Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS ...

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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

Transcript of Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS ...

Page 1: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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

Page 2: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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ENVIRONMENTAL LAW

The Common Law Environmental Legislation Environmental Responsibility

Page 3: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

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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

Page 5: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

Page 6: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

Page 7: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

Page 8: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

Page 9: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

Page 10: Copyright © 2004 McGraw-Hill Ryerson Limited 1 PART 8 – SPECIAL LEGAL RIGHTS AND RELATIONSHIPS Chapter 35 – Environmental Law Prepared by Douglas H.

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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

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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

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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

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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


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