Module 8 - Law and the Environment

Question 1

What are the 3 sources of Law in Canada?

Answer 1

1. Constitutional Law
2. Statute Law
3. Common Law

Question 2

Constitutional Law

Answer 2

Relates to law as defined in the constitution

Question 3

Statute Law

Answer 3

Established by elected officials formed as statutes (federal and provincial) or bylaws (municipal) and often further operationalized through regulations (established by bureaucrats).
- Outlines Goals, Powers, and Responsibilities
- Some statutes are very detailed and some are more general

Question 4

Common Law

Answer 4

Law established through prior legal decisions (precedent) in courts of law. Also known as Case law and is rooted in English Common Law. Note that statute law (when established) generally override common law.

Question 5

3 types of Environmental Law Cases

Answer 5

1. Court cases that suggest that what someone is doing is not in line with the Constitution
2. Court cases to interpret statutory laws
3. Court cases based upon torts rooted in common law or statute law

Question 6

Constitutional Institutions

Answer 6

Identify how we make such rules (regulations, taxes, cap and trade, etc.) and who can do so.
- These are the ‘rules about making rules’
- In Canada, we have established our constitutional institutions in the Constitution of Canada

Question 7

Constitutional Division of Powers

Answer 7

The rights to develop and enforce rules (formal institutions) in Canada are laid out in our constitution. The Constitution of Canada includes the Constitution Act, 1867, and the Constitution Act, 1982 (which includes the Canadian Charter of Rights and Freedoms).

Question 8

Jurisdiction

Answer 8

Legal authority over an issue
- Subject Matter Jurisdiction = jurisdiction over a particular subject
- Geographical Jurisdiction = jurisdiction over a particular territory

Question 9

Regulatory Law - Federal Jurisdiction

Answer 9

• Taxation
• International and inter-provincial trade and commerce
• To regulate navigation and seacoast and inland fisheries
• Responsibility for Indians and lands reserved for Indians
• To make criminal law
• To protect public health (through Criminal Law)
• To protect the Peace, Order, and Good Governance of Canada
• And much more… (coinage, weights and measures, copyrights, etc)

Question 10

Regulatory Law - Provincial Jurisdiction

Answer 10

• Taxation
• Management and sale of provincial lands
• Municipalities
• Local works and undertakings
• Property rights
• Non-renewable natural resources and forestry resources
• Energy production within province
• And more…

Question 11

Municipalities

Answer 11

• Provincial Creation
• Have the rights to make by-laws as permitted by provincial law
• Are often involved in the application and monitoring of federal and provincial laws
• Planning Departments, Police Departments, By-law officers, inspectors, etc
• Playing increasingly important role in environmental management

Question 12

The Supreme Court of Canada rules the federal carbon pricing law is constitutional
- re Greenhouse Gas Pollution Pricing Act

Answer 12

• Federal gov put in place the GHG Pollution Pricing Act to establish the backstop for carbon tax across all of CA
• A number of provinces took the federal gov to court to say “you can’t pass such a tax bc the constitutions says energy production are the jurisdiction of the province”. Fed gov argued they did have the right through the peace, order and good governance clause
• OUTCOME: climate change is a global issue and fed gov has the right to represent CA as a whole.

Question 13

Statute (Legislation)

Answer 13

Law or bylaw passed by elected legislative body (Parliament, Legislature, etc)

Question 14

What are Regulations (under statute law)?

Answer 14

Regulations are rules created by an administrative agency (bureaucrats) that details the specifics of how the statutes are to be applied…sets out what is permitted, what is prohibited, and what is required within a jurisdiction

Question 15

Court cases about statues tend to fall into what 2 categories?

Answer 15

1. Legal cases about interpretations of statutes/regulations in particular cases.
2. Tort cases, where someone sues someone else for a harm that has been caused (or is going to be caused).

Question 16

Aldred’s Case (1610)

Answer 16

First court case ever established
- William Aldred claimed that Thomas Benton had erected a pig sty too close to his house, so that the stench made his own house unbearable to live in.
- DECISION: a man has, “no right to maintain a structure upon` his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors etc. renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants…”
- set in notion that you can’t cause harm to someone via the list above

Question 17

Tort Law, Rights (Property or personal), and Conflict

Answer 17

• Tort Law exists to avoid conflict over ‘who is in the right’ or more simply to ‘uphold rights’
• A tort is a ‘wrong’ perpetuated against someone else (or their property)
• The ‘rights’ are determined from constitutional law, common law, statute law, and contracts

Question 18

3 General Principals of Tort Law

Answer 18

1. We are free to act as we see fit unless our actions:
   - unduly interferes with another persons use or enjoyment of their property,
   - unduly interferes with their established rights, or
   - harms another persons health
2. It is up to the plaintive to prove harm
3. An impartial judge will hear the case and render a binding decision based upon the balance of the evidence (not as high of a burden as is criminal law).

Question 19

Anderson v. Pacific Gas & Electric

Answer 19

PPL harmed by the actions of PGE, didn’t have a choice, and were compensated for the harm; for the companies the risk of causing the externality is incentive not to cause harm

Example of a Tort Law being used to uphold rights and to seek compensation from, and apply costs to those who infringe upon rights

Question 20

The courts are a means of advancing what?

Answer 20

Environmental causes using constitutional and statutory cases, as well as tort cases to advance environmental efforts.

Question 21

Impacts of Tort Law as a form of Environmental Management

Answer 21

1. Deterrence Effect: Fear of being sued motivates individuals/companies to avoid environmental degradation
2. Flexible: Can address any number of situations and adapts to environmental ethic of the time
3. Environmental Groups use Tort Law as an Instrument to Protect the Natural Environment through preventive Injunctions
4. Economists like it bc it is a way of ‘internalizing the externalities’ by compensating those harmed and adding cost to those causing harm

Question 22

4 Limitations of Tort Law in Environmental Management

Answer 22

1. Depends upon defined Property Rights
2. Highly Anthropocentric
3. Highly influenced by power relations due to the burden placed upon the plaintiff and the defendants to prove case (unlike in criminal law where the government acts as prosecutor).
4. Cannot address harm to future generations.