Environmental Law – Midterm Summary

Chapter 1: International Environmental Law

Sources of International Law

  • Customary International Law (CIL):
  • Norms which have become accepted by countries over time as guiding principles.
  • Examples:
  • State sovereignty.
  • A state must not permit activities that cause harm in adjoining states.
  • Binding on all countries.
  • Treaties
  • Binding only on countries that sign them.
  • A treaty must be implemented by the state, often through legislation, though some treaties can be implemented through policy measures.
  • Patent implementation: when a country signs a treaty, indicates their intent to implement, and indicates that legislation is not required for implementation, they can be considered to have implemented the treaty.
  • Soft law:
  • Guiding principles which have been endorsed in the international forum and may have been referenced by courts, but fall short of CIL and are not binding.
  • Examples:
  • Precautionary principle: if there is a serious threat to the environment, it is not necessary to wait for scientific certainty about the causes – precautionary measures should be taken, even in the face of scientific uncertainty.

Old formulation was that one must take action despite scientific uncertainty.

Newer formulation is weaker – scientific uncertainty shouldn’t be an excuse for inaction; also, has come to be limited by the notion of ‘cost-effective action’.

Some Canadian legislation explicitly or implicitly incorporates the PP.

  • Principle of Polluter Pays: The cost of damage to the environment should be borne by the polluter as part of the cost of doing business, rather than by society at large.

Domestic Application of International Law

  • Only the federal government can make treaties, but their implementation may require provincial legislation. This raises constitutional balance of power issues.
  • Application of international law in Canadian courts:
  • Spraytech v. Hudson (Ville) [2001 SCC]:
  • Facts: Montreal municipal gov’t passed bylaw against pesticides allowed under Federal laws. Chemical companies took municipality to court challenging law as ultra vires and/or inconsistent with provincial and/or federal legislation. Court upheld bylaw.
  • Significance: Court considered international agreements as soft law; applied precautionary principle, and the fact that it has been explicitly incorporated into several recent Canadian statutes and many recent international agreements. Considered whether precautionary principle is CIL, but stopped short of saying it is.
  • Gosselin v. Quebec AG [2002 SCC]:
  • Facts: Plaintiff challenged Qc welfare program as violating Qc charter rights. Court declined to look to international agreements to clarify the meaning of these rights, saying the Charter provisions were left deliberately vague and were not intended to give the courts review powers re: what is appropriate evidence.
  • Significance: No private party can sue to enforce rights under an international agreement. Courts are not institutionally competent to review international agreements.
  • Canadian Foundation for Children:
  • Facts: Challenge to Criminal Code provision regarding permissible use of force on children for corrective purposes. Court upheld provision.
  • Significance: Canada’s laws should be construed so as to be consistent with international agreements. Treaties (and European Court of Human Rights) were used as interpretive tools to provide guidance.
  • Cross-border application of domestic law:
  • Reciprocal enforcement of judgments: a judgment rendered in the US can be registered in Canada and then enforced by the Canadian system, and vice versa.
  • Tek Cominco Meadows v. Pakootas:
  • Facts: Smelter released slag into Columbia River in accordance w/ Canadian law. Slag flowed into US, causing US EPA to order smelter to investigate contamination and pay for cleanup. Trial court threw this out, as it would mean applying US law in Canada. Court of Appeal reversed this, saying the pollution source was the slag which had flowed into the US, not the smelting plant in Canada, so it was a domestic problem – and smelter had known the slag would flow into the US.
  • The international trade regime:
  • Formerly GATT, but has now been subsumed under the WTO.
  • Free trade agreements prevent Canada from erecting “barriers to trade” with certain countries. This has caused some environmental regulations to be struck down when they look too much like regulation of foreign goods.
  • Example: US regulations requiring imported shrimp be caught using a device which made fishing practice safer for sea turtles was struck down by a panel.

Chapter 2: The Common Law

Elements of Torts in Environmental Law:

  • The common environmental torts are negligence, nuisance, Rylands v. Fletcher, and trespass.
  • 1. Negligence:
  • Elements:
  • i. Duty of care
  • ii. Breach/standard of care
  • iii. Damages to P, caused (legally and factually)by D.
  • 2. Nuisance:
  • Unreasonable interference with a possessory right to use of land.
  • Types of nuisance:
  • Private nuisance: most nuisance cases fall into this category.

