Patterns of air pollution enforcement in Canada: Environmental priorities versus enforcement outcomes Open Access

Ambient (outdoor) air pollution poses several health risks that increase the risk of disease or premature death. Globally, 25% of deaths and illnesses from stroke, 24% from ischemic heart disease, 14% from lung cancer, and 9% from chronic obstructive pulmonary disease are attributed to ambient air pollution (based on analysis for 2016, World Health Organization, 2018). Even in countries that have relatively low air pollution, such as Canada, health impacts of air pollution are well documented (Brook et al., 2002; Villeneuve et al., 2003; Villeneuve et al., 2007), as are their estimated costs to the Canadian economy ($120 billion per year, based on 2016 currency, Health Canada, 2021). According to Health Canada, approximately 15,300 premature deaths per year can be linked to ambient air pollution (Health Canada, 2021). Many different kinds of human activity can contribute to ambient air pollution. For example, stationary sources, such as factories, refineries, and waste incinerators—often referred to as point sources—are major contributors to air pollutant emissions in Canada (Environment and Climate Change Canada, 2022), though the particular pollutants emitted and quantities thereof vary by source, between industries, and between technologies and processes within source types (Holman, 1999). Further, studies from the United States have shown that the distribution of emissions can be highly skewed between and within industries as well, so that a minority of industries and industrial facilities (“toxic outliers”) emit a disproportionately high volume and toxicity of pollutants (Collins et al., 2016).

At the policy level, managing air pollution involves regulating emissions sources in order to protect air quality. To control emissions, local, provincial, and federal governments generally set laws based on pollutants and/or sources of pollutants (Wilkins and MacDonald, 2009). However, the existence of laws and regulations alone is not enough to yield environmental benefits: both the quality of these laws and their enforcement are critical to deter rule-breaking and encourage compliance (Gunningham, 2011; Giles, 2022). When enforcement agencies detect violations, a spectrum of enforcement tools is available, including fines, prosecutions, warnings, and more (Girard et al., 2010; Amos et al., 2011; Boyd, 2015). The tools enforcement agencies use and the extent to which they are effective at detecting and deterring violations are important factors for environmental outcomes, like healthy air quality (Harrison and Antweiler, 2003; Alm and Shimshack, 2014; Shimshack, 2014; Ringquist, 2015; Zou, 2021).

There are diverse styles of regulatory enforcement within and between countries (Harrison, 1995, 1998; Stafford, 2002; Gunningham, 2011; Alm and Shimshack, 2014; Giles, 2022), ranging from those that are more adversarial and direct (e.g., the United States) to those that are more cooperative (e.g., Canada, Australia, and the United Kingdom). Evaluating the efficacy of enforcement models is especially important as governments implement new policies addressing such formidable issues as climate change and worsening air quality. For instance, in 2021, the World Health Organization published strengthened guidelines for air quality, reflecting new evidence about the magnitude of adverse health effects caused by pollution (World Health Organization, 2021).

Research by scholars and private entities has suggested that penalties for environmental violations in Canada are relatively low, and the regulatory environment is generally lax compared to other jurisdictions in the Global North (Harrison, 1995, 1996, 1998, 2011; Nimonik, 2010; Boyd, 2015; Berkley Canada, 2019). However, trends in air pollution enforcement in Canada have not been investigated, including which types of air pollution violations are enforced with what tools, in what provinces, and for which types of offenders. This research focuses on that critical gap, providing more detailed information on how air pollution violations are enforced across Canada. Accordingly, we ask: What are the demonstrated approaches to enforcement? How do they vary across jurisdictions, time, or other factors? What types of violations or offenders appear to be prioritized for enforcement action in Canada? The Canadian case is a relevant example for many jurisdictions, as governments around the world struggle to effectively implement their environmental regulations (United Nations Environment Programme, 2019).

The disparities between federal, provincial, and local air quality policies and the harmful pollution that occurs are partially a function of “compliance.” “Compliance” with environmental laws is the rate at which regulated parties adhere to the terms of their permits and the environmental laws of the jurisdiction in which they operate. “Noncompliance” is synonymous with law “violations” in this context. (Non)compliance is a function of several factors, including policy design, enforcement actions, social pressures, and market incentives (Cohen, 1998; Alm and Shimshack, 2014; Ganslandt, 2020; Giles, 2022). Giles (2022) posits most compliance is attributable to policy design and that even the most robust enforcement regimes cannot close the gaps created by poor policy.

