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ENVS 201 > Week 2 - Nature of Environmental Law > Flashcards

Week 2 - Nature of Environmental Law Flashcards

1
Q

What is environmental law?

A

The body of legislated statute and common law that can be used to protect and improve environmental conditions. Has a positive agenda

Deals with (ex):

  • pollution control
  • waste management
  • endangered species protection
  • climate change
  • over consumption of resources
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2
Q

What is environment defined as?

A

Covers land, water, air, and living organisms, including humans and their built environment, and the interaction of these elements

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3
Q

What is a tort?

A

A civil wrong other than a breach of contract, for which damages may be sought to compensate for any harm or injury sustained

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4
Q

What are the core parts of environmental law?

A
  1. environmental regulatory law

2. environmental assessment law

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5
Q

What is environmental regulatory law?

A

Law governing the discharge of harmful substances into the air and water and onto land

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6
Q

What environmental assessment law?

A

Law requiring careful attention to enviro considerations in the planning and approval of new undertakings

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7
Q

What are the big ideas that lead to environmental law being the norm?

A
  1. public welfare and citizen participation

2. philosophy and ethics

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8
Q

What is the tragedy of the commons?

A

An ethical problem in which the consumption of a shared resource by rational individuals pursuing their own needs leads to the depletion or loss of that resource for the community as a whole

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9
Q

What are laws of general application?

A

Laws that apply to everyone and to all activities

- ex. pollution control, use of natural resources

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10
Q

What are sectoral laws?

A

Laws dealing with a resource sector, like water or forests, or an industrial sector, like fisheries or waste management
- often overlaps with laws of general application

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11
Q

What are the two main categories environmental laws can be split into?

A
  1. Environmental laws of general application

2. Sectoral laws

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12
Q

What are the 4 evolutionary phases of environmental law?

A
  1. Common law rights and early statutes
  2. Waste control and cleanup laws
  3. Toxics control laws
  4. Comprehensive approaches to EA and planning/management regimes
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13
Q

Explain phase 1: common law rights and early statutes

A
  • 1960s: when environment was given attention by legislators but still no regulations or laws (few tools available to environmental lawyer)
  • could use causes of action under tort and property law components of common law
  • would result in likely a nuisance or negligence at most
  • demand for more effective ways of combating enviro problems
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14
Q

What does causes of action mean?

A

Legal ground for a civil lawsuit

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15
Q

What is a nuisance?

A

A tort in which the defendant interferes with the use and enjoyment of the plaintiff’s property

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16
Q

What is negligence?

A

Failure to act reasonably, with the result being harm to someone else.

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17
Q

Explain phase 2: waste control and cleanup laws

A
  • air, water, and land pollution statutes enacted by provinces in late 60s early 70s - regulatory systems established (punishable offense if did not comply)
  • Fed Fisheries Act broadened
  • more control oveer harmful substances being deposited on land or discharged into air/water
  • new statutes known as cleanup laws
  • waste control laws administered by environmental depts too (guidelines rather than enforceable regulations)
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18
Q

What are cleanup laws?

A

Laws designed to minimize discharge of human and industrial waste into the environment

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19
Q

What are waste control laws?

A

Laws designed to control discharge of waste using permits and approvals

20
Q

Explain phase 3: toxics control laws

A
  • found regulation of toxic chemicals complicated
  • waste control laws aimed at allocating assimilative capacity didn’t address accumulation of persistent toxic substances in enviro
  • major toxics control laws is CEPA b/c respects risks to environmental and human health
21
Q

What are toxics control laws?

A

Laws designed to control the manufacture, use, sale, transport, storage, and disposal of toxic substances

22
Q

What is assimilative capacity?

A

The ability of air, water, or soil to receive contaminants and cleanse itself without deleterious effects

23
Q

Under CEPA, what are the categories of substance lists?

A
  1. domestic substances list
  2. priority substances list - must undergo rigorous assessment of risks
  3. toxic substances list -govt has broad authority to regulate substances on this list
24
Q

Explain phase 4: comprehensive approaches to EA and planning/management regimes

A
  • when new waste/cleanup laws were being introduced, anticipatory tools introduced too (EAs and planning and management regimes)
  • hesitant to adopt at first, but most are stronger now
25
Q

What is EA?

