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.