In both the United States and Canada, Giles (2022) theorizes compliance to be very low, but neither nation knows precisely how low or the seriousness of noncompliance (in terms of harm to people and/or the environment). Because of poor data transparency (especially in Canada), the public knows less than regulators, but even regulators do not have sufficient information to perform effectively (Giles, 2022). This lack of knowledge is driven by numerous factors: poor communication and records-sharing between levels of government and under-resourced regulators, and, importantly, reliance on firms to self-monitor and self-report their emissions to regulators—often through indirect estimates and calculations rather than direct monitoring (Cairns et al., 2011; Alm and Shimshack, 2014; Giles, 2022; The Land and Refinery Project, n.d.). In Canada, regulators have limited capacity to evaluate the accuracy of industry’s self-reported data. As the Auditor General of Canada said, “Environment Canada does not have adequate systems and practices in place to verify that all facilities required to report their emissions are doing so and that the information they provide is accurate” (Auditor General of Canada, 2009). It is hypothesized that a large—but imprecisely calculated—portion of serious pollution violations go unnoticed and unenforced in both countries (Wilkins and MacDonald, 2009; Giles, 2022).

Although enforcement is no substitute for stronger laws and policies in promoting compliance, it has nonetheless been demonstrated to improve compliance and environmental outcomes (Harrison and Antweiler, 2003; Alm and Shimshack, 2014; Shimshack, 2014; Ringquist, 2015; Zou, 2021). Enforcement may be a particularly important tool for communities that experience disproportionately high levels of pollution—a phenomenon and discipline known as “environmental (in)justice” (EJ) (Bullard, 2001; Buzzelli et al., 2003; Konisky, 2009). However, there is much debate about the effectiveness of different enforcement models for deterrence and how that effectiveness impacts environmental, economic, and other outcomes.

There are several enforcement styles, ranging from “adversarial” to “cooperative” approaches; as Hawkins (1984) writes, “Law may be enforced by compulsion and coercion, or by conciliation and compromise.” On the direct and “adversarial” end of the spectrum, regulators set overarching rules, and firms are expected to comply, with few exceptions (Harrison, 1995). This enforcement style focuses on deterrence, assuming that rational actors will respond to incentives that consistently, clearly, and severely punish noncompliance (Gunningham, 2011). On the “cooperative” side, regulators work with regulated entities to support compliance through “advice and persuasion” (Gunningham, 2011), often with more flexibility in how compliance is interpreted and with more formal sanctions being used only in extreme cases (Harrison, 1995). More broadly, cooperative environmental regulation may refer to a wide range of practices, including firms setting their own rules (voluntary), or working with regulators to negotiate terms (Harrison, 1998). Proponents of these cooperative approaches argue that a more collaborative approach can lead to more efficient paths toward compliance and prevent a “culture of resistance” (Bardach and Kagan, 1982). Most governments exist somewhere in between these 2 poles, not adopting one extreme or the other (Harrison, 1998). In the Canadian context, direct approaches are used infrequently but have been observed to be more effective, particularly in terms of compliance and environmental outcomes in the pulp and paper industry, and can be more economically efficient (Harrison, 1995, 1998). While regulators have ample choice regarding how to operate on this spectrum—and much of this choice is political—the range of choice is constrained by the parameters of the policy being enforced and the resources available to the regulating agency (Harrison, 1998; Gunningham, 2011).

Following Gunningham (2011), we use the following characteristics to distinguish between enforcement styles that span the continuum between adversarial and cooperative. An adversarial style of enforcement might be typified by the full use of available sanctions and court prosecutions in response to violations. In contrast, a cooperative approach would be evidenced by limited use of formal enforcement actions and prosecutions (in number and stringency), and reliance on informal negotiation and persuasion. A flexible and responsive approach that combines elements of deterrence and cooperation would involve a “tit for tat,” where a cooperative approach is taken initially, but with increasingly stringent and deterrence-oriented responses if noncompliance continues (Scholz, 1991; Ayres and Braithwaite, 1992; Gunningham, 2011). A risk-based approach also adopts responsive elements, but with more stringent and deterrence-oriented enforcement actions for offenses that pose higher risks to the environment and regulatory objectives. Finally, some jurisdictions may adopt a criteria-based approach, with clearly specified decision criteria to determine enforcement actions that may incorporate elements of the previous strategies (e.g., risk, history with the firm, nature of the firm).

