the EAB decision and the extension refusal are on pretty solid legal grounds.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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