U.S. Energy Co. to Face Trial in Canada

On July 7, the Ontario Court of Justice in Canada set a trial date in the prosecution of DTE Energy Co. The Michigan-based coal-fired power plant operator faces charges for polluting the St. Clair River, according to a press release from the U.S. Environmental Protection Agency.

Judge Austin scheduled an ex parte trial after the accused declined to appear in Sarnia court. This is the first time that a U.S. company has faced prosecution in Canada for transboundary pollution.

Detroit Edison, a wholly owned subsidiary of DTE, operates the St. Clair/Belle River coal-fired power plant complex in eastern Michigan. Monitoring data show that these facilities emit hundreds of pounds of mercury each year, with more than half landing locally in Canada and the St. Clair watershed. In 2004, mercury reduction technologies that were installed at the St. Clair plant for a 30-day test period achieved a 94 percent reduction in emissions. At the end of the 30 days, the technology was removed and the company went back to emitting significant amounts of mercury.

When the mercury enters the St. Clair River it spreads throughout the food chain, altering fish habitat and rendering fish unsafe for human consumption in violation of Canadian fisheries law. Mercury is a dangerous neurotoxin; a single gram of mercury per year is enough to contaminate a 25-acre lake to the point that fish are unsafe to eat. Both the state of Michigan and the province of Ontario have issued mercury fish advisories for the St. Clair River.

Scott Edwards, the informant in Edwards v. DTE Energy, initiated the private prosecution in early 2007. Under Canadian law, citizens can use the criminal courts to prosecute individuals and corporations for violations of the Fisheries Act. The Fisheries Act is one of the country's most powerful environmental laws, making it an offense to deposit pollutants into waterways, harmfully impact fish habitat, or contaminate fish. Violators face potential fines and jail time if convicted.

"For two years, since I first wrote a letter to the CEO asking DTE to consider the impact of its uncontrolled mercury emissions on the St. Clair watershed, the company has tried to pretend that this case doesn't exist. DTE officials have repeatedly refused to recognize Canada's jurisdiction, declining to show up in court, time and time again despite clear notice. With a trial date finally set, I look forward to the opportunity to put all the facts on the table," says Edwards.

Scott Edwards is the legal director for Waterkeeper Alliance, a global coalition of more than 180 grassroots environmental groups, and an authority on mercury issues. He is being aided by Waterkeeper Alliance affiliates Mark Mattson, Doug Chapman and Doug Martz. Mattson is lead investigator and the Lake Ontario Waterkeeper. Doug Chapman is lead counsel and the Fraser Riverkeeper. Martz is the St. Clair Channelkeeper.

The trial is set to begin Feb. 2, 2009 in Sarnia, Ontario court. A pre-trial conference will occur in October.

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