The Canadian federal government has laws, regulations, and policies governing air pollution, but they fail to meet the challenge of managing pollution for various reasons. The Canadian Environmental Protection Act (CEPA), 1999, is the main federal law governing air pollution. CEPA governs the most common air pollutants with known health effects, called “criteria air contaminants” (CACs). The CACs include nitrogen dioxide (NO₂), sulfur dioxide (SO₂), carbon monoxide (CO), ammonia (NH₃), particulate matter (PM), and volatile organic compounds. The federal government establishes the Canadian Ambient Air Quality Standards (CAAQS) for CACs, as measured by ambient concentrations over different time intervals. However, the CAAQS are not legally binding or enforceable and, as such, are voluntary objectives. Voluntary objectives, like voluntary compliance, are less effective than legally binding approaches in terms of environmental outcomes (Boyd, 2015). CEPA also authorized the creation of the National Pollutant Release Inventory (NPRI), a system for major polluters to report their emissions and make data publicly available, and an air pollutant surveillance program (Johnston and Walker, 2020; Berthiaume, 2021). While the NPRI forms a foundation for tracking and sharing data on major polluters, its scope is limited and data authenticity is potentially unreliable because it is self-reported by firms. With these components, CEPA contains the raw policy materials to reduce emissions and improve environmental outcomes, but these powers have not been sufficiently implemented or enforced (Wilkins and MacDonald, 2009). Overall, Canada “consistently ranks among the three worst industrialized nations for per capita emissions of [various CACs]” (Boyd, 2015). Some argue that the underutilization of CEPA and ineffectual administration and enforcement at multiple levels of government are partly to blame.

Provinces possess significant autonomy in designing their air pollution laws and policies, which vary substantially as a result. Provinces and local governments set rules applicable to various types of regulated parties (individuals, companies, municipalities, etc.) and issue permits, which allow parties to emit pollution under a given set of circumstances (at certain levels, using certain equipment, monitoring their emissions, etc.). Permits are legally binding—meaning that a breach of a permit constitutes a violation of provincial or local law. Governments may choose from a suite of enforcement tools if they decide to enforce a permit violation or any other air pollution law.

The larger provinces, Alberta (AB), British Columbia (BC), Ontario (ON), and Quebec (QC), each have an umbrella “Environment Act,” under which BC, ON, and QC have air pollution-relevant regulations. Limited information about enforcement and/or compliance for AB, BC, and ON is available. ON has the most stringent air pollution regulation under its Environmental Protection Act. Ontario Regulation 419/05 sets legally binding air quality standards that generally reflect the CAAQS (Harrison, 2011; MacDonald, 2019). ON provides an extensive guide regarding its enforcement approach, including a decision-making matrix for selecting enforcement tools (Ontario Ministry of the Environment, Conservation, and Parks, n.d.), but does not provide any information about compliance rates. Meanwhile, BC uses a combination of a voluntary compliance approach and a similar decision-making matrix. BC is the only province to report compliance rates for its air-pollution-relevant regulations, which have historically witnessed less than 30% compliance for some industrial sectors (British Columbia [BC] Ministry of Environment and Climate Change Strategy, 2023). In BC and ON, the decision-making matrices include direction to scale a penalty according to the severity of the environmental damage. Finally, AB uses a voluntary approach, illustrated by the following statement from Alberta’s Ministry of Environment and Parks:

To analyze patterns of air pollution law enforcement across Canada, we developed a standardized database of provincial and federal enforcement actions using data from each government. To our knowledge, no comprehensive database exists; data are piecemeal and incomplete across jurisdictions. Sources of data ranged from publicly available databases of environmental enforcement to individual news reports about court convictions under environmental statutes. Our focus is on enforcement actions related to air pollution law violations, specifically point-source and ground-level pollution. Infractions that are merely administrative (e.g., the failure to register for carbon emissions cap and trade programs) are excluded. In the following sections, we detail the data gathering and analysis processes.

We sourced enforcement data from as many Canadian provinces as possible, narrowing the date range of enforcement actions to 2000–2020. Several provinces did not have data available for this complete range, as detailed in Table 1. We gathered data through records aggregated at the provincial level, obtained through government websites, by directly contacting government agencies, and/or through Freedom of Information and Protection of Privacy (FOIPOP) requests. A limited number of observations were garnered through external sites, such as the Canadian Legal Information Institute (CanLII), for provinces without formalized databases or to supplement limited data availability. Datasets were publicly available on government websites for the federal government (abbreviated as FD) and the provinces of BC, AB, QC, and New Brunswick (NB). For Prince Edward Island (PE) and Nova Scotia (NS), data were provided by government agencies through direct contact with staff. For Saskatchewan (SK), data were obtained through FOIPOP applications. For ON, we principally used news reports posted on government websites. In the remaining provinces, public servants either responded that no data were available, asserting that all parties were generally in compliance or near fenceline communities and therefore of less concern (Newfoundland and Labrador), or did not respond to inquiries (Manitoba). Data from these 2 provinces are not included.

Private organizations also have gathered data about environmental enforcement in Canada using a similar methodology. Berkley Canada (2019) produces reports about environmental enforcement actions that produced large fines (>$75,000), while Nimonik (2010) produced a report about environmental fines spanning 1990–2009. From each organization’s data, we were able to cross-validate the observations in our dataset with the air-related enforcement actions found in theirs.

