- Constitution Act, 1867 (a) sets out DOP b/t feds & provs…(b) powers were meant to be exhaustive and each gov't meant to be supreme within their own sphere (Fowler)…(c) however, there are double aspect matters (ie: environment in Hydro Quebec)
- Possible federal enumerated heads: feds = POGG national concern, 91(12) (Fisheries), 91(27) (Crim), 91(3) (Tax) 91(2) (Commerce), 91(29) and 92(10) (Fed works/under), 91(10) (Nav/Ship)…provs = 92(13), 92(16), 92A (Non-renewable resources)
- Fowler: Parliament can't legislate too broadly and intrude into provincial powers, Northwest: Shows how one provision of the Fisheries Act can be upheld and another be struck down…both show (a) environment DAM…(b) limits to each head of power
- CZ: (a) National concern doctrine is distinct from national emergency doctrine (Hsu adds gap branch)…(b) National concern doctrine can authorize legislation in respect to brand new matters…(c) Must have a singleness, distinctiveness, and indivisibility that clearly distinguishes matter from matters of provincial concern (Thus big issues like general environment protection and the economy don't fall under POGG)…(d) Provincial inability test to determine sufficient SDI (here, if BC didn't would flow in fed)
- Oldman (SCC - Dumping in internal waters w/o permit): First, court notes the environment is so diffuse a subject that it doesn't fall under a single head of power, nor under national concerns branch of POGG since it lacks SDI…court then does a pith and
substance analysis to determine whether the legislation falls in a head of power…determines that the order regulates federal institutional decision making by requiring environmental impacts to be considered….any intrusion into provjur is "merely incidental"
- Hydro Quebec (SCC – Hydro emits PCBs, challenges ss.34-35 of CEPA as ultra vires): Federal scope of 91(27) is very broad and virtually anything can qualify, and now an extensive degree of regulation under the criminal law power is acceptable
…unanimity that the environment is a valid subject matter for the criminal law…La Forest J. encourages use of 91(27), Lamer J. dissent can't find prohibition + penalty, can't have prohibition + exemption, and no crime until the interim order is made
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- Pros and cons of using private litigation to secure environmental protection: Pros = (a) profile of an environmental issue might be elevated through a lawsuit, (b) not as much political pressure, (c) may be only way to air legitimate grievances where government have refused to act or polluters have failed to listen, (d) Joint and several liability can be effective, (e) Flexibility, as courts may advance law in ways that legislators have not…Cons = (a) Costs of litigation may be prohibitive because of attorney fees and securing witnesses, so therefore litigation needs a highly motivated and financially able plaintiff, (b) Too reactive and adversarial, and not preventative and co-operative, (c) Many torts require P's to have a property interest (exception: negligence)
- We need statutes regulations in addition to CL b/c: (a) Complicated issues (Palmer), (b) Not pro-active (Fairchild), (c) Causation (Illinois), (d) Consistent Adjudication (Palmer may have had a different result in environmentally-friendly BC)
- Faraday (Ont. CA - Mining Act terminated CL right to injunction, compensation instead): When you have a statute that has the effect of taking away a common law right, the court will try to interpret the common law right as broadly as possible
- Private Nuisance: unreasonable and substantial interference with another's use and enjoyment of land…interference is "unreasonable" if the gravity of the harm outweighs the utility of D's conduct…In making this balancing test, courts look at the following 4 factors: (a) Nature of locality, (b) Utility of D's conduct, (c) Sensitivity of P, (d) Severity of the harm, which includes (i) Gravity, (ii) Duration, and (iii) Continuousness of the harm…try to state which factors are strong and less significant when analyzing
- Mandrake (Ont. CA – Vibrations from subway line in commercial area): The court will give great deference to public works projects when balancing competing interests in a private nuisance action…here, Severity of the harm doesn't outweigh the utility of the defendant's conduct…nature of locality (commercial), utility of conduct (transportation for general public) important…Injunction not granted, (discretionary), only awarded if (a) serious harm inflicted on many and (b) injunction wouldn't affect safety
- Public Nuisance: an interference "with a right common to the general public"…similar analysis to private nuisance, except (a) courts often look at the reasonableness of the land use, and (b) private P must show special damages to recover, which has traditionally been a very difficult test to meet (see Hickey, but also consider Gagnier)… used to be commenced by A-G on the theory that the rights of the public are vested in the Crown…now can show special damage different both in kind and in degree
