Environmental Law Notes

Environmental Law 1

Early Attitudes Towards Natural Resources

  • European settlers viewed North America as a source of resources to exploit, disregarding environmental impact.
  • Eventually, concerns about long-term resource viability and environmental health emerged.

Emergence of Environmental Advocacy

  • The initial environmental preservation efforts began in the 1880s with lobbying for wilderness conservation.
  • For example, the Sierra Club started as a wilderness conservation group in 1882.
  • In 1885, Canada established its national parks system, starting with Banff National Park, prioritizing conservation and preservation for the next 80 years.

Mid-20th Century Priorities

  • Despite evidence of environmental damage, economic growth and improved living standards were prioritized over environmental protection during the mid-20th century.
  • The approach to pollution was "dilution," involving dumping waste into large water bodies or releasing it into the atmosphere.
  • Significant environmental damage was evident in areas like Sudbury (refinery emissions) and Lake Erie (phosphate pollution).
  • However, there were limited complaints outside of affected regions.

Limiting Citizens' Rights

  • From the 1940s to the 1960s, the Ontario government restricted citizens' rights to sue polluters.
  • The KVP Act, enacted after the McKie v. The KVP Co. Ltd. case in 1948, limited lawsuits against companies to control pollution if it affected productivity and profits.
  • The prevailing view favored economic development over environmental protection.
  • Even now, government commitment to environmental protection may diminish if it hinders economic growth.

Growing Awareness of Environmental Damage

  • During the 1960s, the effects of environmental damage became more apparent.
  • Rachel Carson's "Silent Spring" (1962) highlighted the negative impacts of DDT on birds and wildlife.
  • Lake Erie was declared "dead" due to severe pollution.
  • In June 1969, a burning oil slick on the Cuyahoga River in Cleveland raised concerns.
  • Issues such as urban sprawl, air and water pollution, and toxic and nuclear waste disposal became prominent.
  • Canadian federal and provincial governments faced pressure to address environmental concerns.

Sustainable Development Concept

  • In the 1970s, the concept of sustainable development emerged, aiming to balance economic and environmental health.
  • The UN's World Commission on Environment and Development further examined this approach in 1983.
  • The report "Our Common Future" defined sustainable development as "development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs."
  • Governments worldwide, including those in Canada, endorsed the concept.

Requirements for Sustainable Development

  • The approach requires:
    • Valuing environmental health as crucial for economic performance.
    • Balancing the needs of current and future generations.
    • Ensuring the needs of one group are not met at the expense of others.
    • Developing long-term economic and environmental policies instead of short-term plans.
    • Considering the potential consequences of economic activities to prevent negative environmental impacts.

Individual Legal Action

  • Individuals possess limited rights to take legal action for environmental protection.
  • Common-law rights allow individuals to sue for interference with their property use or enjoyment, using tort law.
  • Relevant torts include nuisance and strict liability for the escape of dangerous substances.
  • Other useful torts are trespass (intentional interference with land) and negligence.
  • Landowners bordering water bodies can sue polluters who interfere with water quality, based on the riparian rights doctrine.
  • Principal common-law remedies are damages (compensation for harm) and injunctions (court orders to stop objectionable behaviour).

Right to Sue for Nuisance

  • Private nuisance occurs when there is unreasonable interference with the use and enjoyment of another's land, which must be substantial.
  • Common nuisance subjects involve noise, air and water pollution, vibrations, smells, soil contamination, and flooding.
  • Courts may tolerate the behavior if the interference is caused by an activity of public importance and economic benefit to the community and is difficult to prevent or avoid.

Nuisance and Public Benefit

  • A court may decide that the economic benefits and the public good attached to mass transit may outweigh the harm done to owners of a property next to a bus garage who are bothered by noise and diesel fumes.
  • Courts are more likely to find liability for nuisance if the activity causes actual physical harm to the owner, damages property, or reduces income, even with economic and public benefits.

Public Nuisance

  • If an activity interferes with a public right, such as the right to fish, one might assume that any member of the public who is affected by the harmful activity may bring an action in public nuisance.
  • The common law may deny any one person the right to sue, even if that person suffers damages, unless the plaintiff can show extraordinary damage above and beyond what his or her neighbours sustained.
  • Usually, anyone wishing to sue for public nuisance must obtain the consent of the attorney general of the province to commence a lawsuit, or (more rarely) wait for the attorney general to start a lawsuit.

Restrictions on Standing

  • Restrictions on "standing" prevent public nuisance suits by environmental groups to protect the public interest.
  • However, in Ontario, the consent of the attorney general is not required to start a public nuisance lawsuit since the Environmental Bill of Rights, 1993 was adopted.

Right to Sue for Negligence

  • Negligence is conduct below the standard of care expected of a reasonable person in a situation.
  • A person is liable if they should have foreseen the resulting damage from their activity.
  • Negligence can be useful in environmental cases.

Problems with Negligence Law

  • Determining a reasonable standard of care can be problematic in negligence law.
  • A defendant might argue their production techniques align with industry standards.
  • The defendant may successfully argue that he or she met the standard of care, even if industry standards are questionable.

Riparian Rights

  • Owners/occupants of land bordering a lake or stream have riparian rights and obligations.
  • They have a right to water flow and quality that is not interfered with by others bordering the water body.
  • For example, if one of the owners proposes to open a pulp mill or dump raw sewage into the water body, the other owners or occupants may sue for interference with riparian rights.

Alteration of Water Flow

  • A statutory body (e.g., municipality) may have legislative authority to alter water flow/levels without landowners being able to sue.
  • An owner may obtain an injunction by showing potential harm before actual damage occurs, as seen in the Gauthier v Naneff (1970) case.

Gauthier v Naneff (1970)

  • Naneff planned to hold a speedboat-racing regatta on Lake Ramsey in Sudbury.
  • Gauthier and other landowners sought an injunction to prevent the race due to concerns about water quality impairment.

Court Considerations

  • Plaintiffs argued outboard motors would damage water purity irreparably.
  • The court considered whether the defendant would unreasonably cause damage to water quality.

Court Ruling

  • The court held riparian owners had a right to unaltered water quality due to modern concerns about pollution problems.
  • The court dismissed arguments that the races would create economic benefits and raise funds for charity, deeming these benefits insufficient to justify pollution.

Drawbacks to Using Common-Law Remedies

  • Individual lawsuits allow compensation for personal environmental damage or to stop harmful activity.
  • Drawbacks include the expense of lawsuits (lawyers' fees, potential payment of defense costs if the plaintiff loses).
  • Plaintiffs may end up with a "paper judgment" if the defendant lacks funds to pay compensation.

Compensation Schemes

  • In the 1990s, federal and provincial governments enacted compensation schemes in statutes, allowing owners to receive compensation without going to court.