Now that you understand more about the structure of our courts and legislative systems and how laws are created in our province and across the country, let’s go through some of the important legal concepts that are often discussed in the realm of environmental law. After reviewing these ideas, keep an eye out for how they may apply in other areas of environmental law as you explore more topics on this website.
- The Precautionary Principle
- “A presumption of environmental risk. The precautionary principle is an expression of environmental sanctity which requires prevention and reduction of environmental impact even in the absence of scientific or legal proof of adverse effect or risk of harm. It places the onus of establishing the lack of environmental risk upon those who advocate development.”[1] What this means is that if the environmental risk of an action is unclear or unknown, lawmakers or others, will err on the side of caution.
- The Polluter Pays Principle
- “A principle of liability that, whenever possible, the actor that caused the pollution damage should pay for restoration, compensation, and future prevention”[2] In simpler terms, the idea that if you were the one to pollute, you should also be the one responsible for cleanup, for ensuring that anyone else who was affected by your mess is paid back, and for ensuring that future pollution does not occur.
- Environmental Rights
- Laws that grant rights to a clean and healthy environment, whether that includes clean air and drinking water or healthy ecosystems. This expands environmental law to allow individuals to use the court system to help enforce their right to a clean and healthy environment in the same way that they can currently ask the court to protect their rights to freedom of speech or freedom of religion.
- Cumulative Impact
- The idea of cumulative impact is the idea that you cannot look at pieces of the environmental in isolation. For example, the extinction of a single insect or animal in the food chain can wreak havoc on the rest or the construction of a single dam on a watershed already littered with small dams may have a negative impact on surface water, potentially affecting flood and drought patterns across the watershed. What this means for environmental law is that when legislators are drafting a statute or regulation governing one aspect of the environment, they need to be mindful of the inherent connection between all aspects of the environment and between all development affecting the environment.
- The Tragedy of the Commons
- The Tragedy of the Commons is an idea that was developed by the environmental scientist Garret Hardin.[3] His thesis was, if multiple people all have access to a common resource (including land), they will each exploit the said resource for their own personal benefit without any of them taking responsibility for its protection. This will eventually mean that the resource is used up or destroyed. This idea is not necessarily accurate for our current method of resource and land management but has been a leading principle in environmental law throughout the years.
To learn more about this idea and its connection to property rights click here.
Now that you have a quick background on the Fundamentals of Environmental Law, let’s move onto a discussion of constitutional law, where you will gain a more in-depth understanding of how the constitution can play a role in the protection of our environment.
[1] Bruce Pardy, Environmental Law: A Guide to Concepts (Toronto: Butterworths Canada Ltd. 1996) at 189.
[2] Bruce Pardy, Environmental Law: A Guide to Concepts at 187.
[3] Garret Hardin, “The Tragedy of the Commons” (1968) 162:3859 Science 1243
