Environmental Law and Its Evolution in Canada

Textbook chapter 1

Learning Objectives

Discuss environmental law and how it can be used to protect and improve the environment.

Evaluate the scope and importance of environmental regulatory and assessment laws.

Describe the ideas underlying modern environmental law.

Compare general application and sectoral laws and how they relate to environmental law.

Discuss the four evolutionary phases in the development of Canadian environmental law and the implications of these phases.

Describe the four trends that have affected the core concerns, design, application, and effects of environmental laws in different jurisdictions in Canada.

Discuss sustainability, complexity, and transformation.

What is environmental law?

the body of legislated statute and common law that can be used to protect and improve environmental conditions.

Deals with

• pollution control,

• waste management,

• endangered species preservation,

• and other issues that clearly involve the natural environment.

The term environment is often defined broadly to cover land, water, air, and living organisms, including humans and their built environment, and the interaction ofthese elements. The scope ofthis definition is sensible because many aspects of the biophysical environment and the human social and economic environment are deeply intertwined.

environmental law is the process whereby the common resources of society-the air we breathe, the water we drink, the minerals in the ground, the trees, and the lakes-are allocated to, and protected from degradation by, the public and private interests that use those resources to provide goods and services for the public at large.

Hence, conditional licences are granted to extract aggregate from the ground for highway construction: limited permits to take water are granted to industry for bottling water; and controlled discharge approvals are granted to steel-making facilities to emit pollutants into the air.

Environmental law addresses whether such allocations should be made, how much is appropriate, and who should participate in such decisions. Where it is well designed, environmental law also respects the interests of future generations.

common law

a system of law based on the english legal tradition, which relies on precedent rather than codified rules.

In common law, a precedent is a past judicial decision that serves as an authority for deciding future cases with similar facts, guided by the principle of stare decisis ("to stand by things decided"). This creates a body of case law that promotes consistency and predictability by requiring judges to follow the rulings of higher courts in their jurisdiction. Precedents ensure that similar disputes are treated alike, even when laws aren't codified in statutes, and can be binding (must be followed) or persuasive (merely considered). 

What kind of laws, although not environmentally focused, can be used to advance environmental objectives?

Although a number of environmental laws exist, many laws of more general application can be used to advance environmental objectives.

Examples include the body of common law (focused on property) and tort law (centred on private legal actions concerning harm to person or property). Both may be used to prevent environmental harm or compensate those harmed.

What is the main goal/intention of most environmental laws? How is that different from other laws?

Some environmental laws focus on the prevention of damage.

Others are intended to require, or at least to facilitate and encourage, the rehabilitation of degraded environments or the correction of environmentally damaging or dangerous behaviour.

Seems like the two main goals of environmental law is to prevent damage, or fix the damage already done. Prevention and proactiveness. All the laws have a positive environmental agenda, all them try to make things better, or less bad.
This separates environmental law from the neutral rules of other laws, like contact law, which is used to resolve disputes involving individuals or corporations.

Environmental law is highly and openly value laden.

What do we mean when we say environmental law is value laden?

Environmental law is highly and openly value laden. Yes, environmental law is inherently value-laden, differing from more neutral legal fields like contract law because it openly pursues a positive agenda to improve the environment for human well-being, health, and economic interests, as well as the environment's intrinsic value.

Yes, environmental law is inherently value-laden, differing from more neutral legal fields like contract law because it openly pursues a positive agenda to improve the environment for human well-being, health, and economic interests, as well as the environment's intrinsic value.

Most of this positive agenda centres on human purposes, including immediate economic interests as well as long-term health and well-being and the democratic benefits of participation in decisions that affect our lives.

At least to some degree, environmental law also seeks to benefit the environment itself and the biophysical and ecological systems that sustain it. But this agenda too serves human interests ultimately, since we are permanently dependent on our environment for the basic prerequisites of survival and for the foundations of most of what enriches our lives.

Does environmental law reflect the ideas of Canadas citizens?