- Hickey (Nfld TD – poison into bay rendered fish of "no commercial value"): Courts will take a narrow view of special damages involving pure economic loss…here, no special damage in kind, as anybody can fish (H: didn't consider difference in degree)
- Gagnier: court referred to Hickey as too narrow…instead, the court indicated that economic loss could be recovered under public nuisance if a plaintiff shows a significant difference in degree of damage from the public generally… future may trend here
- Strict Liability: Lord Blackburn in Rylands v. Fletcher (UK 1868), which is still good law in Canada, gives 4 elements: (a) P in lawful occupation of property, (b) On which is stored a dangerous agent or thing constituting a non-natural use of land, (c) There is an escape of agent or thing from the property, (d) This causes damage to P…Thus need to show non-natural abnormal use of land causing actual injury to P…focuses on event of escape, not D's negligent acts
- Trespass: direct, intentional, physical interference with another’s interest in land without lawful excuse or justification (need not be physical damage, just interference)…requires physical invasion…odors and noise have been held not to be physical invasion
- Riparian Rights: Right to water of the stream, in its natural flow, without sensible diminution or increase and without sensible alteration in character or quality…enjoy water in same quality/quantity as it existed in nature…exception: ordinary/domestic uses
- Palmer (NSTD – P applies for quia timet injunction to disallow spraying in advance): Courts will take a conservative and hands-off approach in environmental cases involving future health risks unless science/evidence has sufficient certainty…P must show 2 things for a quia timet injuction: (a) Damages would be an inadequate remedy (ie: irreparable harm/health risk evidence), and (b) Strong/sufficient degree of probability of apprehended har…since the harm has to happen first, PI's are difficult to get
- Fairchild (Died of mesothelioma after exposure to asbestos; had different employers and can't prove on BOP who caused it): Even though the plaintiff cannot, because of the current limits of human science, prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment with A, B, or A and B together, he is still able to recover to produce a just result… policy considerations weigh in favour of finding for the plaintiff
- Missouri (USASC - Chicago dumped into channel, went to St. Louis): Causation can be difficult to prove in environmental cases, such as negligence toxic torts, because the court will not always equate correlation with causation
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- 4 problems with CL COAs to prove we need: (a) Causation – see Missouri v. Illinois, (b) Expertise – see Palmer v. Nova Scotia, (c) Pro-active – see Palmer v. Nova Scotia, (d) Consistency – all litigation is unpredictable
- Two generations of enviro statutes: (a) Old Waste Control statutes with blanket prohibitions (ie: Missouri problems)…object was control of waste being deposited on land or discharged into water/air…often difficult to enforce quasi-criminal offences, and (b) New Preventative and Anticipatory Statutes with practical control regimes…waste control only one aspect of problem…object is control of persistent toxic substances…more sophisticated control provisions
- 3 steps to regulations and standard setting: (a) Identification of Objectives…an objective is a goal or purpose toward which an environmental control effort is directed…ie: to protect the public health; (b) Formulation of Criteria, which involves a 3-step process: (i) Identify a very large number of pollutants, (ii) Assess the risk of adverse effects occurring at a number of potential levels, (iii) Identify and evaluate the risk of effects of pollutant interactions; (c) Development of Standards, with 2 purposes of standards: (i) Primary – maximize the level of protection of beneficial uses, and (ii) Secondary – minimize the cost of meeting the standards…job of the standards-setting body is to balance these conflicting objectives to yield the greatest net social benefits
- Ontario: - In Ontario, they uniquely regulate NOx by regulating at the point of impingement which sets standards on how much pollution is acceptable at a receptor (ie: Sarnia, London, ect…)…individual polluter must apply for an operating permit…polluter must run a model on a computer for Minister predicting what emission might be and what consequences on air quality might be…then they report the model to the Ministry of Environment, and the Ministry analyzes if the modeled emissions violate the point of impingement standards…if they don't, a permit is granted; Process: objective à POI standards à apply for permit à model emissions à report model results to ministry à analysis à permit granted/denied
- Major difference between CEPA 1999 and provincial regulatory statutes is the apparent lack in CEPA 1999 of broad contaminant discharge prohibitions supported by a permit or approval system…CEPA 1999 also contains a part on toxics control, which establishes a basis, but not a complete statutory scheme, for a prohibition and approval system for the regulation and management of toxic substances