Information about each jurisdiction’s source data and full details on the methodology for extracting relevant data from the raw datasets provided by governments can be found in the Supplementary Materials (SM) Section 1 The data collection and wrangling processes yielded a dataset of 2,217 observations. The full dataset, alongside the code used to obtain the results of this study, is archived at https://doi.org/10.5683/SP3/Q1WHFG. For each observation, we extracted key variables outlined in Table 2 (see SM Section 2 for full variables list and variable coding practices). Tables 3 and 4 describe 2 variables of particular importance: keyword and penalty type.

We used R statistical computing package, version 4.0.2 “Taking Off Again” to perform descriptive analyses of the variables. We conducted descriptive analysis for distributions of fines, penalty types, keywords, offender types, and so on across provinces and over time and used Welch’s two-sample and paired t-tests to examine statistical differences. Additional descriptive statistics were calculated for subsets of observations, particularly those representing potentially larger impacts on environmental and human health, which we define as potentially “high-risk offenses.” High-risk offenses include observations concerning: CACs; repeat offenders (nonindividual offenders who were subject to enforcement action multiple times); cross-provincial repeat offenders (a subset of “repeat offenders,” where a company was subject to enforcement action in multiple provinces); NPRI-reporting facilities (observations of enforcement actions against facilities required to report to the NPRI); NPRI top 20 facilities (a subset of NPRI-reporting facilities ranked in the top 20 most polluting by volume of a given pollutant within a province); and nonindividual offenders.

As described, the dataset we compiled reflects what is publicly available online, what public servants are able and willing to send through email communications, and the products of FOIPOP requests returned over the 2-year data collection period for this study (2019–2021). The dataset may not reflect the total number of law enforcement actions related to air pollution within each jurisdiction. There is substantial variation between and within jurisdictions in terms of the availability and quality of information. While we endeavor to identify trends and preliminary conclusions from these data through the following analyses, the picture is by no measure complete for understanding the landscape of enforcement actions across provinces.

Figure 1, adapted from the Environmental Data and Governance Initiative (EDGI) (2020, Figure 2), explains a more fundamental issue with data quality and access, which we describe as the “violations pipeline.” This figure details the many points at which observations may fall out of the pipeline on the path from point-source air pollution in Canada to the dataset. Pollution may be compliant with legal requirements, noncompliant pollution may not be recognized as a violation by regulators, or it might be recognized as a violation but not subject to any enforcement action. The enforcement actions that do occur might not be publicly published, and finally, those that are publicly posted are subject to the filters we employ for purposes of this study. As such, the dataset is a fraction of the source data detailing enforcement actions, a smaller fraction of all enforcement actions, a smaller still fraction of violations, and an even smaller still fraction of ambient air pollution. Because of the aforementioned poor data quality and reporting mechanisms (Auditor General of Canada, 2009; Wilkins and MacDonald, 2009; Cairns et al., 2011; Alm and Shimshack, 2014; Giles, 2022; The Land and Refinery Project, n.d.), regulators and the public do not know how much noncompliant air pollution or how many violations exist. It is essential to recognize that regardless of where observations fall out of the pipeline, human and nonhuman systems are affected by pollution. Even “compliant” pollution can adversely affect ecosystems and human communities (and disproportionately so for EJ communities). Thus, just as the dataset represents but a fraction of the total pollution that occurs, it represents a fraction of its impacts.

In total, 2,217 enforcement actions related to point-source air pollution were observed during the years 2000–2020. The majority of the observations (61%) occurred from 2012 to 2020. Although proportions vary by province, the overall landscape of observations across provinces is dominated by burning offenses (74.3%, measured by keyword) and individual offenders (62.8%, measured by offender type). Forty pollutant types were observed, with varying proportions between provinces, but the most abundant are smoke, dust, PM, and combinations of pollutants. All others each comprised less than 1% of observations. CACs collectively make up 4.87% of the observations, not including emissions that may contain CACs, like smoke or dust. Almost all observations (92%) represent single violations. The remaining 8% represent multiple violations, where more than one violation is bundled into a single enforcement action. Half of these are concentrated in AB, and half are dispersed among other provinces. The sum of all fines in the database totals $16,277,516 CAD and there were no jail sentences issued.

The overwhelming majority, 92.5%, of the observations come from 4 provinces: BC, QC, AB, and PE. Over half of the observations come from BC, although most of these enforcement actions are tickets for burning offenses (Figures 2 and 4). In general, the distribution of counts and percentages is not strongly correlated with population size of provinces nor the amount of polluting industry therein. ON has surprisingly few observations (69), given its size and the high number of NPRI-reporting companies in the province. In contrast, PE has a seemingly high number of observations (204), given its small size and fewer NPRI-reporting companies in the province. Differences in data availability are likely responsible, at least in part, for the distribution.

