Environmental Law II Lecture Notes PDF

Environmental Law II Instructor: Dennis Klick Welcome to Environmental Law II Environmental Law II Learning Outcomes At the end of this course, students should be able to: ü Understand & Apply Environmental Law Principles ü ü ü ü ü Interrogate how complex environmental issues challenge core legal do...

Environmental Law II Instructor: Dennis Klick Welcome to Environmental Law II Environmental Law II Learning Outcomes At the end of this course, students should be able to: ü Understand & Apply Environmental Law Principles ü ü ü ü ü Interrogate how complex environmental issues challenge core legal doctrine, e.g. in constitutional, administrative and tort law Understand how environmental law changes over time through common law reasoning ü Appreciate the social, political, economic & ecological context of Canadian environmental law and policy Define and evaluate the strengths & weaknesses of different legal tools for mediating environmental problems ü Collaborate with your colleagues to produce sound and creative legal solutions to environmental problems ü Pose concise questions and articulate sound legal arguments about the relationship between law and environmental problems Appreciate the role of Indigenous legal relationships to the environment in Canada Identify the impacts on environmental governance of encounters between Indigenous and Canadian legal orders Class 1 Topics to be covered Introduction to Environmental Law In Canada Government Jurisdiction & Environmental Laws In your own words, describe what you consider is Environmental Law in Canada Environmental Law Environmental law is the body of statutes that is used to protect and improve environmental conditions Some Environmental laws deals with pollution control, waste management, endangered species preservation, and other issues that clearly involve the natural environment The term “environment” is often defined broadly to cover land, water, air, and living organisms, including humans and the interaction of these elements The scope of this definition is broad as many aspects of the biophysical environment and the human social and economic environment are deeply intertwined Law in Canada Canada is a federal state, originally constituted in 1867 through the enactment of British legislation, the British North America Act In 1982, constitutional amendments resulted in the re-naming of the British North America Act as the Constitution Act, 1867. The Constitution Act, 1982 introduced the Canadian Charter of Rights and Freedoms and effected other amendments The Constitution of Canada is the supreme law of Canada The Constitution Act, 1867 constitutional jurisdiction over the environment Canada's Constitution Act The Constitution Act, 1867 constitutional jurisdiction over the environment It does not explicitly dictate who has the power to create environmental laws. Constitutional division of powers between the federal & provincial governments makes no explicit allocation for the environment Responsibility for the environment is shared between the two levels of government Canada's Constitution Act Section 91 of the Constitution Act, 1867 gives the federal government the authority to make laws on a broad range of matters Section 92 sets out the issues for which the provinces may make laws The environment is not explicitly listed in either section There is often overlap and uncertainty in terms of which level of government is responsible for various aspects of the environment Based on a number of Supreme Court of Canada decisions, protection of the environment is recognized as a matter of shared jurisdiction between Parliament and the provincial legislatures Government Jurisdiction Federal Heads of Power According to the Supreme Court, federal jurisdiction over the environment is mainly supported by main federal “powers”: the criminal law power and the “peace, order and good government” power The Criminal Law Power – s. 91(27) There was debate as to whether or not the federal criminal law power would support environmental protection legislation. In 1997, in R. v Hydro-Québec, the Supreme Court decided unanimously that the protection of the environment is a valid criminal law purpose for which the criminal law power can be used. At issue in that case was the toxic substances regulatory scheme in the Canadian Environmental Protection Act This decision was a major breakthrough in establishing a broad scope of federal jurisdiction over the environment Peace, order & good government The federal government has the authority to take action on matters of national concern, based on the “peace, order and good government” power of section 91 The courts have provided guidance of the extent of the federal POGG power, including as it relates to the environmen R. v. Crown Zellerbach Canada Ltd., the Supreme Court used POGG to justify federal jurisdiction over ocean pollution At issue was the Ocean Dumping Control Act, which prohibited the dumping of any substance into the sea without a permit. In Crown Zellerbach, the Court emphasized that the national concern argument applies to those legislative subject matters that have national dimensions so significant as to warrant federal action, even if a provincial government might have responsibilities Government Jurisdiction Supreme Court of Canada has recognized that environmental management and protection is a broad area and, depending on the issue, falls under federal or provincial jurisdiction Parliament could enact new or expanded federal legislation respecting environmental