Plaintiff must have possessory interest in land

Defendant must have unreasonably interfered with dependant’s use/enjoyment of land, causing foreseeable harm.

Used in: Palmer, Cambridge Water

  • Public nuisance: interference with public rights, such as access to and use of public highways, waterways, etc.

It is difficult to achieve standing in public nuisance – usually limited to crown. An individual cannot sue in public nuisance unless they get permission from AG, or can show that they have suffered some special damage over and above that of the general populace (and this is typically interpreted quite strictly.)

“Any activity which unreasonably interferes with the public’s interest in questions of health, safety, morality, comfort or convenience” is capable of constituting a public nuisance (Ryan v. Victoria (City) [1999 SCC]).

  • Considerations in a nuisance case:
  • Was there damage to the land itself?
  • Utility of the activity that caused it.
  • Character of the neighbourhood.
  • Sensitivity of the plaintiff: courts apply a ‘reasonable person’ test.
  • Gravity, seriousness and duration of the interference.
  • Defence of statutory authority:
  • Defendant can argue that their activity was authorized by statute.
  • To invoke this defence, the harm complained of must be an inevitable consequence of the activities carried out under the statute. (Ryans, [SCC]).
  • Hayes v. BC Transit: Translink rejected an earlier plan of tunnelling that would have avoided the disruption to business, in order to save money. Thus consequence was not ‘inevitable’ and plaintiff was entitled to damages.
  • 3. Rylands v. Fletcher(aka ‘strict liability’):
  • Elements:
  • i. When bringing onto land a dangerous substance (i.e. one that, if it escapes, can cause harm),
  • ii. as part of a non-natural use of land,
  • iii. and the risk manifests,
  • iv. you are strictly liable, regardless of whether you were negligent in allowing the escape.
  • Cambridge Water:
  • Facts: Chemicals used in a tanning business spilled onto concrete floor & seeped down into aquifer.
  • Significance:

Foreseeability of harm is still an element of this tort. (There was no scientific knowledge of harmful effects of chemical at time of spill.)

‘Natural use’ should not be read so broadly as to include the normal activities of a tanning business.

  • 4.Tresspass:
  • Trespass to land: a direct, intentional, unjustifiable violation of a person’s ownership of land.
  • No need to show injury, or knowledge of ownership
  • E.g. dumping waste.
  • A more contentious possibility: overspill from pesticide spray?
  • Trespass to the person: Could be used in the context of damage to someone’s health, but this usually falls under negligence.

Palmer v. Nova Scotia Forest Industries [1983]

  • Facts: NS Forest Products wanted to spray pesticides from an airplane. Adjacent land owners and an aboriginal with an interest in the area filed for a quia timet injunction (an injunction granted after trial), alleging private nuisance, trespass to land, Rylands v. Fletcher, riparian rights, and breach of the Fisheries Act.
  • Analysis:
  • Private nuisance: requires substantial interference w/ enjoyment of property, and proof of damage. Damage need not be pecuniary, but must be material or substantial. Health would qualify, if P can prove chemicals would migrate onto land and create health risk.
  • Trespass to land: no damage required – if chemicals end up on land, trespass made out.
  • Rylands v. Fletcher: P must show likelihood of damage if it escapes, and direct consequences.
  • Quia Timet injunction: P must show strong probability that apprehended mischief will arise. Court can consider convenience and hardship in determining sufficient degree of probability.
  • Regular injunction: Requires irreparable harm, and that damages are not adequate. (Also applies to Quia Timet.) Discretionary remedy, requires sufficient grounds.
  • In negligence it can be difficult to prove factual causation in the face of scientific uncertainty – one must show that the something can cause a particular harm, and also that it did in this particular case. The judge declined to grant the injunction because he wasn’t convinced of any serious risk to health, and he didn’t like the injunction being used as essentially an appeal from the decision of the regulatory agencies which approved the pesticide.

