Part 6 – Special Legal Rights and Relationships

Chapter 34 – Environmental

Law

Prepared by Michael Bozzo, Mohawk College

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Common LawEarly Reforms

Environmental LegislationPolluter pays Environmental AssessmentStoring and Handling of Hazardous Products

Environmental Responsibility International Obligations

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Overview

GeneralInjury to the environment a personal levelInterference with the property rights of another

actionable at lawTort of NuisanceCommon Law relief was limited to individuals who

were harmedHarm to the public at large was a matter for the

government to address and not the courts

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Common Law

Early ReformsStanding

Concerned environmental groups lacked standing to bring an action

Source of pollution Hard to determine

Limitation of Remedies Damages but no order for a cleanup

Legislative reforms Addressed difficulties of identification of source, control

and abatement (or prohibition)

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Common Law

LegislationBoth federal, provincial, and territorial (often overlap)Acts control or prohibit activities that have a negative impact on

the environmentTakes a regulatory approach○ Discharge of harmful substances into environment○ Amounts are regulated by monitoring and inspection

Adoption of environmental awareness○ Consideration of the needs of he broadest community of persons

interested in an issue

Environmental Legislation

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LegislationAdoption of environmental awareness○ Stakeholder Approach

Consideration of the needs of he broadest community of persons interested in an issue

○ Precautionary PrincipleWhere serious damage may occur, lack of full scientific certainty shall

not be used to postpone cost-effective measures to prevent environmental degradation

○ Sustainable DevelopmentOutcomes should meet the needs of the present generation without

compromising the ability of future generations to meet their own needs

Businesses must consider how their operations affect the environment

Environmental Legislation

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“Polluter Pays” RegulationA principle where the obligation on a

polluter to pay for environmental damage that results from a violation of environmental legislation

Environmental Legislation

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Environmental AssessmentA procedure undertaken to determine the effect on the

physical environment of a particular undertaking or activityUsually only for undertakings that could cause serious

damage or change to the environment○ Dam construction, waste-disposal sites

Requirement of approval before undertaking○ Detailed studies and public input

Canada Environmental Assessment Act○ Regulates the requirement and conduct of assessments, which

are intended to predict the impact on the environment of a particular initiative before it is executed

Environmental Assessment

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Legislation Aims at care in storage and handling

Usually requires notification to government Polluter pays principal

Method of storage or handling not usually specified But high standard of care imposed on user

Liability of Directors and Officers Possible personal liability Defense of due diligence

Requires more than directives Must follow up, proper training of employees, proper

inspection and monitoring systems

Storing and Handling of Hazardous Products

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Traditionally Responsibility of the party that caused damage Current owner may now be liable

Environmental Audit A site specific inspection and analysis to determine the

presence of existing environmental hazards or contamination

Usually inserted as a condition precedent into commercial property sales agreements

Lenders also at risk Take possession then become owner and liable

Responsibility for Existing Contamination

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Kyoto Protocol (1997)A commitment by Canada and other

countries to reduce greenhouse gas emissions by six percent below 1990 levels

Canada ratified in 2002 however by 2007, the federal government announced the targets were unreachable and essentially turned away from international commitments

International Obligations

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Copenhagen Accord (2009)A commitment by Canada and other countries to

reduce greenhouse gas emissions by 2020 by seventeen percent from 2005 levels

More substantial progress has been made against this target but the federal government has still not advanced comprehensive legislation with direct control of emissions

International Obligations

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Common Law Action was in tort (Nuisance) Had to be injured directly to have an action and standing Remedies limited to damages or an injunction but lacked a

clean up aspect Legislation

Control or eliminate pollution and environmental hazards Done through inspecting and monitoring Responsibility on person who causes pollution Environmental audits required to avoid liability on property

purchases

SUMMARY

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