A

The identification and evaluation of actual or potential effects (positive and adverse) of an undertaking on the environment. Can include critical review of purposes, comparative evaluation of alternatives and a follow-up examination of effects

26
Q

What are planning and management regimes?

A

Legislative schemes that govern a sector, like forests, fisheries, farmlands, and watersheds, with the purpose of maximizing long-term benefits obtainable from the resource while minimizing detrimental effects of its exploitation

27
Q

What are the 5 associated trends in environmental law?

A
  1. Regional, continental and global effects
  2. Transparency and citizen participation
  3. International influence on precaution
  4. Effective and efficient application of law
  5. Sustainability objectives
28
Q

Explain trend 1: regional, continental and global effects

A
  • followed idea of dilution is the solution to pollution
  • didn’t solve anything, just spread out pollution and enviro issues to farther ranges
  • ex. Sudbury superstack helped Sudbury recover but spread pollution much farther
29
Q

What is the dilution solution?

A

The idea that air or water pollutants do not pose problem if they are spread out widely enough, such as by wind or ocean currents

30
Q

Explain trend 2: transparency and citizen participation

A
  • public distrust of governments b/c failure to protect environment
  • increased public interest enviro groups - pushed for transparency (access to info, opportunities for direct involvement, right to demand action, etc.)
  • recent CEPA and ON Enviro Bill of Rights encourage public consultation and participation
31
Q

Explain trend 3: International influence on precaution

A
  • modern enviro law in Canada influenced by international law principles and agreements
  • ex. ozone crisis and climate change
  • legal adoption of precautionary principle
  • ex. Spraytech v Hudson, QB case used precautionary principle
32
Q

What is the precautionary principle?

A

The proposition that caution should be paramount when an activity raises threats of harm to health or the environment and that the proponent of the activity should bear the burden of proving that it is safe.
- recognizes world environment interrelated

33
Q

Explain trend 4: effective and efficient application of law

A
  • since 1990s, intro, design, and application of enviro law affected by increased scrutiny of govt initiatives.
  • main factors: ideological predispositions and corporate interest, concerns about costs of govt programs, and doubts about effectiveness
  • more emphasis on voluntary compliance
  • EA practices still not ideal and somewhat questionable
34
Q

Explain trend 5: Sustainability objectives

A
  • continuing spread of sustainable development
  • sustainability’s role: underlines unsustainable character of present inequities and environmental degradation; recognize interdependence of social, economic, ecological well being; and encourage attention to interests of future generation
35
Q

What are the two central aspects of the big picture context and challenge?

A
  1. Complexity

2. Unsustainability

36
Q

What is adaptive capacity?

A

The ability of a human and/or biophysical system to make adjustments in response to a potential or actual disturbance or its consequences without compromising the system’s core characteristics

37
Q

What are the implications of complexity in environmental law?

A
  1. respect uncertainty
  2. embrace complexity as a practical basis for understanding and action
  3. foster both resilience and transformation
38
Q

Explain respecting uncertainty

A
  • complexity entails uncertainty and uncertainty entails risk
  • should employ the precautionary principle for risk avoidance and/or mitigation
  • often deal with trade-offs
39
Q

What is risk?

A

The possibility of harming or losing something valuable

40
Q

Explain embracing complexity as a practical basis for understanding and action

A
  • can expand benefits
  • helps private and public sector fit into scene
  • shifts happen slowly
41
Q

Explain fostering both resilience and transformation

A

Two main responses to pressures: resilience and transformation

  • enhancing resilience relies on context
  • sufficient adaptive capacity will allow human and ecological communities to act and adjust w/o being pushed across a threshold to major changes
  • difficult to define strategies for enhancing transformation
  • commonly: long term thinking, backcasting, forecasting, creative experimentation, etc.
42
Q

What is resilience?

A

In complex systems, the ability to resist and/or accommodate disturbance and change while retaining identifying characteristics

43
Q

What is transformation?

A

In complex systems, a shift from one set of identifying system characteristics to another, including more or less significant changes in structure, functions, and/or proceses

44
Q

What is backcasting?

A

Tool for future-oriented planning centred on identifying a desired future objective or set of desired future characteristics and seeking viable paths from present to desired future

45
Q

What is forecasting?

A

Tool for future-oriented planning centred on projection of current trends into future with adjustments for foreseeable influences

ENVS 201 (4 decks)

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