Environmental Law II Lecture Notes PDF

Environmental Law II Class 3 Agenda ü Searching to Environmental Law Cases ü How to read the Law ü Important Legal Terms ü Elements of the offense ü Environmental Justice Searching for Environmental Cases To find Canadian environmental law cases, you can utilize various legal research tools and...

Environmental Law II Class 3 Agenda ü Searching to Environmental Law Cases ü How to read the Law ü Important Legal Terms ü Elements of the offense ü Environmental Justice Searching for Environmental Cases To find Canadian environmental law cases, you can utilize various legal research tools and databases Access legal research databases that compile case law. Prominent databases include: CanLII (Canadian Legal Information Institute) • CanLII provides free access to Canadian legal information, including court decisions • Visit the CanLII website and use the search function to find environmental law cases Westlaw Canada • Westlaw is a comprehensive legal research platform that includes case law, statutes, and legal commentary • Search for environmental law cases by jurisdiction and keywords Lexis Advance Quicklaw • Lexis Advance Quicklaw is another major legal research database in Canada • It provides access to case law, statutes, and legal journals. • Tip: Use the search feature to find environmental law cases Searching for Environmental Cases Law Journals and Legal Publications • • • Law journals and legal publications that cover environmental law topics. Some journals may publish analyses of significant environmental law cases. Examples: Canadian Environmental Law Reports (CELR) CELR may include summaries and analyses of key environmental law cases. Environmental Law Reporter (ELR) ELR provides commentary and analysis on environmental law developments, including cases. Searching for Environmental Cases Law Libraries: • Visit law libraries, whether physical or digital, to access legal resources. • University libraries and public law libraries often have comprehensive legal collections. • Some notable libraries include: – Supreme Court of Canada Library: The Supreme Court library provides access to decisions of the Supreme Court and may have resources on environmental law. – Law Society Libraries: Law society libraries in various provinces may have collections of legal materials, including environmental law cases. Searching for Environmental Cases Legal Publishers • Check legal publishers that release case law reporters and legal commentary. • Publishers such as Carswell (Thomson Reuters) & Canada Law Book may release publications focused on environmental law Government Websites • Government websites may provide access to decisions of administrative bodies and tribunals. • For environmental law cases, consider checking the websites of federal and provincial environmental agencies. Searching for Environmental Cases Legal Research Platforms at Educational Institutions • Educational institutions often have legal research platforms accessible to students & researchers. • If affiliated with a university or law school, check library resources and online platforms. Legal Databases Specific to Environmental Law • Some databases specifically focus on environmental law. • While not exhaustive for cases, they may provide insights and references. • Examples include: – Ecojustice: Ecojustice (formerly Sierra Legal Defence Fund) is an environmental law organization that may provide resources on key cases. – Environmental Law Centre (ELC): ELCs, such as the Environmental Law Centre at the University of Victoria, may have resources and publications on environmental law cases. Reading & Interpreting the Law Read the Statute or Regulation: • Begin by reading the primary legal text, which may be a statute (law passed by a legislative body) or a regulation (rules derived from statutes) • Understand the structure, key definitions, and provisions Understand Key Definitions: • Identify and Define Terms • Environmental law often uses specialized terminology. • Look for definitions sections within the text or refer to a legal dictionary to understand the meanings of specific terms. Reading & Interpreting the Law Context and Purpose: • Identify Legislative Intent • Understand the purpose behind the law. • Look for the preamble or introductory sections that may provide insight into the legislative intent and goals of the law. Case Law Analysis: • Review Relevant Cases • Legal principles are often clarified through court decisions. • Look for relevant cases that interpret and apply the environmental law being studied • Understand how these cases contribute to the legal framework. Reading & Interpreting the Law Cross-References: • Explore References to Other Laws • Environmental laws may refer to other statutes or regulations. • Follow cross-references to gain a comprehensive understanding of the legal context. Annotations and Commentary • Consult Legal Annotations • Legal annotations and commentary by legal experts provide additional insights. • Legal treatises, articles, and annotations can help explain complex provisions and provide historical context. Reading the Law Regulatory Impact Assessments (RIA): Examine Regulatory Impact Assessments • Some environmental laws are accompanied