Environmental law aims to protect and restore or improve the environment. It does not do so simply because some legislator or court had an idea. Rather, it reflects the values of many Canadians. Opinion polls have confirmed again and again that Canadians value their environment and support action to protect it. Environmental law supports these fundamental values.

As stated in class, the laws reflect the views/beliefs of the people who make them. “I decide how the laws are made, that reflects how I view the environment.”

What does environmental law concern? What are its bounds?

Very versatile and multifaceted system that is still getting worked out.

Many laws affect efforts to protect or improve the environment. Some of them do so directly, for example, by requiring pollution abatement. Others address environmental matters indirectly or as part of a related agenda, such as protecting health or property. As a result, the boundaries of environmental law are inexact.

Two types of law at the core of environmental law, and other components of law that contribute

Environmental regulatory law: Governs discharge of harmful substances into the air and water and onto land.
Environmental assessment law: makes required the study of and attention to environmental considerations in the planning and approval or new undertakings.

• Legislation that confers/grants/bestows environmental rights on citizens, especially rights to receive environmental information, to participate in environmental regulatory decisions, and to demand that legally required standards be applied. Basically the legislation that citizens be involved in environmental issues.

• Laws that protect endangered species and natural areas

• environmental provisions in laws concerning agriculture, forestry, energy, fisheries, and other major sectors of the economy

• many international laws, conventions, and treaties are focused on environmental concerns such as persistent organic pollutants, substances that deplete the ozone layer, transboundary movement of hazardous wastes, and greenhouse gases.

Other areas of environmental law

wildlife management and national and provincial park legislation;

• community and regional planning law that regulates the built environment and its infrastructure;

• laws that establish and regulate health and related social programs;

• tax and economic benefit laws that affect environmental protection activities:

• common law elements of property and tort law that can limit property or natural resource developments:

• laws concerning Indigenous rights and interests, which necessarily involve environmental matters; and

• laws concerning sustainability that link environmental goals with long-term socio-economic well-being, and related matters.

In all of these areas, the law can be used or adapted for the protection and enhancement of the environment.

Moreover, the environment underlies and supports everything. It is fundamental to the viability of all the social and economic structures that serve human lives and livelihoods.

Recognizing that environmental law overlaps with other legal fields, we have included in this text sections on environmental laws in a variety of important sectors, as well as sections on common law tort, property rights, Aboriginal law and the rights of Indigenous peoples, environmental offences, constitutional law, and the arcane administrative law concerning judicial review of environmental regulatory decisions.

What is the origin of most environmental laws today?

Many ofthe environmental laws in place today in Canada and other developed countries originated in a burst of environmental law-making in the late 1960s and early 1970s.

Three new understandings about the environment that came to be in the 60’s that influenced environmental law making

These new laws focused on preventing as well as reducing pollution and signified three new understandings:

• that environmental damage was a serious problem,

• that easy technical fixes were not always available,

• and that prevention is often wiser and cheaper than repair.

Ideas underlying modern environmental law

• Public welfare and citizen participation

• Philosophy and ethics

What caused all the implimentation of envrio law concern in the 60’s? What caused subsequent law implimentation in the following years? What does this mean Canadian Environmental Laws are based on?

The new laws responded to a wave of public concern about environmental abuses. Concerned citizens, often led by public interest advocates and assisted by media attention, drove the process.

This pattern has continued throughout the evolution of environmental law in Canada. Few innovations in environmental legislation and few major advances before the courts have been the product of government zeal. Virtually all progressive steps in environmental law have required public initiative, public ingenuity, and persistent public pressure.

Not surprisingly, then, Canadian environmental law rests as much on ideas about democracy as on understandings about how to deal with the environment.

Two linked aspects of democracy that are important foundations of environmental law and what they mean,

Two linked aspects of democracy have been particularly important. These are the

• public welfare role of governments: governments in democracies have a responsibility to defend and advance public well-being. Long-recognized priority areas for government action for public welfare include national security, public safety, education, and transportation. Environmental protection became an important item on the list more recently, largely because of public concern and pressure. public welfare/well being relies largely on the environment being intact.

