1. Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS  Chapter 35 – Environmental Law Prepared by Douglas H. Peterson, University of Alberta

2. Copyright © 2004 McGraw-Hill Ryerson Limited 2 ENVIRONMENTAL LAW The Common Law Environmental Legislation Environmental Responsibility

3. Copyright © 2004 McGraw-Hill Ryerson Limited 3 THE COMMON LAW Limited to addressing injury to property or persons on an individual basis Redress aimed at compensating injured individuals, not public good of environment Protection of public at large was a matter for government Historically centered on tort of nuisance

4. Copyright © 2004 McGraw-Hill Ryerson Limited 4 THE COMMON LAW Defenses not usually allowed in common law for tort of nuisance Plaintiffs came to the nuisance Nuisance a benefit to the public at large Place of operations is a suitable one and no other place would result in less of a problem Reasonable skill and care were taken – nuisance not part of negligence law Others are doing the same thing Mere reasonable use of property

5. Copyright © 2004 McGraw-Hill Ryerson Limited 5 THE COMMON LAW Standing Nuisance – interference with one’s enjoyment of their property Often property belonged to the Crown and not directly the individuals injured Damage stopped by legal action (injunction), but cumulative damage not restored No mechanism to address a polluter who ruined own lands, but did not contaminate others Difficulty in identification of source Difficulty in control and abatement

6. Copyright © 2004 McGraw-Hill Ryerson Limited 6 ENVIRONMENTAL LEGISLATION Sphere of both federal and provincial governments Some grey areas of overlap exist (Oldman River case) Provincial legislation is usually the applicable law Object: To limit or prohibit activities that either harm or degrade the environment Discharge of harmful substances into the air, water, and ground Cleanup of past pollution of ground and water

7. Copyright © 2004 McGraw-Hill Ryerson Limited 7 ENVIRONMENTAL LEGISLATION Regulations rather than prohibitions Government recognizes some pollution necessary for industry Specific about quantity of pollution discharged during a certain period of time Requirement of monitoring and recording

8. Copyright © 2004 McGraw-Hill Ryerson Limited 8 ENVIRONMENTAL LEGISLATION Licensing equipment and emissions Inspection and monitoring for compliance Regulated through enforcement officers with wide powers of inspection, authority to examine and seize records Fines for offenders Authority to cease operations

9. Copyright © 2004 McGraw-Hill Ryerson Limited 9 ENVIRONMENTAL LEGISLATION Environmental assessments to identify potential harm Procedure undertaken to determine the effect on the physical environment of a particular undertaking Usually limited to major undertakings such as Power dams, wetlands, waste-disposal sites Approval process before undertaking project Lengthy and technical process

10. Copyright © 2004 McGraw-Hill Ryerson Limited 10 ENVIRONMENTAL LEGISLATION Storage and transportation of hazardous products Aimed at notice requirements, duties for storage and handling Transportation of Dangerous Goods Act Hazardous Products Act Often strict liability offences

11. Copyright © 2004 McGraw-Hill Ryerson Limited 11 ENVIRONMENTAL LEGISLATION Some outright prohibitions on emissions and activities Directors of firm can be personally liable when pollution occurs (aside from firm as well) Only defense is due diligence - having taken all reasonable care to prevent the pollution

12. Copyright © 2004 McGraw-Hill Ryerson Limited 12 ENVIRONMENTAL RESPONSIBILITY General Rule – environmental damage is the responsibility of the party that caused damage Sometimes owner of property not offender but ordered to clean up property (clean-up order) Clean up costs can exceed value of the land Environmental audit is wise before purchasing property Land can become un-saleable and un-useable Cleanup at public expense not addressed in legislation This issue not addressed in legislation

13. Copyright © 2004 McGraw-Hill Ryerson Limited 13 SUMMARY Originally left with individual to enforce through tort laws Remedies limited to damages and injunction Tort law did not address more fundamental damage Shortcomings of common law addressed in legislation Designed to control or eliminate pollution Responsibility to person causing damage Holds directors and officers personally liable Environmental audits an important risk management technique