The following graphs demonstrate the general themes of offenders, offenses, and enforcement strategies within provinces, as proportions of each province’s total number of observations.

Some provinces enforce a diversity of offenses, as shown by a mixed distribution of keywords across the total proportion of observations (Figure 2). Among these are AB, NB, ON, and QC. Meanwhile, in BC, NS, PE, SK, and FD, most offenses (75%+) center on one type of offense. In BC, NS, PE, and SK, the most common offense is burning, while the federal offense (one observation) is an Emissions offense.

Similarly, different groups of offenders (i.e., individuals, companies, and municipalities) are subject to enforcement actions across the jurisdictions (Figure 3). AB, FD, NB, ON, and QC enforced violations mostly committed by companies (50%+ of observations), while BC, NS, and PE enforced violations committed mostly by individuals (75%+ of observations). The majority of enforcement actions in SK involved violations committed by municipalities (>75% of observations).

Given these offenses and offenders, provinces use various penalties to address noncompliance. Broadly speaking, penalty types can be categorized as a letter (warning, long-form information), monetary penalty (administrative penalty, fine, and ticket), order (enforcement order, environmental protection order, information order, pollution abatement order, and pollution prevention order), or court proceeding, where there is usually a monetary penalty but sometimes also an additional penalty. Provinces vary widely in the penalty type used most commonly (Figure 4). All observations in QC, NS, and FD involve a monetary penalty. Over half of AB’s enforcement actions are warnings (52%). PE and SK also use letters in higher proportions (∼23%) than other provinces, although much less so than AB. ON and FD have the highest proportions of court convictions.

Considering the interactions of Figures 3 and 4, the proportion of tickets and fines is roughly proportional to that of individual-level offenses in most provinces, consistent with the common practice of issuing tickets to individual offenders (most often for burns). The more variable point presented here is how the proportion of other penalty types—namely, administrative penalties, court convictions, and warnings—compare to proportions of nonindividual offenders (companies, municipalities, multiple, and other) in each province. In AB, ON, and QC, >50% of observations concern nonindividual offenders. However, these provinces each levy different penalty types for this group. In AB, 52% of nonindividual offenders receive warnings; in ON, 82% are convicted in court; and in QC, 74% receive administrative penalties.

When enforcement agencies do levy fines, the median fine varies dramatically, ranging from $200 in PE up to $62,774 in ON (Figure 5). Most provinces’ median fine is less than $3,000. The minimum fine, $45, comes from an individual ticketed for burning in BC, while the maximum fine, $5.3 million, comes from a high-profile gas explosion in ON.

Across provinces, the range of fines is consistent across keywords (Figure 6). The median fine for all keywords falls between $2,500 and $10,000, except for Emissions and Burn, which can be attributed to provincial influences. ON has the highest fines and largest proportion of Emissions observations. BC has the largest proportion of burn observations and consistently tickets $345 for those burns, which is the median shown. The median fine in NS is also consistent with a typical ticketed amount for burns.

Most observations involve individual offenders (62.8%) and burns (74.3%). While the source data do not provide enough information about violations to determine their severity in terms of impact on air quality, human health, or environment, it is reasonable to assume that these types of offenses are smaller-scale and generally less severe than those committed by other types of offenders (companies, municipalities, multiple, and other) and other types of offenses. These assumptions form the basis for the following subset of high-risk offenses (Table 5). Some observations overlap between groups, for example, cross-provincial repeat offenders who are also NPRI top 20 facilities, but counts are reported separately here. There is a “spectrum of severity” captured within each of these groups (as with all observations); some of these offenses are more “administrative,” such as failing to submit reports, while some are major pollution events. As such, it is essential to underscore that these categories are best understood as capturing potentially risky and impactful offenses and offenders.

Over one-third of the total number of observations (37.4%) are high-risk offenses (Table 5). Each group’s average fine is significantly different from the average fine of the overall dataset at a 10% significance level (calculated using a Welch’s two-sample t-test).

Based on patterns observed in the available data, there are indicators that enforcement across provinces can broadly be considered “cooperative,” which is consistent with the academic literature and statements by enforcement agencies themselves (Harrison, 1995, 1996, 1998; Alberta Environment and Parks, 2015; BC Ministry of Environment and Climate Change Strategy, 2016; Ontario Ministry of the Environment, Conservation, and Parks, n.d.). Key findings supporting this conclusion include: the low number of court convictions, except for ON; the frequent use of low-level penalties, such as warnings, especially for high-risk offenses; jurisdictions issuing low fines despite the ability to issue much larger ones under environmental legislation. The low counts of observations might also be evidence for a cooperative approach, although this should be interpreted with caution, because of weaknesses identified earlier regarding the violations pipeline and data completeness. Further, the lack of escalating enforcement actions for many repeat offenders suggests that enforcement is not flexible and responsive (i.e., “tit for tat”), despite this being an alleged criteria for selecting penalties in some jurisdictions. These findings are consistent with those from the Canadian pulp and paper industry, for which Harrison (1995) notes, “Canadian regulators have been abundantly forgiving, but seldom vengeful.”

