Essay/Term paper: Environmental law- enforcement measures and effectiveness in
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Pollution, why is it still running rampant in our environment today ? Are there no laws to control or stop it ? In regards to these questions, Canada has a great many laws to stop and regulate pollution. But despite this, why is it still happening. What are Canada's so called enforcement measures and are they effective ? We have the Environmental Bill of Rights and the Canadian Environmental Protection Act, just to name a few. Sure some polluters break these laws and get caught, but all they get is a slap on the wrist; why is that ? Some even have the gual to pollute again. Acid rain and hazardous wastes are just two of the many problems plaguing our environment today, but nothing is really being done about them; why ? Finally what is the polluters point of view in all of this ?
To begin with, in some areas there are both federal and provincial legislation to ensure that companies and individuals respect the environment. Federally the central piece of legislation in Canada is the Canadian Environmental Protection Act (CEPA). "CEPA is the consolidation of five statutes: The Environmental Contaminants Act, the Air Quality Act, the Canada Water Act, the Ocean Dumping Act, and the Department of the Environment Act." ( Muldon, 1995, p. 23) The CEPA contains important penalties and sanctions; provisions for the collection of information and for evaluation; provisions for the control of importation and exportation of toxic substances; and provisions for the reduction of wastes, the cleanup of coastal zones, the protection of the ozone layer; the reduction of acid rain and urban smog; and provisions for the development of regulations.
All provinces and territories have enacted their own legislation, establishing general
environmental rights and responsibilities; but the level of environmental protection established is not equal all across Canada. Generally, it can be said that each province and territory regulates the discharge of contaminants into the environment by requiring licenses and permits and by invoking penalties. The regulated matters include environmental impact assessment, waste management, drinkable water standards, and land conservation. (Morrison, 1991, p24) Also, provinces and territories deal
with several other matters indirectly affecting the environment, such as the regulation of
commercial or industrial activities like mining, agriculture, and transportation. In Ontario, the four main statutes are the Ontario Environmental Protection Act (OEPA), the Ontario Environmental Bill of Rights (EBR), the Ontario Environmental Assessment Act, and the Ontario Water Resources Act (OWRA). OEPA provides for the protection of the natural environment, which is defined very broadly. It also creates the Environmental Appeal Board. "OWRA is concerned with the protection of all surface waters and ground waters. Both acts prohibit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect or that impairs or is likely to impair the quality of the water." (Morrison, 1991, p. 33) The Ontario Environmental Bill of Rights provides for increased public participation rights and creates the Environmental Bill of Rights Commissioner. Moreover the EBR was established in 1993. "It represents a new era in environmental decision making...one characterized by enhanced public participation, citizen empowerment, and greater accountability of decision makers." (Muldon, 1995, p.15) The new rights and responsibilities in the legislation require politicians, policy makers, lawyers, activists, and citizens to rethink and modify their usual ways of looking at environmental problems. It is hoped that the EBR will promote positive strategies such as waste reduction, energy and water conservation, and "green" industry development. (Muldon, 1995, p.16) Finally, there are also many specific laws dealing with specific industries. Such as the Pesticides Act, The Ontario Water Resource Act, the Energy Efficiency Act etc.
