Law and the Environment

Gail J. Cohen
Canadian Lawyer
November 13, 2008

The environment is one of the major concerns of our day, perhaps overwhelmed recently by the economic tsunami that is sweeping the globe, but not an issue that will go away or be easily solved.

The Liberals tried to tackle it in the last election but found their Green Shift plan difficult to explain to Canadians and suffered the political consequences. While Stéphane Dion and his party now must start rebuilding if they are to be a political force again, portions of the Green Shift will likely linger and perhaps even become policy in this country.

I’m somewhat of an environmentalist. I do my part to save energy, eat locally, use organic and biodegradable products in my home, and so forth. But I’m by no means an expert on solving the world’s environmental problems – and truthfully, I don’t think anyone else is either. But in my quest to learn more, I found myself at the Canadian Constitution Foundation’s second annual conference.

I was drawn there not by the chance to hear David Frum, George Bush’s former speechwriter, or Eugene Meyer, the president of the American Federalist Society. It was a Saturday morning panel on protecting the environment through private property rights. On the podium sat Albert Koehl of Ecojustice, Elizabeth Brubaker from the Energy Probe Research Foundation, and Ramani Nadarajah of the Canadian Environmental Law Association.

In terms of how the law can work to help clean up the environment, the panelists had three distinct ideas. They definitely made me think, so I’ll share what they had to say.

Brubaker was by far the biggest proponent of individual property rights as a way to redress environmental issues. She notes that in the common law, individuals have always had very strong property rights that allowed for the use and enjoyment of their property without interference. Common law rights would be a way to prohibit all kinds of pollution; protect one’s own land, water, and air even. Such property rights empower individuals who are directly affected, say by the chemical company just up the river, to stand up to polluting Goliaths through court injunctions and such, says Brubaker.

That would work in some cases but in others the problem, she notes, is that governments have now set up regulatory bodies and other systems that "time and again have overwritten the common law to protect polluters." So the idea of property rights does have some merit but is both expensive to litigate and, as Brubaker admits, more and more difficult to use.

Koehl and Ecojustice believe that legislative changes on a national and international level are the best way to deal with environmental problems because most are on much too grand a scale to be tackled through private property rights.

He points to the banning of CFCs in efforts to address the earth’s depleting ozone layer. In that case pollutants came from many sources and it would be impossible to blame on individual companies or people. The high cost of changing the way you do business also means voluntary guidelines are not the way to go. The only way forward, in such a reality, is through legislation that forces industry to change, he says.

Nadarajah is a believer in the regulatory model to curb polluters. Money talks and fines and penalties, or even – gasp! – a carbon tax, are ways to get large polluters to change their ways. Hitting them in the pocketbook is what really hurts, is her theory.

Each of these three options has benefits and drawbacks but it would seem that all three legal paths used in the right circumstances will be beneficial and worth pursuing. Nothing should be ruled out in efforts to green up the world.



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