What is environmental law and why is it hard to understand?

Author:Surtees, Jeff

Carbon taxes. Rules about where and how you can fish. A bylaw saying you can't wash your car on a city street. Provincial rules telling you to keep your "wheels out of the water" when operating your quad or dirt bike. Tax breaks so you can install solar panels on your house. Alberta's Land Use Framework and its seven Regional Plans. International environmental treaties. Rules about the use of harmful things: what you can take to the dump; draining a wetland; saying how closely together oil and gas wells can be drilled; creating National Parks and taking water from streams.

All of these rules and many others like them are environmental laws. A textbook definition is that "[e]nvironmental law is the body of statutes and common law that is and will continue to be used to protect and improve environmental conditions." [P. Muldoon et al. An Introduction to Environmental Law and Policy in Canada (Toronto: Emond, 2015) 3]

Why do we need environmental laws at all? Canada is a "liberal democracy". The words "liberal" and "liberty" both come from the Latin word meaning "free". Freedom is part of who we are, part of our national identity. But because we must live together in society, most people agree that we will have to have some restrictions on the things we are allowed to do. To restrict people's freedom for the common good, society uses laws. All laws are just restrictions on our ability to do as we please, with the threat of some sort of state enforcement being imposed on us if we don't. While people in our society have different views on the kinds of restrictions that should be put in place, very few people would seriously argue for the outright destruction of the environment. Disagreements are usually about where the line should be drawn, about how much regulation should be allowed, not about whether there should be a line at all.

Law, as a subject, can be divided up in many ways. The headings of some of the columns in LawNow show some of the categories often used. . . Criminal Law, Family Law, Employment Law, Human Rights, Aboriginal Law, Landlord and Tenant Law. The divisions aren't perfect. Any area of the law created this way will inevitably spill over its boundaries into other areas.

One of the most imperfect categories is that of environmental law. The subject matter of "the environment" is large and almost all human activities have the capacity to impact the environment. An activity (say walking) might be harmless in one situation but...

To continue reading