Prosecutions leading to court convictions tend to levy the highest fines, but these comprise only 3.7% of all observations (Figure 4) and are mostly used in ON. Lower-level penalty types are used, even for serious offenses, like the 7.2% of observations where companies emitted noncompliant pollution. Notably, 87% of AB’s offenses are high risk under our classification scheme, yet 52% of them received only warnings. In QC and NB, also provinces with large proportions of high-risk offenders, enforcement agencies make regular use of administrative penalties, the penalty type designed to issue higher fines to companies without going to court (Figure 4, Table 5), yet the amounts issued are substantially lower than environmental legislation allows. In fact, all jurisdictions issued far lower fines than permitted by law, usually less than 10% of the maximum. If these patterns are indicative of the regulatory environment, polluters could assess their incentives for operating and conclude the following: if a violation does occur, the polluter will probably only receive a warning or an inexpensive administrative penalty or ticket (except in ON). In the event that a violation yields a prosecution leading to a settlement or conviction, a polluter will probably still receive a low fine. Because of the lack of escalating enforcement actions—32% of repeat offenders receive weak enforcement actions like warnings and letters—polluters may have little formal incentive to improve their performance.

Finally, the count of observations (2,217) seems low, but we cannot assess the number of enforcement actions against the number of violations, because we do not have access to data about violations (as previously discussed in the violations pipeline). As one reference point, we note that at the federal level, there has been one court conviction for point-source, ground-level air pollution across the 14 years of data available. This could indicate that a cooperative approach is being used. Either the federal government has undertaken few enforcement actions in general or few “high-level” enforcement actions like court convictions, in favor of (more cooperative) lower-level penalties or negotiation (for which data are unavailable).

We find a disconnect between environmental priorities and enforcement outcomes in our dataset. The “high-risk offenses” represent a proxy for environmental enforcement priorities: the offenders and offenses that are potentially more hazardous for environmental and human health. Enforcement outcomes in this dataset do not appear to align with environmental priorities, as demonstrated by low and static fines, uneven treatment by provinces, and the minority of high-risk offenses (against the majority of burns and individual-level enforcement actions).

Despite the strategies in BC and ON to make penalties responsive to an offense’s environmental damage (risk-based enforcement), the static nature of fines provides evidence that penalties are not responsive. Figure 6 demonstrates that fines are generally consistent across keywords. The median fine for all keywords except for Emissions and Burn is between $2,500 and $10,000—a negligible difference—yet there are considerable differences in the environmental impacts of offenses reflected by keywords. For example, the median fine for Excess emissions is $2,500, and the median fine for Notification offenses is $3,250. Firms are being fined more for failing to notify an enforcement agency that they exceeded their permitted emissions limits than for actually exceeding their emissions limits. The difference between median fines levied for high-risk offenses and the overall dataset is also small in practice, although statistically significant (Table 5). Similarly, penalty types are not responsive to the severity of violations, as previously noted by the large proportion of high-risk offenses that are issued warnings. The narrow range of fines across keywords, coupled with the liberal use of warnings, is not responsive to disparities in the potential environmental effects of offenses.

The distribution of high-risk offenses within the overall dataset and between provinces raises important questions about environmental priorities. Table 5 shows that 37.4% of observations are high-risk offenses. Whether this reflects environmental priorities depends on how many high-risk violations actually occur earlier in the violations pipeline (Figure 1), which we do not know because of limitations in data quality and monitoring/reporting from facilities. For example, we might consider AB, FD, NB, ON, and QC as successfully “targeting” high-risk offenses because a majority of observations from these provinces are high risk, but we do not know what proportion this represents out of the true number of enforcement actions in each province or the true number of violations (that fall out of the violations pipeline). Previous work on emissions and facilities performance in Canada provide some evidence that high-risk offenses may not be as rare as this sample would suggest (Harrison and Antweiler, 2003; Amos et al., 2011; Boyd, 2015; Ecojustice, 2018).