• the importance of citizen participation in policy deliberations: The development of environmental law in Canada also reflects an unwillingness to trust government officials to do what is necessary. From the late 1960s to the present, Canadian campaigns for stronger environmental laws have consistently included demands for participative rights-that is, legal requirements for the interested and concerned public to be notified about important findings and initiatives, to have timely and convenient access to information, to have opportunities for effective involvement in deliberations well before irrevocable decisions are made, and to be able to enforce environmental laws when governments fail to act. (policy deliberations: structured discussions where diverse groups, such as experts, stakeholders, and the public, engage with information and evidence to inform decision-making and shape policy outcomes).

What kind of concerns are most environmental laws birthed from? What was the inital goal with environmental laws and how did that change/what did we learn?

Most environmental laws emerged from concerns about threats to human health or other material interests.

The initial assumption was that any problems serious enough to merit legal attention could be dealt with satisfactorily, one by one, usually through some technological repair. The role of the law was to force attention to problems and to require application of economically viable technological solutions.

But the real world turned out to be inconveniently complex. The technical fixes did not always work, or they had unsavoury side effects, or they were far too expensive, or the needs for fixes came too thick and fast to be manageable.

Years of experience gradually taught that prevention was preferable to repair, that considering overall effects was better than dealing with problems one by one, and that we should adopt precautionary approaches because we will never know enough to be able to predict, much less fix, all of the problems we might cause.

precautionary approaches

an approach to evaluations and decision making that recognizes uncertainty and favours steps to anticipate and avoid or mitigate risks that are potentially significant but not fully delineated

sustainable development

"development that meets the needs of the present without compromising the ability of future generations to meet their on needs" (World Commission on Environment and Development, 1987), it involves improving the quality of human life and enhancing equity in the distribution of well-being while living within the carrying capacity of the planet's biophysical systems over the long term

What is our current understanding of our place in the world?

environmental laws today are beginning to reflect a new understanding of the world and our place in it. That understanding is as follows:

• We are permanently dependent on a natural environment made of highly complex and interrelated systems at every level, from global climate chemistry to soil bacteria.

• We will never control nature in any complete and fully competent way.

• We must find better ways to live in and with the rest of nature by establishing carefully integrated socio-ecological systems that are farsighted, fair, and adaptable enough to serve present needs without sacrificing the prospects of future generations.

Remember! Our laws reflect our understanding/beliefs.

As we will see in the chapters that follow, little of this new perspective is entirely unprecedented. Many old laws include components that anticipate the new understanding.

Anticipation of recent ideas in older laws and documents

Many long-standing proposals for the law also anticipate recent ideas. For example, in 1948, Aldo Leopold proposed a "land ethic" that would extend ethical or moral considerations reflect the interconnections of ecosystems so that soil, plants, and animals, along with humans, would merit moral consideration as important parts ofthe land on which all live." In a 1972 law journal article, Christopher Stone argued in favour of giving trees standing (capacity) to sue, with the help of human "next friends" (substitute litigants), to protect themselves and their habitat. And in 1973, Laurence Tribe published a paper entitled "Ways Not to Think About Plastic Trees,"10 in which he proposed moving beyond transcendence (human domination over natural objects) to immanence (respect for natural objects and systems).

What does environmental assessment law do

environmental assessment law, and the regulations and formal decisions made under the law, set the legally enforceable requirements concerning such matters as which proposed undertakings must be assessed, what the scope of an assessment must be.

what factors and options must be considered, how public involvement must be facilitated, what standards must be met, and what follow-up and monitoring must be carried out.

What is the roll of environmental law?

Environmental law is not just about prohibitions and penalties.

Many environmental laws are principally devoted to providing legal frameworks for processes that may involve information dissemination, review and research, consultation, planning, actual environmental protection, and remediation actions. Environmental assessment and land use planning laws, for example, centre on establishing structured approaches to decision-making that consider specified factors and provide opportunities for participation by interested and affected parties.

