Environmental lawyer Richard Secord cannot bring trees, rivers or bears into the courtoom.
“The difficulty is that the trees and the caribou and the grizzlies do not have standing in court,” Secord explains. “To create a case for the environment, we often need a landowner, a First Nations group or an NGO. And typically the cases are framed as damage to property, a loss of monetary value.”
Secord has worked on hundreds of environmental cases related to things like hazardous waste, waste management, down spacing and transmission lines.
Some of Secord’s earliest cases as an environmental lawyer included defending companies who were charged with offences under the Alberta Environmental Protection and Enhancement Act, and defending the Northwest Territories Commissioner in a case involving the breach of a sewage lagoon under the Fisheries Act in Iqaluit. Secord built his practice one case at a time, mostly through referrals.
“Landowners I represented would tell their neighbours and so on. When there were applications for sour-gas wells, oil wells or pipelines that would affect people’s property, then sometimes the regulator handling the case would give the landowners my name.”
In a province dependent on resource extraction like Alberta is, Secord’s caseload has shifted with the economy.
“In the 1990s when gas prices were high I did a lot of sour gas cases and pipeline applications. Now, wind farms are the new sour gas,” he says. Despite being a source of renewable energy, which the province will need as it phases out coal, wind
farms are still contentious from an environmental point of view. “Many [wind turbines] are poorly placed,” says Secord. “They’re on the flight paths of many birds, and ducks and bats are killed by the low air pressure in an air turbine field.” A 2013 study by J. Ryan Zimmerling of the Canadian Wildlife Service found that “an estimated 23,000 birds would be killed from collisions with turbines [in Canada] per year.” Another concern, though deemed “unlikely,” is potential loss of wildlife habitats. For Secord’s clients, the aesthetics and the noise of wind turbines are issues.
“It’s not unlike someone setting up a sour gas well next to you. You’re in the country, you want to enjoy the lifestyle and suddenly there are these towers, with flashing light and the potential to leak hazardous materials. But there’s also the thorny issue of the noise,” he explains. It is generally believed that people cannot perceive sound waves below about 20 dBA, but people claim that infrasonic sounds, sounds below 20 dBA, continue to be bothersome.
Just as elusive as infrasonic sound, Secord has recently had to argue for the value of trees. “It’s difficult to assess the value of a tree,” he says. “Because, of course, you can always grow a new one. But it’s not the same -is it?”
In a recent case against a herbicide applicator, Secord’s clients lost 200-300 trees that they had planted over a 10-year period on their property in Calmar, Alta. when glyphosate spread onto their property. Typically, Secord’s clients could have claimed damages, but the insurance company assessed the value of the property as the same with or without the trees.
“They’d planted these trees by hand and they were proud of their work,” Secord says of his clients. “They wanted to restore the shelterbelt even if it didn’t increase their property value.”
Secord successfully made the argument for the value of his clients’ labour and pride, and they were awarded $100,000 to replace the shelterbelt.
Secord recently defended an 80-foot tree from potential damage in his neighbourhood of Westmount. Renovation plans on the property next door threatened the integrity of the tree’s root system.
“The tree is a spruce. It’s a beautiful tree, full all the way to the top,” explains Secord on a walk over to the property.
“As you can see,” Secord says, while describing an arc through the air above the houses, “if it fell it would cause damage to two houses, so that was the argument we made.”