Environmental Law

Section 1: The Environment at Risk


Public Law versus Private Law

Have you noticed that in some situations it's the public authorities who prosecute a supposed wrongdoer in the courts while in other situations private citizens sue each other in court? For instance, if you're caught driving dangerously, the police will charge you with an offence and a Crown prosecutor will make the case against you in court. By contrast, if you carelessly back your truck through your neighbour's fence and prize petunia bed, there's a chance your neighbour will sue you for financial compensation.

The distinction illustrated here is that between public law and private law . Public law involves the relationship between individuals and the state; private law involves the relationship between individuals. The best-known type of public law is criminal law . If you commit a criminal offence, it's the public authorities who will prosecute you, not your next-door neighbour.

Private law is also known as civil law , and that's the term you'll be encountering most in this course. Whenever an individual, a group of individuals, or an organization sues another individual, group, or organization, this is a civil case. When the public authorities are involved, it is public law, most often criminal law, that's at work. Before discovering how all this applies to environmental law, it's necessary to take a quick look at one particular area of civil law-the law of torts.

Tort Law

It's really quite easy to understand what a tort is. Basically, a tort is any civil wrong - a wrong for which one individual might take another to court, with the exception of a contract dispute. If you drove over your neighbour's mountain bike, if you slander someone, if you trespassed on another's property, if you assaulted someone, if you caused someone an injury by carelessly neglecting to shovel your sidewalk, or any similar case, a court might find that you had committed a tort. In some of them, for instance, in the case of assault, you might be guilty of a criminal offence as well.

Negligence

The majority of tort law is concerned with the area of law known as negligence . Basically, the law of negligence comes into play whenever one person's carelessness causes harm to another. A plaintiff can win a negligence lawsuit if he or she can convince a court of three things:

  • The harm done to the plaintiff was a direct result of the defendant's actions.

  • The defendant acted without reasonable care.

  • The harm done to the plaintiff was reasonably foreseeable.

A problem with using the law of negligence in environmental disputes is that it can be hard to prove that the actions of a polluter, for instance, are the direct cause of the harm done to a plaintiff. If a plaintiff living near a sour-gas well, for example, develops asthma, the fumes from the well may or may not be the cause. Who can say? It can also be difficult to prove that the harm was reasonably foreseeable. Is it reasonable for farmers spraying their crops to foresee that 30 years later a neighbour would develop cancer from the chemicals? For these reasons, negligence law hasn't been too successful in fighting environmental battles.

 

Nuisance

Nuisance has generally been more successful than negligence as a means of using tort law to win battles with polluters. Basically, nuisance occurs when one party uses his or her land in a manner that's unreasonable and that interferes with neighbours' enjoyment and use of their land. This can occur either deliberately or by accident. Nuisance can be of two types: private nuisance and public nuisance . Nuisance is a useful ground for fighting environmental cases in limited situations. Such things as industrial emissions, factory wastes, smoke, toxic fumes, and noise are all examples of environmental pollutants that can be fought through tort law in cases based on nuisance.