by regulatory impact assessments. • These documents outline the rationale behind regulations, their anticipated effects, and compliance costs. Administrative Guidance: • Explore Administrative Guidance • Agencies often issue guidance documents to help interpret and implement environmental regulations. • These documents can provide practical insights and examples. Elements of an Offence The Elements of an Offence - identify and explain the elements of a criminal offence The elements of an Offence • Two conditions must exist for an act to be a criminal offence: actus reus and mens rea • In Latin, actus reus means “wrongful deed.” • It must be show that the person committed the act prohibited by law. • Mens rea means “guilty mind.” It must also be shown that the accused intended to commit the offence. • These two conditions must exist at the same time. Elements of an Offence • The Canadian Charter of Rights and Freedoms states that an individual is innocent until proven guilty. • The Crown attorney must prove that actus reus and mens rea existed at the time the “crime” was committed • These conditions must be proven beyond a reasonable doubt. • If there is a reasonable doubt in the mind of the judge or jury that the accused committed the crime, the accused will be acquitted and set free. Elements of an Offence • The elements of an offense involves breaking down the key components that must be proven for a particular act to be considered a crime • An offense is a violation of the law, and for an act to be classified as an offense, certain essential elements must be present • Principle of concurrence, which requires that the guilty act (actus reus) and the guilty mind (mens rea) occur simultaneously for an offense to take place Class Examples Essential Elements of the Offence – Example 1 GVRD Air Quality Management Bylaw No. 1082, 2008 Section 5 - “No person may in the course of conducting an industry, trade or business of whatsoever kind or nature discharge or allow or cause the discharge of any air contaminant.” List the elements of the offence Essential Elements of the Offence – Example 1 GVRD Air Quality Management Bylaw No. 1082, 2008 Section 5 - “No person may in the course of conducting an industry, trade or business of whatsoever kind or nature discharge or allow or cause the discharge of any air contaminant.” Elements of the Offence that must be proven: “person” includes an individual, firm, company, association, society, partnership, sole proprietorship. Corporation or local government “conducting an industry, trade or business”: Observe any activity damaged vehicles entering the facility, customers paying for work performed, current work orders “discharge or allow or cause the discharge” “air contaminant” means any substance that is emitted into the air and that • (a) injures or is capable of injuring the health or safety of a person; • (b) injures or is capable of injuring property or any life form; • (c) interferes or is capable of interfering with visibility; • (d) interferes or is capable of interfering with the normal conduct of business; • (e) causes or is capable of causing material physical discomfort to a person; or • (f) damages or is capable of damaging the environment; Essential Elements of the Offence – Example 2 GVRD Sewage Use Bylaw No. 299, 2007 Section 3.2 -“No person shall discharge or allow or cause Septic Tank Waste to be discharged into a Sewer, except at a District facility designated for receipt of Septic Tank Waste” List the elements of the offence Essential Elements of the Offence – Example 2 GVRD Sewage Use Bylaw No. 299, 2007 Section 3.2 -“No person shall discharge or allow or cause Septic Tank Waste to be discharged into a Sewer, except at a District facility designated for receipt of Septic Tank Waste” Elements of the Offence that must be proven: “person” includes an individual, firm, company, association, society, partnership, sole proprietorship. Corporation or local government “discharge or allow or cause the discharge” “Sewer” “Septic Tank Waste” Legal Liability Important Legal Terms Actus Reus = "guilty act" in Latin. Refers to the physical act or conduct that constitutes the criminal offense. Mens Rea = "guilty mind" in Latin. Refers to the mental state or intent of the person committing the crime. Actus Reus in Environmental Offenses: • Prohibited Acts or Conduct: The actus reus in environmental law involves the physical act or conduct that is prohibited by legislation. • Activities include: Unauthorized discharge of pollutants into waterways, illegal logging, or the improper disposal of hazardous waste. Mens Reus in Environmental Offenses: • Intent or Knowledge: In many environmental offenses in Canada, strict liability is often imposed, meaning that the prosecution is not required to prove intent or knowledge. Strict Liability Offences • Strict Liability Offences refer to offences that holds individuals or entities responsible for environmental harm regardless of their level of fault or negligence • Strict liability places the emphasis on the consequences of the actions rather than the intent or level of care exercised • In the context of environmental law, strict liability is often applied to situations where activities or operations have the