Paying for pollution: who should be on the hook for environmental harm

Paying for pollution: who should be on the hook for environmental harm

trashOur lives invariably cause a level of pollution: we drive, we use chemicals to clean our clothes and our homes, we use a seemingly never ending stream of plastics in our workplaces and homes. Who pays for the pollution that results? The resource extractor, the manufacturer, the retailer, the consumer? Should creditors pay for pollution caused by their borrowers? Should governments pay for pollution that they regulate when it results in harm to the environment of its citizens?

Our laws (both common law and codified) deal with the issue of who pays for restoring environmental harms to varying degrees. The issue of environmental liability (and the corollary cost of preventing harm) was the topic of a panel comprised of Alex MacWilliam and I at the recent Canadian Association of Environmental Law Societies Conference in Calgary (moderated by Martin Olszynski).

From the ELC perspective any discussion of environmental liability leads to a focused evaluation of whether our laws adopt the “polluter pays” principle.  If we have to pay for our pollution, the reasoning goes, we will be motivated to avoid polluting in the first place or seek out less polluting alternatives.

The principle is espoused in pollution laws both provincially and federally. The Alberta Environmental Protection and Enhancement Act recognizes “the responsibility of polluters to pay for the costs of their actions” (at s.2) and the Canadian Environmental Protection Act, 1999 notes “the Government of Canada recognizes the responsibility of users and producers in relation to toxic substances and pollutants and wastes, and has adopted the “polluter pays” principle” (at the preamble). Tort law similarly attempts to hold a defendant liable for harm to a plaintiff resulting from pollution by ordering that remedial actions be taken or through the payment of compensation.

The law’s application of the polluter pays principle is far from perfect. In the coming months the ELC blog will, in addition to our regular blog posts, focus on specific issues arising around environmental liability and the polluter pays principle. This blog series, Pollution Pocketbook, will discuss:

  • who should pay for pollution;
  • how to ensure a polluter pays;
  • when should a polluter pay; and
  • how much should a polluter pay.

Stay tuned; you won’t be shortchanged.

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3 Comments
  • Jim Thomson
    Posted at 10:14h, 20 April Reply

    The concept of “polluter pays” seems straightforward enough but, as you say, the application of it is not perfect. What about transporting hazardous chemicals? Is the carrier always responsible in the event of a spill?

    • Jason Unger
      Posted at 10:33h, 20 April Reply

      Thanks Jim, Your question directly raises a variety of the issues we must deal with. Typically a carrier will have to remedy an accidental spill but there may be a variety of contractual, civil and regulatory remedies beyond the party who spilled the chemicals. The cause of the spill may come into play as well in some instances.

      Typically the laws (both federal and provincial) create obligation to remedy environmental harms and the government retains the discretion to order the person responsible for the chemicals to clean it up (at their cost).

      • Thomson, Jim (Environment Water)
        Posted at 10:41h, 20 April Reply

        OK Jason thanks.

        Jim Thomson, P.Geo., EP(CEA)
        Senior Environmental Scientist
        Amec Foster Wheeler
        Environment & Infrastructure
        5681 – 70 Street, Edmonton AB, T6B 3P6
        Dir (780) 989-4533 Fax (780) 435-8425
        Cell (780) 720-4244
        jim.thomson2@amecfw.com
        amecfw.com

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