19 Dec ENVIRONMENTAL RIGHTS IN ALBERTA: Module 3: Citizen Enforcement
The Environmental Law Centre is publishing a series ofeducational materials concerning legal rights related to environmental quality. This work is in support of enacting laws that will foster environmental quality for future generations of Albertans.
ENVIRONMENTAL RIGHTS IN ALBERTA:
Module 3: Citizen Enforcement for Environmental Quality
Enforcement of environmental laws in Canada (and Alberta) and action to protect the environment more generally is typically undertaken by government. There are opportunities to provide citizens with enforcement powers which do not currently exist in Alberta.
This environmental rights module canvasses the question of who can enforce environmental laws in Alberta and what types of enforcement mechanisms are available to them. The module also canvasses examples of various citizen based enforcement actions from several other jurisdictions, including Ontario, Quebec, Yukon Territory and the NWT and Nunavut. Citizen suit provisions in U.S. federal environmental law are also considered.
The ELC concludes that citizen enforcement of environmental laws in Alberta relies primarily on the use of citizen prosecutions and the ability to request an investigation of an alleged violation of environmental law. Successful citizen prosecutions are undermined by a criminal burden of proof and the related barriers facing a private prosecutor in gathering evidence. Further, the ability to question or challenge government decisions around how they choose to administer and enforce environmental legislation is lacking.
In those Canadian jurisdictions where citizen based enforcement options have been legislated there has been minimal use of these tools. This is particularly the case when compared to the use of citizen suits in the United States.
The ELC recommends, in adopting citizen enforcement tools, that legislation should avoid the pitfalls of other jurisdictions, including:
- Requiring additional proof of direct harm resulting from an alleged violation or novel nature of harm;
- Limitations on the temporal aspect of the violation (excluding existing limitation periods); and
- Unduly limiting initiation or continuation of a citizen action based on unduly narrow standing tests or other preconditions to a suit, including excessive security for costs.
Expanding citizen based enforcement options should consider some of the core approaches taken in the US to citizen suits, including:
- Adopting a civil standard of proof;
- Coverage of legal costs where suits are successful;
- Enabling transparent and open access to monitoring and reporting information;
- The ability to bring actions against the Crown to require government compliance with legislative obligations and responsibilities; and
- Limiting remedies to orders to restore the environment and financial penalties.
The ELC recommends adopting additional citizen based enforcement tools in legislation to bolster enforcement capacity for environmental laws and to ensure accountability around the administration and application of environmental regulatory instruments.
We look at publications from subject expert/authors such as Karl S. Coplan, David Mossop, Richard Lindgren and others. We look at legislation and case law from other provinces and the United States for existing practices and to develop our recommendations.
The Environmental Bill of Rights Program:
Phase 1 of the Environmental Law Centre’s Environmental Bill of Rights Program examines the current state of environmental rights in Alberta and several other jurisdictions, and makes a number of recommendations. Module 2 discusses issues around third party oversight and Module 3 delves into the need for and challenges of citizen enforcement. Phase 2 and future modules will consider costs of environmental rights, access to information and access to justice.
HAVE YOUR SAY:
The ELC wants to know what you think and encourage discussion about the issues that matter. Please participate in our online poll or share your thoughts in the comment section below.
The ELC would like to thank the Alberta Law Foundation for its support of the ELC’s Environmental Bill of Rights program.
The Environmental Law Centre (ELC) believes that law is the most powerful tool to protect the environment. Since it was founded in 1982, the ELC has been and continues to be Alberta’s only registered charity dedicated to providing credible, comprehensive and objective legal information regarding natural resources, energy and environmental law, policy and regulation in the Province of Alberta. The ELC’s mission is to educate and champion for strong laws and rights so all Albertans can enjoy clean water, clean air and a healthy environment.