Two main categories that environmental laws can fall into

environmental laws of general application: typically devoted to conventional environmental issues such as pollution control and natural resource protection, and they apply to everyone and all activities.

and sectoral laws (laws dealing with a resource sector such as water or forests, or an industrial sector such as fisheries or waste management, mining, oil and gas extraction, nuclear power). Laws focused on the activities of particular industrial sectors may be less obviously environmental but can be just as important. They include the many broadly environmental laws that deal with the allocation and use of natural resources (such as land, water, forests, agriculture, and fisheries) and have significant effects on environmental systems. May cover a wide range of considerations but include important provisions addressing environmental concerns-for example, concerns about air or water contamination, wildlife habitat damage, human health threats, and maintenance of resources for future generations.

Do laws of general application interact with sectoral laws?

Laws governing activities in particular industrial sectors sometimes appear to overlap or conflict with environmental laws ofgeneral application.

For example, major energy projects are subject to federal environmental assessment requirements and licensing under federal energy sector law. Typically, they also face requirements imposed by provincial, territorial, and/or Indigenous authorities. To deal with some of these situations, the laws may provide for harmonization through joint or substitute procedures. An example is the joint board procedure under Ontario's environmental, water, and municipal planning legislation that allows for a single hearing on matters involving two or more different laws. If conflict emerges, disputes may be resolved by negotiation or, if necessary,by the courts, which apply general principles ofstatutory interpretation to decide which law prevails. In such cases, the courts carefully assess the language of each law and the objectives that can be understood by reading each law as a whole. Courts ask themselves whether the legislature intended that the general environmental law-that is, the "law of general application"-should apply, or whether the special sectoral law should apply as an exception to the general requirements.

Both environmental laws of general application and special sectoral laws set out enforceable requirements.

What other kinds of laws can have affects on environmental concerns?

liability rules, tax laws, spending powers, and other financial tools that provide the basis for imposing and adjusting incentives for better environmental practices and disincentives for undesirable behaviour

general laws ensuring public access to information and other opportunities for effective scrutiny of and participation in important decisions, including environmentally significant ones;

and the broad law-making power itself, which gives governments the ability to use the plausible threat ofnew legal obligations to encourage "voluntary" efforts to improve environmental performance.

Four evolutionary phases in Canadian environmental law

1: Common Law rights and early statutes

2: Waste control and cleanup laws

3: Toxic control laws

4: Comprehensive Approaches to environmental assessment and planning management regimes

Phase 1: common law rights and early statutes. What existed?

1960’s, legislators started actually paying attention to the environment.

Still in its infancy, no regulatory statutes with contaminant discharge limits, no approvals based on these limits, and no civil and criminal penalties for failure to comply.Courts would not recognize the right of citizens to challenge government statutory decisions (or non-decisions) that resulted in environmental harm, unless the citizens could show direct harm to their persons or property.

• The federal Fisheries Act would be there, as it has been since the 1860s, but it would be limited to blanket prohibitions against the discharge of "deleterious substances" in "waters frequented by fish."

• public health statutes, a public nuisance offence in the Criminal Code, and a scattering of anti-pollution provisions in natural resource development statutes.

Only things you could really use were causes of action under tort/property law components of common law (or civil law in quebec). You could apply lawsuits in nuisance (tort in which the defendant interferes with the use and enjoyment of the plaintiff's property) and negligence (failure to act reasonably, with the result being harm to someone else). But these are desifned for resolving disputes between private parties to compensate persons harmed, not really adequate to protect the environment.

Statutes

acts/federal legislations

Phase 2: Waste control and cleanup laws

Late 1960’s people and govt realized concerted and comprehensive environmental protection was needed.

• Basic air, water, and land pollution statutes were enacted by the provinces in the late 1960s and 1970s. New statutes were cleanup laws, designed to regulate the discharge of human and industrial waste into the environment. Among them were comprehensive statutes dealing with air, water, and land pollution. Waste control was the main goal.