The violations pipeline demonstrates the many opportunities for pollution to avoid detection or enforcement. The result is an incomplete and inconsistent picture of pollution, violations, and enforcement actions. Ultimately, the lack of information about the violations pipeline and disjunct data availabilities make it challenging to answer the question: “Is enforcement ‘working’ in Canada?” Consequently, the counts and patterns presented here should only be interpreted as preliminary evidence within the bounds of available data, supporting the tentative conclusions that governments employ a cooperative and nonresponsive approach and enforcement outcomes do not reflect environmental priorities. These findings do not answer whether enforcement in Canada deters violations and to what extent it protects health and the environment.

Documenting where data gaps occur can help illustrate where root problems may exist. First, if our dataset is complete (contains all relevant enforcement actions in the jurisdictions studied), then enforcement rates are low, especially for high-risk offenses. Consider, for example, that for the entire study period of 20 years, the federal government of Canada successfully prosecuted one case. This scenario suggests that there is a root problem in enforcement practices. Second, if enforcement is complete (all violations are enforced, and there are many more enforcement actions to be found across provinces), then government transparency and data-sharing practices are poor, yielding large gaps in our dataset. This scenario suggests a root problem in data sharing. Third, if both enforcement and our dataset are complete (all noncompliance is enforced and all enforcement actions are captured by our dataset), then it appears air pollution policy is permissive. There is little, if any, pollution proscribed as “noncompliant” (even though pollutant levels are in some parts of Canada above the World Health Organization’s air quality guidelines for pollutants like fine PM; Brauer et al., 2022), and therefore, there are few violations to enforce. This scenario suggests a root problem in policy. Based on the literature, we believe some combination of these 3 scenarios to be true, suggesting deep-rooted issues in enforcement practice, data sharing, and policy.

Based on these exploratory findings, we offer recommendations to align enforcement strategies with stated policies and identify research opportunities. Konisky et al. (2021) assert that enforcement agencies (at least those in the United States) “possess the necessary levers [to] set priorities, invest resources, and adjust stringency,” which grants them significant power to align enforcement strategies with environmental priorities. This does not appear to be the case in Canada. Many potentially impactful adjustments can be made within the scope of existing policies and existing or moderately increased budgets, including:

• Mandate both “monitoring” and “reporting.” Often, companies are required to monitor their emissions but not report them to regulators. Rewriting permits at renewal to require all monitoring data to be submitted to regulators could be a simple fix to increase the number of violations detected by enforcement agencies, although these data would still be self-reported.

• Conduct random inspections (instead of, or in addition to, planned inspections). Random inspections will help to observe firms on an “average” operational day over the long term and have a better chance at identifying noncompliance (Zou, 2021).

• Increase administrative penalties. While some agencies are bound by low maximums for how much a penalty for a given offense can be—and changing this limit is a policy question—agencies have the opportunity to use this tool more frequently.

• Standardize the information shared about enforcement actions, including basic elements of the event: namely, the “who, what, when, where, and what was done about it” of a violation.

• Focus on high-risk offenses, especially potential super polluters ( Alm and Shimshack, 2014; Collins et al., 2016). Certain high-risk groups could be selected, such as repeat offenders, cross-provincial offenders, NPRI top 20 facilities, facilities near vulnerable communities, and so on, as foci for enforcement. “Focus” here means allocating enforcement resources and adjusting the enforcement approach. A higher frequency of random inspections could be allocated to these facilities. Noncompliant actors could receive more “direct” enforcement strategies—orders, tickets, administrative penalties, and prosecutions (although more resources may be required).

Improving data collection and sharing could facilitate enforcement and enhance community right-to-know (Cairns et al., 2011) but will require additional resources. Key opportunities include:

• Continuously monitor facilities. Implementing continuous monitoring systems which automatically report emissions to enforcement agencies is key to increasing compliance (Giles, 2022).

• Create a comprehensive federal enforcement dataset and improve provincial datasets. Ideally, the federal government would coordinate and publish all enforcement data from across provinces in a standardized and usable format. Alternatively, all datasets currently behind FOIPOP barriers should be published, and all datasets (including those currently public) should be improved. Such improvements must intersect with the NPRI data so that enforcement data are connected to emissions.

• Transition to a direct enforcement approach. Nations employing a more direct approach have witnessed greater improvements in pollution reductions (Harrison, 1995). Cooperative approaches to regulatory enforcement may fail to deter violators. Voluntary programs have similarly been shown to have limited efficacy (Gamper-Rabindran, 2006). Given these past findings and our results, which support characterization of enforcement in Canada as cooperative, it is worth considering what a more direct enforcement model would look like in Canada. This would likely be most effective under a more aggressive application of CEPA, but provinces could independently increase fines and apply stronger enforcement actions.

