Part 6 – Special Legal Rights and Relationships Chapter 34 – Environmental Law Prepared by Michael Bozzo, Mohawk College © 2015 McGraw-Hill Ryerson Limited 34-1

 Common Law  Early Reforms  Environmental Legislation  Polluter pays  Environmental Assessment  Storing and Handling of Hazardous Products  Environmental Responsibility  International Obligations © 2015 McGraw-Hill Ryerson Limited 34-2 Overview

 General  Injury to the environment a personal level  Interference with the property rights of another actionable at law  Tort of Nuisance  Common Law relief was limited to individuals who were harmed  Harm to the public at large was a matter for the government to address and not the courts © 2015 McGraw-Hill Ryerson Limited 34-3 Common Law

 Early Reforms  Standing  Concerned environmental groups lacked standing to bring an action  Source of pollution  Hard to determine  Limitation of Remedies  Damages but no order for a cleanup  Legislative reforms  Addressed difficulties of identification of source, control and abatement (or prohibition) © 2015 McGraw-Hill Ryerson Limited 34-4 Common Law

 Legislation Both federal, provincial, and territorial (often overlap) Acts control or prohibit activities that have a negative impact on the environment Takes a regulatory approach ○ Discharge of harmful substances into environment ○ Amounts are regulated by monitoring and inspection Adoption of environmental awareness ○ Consideration of the needs of he broadest community of persons interested in an issue Environmental Legislation © 2015 McGraw-Hill Ryerson Limited 34-5

 Legislation Adoption of environmental awareness ○ Stakeholder Approach Consideration of the needs of he broadest community of persons interested in an issue ○ Precautionary Principle Where serious damage may occur, lack of full scientific certainty shall not be used to postpone cost-effective measures to prevent environmental degradation ○ Sustainable Development Outcomes should meet the needs of the present generation without compromising the ability of future generations to meet their own needs Businesses must consider how their operations affect the environment Environmental Legislation © 2015 McGraw-Hill Ryerson Limited 34-6

 “Polluter Pays” Regulation A principle where the obligation on a polluter to pay for environmental damage that results from a violation of environmental legislation Environmental Legislation © 2015 McGraw-Hill Ryerson Limited 34-7

 Environmental Assessment A procedure undertaken to determine the effect on the physical environment of a particular undertaking or activity Usually only for undertakings that could cause serious damage or change to the environment ○ Dam construction, waste-disposal sites Requirement of approval before undertaking ○ Detailed studies and public input Canada Environmental Assessment Act ○ Regulates the requirement and conduct of assessments, which are intended to predict the impact on the environment of a particular initiative before it is executed Environmental Assessment © 2015 McGraw-Hill Ryerson Limited 34-8

 Legislation  Aims at care in storage and handling  Usually requires notification to government  Polluter pays principal  Method of storage or handling not usually specified  But high standard of care imposed on user  Liability of Directors and Officers  Possible personal liability  Defense of due diligence  Requires more than directives  Must follow up, proper training of employees, proper inspection and monitoring systems Storing and Handling of Hazardous Products © 2015 McGraw-Hill Ryerson Limited 34-9

 Traditionally  Responsibility of the party that caused damage  Current owner may now be liable  Environmental Audit  A site specific inspection and analysis to determine the presence of existing environmental hazards or contamination  Usually inserted as a condition precedent into commercial property sales agreements  Lenders also at risk  Take possession then become owner and liable Responsibility for Existing Contamination © 2015 McGraw-Hill Ryerson Limited 34-10

 Kyoto Protocol (1997) A commitment by Canada and other countries to reduce greenhouse gas emissions by six percent below 1990 levels Canada ratified in 2002 however by 2007, the federal government announced the targets were unreachable and essentially turned away from international commitments International Obligations © 2015 McGraw-Hill Ryerson Limited 34-11

 Copenhagen Accord (2009) A commitment by Canada and other countries to reduce greenhouse gas emissions by 2020 by seventeen percent from 2005 levels More substantial progress has been made against this target but the federal government has still not advanced comprehensive legislation with direct control of emissions International Obligations © 2015 McGraw-Hill Ryerson Limited 34-12

 Common Law  Action was in tort (Nuisance)  Had to be injured directly to have an action and standing  Remedies limited to damages or an injunction but lacked a clean up aspect  Legislation  Control or eliminate pollution and environmental hazards  Done through inspecting and monitoring  Responsibility on person who causes pollution  Environmental audits required to avoid liability on property purchases SUMMARY © 2015 McGraw-Hill Ryerson Limited 34-13