What happens to polluters who break these laws ? In Ontario most environmental offenders break the laws outlined in the EPA. When they do, the companies or persons are charged with the offenses committed and brought to trial. In "Ontario there were 1, 546 charges laid in 1994 about half of those were convicted. " (Parker, March, p.36) When found guilty the judge has a number of ways to punish the offender. One of the ways are through fines. "In the CEPA it permits fines of up to
$1, 000, 000 for some offenses, while in the most serious cases there is no ceiling on the amount of the fine that can be raised." (Poch, 1989, p. 56) In the OEPA there is no set limit at which fines can be set. In 1994 there was $ 2, 427,833 in total fines paid by offenders. "The largest environmental fine in a contested hearing was to Robert Brown and Robert Len Brown Construction Ltd. Fines had been set at $364,000 for numerous offenses resulting from the illegal storage of tires. In addition, Mr. Brown was handed another $250,000 worth of related costs for a total of $614,000." (Small, 1993, p. A10) Mr. Brown and his company since then have not been offenders and due to their fines have learned a great lesson. Other companies however are more stubborn. In 1992 Canadian Pacific Express & Transport Ltd, a company which engages in the carrying of goods between Ontario and other provinces was fined $ 50,000 for discharging a contaminant into the environment. And again in 1993 the company was found guilty of allowing the Discharge of Radio-Active Barium Carbonate Powder into the natural Environment. (Section 13(1) of EPA) They were fined $90,000. (Sterling, 1995, p. B3) Now by examining this company is there a reason why it committed a crime against the environment a second time ? The most obvious answer would be that they didn't learn their lesson the first time. It is not really their fault though, because the fine didn't really hurt them enough to make them really think about what they did. This is the idea shared my most of the repeat offenders. Why are these offenders getting a slap on the wrist for such horrible crimes. A man who kills someone in first degree may get 25 years in prison, but why are these companies who pollute the environment causing massive birth defects and destroying animal and plant life getting only a $50,000 fine and less in some cases ? The range in fines from individuals to companies is about $100 to $50,000. What is wrong with this picture. These people are getting away with serious offenses and paying little for it. We as a society can demand harsher fines and laws which seriously punishes or cripples these offenders. Fines must be implemented that hurt the company, that gives the company something to think about. As it stands now, these fines are put as a cost of production. This is very wrong, because in the end the consumers are the ones who pay for these companies negligence. To prove how ridiculously the companies/people are fined, "Barney Buglyo was fined $300 for failing to prevent animal and/or insect life from gaining access to a sewage system, and Lafarge Canada Inc. was fined only $71, 000 for the illegally dumping of waste."
(Monchuk, 1994, p. B8) These are just two of the hundreds of cases where fines just don't exceed the crimes. (Bueckert, 1990, p. A12) (Goar, 1995, p.B10) ( McAndrew, 1995A, p. A3)
Hazardous wastes represent about 20% of all wastes produced in Canada. As with other wastes, the provincial governments play the major role in regulating the management of hazardous wastes. "Under CEPA, the federal government regulates the use, storage, and disposal of PCB's (polycholorinated biphenols) and other toxic substances. The federal government regulates the import and export of hazardous waste and manages hazardous wastes on federal and Indian lands and in federal facilities." ( Canada, 1990, p. 45) Liability and Enforcement of hazardous wastes can be seen federally and provincially under CEPA, failure to give notice to import or export a hazardous waste is subject to a maximum penalty of a CND$1 million fine and three years imprisonment. "Penalties under the Transportation of Dangerous Goods Act can be a maximum of a CND$100,000 fine and 2 years imprisonment. Under the federal Hazardous Products Act, offenders are liable for a maximum fine of CND$1 million and two years imprisonment." ( Canada, 1990, p.55) Provincial legislation also set penalties. For example, the Quebec Dangerous Wastes Regulations provide for maximum fines up to CND$100,000, and two years imprisonment. "The Export and Import of Hazardous Wastes Regulations, 1992, establishes standards for insurance liability, including damage and clean-up cost coverage of at least CND$5 million." ( Hall, 1995, p.B4)
What is the polluters position in all of this. Their excuses for their acts is that with higher environmental safety standards it will cost more money and product prices will go up. As well they say that lay off will soon follow because keeping up an environmentally friendly business that a lot of money, and "we have to find it somewhere". ( Moloney, 1995, p.A3)
In conclusion, these environmental laws Canada has in place are doing a mediocre job at combating polluters. The laws themselves are effective, but the punishments must be drastically change. Through case examples it can be seen that there are many repeat offenders and fines for these offenders that don't fit the crimes. Canada and the world must send a direct message to these polluters by raising fines and making examples of these law breakers. Media must get involved to spread awareness of our problem. With all these things together, then and only then will the environment be safe.
A Framework for discussion on the environment. (1990). Canada: Canada Law
Bueckert, D. (1990, December 29). Get ready for conflict in Canada. The
Montreal Gazette, p. I8.