Disadvantages of Torts:

  • Standing: can be difficult to obtain.
  • Costs:
  • Cost of litigation can be difficult, esp. if you don’t see any money until judgment is granted.
  • Expert witnesses
  • Difficulty of establishing proof of causation.
  • Latency period: problems may take a while to develop.
  • Multiple potential causes (aka ‘causal indeterminacy’): ‘but for’ test is difficult to meet when other factors could have caused you to develop the harm anyway.
  • Often P can only show ‘material contribution’, i.e. that D materially increased their risk of developing the harm.
  • Circumstantial evidence (aka ‘causal uncertainty’ about nature of substance and harm): evidence is often epidemiological or probabilistic.
  • And although courts use “balance of probabilities” (51%) standard, scientists use the 95% standard, so it may be difficult to find experts willing to say something is “proven”, even if by the court standard it is.
  • Snell v. FarrellOptic nerve atropy case. Discusses necessary standards of evidence – ok to infer causation from little evidence where info is uniquely in possession of D.

Practical effect may be to permit finding of causation based on material contribution to risk.

  • Hollis v. Dow Corning Corp: significant gap in knowledge between parties can justify application of flexible standard of proof.
  • Cambridge Water discusses foreseeability of harm in the face of lack of scientific knowledge.
  • Private law only mediates disputes between individuals – may not be best forum for advancing law as a whole.
  • Three problematic scenarios in ‘toxic torts’:
  • Indeterminate defendant: plaintiff knows the harm was caused by chemical X, but can’t prove which manufacturer of X was the source of the harm.
  • Indeterminate plaintiff: A certain background level of the harm exists, but chemical X elevates that. Can plaintiff prove they wouldn’t have developed the harm anyway?
  • Some courts have said that if the defendant has special knowledge of whether the breach caused the damage in this case (i.e. because they performed the operation), it is ok to infer causation on very little information.
  • Indeterminate harm: Plaintiff’s risk of developing a harm in future has been increased, but hasn’t manifested as yet.
  • Remediation difficulties:
  • Monetary compensation may be less desirable than stopping harm.
  • Difficulty of quantifying damages:
  • Cost of remediation?
  • Clean-up cost + loss of property value?
  • B/c environmental costs are rarely assigned adequate market value, polluter rarely “pays” in full and some harm goes uncompensated.
  • Historical contamination:
  • Most provinces require owner to remediate site.
  • These laws only require elimination of threat to human health, not restoration of environment.
  • Court takes very different approaches in Tridan Developments Ltd. v. Shell Canada Products Ltd. [2002 OCA] vs. Cousins v. McColl-Frontenac Inc. [2007 NBCA]
  • See also BC v. Canadian Forest Products Ltd. [2004 SCC]

Suggestions for Law Reform

  • Reversing burden of proof: once plaintiff establishes they have a type of harm caused by X, burden shifts to defendant to prove they didn’t cause it. (McGhee case in UK – though they later abandoned this.)
  • Creating liability for increased risk: increasing risk becomes a tort, with damages recoverable proportionate to the degree of increased risk.

Litigation in the Context of Global Warming

  • Four areas of Global Warming litigation have been increasing lately:
  • Against public agencies for acts or omissions relating to climate change.
  • Against public agencies for considerations in decision-making.
  • By regulated agencies, against public agencies regulating GHGs.
  • Private actions against companies that emit GHGs.
  • Hurdles to this kind of litigation:
  • Foreseeability of harm
  • Duty of care
  • Public policy considerations (economic considerations, social need, etc)
  • Standing
  • Statutory authority
  • Causation

Public Environmental Rights

  • The Crown can sue as a representative of the public, to protect public rights in the environment.
  • However, there is still debate over how these things are to be valued.
  • Canfor:
  • Canfor negligently failed to detect that one of its controlled burns had not extinguished itself, causing forest fires the next year. Crown sued for various types of damage, including loss of trees set aside for environmental reasons, suing both as property owner and as representative of the people of BC.
  • Court said that it was technically possible for AG to seek tort damages for public, but in this case Crown had only argued commercial damages at trial and never proposed a coherent basis for valuing environmental damages (or even what those would be, over and above commercial losses).

