Environmental law

Environmental Law

Key ideas

• protected by both private citizens including lobby groups and 3 levels of government - International, National, and Provincial including Municipal

• individuals help by using the court system

• government helps by passing statutes and signing agreements

• environmental law is both reactive (responding) and proactive (taking action before)

• are private citizens including lobby groups or the government more effective in protecting the environment through law?

Intro

• before 1950's, governments and individuals were not concerned about the environment

• it was assumed that any pollution created could be diluted through large bodies of water or air, so destructive substances were poured into rivers and lakers or burned through large chimneys

• economic growth was considered to be more important than the environment and not many people truly understood the long-term consequences of their actions

• by the late 1960s and early 1970s, the damage caused by these actions was becoming evident - Lake Erie was declared to be dead from too many phosphates, vegetation was dying around Sudbury from the refinery emissions, and an oil slick caught fire on the Cuyahoga River near downtown Cleveland

• environmental law began in the 1970s but has always been balanced with economic interest and changing urban behaviour

• 2 factors have influenced the development of environmental laws since:

1. Educating the public about the damage we have created and can still create and the benefits of a cleaner environment

2. The consequences of a growing global population especially urban growth

a. most suburbs are poorly planned causing a dependence on cars

b. population growth cause a depletion of forests, farmland, and natural resources

c. higher standard of living is linked to a more consumer and disposable economy with larger houses, bigger cars, and more garbage causing much higher pollution rates

• the concept of sustainable development also started in the 1970s and in 1983, a UN committee wrote "Our Common Future" which stresses the importance of protecting the environment for our future generation

How private citizens can use the court system to influence environmental law

• under tort law, individuals can take civil action by suing for nuisance or negligence

• the plaintiff is allowed to seek damages for harm done and ask for an injunction which is a court order to either act/refrain from acting according to the situation

• any rulings from those cases can then become a precedent under common law and can influence new laws to be passed to avoid similar situations in the future

Right to sue for nuisance

a) When a plaintiff believes that there has been an unreasonable interference with their use of enjoyment of the property

b) For example, toxic sludge seeping into your land from a neighbouring business or

excessive noise from machine used

c) Private nuisance is when it is your own land being interfered with

d) Public nuisance is when the land belongs to a group of people such as a town’s water system

Right to sue for negligence

a) When a plaintiff believes that damage has been done by a defendant who did not live up to a required standard of care

b) For example, a business which stores dangerous chemicals too close a heat source, causing an explosion or stores them in the ground causing seepage into water sources

c) The plaintiff must prove that the defendant owed them a duty of care, that they not live up to the standard of care and that the resulting action was foreseeable

d) The plaintiff must also prove that there has been damage or harm as a direct result of the actions by the defendant

e) This is easier to do when the damage is physical and/or immediate

f) Very difficult to prove when the damage is long-term and.or to something less direct like health

Role of the Governments

• governments help protect the environment at 3 levels

• governments sign international agreements

• the federal government and provincial government including municipalities pass laws

I. International agreements

- many environmental issues are global (air, water, etc)

international agreements are signed by 2 or more countries depending on the situation which signifies that the countries agree to uphold certain actions

- examples: UN Convention on Biological Diversity (1992)

Canada has often been seen as a leader in environmental law because we strengthen our own domestic laws based on the agreements we have signed

in 1997, countries from around the world met in Kyoto, Japan to reach an agreement on cutting greenhouse emissions and sign the Kyoto Protocol

- countries had to agree to reduce their greenhouse emissions by 2008 and then in 2012

- almost every country has ratified the agreement with one major exception - the U.S.

- international agreements was difficult to enforce - no agency to police the agreement

many other political influences can also interfere with a country signing an agreement

other countries can refuse because they believe that the actions necessary will interfere with their economic development

sometimes, international pressure can force countries to sign

Federal Environmental Laws

1. Canadian Environmental Protection Act, 1999

a. Prevention of pollution

b. Control of toxic substances

c. Control of waste management

d. Protection of the environment and human health

2. Fisheries Act

a. Recognizes that fish is a major resource for Canada

b. Tries to prevent the depletion of fish by controlling the amount of fishing and prohibiting what can be thrown into water inhabited by fish

3. Species at Risk Act

a. Protects 233 endangered species

b. Provides recovery programs for those species

c. Encourages the management of those species, for example, by protecting the habitat of the species

Provincial Environmental Laws - Ontario

1. Environmental Protection Act

2. Environmental Assessment Act

3. Environmental Bill of Rights

Environmental Protection Act

Weaknesses

narrow focus (on pollution): purpose to regulate the actual and potential sources of contaminants

focus on remedies for environmental problems instead of environmental sustainability

broad powers to the Ministry of the Environment: have broad discretion on how/whether to take action

ordinary citizens cannot take individual action, must rely on the government to act

no government accountability for not acting or any role for public participation/input

Strengths

- defences for polluters: may be no punishment for the people involved

- section 14

one of the strongest provisions in any Canadian pollution control legislation

covers private companies, individuals, and governments

overrides other provisions of the Act that permit pollutants to be discharged into the environment and other provincial legislation and municipal bylaws

if breached, a company, its employees, officers, and directors may be convicted if they fail to take reasonable steps to set up an adequate system of pollution control

all prohibitions provide for large fines and imprisonment for negligent/deliberate discharge of contaminants

Environmental Assessment Act

Weaknesses

- covers only a short list of projects and activities while it defines the environment very broadly

environmental assessments are usually required only for major projects i.e. dams, highways, power plants

government does not require planners of these projects to go through the complex assessment process: many projects outside the scope of the EAA should potentially be considered for their environment impacts

generalized requirements can be inadequate for a particular project, allowing environmentally questionable projects to happen

government funding to help individuals and groups take part in the process as intervenors are temporary and irregular

environmental assessment is an expensive and a time-consuming process, needs technical and scientific knowledge

project planners resent the cost and time need to complete assessments so it becomes an economy vs environment conflict

- process too complex and expensive to give the public a chance to comment

those launching these projects often have the resources to promote the economic benefits without publicizing the negative impacts

groups harmed rarely have the organization and resources to discover the negative effects of proposal or to communicate their findings

- interest groups who have evaluated assessments are criticized for stalling the process

Strengths

first act of its kind in Canada, it is the main framework for conducting environmental assessments in Ontario

the public has opportunities to examine project documents including scientific studies of environment impact and comment on proposals

provide a structure for gathering information about environmental impact and a forum for assessing and discussing those impacts weighed against economic costs and benefits

Environmental Bill of Rights

Weaknesses

- in practice, the EBR has resulted in very few actual investigations

expansion of access to the courts is good, but lawsuits are expensive, without financial assistance, these new rights are unlikely to be widely used

scope of the EBR's application was severely curtailed by the Ontario Savings and Restructuring Act (SRA): gave municipalities and their conservation authorities provincial government decision-making roles which are not subject to the legislation, so there is a large number of environmental decisions beyond the reach of public intervention

Strengths

- a radically new approach: describe environmental concerns in terms of human rights

designed to empower members of the public in efforts to take responsibility for the protection of the environment

provides tools for public participation in environmental protection i.e. the government give notice of proposed governmental action subject to public consultation

members of the public can request a review of a policy, statute, regulation, or instrument in place or request that one be developed if there is none

any citizen can ask for a review when an instrument (i.e. licence/permit to conduct environmentally sensitive activity) has been granted, challenging the government and the applicant

legislation established an Environmental Commissioner to monitor statements of environmental values, to investigate environmental violations, and to report on ministry compliance with the legislature