• Examples of these statutes include the Ontario Environmental Protection Act, the Quebec Environment Quality Act, and the BC Pollution Control Act. There were also single-element statutes, such as Alberta's Clean Water Act, Clean Air Act, and Land Surface Conservation and Reclamation Act (these acts were consolidated in the 1990s into the Environmental Protection and Enhancement Act).

• Federal Govt broadened fisheries act

• Governments established regulatory systems to identify waste sources and require permits to control the quantity and quality of substances discharged.

• The terms and conditions of permits were often the result of closed negotiations between the industrial applicants and the regulators. Failure to comply with these requirements was an offence punishable on summary conviction (a minor offence) and resulted in modest fines for those found guilty.

• The discharge of waste that was likely to harm the environment or human life or health was often established as a general offence. In this context, the environment was generally defined as air, water, and land upon which human life depends. Governments only gradually issued regulations specifying requirements for control of particular contaminants.

Basic objective here was to control the release of harmful substances into land, air, and water.
The underlying assumption was that the natural environment could be used to dispose of, dilute, and cleanse the waste produced by human activity, as long as sufficiently careful management prevented too much contamination at any one time and place.

• Legislation was a matter of fairly allocating nature’s assimilative capacity.

• This era of environmental law created/used laws to control waste. This purpose of law is still at the core of most environmental law today.

Phase 2: How were the waste control laws / permits administered

administered by environmental departments that were largely technical agencies, staffed by scientific and engineering experts who administered the permit or approval schemes.

Typically, these departments developed guidelines, rather than enforceable regulations, for "safe" waste discharge. Initially, much effort was required simply to bring all waste sources under permit. Some jurisdictions issued licences or control orders with enforceable conditions, but non-compliance rarely led to prosecution.

Define assimilative capacity

the ability of air, water, or soil to receive/process contaminants and cleanse itself without deleterious effects

Phase 3: Toxics Control Laws

In 70s and 80s, we started to realize the environmental laws that functioned as waste control and relied on the assimilative capacity of the environment were neglecting an important issue on the rise. The issue was the accumulation in the environment of persistent toxic substances.

The most comprehensive toxics control laws in Canada are the 1975 federal Environmental Contaminants Act and its successor, the Canadian Environmental Protection Act (CEPA).

CEPA is the main tool for regulating both existing and new substances in Canada.

• Allows assessment of substances for their environmental/human health risks,

• imposes information requirements on manufacturers and importers introducing new chemicals to Canada.

Prior to the enactment of CEPA, over 23,000 substances that were made, imported, or used in Canada on a commercial basis had not undergone a full risk assessment.

Waste/toxics control laws

waste control laws: laws designed to control discharge of waste using permits and approvals

toxics control laws: laws designed to control the manufacture, use, sale, transport, storage, and disposal of toxic substances. They recognize that environmental protection is a long-term process that must address potential intergenerational effects of environmental damage. Because scientific knowledge about the toxicity of particular substances is continually developing, these laws include protocols and processes for identification and effective control of contaminants. The approach is preventive and anticipatory, not merely reactive.

Phase 3: re-enactment of CEPA

The re-enactment of CEPA in 1999 sought to expedite the assessment process by requiring Health Canada and Environment Canada to categorize or identify certain substances that pose a significant risk because they

. are inherently toxic (cause toxic effects) and persistent (take a long time to break down);

. are bioaccumulative (collect in living organisms and move up the food chain); or

. have the greatest potential for exposure to individuals.

CEPA established substance inventories or lists to distinguish new from existing substances, assign reporting requirements for new substances, and "priority substances" (that must undergo a rigorous assessment of their risks to the environment and human health) and "toxic substances" (such as dioxins and mercury, that are subject to regulatory controls)

Phase 3: Other federal statutes in place to deal with harmful substances

A number of other federal statutes and their provincial equivalents deal with potentially harmful substances. The federal statutes include

• the Pest Control Products Act (PCPA): regulates products used to control injurious or noxious plants or animals, including insects

• Transportation of Dangerous Goods Act: imposes restrictions and safeguards on the transportation of materials and goods that could be dangerous to the public in the event of an accident.

