Legal news and trends for Canadian in-house counsel and c-suite executives
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nancial incentive for organizations and companies to have one by giving them an automatic discount if they are assessed with an environmental penalty, she says. "It can certainly save many thousands of dollars depending on the number of penalties they get," says Saxe. "But the big thing is it should save them from getting the penalty because the whole point of an EMS is to have fewer accidents and spills." McKendry says Husky has a number of environmental pro- grams designed to proactively address environmental issues, identify risks, assess the impact on Husky's overall business, and make necessary or desired changes. For instance, the work of Husky's joint environmental, health, and safety committee has led the company to switch to a vegetable-based metal working fluid, which has reduced the company's footprint, cut overall costs, and created a healthier work environment, says McKendry. Fairmont Hotels and Resorts (now called Fairmont Raffles Hotels International Inc.) was also an innovator in its approach to the environment. Eighteen years ago, it launched its "green partnership pro- gram" aimed at reducing the impact of the company's hotels on the environment through waste management, and energy and water conservation. The now-private company has also developed innovative community outreach programs that protect the habitat, re- sources, and culture in and around its hotel properties. Fairmont felt strongly about reducing its footprint from a corporate responsibility perspective, but it also knew this ap- proach would save money and appeal to customers, says Terry Badour, Fairmont's executive vice president of law and admin- istration. "We predicted back then that people would be much more mindful of environmental issues," he says. Fairmont conducts environmental audits at all of its proper- ties in 26 different countries on an annual basis, or more fre- quently when issues come to light, as part of its EMS. And it also audits compliance with the green partnership program, says Badour. Sophisticated companies do design compliance programs that go beyond the bare minimum legal requirements, but environ- mental laws and regulations change daily, and many companies are still primarily concerned with understanding these changes and keeping up, says Calgary-based lawyer Alex MacWilliam, chair of Fraser Milner Casgrain LLP's national environmental law group. Training is an important part of making sure senior manage- ment and board members are aware of their legal obligations, and MacWilliam is often brought into corporations by in-house counsel to do exactly that. He starts these training sessions by pointing to sections in en- vironmental statutes that state directors or officers who acqui- esce in the state of affairs that leads to an environmental offence can be held personally liable for the offence, even if the corpora- tion itself is not charged. sion program that . . . generates approximately $1 million." — MICHAEL MCKENDRY, GENERAL COUNSEL, HUSKY INJECTION MOLDING SYSTEMS LTD. He describes the reputational damage, fines, and even jail time that those at the top could face because of the actions of employees they might not even know, who work in facilities they may have never visited. "That usually results in me having everyone's attention," he says. "Those provisions are one of the reasons that environmen- tal compliance has achieved a relatively high level of attention in the board rooms and the big corner officers within organiza- tions." One simple but important move corporations can make to signal they are concerned about moving toward sustainability is to make a public statement acknowledging that there is a scien- tific consensus on climate change, says MacWilliam. Large emitters across Canada will soon be required to dis- close their operational and end-product greenhouse gas emis- sions, but many have already voluntarily disclosed their emis- sions, he says. The Carbon Disclosure Project (www.cdproject.net) — a not-for-profit organization set up by some of the world's largest banks and institutional investors — contacts corporations and asks them to disclose their emissions through a public question- naire, he says. The fact that the organization controls trillions of dollars worth of investment makes this request difficult to decline, and it also ramps up the peer pressure by giving companies a list of others in their sector who have complied, says MacWilliam. Saxe says there are numerous voluntary disclosure standards that companies can choose to adhere to. The Global Reporting Initiative (www.globalreporting.org), for instance, sets out the principles and indicators that organi- zations can use to measure and report their economic, environ- mental, and social performance. Some of these voluntary standards involve a registration pro- cess, but others don't. "The registered claims are more authoritative than simply the self-declared claims because someone has done the checking," says Saxe. She advises in-house lawyers to warn senior managers and board members about falsely claiming to conform to voluntary standards, because doing so is fraud. "They are providing false information, presumably in an attempt to influence consumer behaviour, and there could be C ANADIAN Lawyer INHOUSE FEBRU AR Y 2008 27 "Our Bolton campus, for example, has a waste diver-