Ecojustice Blog – Special Update Posted on May 25, 2017 (updated: October 10, 2019)

Ecojustice 101: How we pick our cases

Devon PageLawyer
Photo by Adam Blasberg

Ecojustice’s mission is to use the courts and power of the law to defend nature, combat climate change, and fight for a healthy environment for all.  While we would love to work ourselves out of a job, the reality is across Canada, countless potential legal cases crop up every year related to the protection of nature, climate and our communities. There is simply more work than we can take on.

At any given time, we can have upwards of 60 cases active or in development. Going through the courts requires a lot of hard work, but it’s often a necessary course of action for ensuring our communities, our health and the environment are protected by the full weight of the law.

We are strategic about the cases we take on because we know firsthand that litigation can be time-consuming, extraordinarily expensive, and demand an astounding number of resources.  For example, we challenged Enbridge’s Northern Gateway pipeline project and, in partnership with a wide coalition of First Nations, environmental, and labour groups, persuaded the court to overturn the federal government’s approval of the controversial project. It took a decade to secure this major victory — and that’s just one case.

We often get asked how we decide which cases to take to court. Here, we break down the selection process we use to determine which cases to take on.

1) Deciding which issues need our help most

We strive for long-term results that build the case for a better earth, which is why we select cases that have the potential to set precedents and redefine how environmental laws are applied and enforced in Canada.

Criteria 1: It is or will become one of the most significant threats to the environment
photo of coal by Bartb_pt

Case example: Challenging the Fraser Surrey Docks coal transfer expansion

Criteria 1: It is a root cause of why the law is not enabling significant public protection or restoration of the environment

tar sands by kris krüg

Photo by Kris Krüg

Case example: How to make a polluter pay.

Photo: Peter Gordon

Case example: Protecting our seas from aquaculture viruses.

Infectious Salmon Anemia virus (ISAV) is an internationally reportable virus that has killed millions of salmon and caused massive losses to aquaculture industries in Chile, eastern Canada, and Norway. There is significant concern that ISAV and other diseases found in open net fish farms can spread to wild salmon and could cause catastrophic losses in BC.Our work with wild salmon is dedicated to ensuring there is adequate oversight of aquaculture projects. Wild salmon are a keystone species in B.C., and they are important to its ecosystems and communities. Many wild animals, including eagles and bears, depend on wild salmon for survival. A significant disease outbreak in our wild salmon would be catastrophic. As such, it is extremely important that our wild salmon are protected from exposure to diseases at fish farms.

There is no shortage of resources behind plundering the planet, and in any long-term battle, every move has to be strategic. What will the world look like if we’re successful in a case? Will it be easier to defend against future threats with the precedents we set today?

The questions we ask ourselves before proceeding on a case demand that we examine gaps in the law, and existing challenges to how and whether they are enforced. Our decision-making model is predicated on the idea that the tools we have to protect the environment ought to be used and expanded.

Ecojustice works in three program areas: Climate change, healthy communities, and nature.  Under the leadership of our program directors, work in each area is governed by an overarching goal.

Healthy Communities Toxic-free, empowered communities.
Nature Canada’s biodiversity and ecosystems are protected and restored.
Climate Change Greenhouse gas emissions are within scientific imperatives, and Canada is low carbon.

When an Ecojustice lawyer or scientist has an idea for a new case, or when we receive legal inquiries from concerned citizens, community groups, or public interest groups, we screen those potential cases against the goals set out in our strategic plan.  That’s not to say we won’t look outside of those areas in special circumstances. We also take into consideration whether this issue is so significant that we should take the case on anyway.


2) Case development: Getting down to work

Once we’ve determined that an environmental issue warrants Ecojustice’s involvement, we begin the case development process.  This typically involves gathering information, researching, and building the legal theory we will bring forward in the appropriate court.  This is also where we start identifying the clients we will represent in the case.  Thanks to the generosity of Ecojustice supporters, we represent every one of our clients free of charge.

A special alchemy of legal theory, fact pattern, clients, and timing make for the ideal case.  As a result, we can spend weeks, months, even in some special cases — years developing a case before it launches. Some of our legal victories end up going through multiple levels of court and appeal processes before being finalized, which a testament to the dedication of Ecojustice staff and the durability of the cases we build.

3) Gut check

Once a case is developed, we review it to ensure we have the resources and organizational commitment to see the case through to the end. From firsthand experience, we know that court cases can be long, arduous processes that demand a ton of financial and human resources. Luckily, some of Canada’s best and brightest environmental experts work at Ecojustice.  And it’s thanks to the support of people like you that they get to do what they do.

The final test for proceeding on the case is approval by our board of directors. During case review, we have our common goals and the future of the earth in mind. Determining the long-term benefits or challenges presented by a case is not always easy, which is why we’re grateful we can count on the experts on our litigation committee for their advice and support.

4) Launch!

Once a case has been developed and approved, it’s time to fire up the rest of the organization. While our legal team gets ready to file the case, our fundraisers get on the phone to secure gifts to support this work, our communicators start developing a strategy to get the word out to the world, and our operations team ensures we have the people in place who make all this happen.

What happens to the work that doesn’t get selected for litigation?
Despite our best efforts, limited resources and the lengthy nature of a legal challenge mean we cannot take on everything (though it would be nice!) Occasionally, circumstances change and we are eventually able to take on a case. As an environmental law charity, we do our best to take on as many cases as possible, keeping our lawyers and staff busy (and people and companies who threaten the environment on their toes.) In situations where we cannot take on a case, we put folks in touch with another organization we think can help, or refer them to other counsel.

What can I do to help?
Ecojustice functions because of the dedication and generosity of supporters and donors who believe in the work we do. We would not be where we are today without our supporters: Whether you’re a monthly donor, someone who signed an advocacy action, or a passionate social media follower helping spread the word about our work — thank you! Every one of your contributions helps us build the case for a better earth.

Stay tuned!

Build the case for a better earth

Thanks to the support of people like you, Ecojustice goes to court to protect what we value most — the air, land and water that sustains all life. Make your gift today and support bold litigation for a brighter environmental future.

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