• Hazardous Products Act: regulates products that may contain toxic or dangerous substances.

• The Canada Consumer Product Safety Act, passed in 2010, replaced and updated substantial portions of the Hazardous Products Act, especially to respond to growing fears of toxic contamination of consumer products, such as children's toys. This legislation gives the government testing powers plus the authority to issue mandatory recall orders for unsafe consumer products and to require manufacturers, sellers, and importers to take corrective measures.

• Provincial statutes and regulations govern the disposal of toxic wastes and have been tightened with the addition of requirements for reporting and cleaning up toxic substance spills. Liability for spills and contaminated sites now rests with landowners and former landowners, and even manufacturers, sellers, and users of toxic substances.

Phase 4: Comprehensive Approaches to Environmental Assessment and Planning and Management Regimes

In the infancy of environmental law, canadian and other govt began to consider more anticipatory and preventive approaches to pollution and other environmental problems.

Chief among the anticipatory and preventive tools were environmental assessment requirements and planning and management regimes.

environmental assessment

the identification and evaluation of actual or potential effects (positive and adverse) of an undertaking (projects, plans, programs and policies) on the environment (potentially including social, economic, and cultural as well as biophysical aspects and their interactions), often also involving critical review of purposes, comparative evaluation of altematives, and follow-up examination of effects

Environmental assessment requirements forced proponents of environmentally significant new projects, such as hydropower stations, airports, mines, roads, and landfills, to predict and evaluate the potential effects of these proposed undertakings. Sometimes comparison with reasonable alternatives was required before approvals were granted.

how were environmental assessment requirements imposed?

Environmental assessment requirements were imposed hesitantly in most jurisdictions. The federal government relied on a more or less discretionary policy-based assessment process for two decades before it finally passed legislated requirements.

Ontario, which applied a strong assessment law to public sector undertakings beginning in 1975, left the private sector largely free of obligations. But eventually, the federal government, every province and territory, many land claim agreement areas, and a substantial number of municipalities had law-based environmental assessment processes.

What do most Canadian assessment processes consider?

Although some Canadian assessment processes remain limited in application and ambition, most now go beyond mere evaluation of direct project effects to consider at least some of the following matters:

. cumulative effects (of the project plus other existing and expected activities);

. combinations of ecological, socio-economic, and cultural effects;

. implications of uncertainties; and

. effects of strategic undertakings (plans, programs, and policies).

planning and management regimes

legislative schemes that govern a sector, such as forests, fisheries, farmlands, endangered species, and watersheds, and sectors including electric power, solid waste, urban growth, and transportation, with the purpose of maximizing the long-term benefits obtainable from the resource while minimizing the detrimental effects of its exploitation.

Have a longer history than environmental assessment, can go back 100+ years. But most have been strengthened considerably in recent years in response to a variety of concerns, including the following:

. rising pressures on limited resources, such as old-growth forests;

. conflicts among competing uses, such as those that arise between sprawling suburbs and maintenance of crucial ecological services; and

. evidence of serious management failures, such as that revealed by the destruction of the Northwest Atlantic cod fishery.

Not surprisingly, even within the same resource or sector, different provinces have adopted different requirements and procedures. This is evident in the field of forest management, for example.

The general trend is toward more comprehensive approaches that recognize numerous influences and complex implications, consider more response options, give greater respect to uncertainty, and include a wider range of interests. Resource management law often now extends beyond particular resources or environments to recognize many objectives and activities. Similarly, regional growth management laws affecting the rapidly urbanizing areas of southern British Columbia and southern Ontario address long-term options covering many determinants of future well-being.

Four associated trends in environmental law

Many trends have affected the design and application of the environmental statutes, regulations, and administrative practices introduced since the 1960s.

• Regional, continental, and global effects

• transparency and citizen participation

• international influences

• effective and efficient application of the law

Regional, continental, and global effects

Early enviro protection efforts centered on local effects of particular sources and contaminants. Popular mindset: Dilution is the solution to pollution.

ex. Accordingly, when industrial air emissions were causing undeniable damage in the neighbourhood in which a plant was situated, the accepted response was to require construction of a taller emission stack.