Bueckert, D. (1995, November 27). Acid rain making comeback experts say.
The Montreal Gazette, p. A12
Goar, C. (1995, April 10). Canada gets black mark for pollution. Toronto Star,
Hall, F. (1995, March 1). Green laws under siege. The Halifax Daily News, p. B4.
Law reform commission of Canada. (1985). Crimes Against the Environment.
Marotte, B. (1996, January 19). `Screeching halt' in green sector Government
aid has faded. The Montreal Gazette, p.D3.
McAndrew, B. (1995, April 27). Ottawa issues a list of nation's polluters.
Toronto Star, p. A3.
McAndrew, B. (1995, May 23). The un-greening of Ontario politics or how the
environment has faded as an issue. Toronto Star, p. A1.
Moloney, P. (1995, November 17). Spend more to protect environment
residents say. Toronto Star, p. A3.
Monchuk, J. (1994, November 4). Pollution control must be voluntary, Alberta
says. The Montreal Gazette, p. B8.
Morrison, H. (1991) Federal Pollution Legislation. Canada: Minister of Supply
Muldon, P. (1995). The Environmental Bill of Rights: A practical guide.
Toronto: Edond Montgomery Publications Limited.
Parker, P. (1992, March/April). Crime and Punishment. The Environmental
Poch, H. (1989). Corporate and Municipal Environmental Law. Toronto:
Rovet, E. (1988). The Canadian Business Guide to Environmental Law.
Vancouver:Intself Counsel Press Ltd.
Small, P. (1993, June 18). NDP reports jump in polluter's fines. Toronto Star, p.
Sterling, H. (1995, September 22). Backward steps for different reasons, on
both sides of the border, the fight against pollution is under attack. The Montreal
Gazette, p. B3.
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Historians, social scientists, environmentalists, social activists, civil societies, policy makers, jurists etc. are debating and writing about the various aspects of environment, including the environmental law, in India. In this process, environmental concerns are raised and remedies for safeguarding the environment are suggested. The role of judiciary is also very important in the whole scenario because of its time-to-time intervention; however, to some this intervention is ‘judicial activism’. The environmental worry is not confined to India, at the different fora of international level the anxiety is expressed and various ways and means are suggested to improve the environmental conditions. This is because the problem is not only confined to a particular nation but is seen as a global one. The litigation issues related to environment are complex and fraught with conflicting demands, pulls and pressures, notions of right and justice and competing ideologies. Environmental laws and regulations significantly influence the life of the people, their thinking and behaviour. The success story of the environmental laws, so far, is not very optimistic. Despite various laws and socio-cultural and constitutional safeguards, the environmental degradation is very fast, threatening the society, economy, flora and fauna, wild life etc. Hence, not only a revisit to the existing laws is important but also a discussion for the future is proposed in the intended volume. Hence, the proposed book will also seek to address the future concern and look into the dimensions and directions of the environmental regulations in India and abroad. Here, the concern of the environment and the issue of life and livelihood of the indigenous people, tribal, peasants, women and weaker sections, will also be addressed.
It is from this perspective that the proposed book through a number of research papers from the scholars who are working in the respective fields will situate the environmental law of India.
A tentative list of areas is mentioned below and on any one of them you can write a paper or the topic of your choice which you think has not been mentioned in the write up but according to you is important. Please write your paper in about 5000 words. The style sheet (notes and references) for writing the paper should be the standard format followed in the field of legal research. The paper may please be sent in the MS Word format and by 15th June 2015.
Human Rights and Environment
Environmental protection during pre-colonial and post colonial
Development and protection of Indigenous people
Judicial response towards environmentalism
Environmental Litigation and Judicial Review
National Green Tribunals
Climate Change and Carbon Trading or green Economy
New emerging trends of international environmental issues
Institutional Innovation for Environmental Justice
Environmental policy in India
Forest laws and policy
Public participation in Environmental decision making
Right to Development
Environmental values and Environmental laws
The administration of environmental law and policy
The enforcement of environmental laws
Water laws and policy