potential to cause harm to the environment • A party can be held liable for environmental damage or pollution even if they took all reasonable precautions to prevent such harm. • Strict liability is relevant where the potential consequences of an environmental incident are significant • Only needs to establish that the prohibited act or consequence occurred Regulatory Offences In Canadian environmental law, regulatory offenses refer to violations of regulations and rules established by federal, provincial, or territorial authorities to manage and control activities that impact the environment. These offenses typically involve breaches of specific regulatory requirements rather than common law crimes. Regulatory offenses are often set out in statutes, regulations, and environmental protection legislation. Reflects the emphasis on preventing harm to the environment and public health. Environmental Justice • Pollution does not equally affect everyone • Certain communities are disproportionately impacted by permitting decisions that place industrial plants, air/water discharges, or waste facilities in or near such communities • Environmental Justice in Canada refers to the fair and equitable distribution of environmental benefits and burdens among all segments of the population. • EJ means justice regardless of their socio-economic status, race, or other demographic factors. • EJ encompasses the idea that all individuals, regardless of their background, have the right to live in a clean and healthy environment – NOT exposed to environmental hazards or deprived of environmental benefits Environmental Justice Key aspects of environmental justice in Canada include: Equitable Access to Environmental Resources: Ensuring that all communities, regardless of their socio-economic status, have equal access to clean air, water, and other environmental resources. Mitigating Environmental Disparities: Addressing any existing disparities in marginalized or vulnerable groups again environmental pollution or contamination Inclusive Decision-Making: Encouraging meaningful participation of all communities in the decision-making processes related to environmental policies Legal Protections: Enforcing laws that protect communities from environmental harm. Ensure that environmental regulations are consistently applied across all areas. Climate Justice: Recognizing climate change solutions are distributed fairly among different groups within Canada Environmental Justice The U.S. EPA definition: “Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. It will be achieved when everyone enjoys: - the same degree of protection from environmental and health hazards, and - equal access to the decision-making process to have a healthy environment in which to live, learn, and work.” Environmental Justice in Canada • In July 2022, the United Nations General Assembly declared that the ability to live in “a clean, healthy and sustainable environment” is a universal human right; it also called on countries to scale up efforts to turn that into reality • Canadian Charter of Rights & Freedoms lacks any explicit reference to enviro quality; however, some enviro cases in Canada have invoked s.7 and/or s.15 of the Charter (e.g., climate change cases) • Some observers have argued that since a constitutional enviro right is a long-term reform, statutory approaches should be used in the interim • Enviro rights can be integrated into existing provincial enviro law (e.g., Quebec’s EQA), federal enviro law (e.g., CEPA), or could be enshrined in stand-alone legislation (e.g., EBR) Environmental Justice in Canada Bill S-5 • May 30, 2023, the House of Commons passed Bill S-5, an act to amend the Canadian Environmental Protection Act, 1999 (CEPA) • The bill recognizes that every individual in Canada has a right to a healthy environment as provided under CEPA • The bill requires ECCC to compile a list of substances that are suspected or determined to be capable of becoming toxic to the Domestic Substances List (DSL) • The bill also prohibits the manufacture, use, sale, offer for sale, or import of products that may release a toxic substance unless authorized by regulation. • The bill includes provisions to incorporate Indigenous knowledge in decision making for environmental protection • The bill also has provisions to replace, reduce or refine the use of vertebrate animals for testing & assessing substances Environmental Justice in Canada Bill S219 • This bill defines EJ as “a just distribution of environmental benefits and burdens among Canadians, without discrimination on the basis of any ground prohibited by the Canadian Charter of Rights and Freedoms” (s.5) • If enacted, this bill would create the right to a healthy & ecologically balanced environment (s.6), right to access enviro information (s.7), right to public participation in federal enviro decision-making (s.8), right to access the courts re enviro protection (s.9), & right to request the Auditor General to review federal enviro laws • if enacted, the bill would give the Enviro Minister 2 years to consult upon, develop, and table a “national strategy to promote efforts across Canada to advance environmental justice and to assess, prevent and address environmental racism” (s.3 & s.4)