- 3-step regulatory process in s.332 of the Canadian Environmental Protection Act: (a) Proposed Regulation…CEPA, s.332(1) – Minister should publish in the Canada Gazette every order or regulation proposed to be made by the Minister; (b) Opportunity to comment and object…CEPA, s.332(2) – Within 60 days after the publication of a proposed order or regulation in the Canada Gazette under subsection (1) or a proposed instrument respecting preventive or control action in relation to a substance that is required by section 91 to be published in the Canada Gazette, any person may file with the Minister comments with respect to the order, regulation or instrument or a notice of objection requesting that a board of review be established under section 333 and stating the reasons for the objection; (c) Publication of a final rule…CEPA, s.332(3) – No order, regulation or instrument need be published more than once under subsection (1), whether or not it is altered after publication
- 3 steps implementing CEPA: (a) Info-gathering…s.64 – substance is toxic if (i) immediate or long-term harmful effect on enviro or biodiversity, (ii) constitututes danger to environment on which life depends, or (iii) constitutes danger in Canada to human life/health….(b) Assessment...s.76 Priority Substances List...If substance goes on the list, the health and environment ministers must carry out an assessment and determine toxicity…s.66(1) and s.66(2) Domestic and Non-Domestic Substance List…users must supply info to Minister to determine whether substance is toxic before import, manufacture, or use…if on here, and not in Schedule 1, it's OK; (c) Regulation…Schedule 1 List of Toxic Substances (85 on now)…s.77(4) Minister will propose to go on Virtual Elimination List if (i) substances is persistent and bioaccumulative, (ii) results primarily from human activity, (iii) is naturally occurring radionuclide or inorganic substance
- Two ways to regulate air pollution: (a) Command and Control specifies how a company will manage a pollution-generating process…relies on detailed regulations and ongoing inspections…forces producers to install certain kinds of equipment…problem is that it may not actually reduce pollution if non-point source pollution becomes more widespread; (b) Emissions Trading is an admin approach to control pollution by providing economic incentives for achieving emission reduction, with 4 features…(i) Cap…central authority limits amount pollutant emitted, (b) Emission Permits: total allowances/credits can't exceed cap, (c) Trading: big polluters buy credits from those who pollute less, (d) Theory: buyer punished and seller rewarded
- Pros/cons to emissions trading: Pros = a) Pros…Incentive to reduce emissions, Incentive to innovate, Lower compliance cost, Environmental benefit by way of a cap on emissions, Lower admin costs…Cons: "Hotspots", Allocating permits, pay to pollute
- Emissions Intensity: Greenhouse gas intensity is a ratio of greenhouse gas emissions per unit of economic activity (GDP or unit of production such as barrel of oil)… Under such a scheme, you are given an allocation of allowances, but if you improve your efficiency, you get more allowances to emit and can sell those allowances…problem is improvements in emissions intensity were more than overwhelmed by the growth of polluting activities from Canada’s industrial sector (ie: to pollute more, more intense)
- Other than CEPA, other major federal environmental regulatory regime is the Fisheries Act…s.36(3) has 4 elements Crown must prove BARD: (a) A person (natural or artificial), (b) Deposited (action) or permitted the deposit of (omission), (c) A deleterious substance, (d) In water frequented by fish "or in a place or under conditions where such deleterious substance or another deleterious substance that results from the deposit may enter water frequented by fish"
- MacMillan Bloedel (BCCA – teaspoon of oil in ocean): Example of a quasi-criminal offence where a small oil spill led to liability… If oil is a deleterious substance, and it's deposited, the elements of the offence are proven
- MacMillan Bloedel (2001 BCSC – pipe rupture…didn't execute plan, but rupture due to microbiological corrosion): It is a complete defence to a strict liability offence for the accused to establish on a balance of probabilities that he or she took all reasonable care in relation to the actual cause of the damage…2 branches of due diligence test, which are alternatives (both not required): (a) Reasonable mistake of fact; and (b) Took all reasonable care…here, TJ found that, while MM had taken steps to prevent leakage from its pipes at many of its operations, evidence was lacking as to any action or plan to prevent an oil leakage from other pipes where burst occurred…since MM did not lead evidence of a plan, or timetable, for dealing with the pipes at the Skidegate location in response to the report and recommendations, MM did not satisfy this second branch of the due diligence test