Class Actions

  • Rationale for class actions: where a group of people have the same complaint, combining into one lawsuit saves time, money on expert witnesses, etc.
  • Three requirements for a court to issue an order allowing a class action:
  • 1. An identifiable class
  • 2. A common issue
  • 3. A class action must be the preferable procedure
  • Barriers to class action in environmental lawsuits:
  • Damage is often not uniform, reducing ‘judicial economy’ from a class action
  • Hollick v. Metro Toronto: pollution from landfill was not spread evenly over geographic areas over time, so the necessary facts would be massive. Thus, multiple small claims were considered a preferable procedure to a class action. (B/c small claims was an option, no access to justice issues; behaviour modification not an issue b/c better ways to deter polluters, insufficient judicial economy.)
  • Resulting harm may also vary, making a ‘common issue’ problematic:
  • Pearson v. Inco: victims of smelter pollution could only get property damage certified as a class action; health problems varied too widely to form a ‘common issue’.
  • Ways of overcoming these barriers:
  • Need to assess individual damages is no longer a reason to avoid a class action. (Per Ontario legislation, s. 6(1))
  • Subdivision into subclasses is acceptable.
  • Rumley v. BC: not an environmental case (class action against institution for 49 years of sexual/physical abuse at school for disabled children), but court was flexible re: Class Action certification – sanctioned systemic liability.
  • Barrett v. Saint Lawrence Cement[2008 SCC]:dust from a cement operation was coating nearby houses. Judge divided plaintiffs into four subclasses based on four ‘zones’ which had been variously affected, ensuring a common injury within each zone. Court also held that the civil code provision at issue did not create a requirement for proving fault or negligence, and rejected a statutory authority argument.
  • Distinguished Hollick
  • Held that trial judge has discretion to assess damage on an ‘average’ basis to facilitate legislation.

SLAPPs

  • Strategic Lawsuits Against Public Participation: where developers file a lawsuit against a person or group publically opposing them, (often with no merit), not to win, but to force them to expend legal costs and bully them into silence.
  • Charter does not apply in private litigation, per Dolphin Delivery Ltd. v. RWDSU [1986 SCC]
  • Definition (proposed in Tollefson article, not official):
  • 1. The lawsuit is a claim for damages or an injunction
  • 2. It is filed against an individual or group
  • 3. It is filed against them because of their communications to a government body or official, or to the electorate
  • 4. This is an issue of public concern
  • Anti-SLAPP legislation in Canada:
  • BC passed some in 2001, but it was repealed.
  • Qc is currently the only state with anti-SLAPP legislation.
  • “A court may declare an action or other pleading improper, and impose a sanction. In considering whether a case is improper, the court may consider whether it is an attempt to defeat the ends of justice; in particular, if it restricts freedom of expression and public debate.”
  • If a court decides a case may be improper, onus shifts to plaintiff to justify it.
  • Court can then refer case to case management, suspend it, or can even make a special order for company executives who participated in the decision to personally pay damages.
  • Fraser v. Saanich [1999 BCSC]:
  • Fraser tried to expand a mental hospital, but neighbours lobbied Saanich and it wasn’t approved. Then Fraser tried to sell hospital, but neighbours lobbied Saanich to downzone property to residential-only, affecting selling price. Fraser sued neighbours and Saanich.
  • Judge dismissed case and awarded special damages against Fraser for vexatious lawsuit, noting importance of public participation in community decisions.

Chapter 3: Jurisdiction over the Environment

Difficulties

  • Tension between provinces and federal gov’t – provinces don’t want feds legislating in particular areas because they want to retain those powers to themselves.
  • Environmental concerns often aren’t lobbied for as hard as other concerns. This is because environmental benefits tend to be diffuse, while the costs tend to be concentrated, so only a few will have strong incentive to push for environmental protection in a particular case.
  • “Collaborative” vs “Competitive” model: in the competitive model, each jurisdiction pushes for its own agenda. In the collaborative model, they try to work together, but the resulting compromises tend to lead to very weak requirements.
  • Federal regulation allows for uniform standards across the country, but enforcement can still vary by province, so stronger federal presence may not be desirable.

Federal Powers:

  • ‘Conceptual’ powers (granting general authority over a broad range of activities):
  • Criminal Law, s. 91(27)
  • Requires a prohibition backed by a penalty
  • Arguments often turn on the complexity of the legislation, arguing over whether it is so complex as to be more ‘regulatory’ than ‘criminal’.
  • Disadvantage: reactive rather than proactive
  • Federal taxation, s. 91(3)
  • Can be useful in setting incentives and penalties
  • Trade and Commerce, s. 91(2)
  • Generally limited to interprovincial or international trade
  • Could potentially be used to implement international emissions trading systems.
  • POGG
  • Emergency Powers doctrine:

Must be a temporary situation