All of the above recommendations work within the existing policy systems, starting from the premise that compliance with existing policies is sufficient to meet environmental goals (Giles, 2022). However, many have questioned this premise in the context of Canada. Given the lack of binding national air quality standards in Canada, it is theoretically possible to enforce most noncompliant pollution, deter violators through enforcement, and yet still have a significant air pollution problem, because too much pollution is legally permitted under extant laws. If this is true, then improved enforcement can deliver environmental gains but is intrinsically limited by the legislation it enforces. Enforcement cannot make up for weak laws and policies, and thus law reform may be the most important tool for improving compliance and environmental outcomes. A few legislative recommendations are offered:

• Adopt minimum enforcement actions. Implementing minimum “sentences” or enforcement actions for various offenses may be an effective strategy to move toward a flexible approach that combines cooperation with deterrence; for example,. repeat offenders receive a limited number of warnings or letters before facing more severe enforcement action.

• Strengthen CEPA to make the CAAQS legally binding and the NPRI more robust.

• Strengthen Environment and Climate Change Canada (ECCC) or establish an independent agency for investigating and enforcing environmental laws and regulations. If CEPA can be strengthened or a new piece of legislation enacted to address air pollution, it needs an effective, powerful agency to enforce it and publish data about its administration.

Future research can enhance the evidence base to support reforms to policy, law, and practice related to air pollution and its enforcement. An important opportunity is integrating the enforcement results presented here with data on air pollution volumes and toxicity. One of the most critical missing pieces in Canada is to compare the landscape of enforcement actions to the landscape of where emissions are actually occurring. Connecting these datasets will provide additional information about the violations pipeline and assist in evaluating violation deterrence and environmental outcomes. Further, such integration could support analysis that explores whether or not there are environmental injustices in both exposure to air pollution and uneven enforcement of relevant air pollution laws (as Konisky et al. find in the U.S. context; Konisky, 2009; Konisky and Reenock, 2013, 2018; Konisky et al., 2021). Finally, the findings presented here could be enhanced by qualitative data collection. For instance, interviews with stakeholders, including affected community members, regulators, and industry representatives, could contribute to the interpretation of these results, and support identification of improved practices.

Based on an analysis of available enforcement data, we find preliminary evidence that Canadian jurisdictions apply a cooperative and nonresponsive enforcement model to air pollution, with modest variation between jurisdictions. In our dataset, enforcement agencies consistently issue low-level penalty types and low (or no) fines (despite the ability to issue higher ones). They rarely utilize court proceedings or escalate enforcement actions for repeat offenders. The majority of enforcement actions observed involved individual-level offenders and burning violations, which may be lower risk for environmental and human health. In contrast, high-risk offenses (those committed by repeat offenders, reporters to the NPRI, facilities in the top 20 most polluting in each province by volume, cross-provincial offenders, and those emitting CACs) comprise a minority of offenses. This apparent focus on low-risk offenses could represent a misalignment of enforcement and environmental priorities. Insofar as these practices are less favorable for environmental and/or human health, it is imperative to seek alternatives. We outline recommendations to align enforcement strategies with environmental priorities in the Canadian context, but these strategies could be useful for any jurisdiction exploring more stringent and responsive environmental enforcement.

The data used and generated in this study have been deposited in the Borealis Data Repository with the DOI: https://doi.org/10.5683/SP3/Q1WHFG.

The supplemental files for this article can be found as follows:

SM.pdf

The authors gratefully acknowledge the public servants who provided guidance and resources in compiling the dataset. They thank undergraduate assistants Rafa Alkalai, Paul Li, and Sophie Thornton for their contributions to data coding. They would also like to acknowledge that this research was conceptualized and implemented on the traditional, ancestral, and unceded territory of Coast Salish Peoples. As settler scholars, the authors are grateful to live, work, and learn as uninvited guests on these lands.

This work was funded by Social Sciences and humanities Research Council of Canada (SSHRC) Insight Grant No. 435-2018-0379.

The authors declare that they have no competing interests. CE is currently employed at Metro Vancouver Regional District; however, this research was conducted during her time as a graduate student at the University of British Columbia and is separate from her current government role.

Contributed to conception and design: CE, DRB, AG.

Acquisition of data: CE.

Analysis and interpretation of data: CE, RB, DRB, AG.

Drafting the article or revising it critically for important intellectual content: CE, DRB, AG.

Final approval of the version to be published: CE, RB, DRB, AG.

How to cite this article: Ewing, C, Bertoldi, R, Boyd, DR, Giang, A. 2024. Patterns of air pollution enforcement in Canada: Environmental priorities versus enforcement outcomes. Elementa: Science of the Anthropocene 12(1). DOI: https://doi.org/10.1525/elementa.2023.00062

Domain Editor-in-Chief: Alastair Iles, University of California Berkeley, Berkeley, CA, USA

Knowledge Domain: Sustainability Transitions