protection as long as – – Action can be linked to a federal power Meets the criteria established by the Supreme Court of Canada in its recent decisions Federal Government Jurisdiction & Environment Federal jurisdiction over the environment may also come from other federal powers. Other heads of power as a basis for federal jurisdiction in environmental matters Taxation power (s. 91(3)) provides the federal government with the ability to encourage environmentally friendly behaviors, such as tax assistance for donations of ecologically sensitive land Seacoast and Inland Fisheries – s. 91(12) The courts have confirmed federal jurisdiction over fisheries resources that includes authority to make laws to protect fish habitat, including regulating water quality for this purpose Trade and Commerce – s. 91(2) Courts have held that customs duties are a form of trade and commerce legislation. This power is considered to be a source of federal jurisdiction over certain environmental issues such as the movement of hazardous waste Federal Environmental Laws Canadian Environmental Protection Act, 1999 The Canadian Environmental Protection Act, 1999 (CEPA) is the principal federal environmental statute governing environmental activities within federal jurisdiction such – Toxic substances – Cross-border air and water pollution – Ocean dumping Contains specific provisions to regulate environmental activity on lands and operations under the jurisdiction of federal departments and undertakings like banks, airlines and broadcasting systems, federal land, and Indigenous land. CEPA establishes a system for imposes requirements for pollution prevention planning, emergency plans and broad public participation provisions CEPA is administered by Environment Canada CEPA, 1999 Toxic substances CEPA provides the federal government with “cradle-to-grave” regulatory authority over substances considered toxic. Any substance listed in Schedule 1 of CEPA is classified as toxic and is subject to a series of specific controls. If government determines that a substance may present a danger to human health or the environment, it may add the substance to a Toxic Substances List Within two years of a substance being added to the List, Environment Canada is required to take action with respect to its management. Substances that are persistent, bioaccumulative, and result primarily from human activity must be placed on the Virtual Elimination List Companies required to prepare virtual elimination plans to achieve a release limit set by the Minister of Environment and Climate Change Canada Fisheries Act The Fisheries Act contains provisions to ensure the proper management and control of fisheries and the conservation and protection of fish and fish habitat, including by preventing pollution Prohibits the deposit of deleterious substances into water frequented by fish Prohibits carrying out work that results in the death of fish harmful alteration, disruption or destruction of fish habitat, unless the work is authorized by a permit or the regulations There are a number of sector-specific regulations under the Fisheries Act that establish effluent standards and impose monitoring and reporting requirements: – separate regulations directed at the mining industry, the pulp and paper industry, and large wastewater systems Transportation of Dangerous Goods Act, 1992 The shipping, handling and transportation of dangerous goods are regulated by the Transportation of Dangerous Goods Act, 1992 (TDGA), as well as provincial statutes. The TDGA creates a complete and comprehensive system of regulation. All provinces have directly adopted an identical regime with respect to intra-provincial transportation. Nine classes of "dangerous goods," ranging from organisms to explosives, are defined in a schedule to the TDGA. The TDGA also addresses issues such as labelling requirements and emergencies, and provides a full suite of enforcement measures Provincial Environmental Laws Environmental laws and their enforcement vary from province to province. Matters under provincial jurisdiction notably include: Air emissions Water and wastewater treatment and discharges Water withdrawals Waste management The release of contaminants, including issues relating to contaminated lands and brownfield redevelopment Pesticide use Underground and above-ground storage tanks Hazardous materials and residual hazardous materials management The transportation of dangerous substances Provincial environmental laws prohibit the discharge of pollutants into the environment, but the definitions of a "pollutant," a "contaminant" and the "environment" vary across the provinces British Columbia Environmental Law BC Environmental Management Act (EMA) BC Environmental Management Act (EMA) regulates industrial and municipal waste discharge, pollution, hazardous waste and contaminated site remediation. EMA provides the authority for introducing wastes into the environment, while protecting public health and the environment. EMA prohibits the introduction of waste into the environment from industries listed in the Waste Discharge Regulation. Prohibits the introduction of waste into the environment from any activity in a manner or quantity that causes pollution. “Pollution” is defined in EMA as “the presence in the environment of substances or contaminants that substantially alter or impair the usefulness of the environment”. Waste is broadly defined to include air contaminants, litter, effluent, refuse, biomedical waste, hazardous waste and any other substance designated by the provincial Cabinet