This technique was most famously used in Sudbury, Ontario, where acidifying emissions and other contaminants from the nickel smelters had killed much of the local vegetation and left a moonscape suitable for astronaut training. Construction of a 380-metre (1,250-foot) superstack at the Inco smelter in the early 1970s helped reduce local pollution loads and allowed vegetation recovery. But it also spread the acidifying contaminants much farther. By the early 1980s, the long-range atmospheric transport of acidifying pollutants from Sudbury and a host of other major and minor sources was clearly having serious effects on the overall acidity of precipitation across huge areas of North America and Europe.

So we see that they solved the local issues caused by the smoke, but in turn caused more global and widespread issues. Diluted their pollution.

The dilution solution had led to environmental damage on a regional and continental scale. Eventually, environmental authorities in Ontario and other jurisdictions in North America and Europe were moved to rewrite their environmental laws and facility-specific requirements to deal with effects well beyond the local scale.

Today the most perilous environmental concern is global climate change, which has also resulted from emissions from a multitude of local sources. While responses to this problem are still far from adequate, the planetary scale of the challenge and the need for similarly inclusive action is well recognized in most quarters.

So back in the day, we only considered the small scale / local affects of pollution. The solutions we applied may have helped the local impacts, but just ended up spreading the environmental harm elsewhere and on a larger scale when the impacts weren’t as visible but built up even worse. Dilution is the solution mindset only set us back.

Dilution solution

the idea that air or water pollutants do not pose a problem if they are spread out widely enough, such as by the wind or ocean currents

transparency and citizen participation, the historical development of environmental law and concern with citizens

• the initial inclination of government authorities was to deny or minimize environmental problems, and to resist imposing the full costs of environmental protection on corporate or individual taxpayers.

• late 1960s and early 1970s, a wave of public-interest environmental groups emerged to challenge government authorities. Through effective collaboration with the news media, environmental groups raised public awareness of environmental problems and pushed governments to introduce environmental protection laws.

• Unfortunately, the reluctance of governments to take the lead on environmental problems contributed to public distrust. This distrust was deepened by the frequent weakness of government efforts to enforce the new laws and by their common practice of developing pollution abatement requirements through secret negotiations with polluting industries.

What did the public want from the government for environmental protection? What is the result today?

Unfortunately, the reluctance of governments to take the lead on environmental problems contributed to public distrust. This distrust was deepened by the frequent weakness of government efforts to enforce the new laws and by their common practice of developing pollution abatement requirements through secret negotiations with polluting industries.

As a reaction to these frustrations, environmental groups began to push for greater transparency in the decision-making process, including the following:

. timely and convenient access to information,

. opportunities for direct involvement in deliberations leading to new policies,

. public access to regulatory requirements and case-specific decisions, and

. rights to demand action and to participate in or pursue public interest litigation.

Most Canadian jurisdictions now make decisions related to environmental law in a much more transparent and participatory way than they did 50 years ago. The Supreme Court of Canada improved access to justice by introducing relatively flexible criteria for discretionary public interest standing, which determines whether members of the public can challenge the legality of a legislative provision or a government decision. Standing is usually allowed to individuals who may be directly affected by that decision, for example, because their property or health may be harmed. The courts have stated that the public can at times bring such lawsuits if certain other criteria are met and, most importantly, if the person bringing the action has a genuine interest in the matter and there is no other way to bring the issues before the court.30 Many of the more recent environmental laws, such as CEPA 1999 and Ontario's Environmental Bill of Rights, 1993, encourage public consultation and participation. Citizens may even become decision-makers under provisions for mediated negotiation among stakeholders. It is no longer a two-party government-industry negotiation process.

International Influences

Modern enviro law is greatly influenced by international law principles and agreements.

Below are examples of international agreements explicitly implemented by Canadian environmental laws:

. The Convention on Biological Diversity was implemented by the Species at Risk Act to protect endangered species.

