Using the courts to protect the environment

Environmental Issues and Private Actions - what is the role of courts?

Courts must reconcile the rights of owners and occupiers of property to use and enjoy the property with the rights of their neighbours to do the same.

What principles are environmental court actions based on?

• many apply tradition legal principles?

• While others attempts to force new principles (ex. cases that invoke the Canadian Charter of Rights and Freedoms)

• Many recent class actions on climate change are based on Charter arguments

Standing

In order to bring a lawsuit, a person must have standing

The traditional standing rule (3 p rule) limits standing to those with a direct and measurable interest in the dispute

• property interest

• personal (health) interest

• pecuniary (financial) interest

Public interest standing?

Requires

• a serious issue being raised

• the applicant has a “genuine interest” in the litigation

• and for the legal action to be “reasonable and effective means to bring challenge to court”

Class Action

Procedural mechanism used when a large number of plaintiffs sue over the same event or set of facts

One plaintiff (representative plaintiff) brings one action on behalf of all affected parties

• the class must be certified (approved) by the court

• the result of the action by the representative plaintiff binds all members of the class

To get certification, the plaintiffs must demonstrate that some issues are common to all class members’ claims and that the approach is the best way of dealing with the claims in disputes

Courts have been cautious with respect to class actions involving environmental claims; but this is beginning to change

Interventions

A procedural device that allows participation of parties who are not plaintiffs or defendants, these parties may want to become involved to protect their interests or have their concerns and POVs heard by the court

An added party receives a fairly broad array of rights but also potential risks

• must establish an interest in the subject matter or the potential for adverse effects from a judgement????

A friend of the court (amicus curiae) assists the court in resolving the issues by presenting submissions but is not a party

Public interest intervention recognized when a provision of the Charter is being interpreted and applied

• allows different stakeholders in society to participate in litigation that may have implications far beyond the dispute

Causes of Action

In a civil lawsuit, the onus is on the plaintiff to prove that: t

• the defendant did something that falls within an established cause of action, and

• the defendant’s action caused harm to the plaintiff

In envr matters, nuisance, trespass, negligence, and strict liability are the most recognized and relevant????

Nuisance

One person unreasonably interferes with the use and enjoyment of someone else’s property

• can be unreasonable interference with one’s land but also something that has caused injury or harm to the land

• a defence may be that the government authorized the activity in question

Public nuisance

when a whole community is annoyed by the actions of a party

• challenge is that the government can stay the action (prevent the litigation from going forward???)

• public nuisance is often seen as a barrier for members of the community to bring action

Trespress

The mere act of trespass (“invasion of property) is sufficient to give rise to damages, and plaintiffs do not have to establish that any real harm occurred

The question of whether pollution is considered trespass is contentious - some cases suggest that trespass must involve the invasion of a physical mass rather than invisible pollutants

negligence

the basis of many environmental lawsuits, when someone fails to act reasonably, and thus causes harm to someone to whom a duty of care is owed.

three key elements must be proven to establish negligence

• duty of care

• standard of care

• foreseeability

Strict liability ( or “the rule in Rylands v. Fletcher”)

“People who bring onto their land for their own use anything likely to do harm if it escapes do so at their own peril”

If the potentially harmful material escapes and harm ensues, the defendant is liable even if they took all reasonable precautions

Statutory Causes of Action

Legislatures sometimes create new causes of action to give people the specific right to commence a lawsuit if conditions are met

• the CEPA 1999 and Ontario’s Environmental Bill of Rights, 1993 create statutory causes of action

These causes of action can be summarized

• any person may bring an action if someone has violated an identified environmental law

• before bringing an action, litigants must request an investigation in accordance with the procedures outlined in the statute

• defendants will not be found liable if they can prove due diligence

• no damages are available to plaintiffs

• remedies may be ordered to address any harm done

Causation, how is cause-effect established?

In most envr lawsuits, causation is the most difficult obstacle to success

Causation rule: causation is established when the harm suffered by the plaintiff would not have occured “but for” the defendants action

• Causation is established on a balance of probabilities

Two parts of court cases

Liability: proof of the elements of the cause of action

Remedy: relates to compensation

What form of compensation is most commonly used? Three categories

Plaintiffs generally want monetary compensation (damages) and have to attach a monetary value to the harm they have suffered

three categories: special damages, general damages, punitive damages

What else may plaintiffs want besides damages compensation?

May want court to order a defendant to do or refrain from doing something (equitable relief)

• Injunction: requires defendant to do something (mandatory injunction) or refrain from doing something (prohibitory injunction)

• Declaration: a finding of the court; may not provide relief to plaintiff but may assist in further private/public action

Costs

In Canada, costs of a lawsuit are awarded to the winning party (losing party must pay the costs to the winner)

The purpose of awarding costs is to protect defendants from frivolous lawsuits and encourage parties to settle differences before expending court resources

The court can also choose not to award costs

Mediation

Pre-trial mediation is almost always attempted

in some jurisdictions, pre-trial mediation and negotiations are mandatory

Two main challenges of using the courts as an environmental protection tool

• establishing causation can be difficult because the impact of environmentally damaging activites can be affected by other factors

• Quantifying damages is difficult because the legal system has not evolved to be able to recognize or measure the inherent value of nature