8: Law and the Environment Flashcards
Three sources of law in Canada? Define them
- Constitutional law: relates to law as defined in the constitution
- Statute law: established by elected officials formed as statutes, or bylaws and often further operationalized through regulations
- Common law: law established through prior legal decisions in courts of law. AKA case law. Over-riden by statute law
Three common types of environmental law cases
- Court cases that suggest that what someone is doing is not in line with the constitution
- Court cases to interpret statutory laws
- Court cases based upon torts rooted in common law or statue law
Underlying institutions that identify how we make such rules and who can do so
Constitutional institutions
‘Rules about making rules’
The constitution lays out… It includes what acts?
the rights to develop and enforce rules (formal institutions)
Constitution Act, 1867
Constitution Act, 1982
What is jurisdiction? Two types?
Legal authority over an issue
- subject matter jurisdiction: jurisdiction over a particular subject (i.e. fishing, crime, etc)
- geographical jurisdiction: jurisdiction over a particular territory
Example of subject matter jurisdiction
The City of Edmonton cannot make laws about murder. The federal government has this power.
Regulatory law under federal jurisdiction (7)
- taxation
- international and inter-provincial trade and commerce
- responsibility for indigenous peoples
- make criminal law
- protect public health (through criminal law)
- protect peace, order and good governance of Canada
- much more (coinage, weights and measures)
Regulatory law under provincial jurisdiction (6)
- taxation
- management and sale of provincial lands
- municipalities (establishment)
- property rights
- non-renewable natural resources and forestry resources
- energy production
Role of municipalities in regulatory law
- have the rights to make by-laws as permitted by provincial law
- often involved in application and monitoring of federal and provincial laws
- planning departments, police departments, inspects
- increasingly important role in environmental management
Example of constitutional environmental law case
Saskatchewan challenged the federal governments right to impose a carbon tax, arguing it was a provincial issue
Federal gov said it was about addressing climate change not raising revenue. Provincial gov said it was not about a tax, it was about changing peoples behaviour and the feds were exceeding their jurisdiction.
Fed gov argued it was to protect the peace, order and governance of Canada.
Supreme court sided with fed gov
What is a statute? Level of detail? They outline…
Legislation – law or bylaw passed by elected legislative body (Parliament, Legislature, etc)
Outlines goals, powers, and responsibilities
Some statutes are very detailed and some are much more general
What are regulations? They outline..
Rules created by an administrative agency that details the specific of how the statutes are to be applied
Sets out what is permitted, prohibited and required within a jurisdiction
Example of statute vs regulation
Statute = Alberta has speed limits, does not specify speed limit everywhere
Regulations = exactly what the speed limit is on every street and road in AB
Court cases about statutes tend to fall into one of two categories:
- Legal cases about interpretations of statutes/regulations in particular cases
- Tort cases: someone sues someone else for a harm that has been caused
What was Aldred’s case? What was the final decision? Why was this important?
William Aldred claimed that Thomas Benton had erected a pig sty too close to his house, and that the stench made his own house unbearable to live in
Decision: a man has no right to maintain a structure on his land which by any means (smell, noise, smoke, etc) renders the occupancy of adjoining properties dangerous, intolerable or uncomfortable to its tenants
Future cases could argue using Aldred’s case as precedent
What is a tort? Why does tort law exist?
A tort is a ‘wrong’ perpetuated against someone else (or their property)
Tort law exists to avoid conflict over ‘who is in the right’ or to ‘uphold rights’
How are ‘rights’ determined
From constitutional law, common law, statute law, and contracts
Three general principles of Tort Law
- we are free to act as we see fit unless our actions interfere with another persons use or enjoyment of their property, interferes with their established rights or harms another persons health
- it is up to the plaintive to prove harm
- an impartial judge will hear the case and render a binding decision based upon the balance of the evidence
Briefly describe the case of Anderson vs. Pacific Gas and Electric
PG&E dumped more than 300,000,000 gallons of waste containing 65 tones of hexavalent chromium into drinking water
Tried to hide it, lied about
People in the community got sick and sued PG&E
What impact does Tort Law have in environmental management? How is it flexible?
Deterrence effect = fear of being sued motivates individuals/companies to avoid environmental degradation
Flexible bc can address any number of situations & adapts to environmental ethic of the time
How do environmental groups use Tort Law? Why do economists like it?
Environmental groups use it as an instrument to protect the natural environment through preventive injunctions (sue before harm occurs to prevent it)
Economists like it because it is a way of ‘internalizing the externalities’ by compensating those harmed and adding cost to those causing harm
What are the limitations of tort law? (4)
- depends upon defined property rights (need to own/have control over things to sue over them)
- highly anthropocentric (have to prove harm to myself or my property; cannot sue for future generations, trees, etc)
- influenced by power relations; plaintiff and defendants have to prove their case
- cannot address harm to future generations