. The London Convention and Protocol on Marine Dumping were implemented by CEPA 1999 to reduce marine pollution.

. The Montreal Protocol on Substances That Deplete the Ozone Layer was implemented by CEPA 1999 to protect against ozone-depleting substances.

The rising influence of international law results in part from the need for responses to international-scale environmental problems. These problems include climate change, stratospheric ozone depletion, acidic precipitation, biodiversity loss, and trade in toxic substances.

innovation that results from international environmental law, what is the precautionary principle?

perhaps because of the evident perils involved, international environmental law has also been a forum for significant innovation. ex.

• adoption of precautionary approaches in many areas of environmental law. The precautionary principle, for example, directs decision-makers to favour protective action on health and environmental concerns even where there is scientific uncertainty about the risks involved.

• Essentially, the precautionary principle and other applications of precaution recognize that the world of environmental interrelations is extremely complex and that our ability to describe it, much less predict the effects of new interventions, is extremely limited. Uncertainty is therefore always present and often important.

• In international law, including multilateral environmental agreements, the precautionary principle is now widely accepted and increasingly applied as customary law. Application in Europe is also extensive. In Canada, precaution is frequently advocated in policy statements, sometimes incorporated in statutory objectives and purposes,38 and common in some areas of implementation. Attention to uncertainties, anticipation of worst-case possibilities, favouring low risk options, and planning for adaptation are now often expected in major environmental assessments.

Effective and efficient application of the law

Especially since the 1990’s, the introduction, design and application of environmental law in Canada have been affected by increased scrutiny of of government initiatives by the public and NGOs. The main reasons for this increased scrutiny are:

· ideological predispositions and corporate interests,

. concerns about the costs of government programs, and

. doubts about effectiveness.

In response to concerns about costs and regulatory burdens, some governments have repealed or weakened environmental laws and put more emphasis on voluntary compliance initiatives.

At the same time, public interest advocates have consistently underlined the continuing failure of current environmental laws and their application to resolve many serious environmental problems. Some jurisdictions have responded with efforts to strengthen environmental law to deal with established and new areas of concern such as biodiversity losses and climate change.

The result, especially over the past 25 years, has been a back and forth between stronger and weaker environmental laws at the federal and provincial levels. The weaker laws and heavier reliance on voluntary actions have generally failed to deliver adequate protections or credible decision making, but the stronger laws have faced limitations of government capacities. Achieving efficiencies without sacrificing environmental and sustainability objectives has proven to be difficult.

The most positive initiatives include environmental statutes with sophisticated enforcement provisions, including some that establish corporate officer and director liability and allow for large fines and potential imprisonment for serious offences. These provisions give corporations a strong incentive to review and audit their compliance with environmental requirements, take necessary action, and prepare and implement environmental management policies and plans.

Environmental laws are also now being drafted as broader packages that include a range of legal, economic, educational, and other flexible means to encourage and enforce environmental improvements. Regulators can now choose among tickets for minor offences, criminal indictments for endangering life or health, mandatory administrative orders, administrative penalties, law-based economic tools such as carbon pricing and emissions trading, and lawsuits. Even broader packages use regulation and the threat of additional regulation along with more general liability provisions, incentives, multi-stakeholder negotiations, and law-backed sector-specific "voluntary" programs to push for compliance and performance beyond legal requirements. Not all of these flexible approaches are well integrated or consistently applied. As with environmental law generally, great variation remains from one jurisdiction to the next. When something goes wrong, the various environmental agencies may point the finger of responsibility elsewhere. For example, provincial agencies may blame federal agencies, and vice versa. However, most agencies also guard their mandate, authority, and independence tenaciously. The resulting differences in environmental requirements across jurisdictions have frustrated both corporate interests and environmental advocates. Especially through the Canadian Council of Ministers of the Environment, the federal, provincial, and territorial governments have taken some modest steps toward harmonizing environmental law requirements. This too remains a work in progress.

voluntary compliance initiatives

an approach that relies on industry and individuals to do the right thing, motivated by conscience, public relations, or a desire to avoid regulation