The Environment Canada Policy Research Seminar Series

Jean Piette March 22, 2002

On Friday, March 22, 2002, the Environment Canada Policy Research Seminar Series hosted Mr Jean Piette in a talk entitled "New Body Of Law Emerges : The Law of the Environment". The following is a précis of Mr Piette's talk.

The industrial, technological, urban, consumer society has brought about major disturbances in the Earth's ecological balance and has caused–and continues to cause–a significant level of pollution which is damaging natural and urban environments. In the 1960s, science uncovered some of the unintended effects of industrial and technological developments which nonetheless bespoke material well-being and economic prosperity for increasing numbers of people in "industrialized" societies.

It is important to recognize that the same scientific research which brought about technological breakthroughs and new industrial processes has also made it possible to identify, analyse and measure the impact of industrial and technological development on the environment and nature as a whole.

In the 1960s, the dissemination of this knowledge and such visible signs as the deteriorating quality of life in urban centres, the destruction of rural landscapes, and the depletion of renewable and non-renewable resources, produced a new awareness that industrialization and technological development were at the source of these and other important environmental problems. As a result of this growing awareness, civil society began to speak out and, in the late 1960s and early 1970s, public authorities began to take measures to address the unintended effects of industrial and technological development, both nationally and internationally.

At the national level, states began to develop intervention programs and legislation designed to protect the environment. At the international level, countries agreed on the need to take stock of environmental problems and to develop solutions of international scope. At the 1972 United Nations Conference on the Human Environment, held in Stockholm, Sweden, the international dimension of the environmental crisis came to the fore. For the first time, there was a global awareness that urgent measures were needed to address the unintended effects of industrialization and technological development.

In seeking to reorder the values and goals of society as a whole, civil society referred to the rule of law, which is something that exists in many kinds of society but which acquires its greatest meaning in a democratic society. The purpose of laws is to establish what ought to be.

Systems of law are products of organized societies. They establish rules to govern interactions between members of civil society, including private and public institutions and government. Systems of law seek to substitute order for disorder. In the environmental sphere, there was rampant disorder.

All the rights seemed to be on the side of economic and technological interests. Nature and the environment had little or no rights. As individuals, citizens were reduced to being mere spectators, consumers, or worse–victims.

Legislative means were needed to establish rules to govern those responsible for disorder, which is to say individuals, companies or even public authorities who, through their behaviour, activities, and operations, were exploiting, overexploiting, wasting, and exhausting environmental resources, as well as those responsible for taking decisions affecting the environment.

This is how environmental law took form. Environmental law is a highly specific body of law which seeks to address new concerns within civil society. In other words, it is meant to fill a void. There were, of course, existing legal instruments such as civil liability laws, laws governing the international duties of nations, and property laws, but as means of addressing the new environmental reality facing civil society in the 1970s, these were clearly inadequate.

This new area of law distinguishes itself in a number of ways from other areas of law. Specifically:
* it calls on science and the results of scientific research to a greater extent than any other area of law;
* it is not a static instrument but an evolving body of law which is dependent on the evolution of values and priorities within civil society and on scientific progress;
* it regulates issues which transcend political boundaries and are undeniably international and global in scope;
* it is based on new concepts, many of them informed by the notion of risk and inconsistent with traditional legal concepts such as property rights in domestic law or respect for national boundaries in international law;
* it is composed of legal principles which are frequently vague and associated with "soft law," as well as stricter normative rules which can be either procedural rules or rules of substantive law.

Despite its short history, environmental law has undergone a remarkable evolution in the past thirty years. In the beginning, the attention of the legal system was largely focused on local, visible environmental problems such as nuisances, fumes, visible pollution, dust and noise. The rule of law was used to deal with these largely local problems and the resulting complaints from citizens.

In the past thirty years however, scientific progress in the environmental field has made it possible to: identify new, previously unsuspected problems; detect and measure forms of pollution and environmental degradation which had previously gone undetected; develop new techniques which have proven surprisingly effective at attenuating, controlling and preventing pollution and environmental damage; and develop new uses for by-products which were previously treated as waste. As a result of these scientific developments, new rules were established to deal with emerging problems (acid rain, organochlorides in drinking water, ground-level ozone) and new solutions were developed to address problems of longer standing.

The new rules introduced during the past thirty years include: the widespread implementation of prior environmental assessment requirements; the introduction of "zero discharge" standards or standards that drastically reduce certain toxic substances; increased penalties and sanctions for companies that commit environmental infractions; and rules which recognize the right of citizens to live in a healthy environment and to have access to environmental information. In the place of the former environmental irresponsibility, environmental law establishes new responsibilities and new accountabilities for economic and political players, as well as for the judiciary itself.

There are few areas of law as closely tied to science and scientific research as environmental law. As was stated earlier, scientific progress and the technology derived from it are at the source of most of today's environmental problems. At the same time, science has also made it possible to identify, assess and measure the damage and upheaval caused by industrialization and technological progress. It is also science and technology that enable us, in many instances, to develop more effective means of monitoring the environment and controlling pollution.

Science also provides the technical parameters which legislators need to establish qualitative and quantitative standards for the discharge of contaminants into the environment, or to prohibit certain forms of discharge outright. This is an important function of the environmental regulatory apparatus.

Furthermore, science enables competent authorities to assess the environmental acceptability of development projects and new technologies. It also provides the means to establish criteria for the measurement of risks associated with projects, technologies, or substances that require the authorization of competent authorities.

Finally, science is an indispensable adjunct to the legal system when the latter is required to judge the actions, inaction or behaviour of various stakeholders, or to impose administrative, penal or civil sanctions.

By this we mean that environmental law owes its emergence to changes that were taking place in the environment. The ever-accelerating degradation of our ecosystems and the growing recognition that our environment was out of balance produced an increased level of awareness which, in turn, led to the introduction of new rules to address environmental issues. However, in addition to having its roots in biospheric change and changes in consciousness, environmental law makes change its ultimate goal. The new rules of environmental law seek to modify the way we conduct our economic activities, to bring about cultural change, and to alter the way economic and political decision-makers think. Hence, change is the very essence of environmental law.

In fact, this aspect of environmental law regularly comes to the fore. New developments, such as the discovery that certain substances cause cancer, or the problems of ozone depletion and climate change, constitute an ongoing challenge for environmental law, leading to the elaboration of new legal standards which are incorporated with remarkable speed (often within a few years) into international law and the laws of individual states. In turn, these new legal standards have spurred technological change as civil society seeks to find ways to maintain economic activities which are beneficial or even essential to its survival. As a result of its essentially evolutionary nature, environmental law has become an innovative and imaginative area of law.

In short, environmental law is the opposite of a static body of law. Although it must always seek to provide legal security to civil society and its members, this security can only be relative.

The concerns which gave rise to environmental law also inform the legal principles which underlie environmental law as we know it, both nationally and internationally. These include three guiding principles which have emerged during the past thirty years and which find their expression in the substantive law of many countries, as well as in international public law. Although, in many respects, these are "soft law" rules, they have become formally recognized and incorporated into the binding provisions of many international treaties and conventions, as well as the domestic law of numerous countries.

In many countries, these legal principles constitute a standard which determines how government decision-makers exercise their discretionary powers; they may also guide the formulation of stricter, more specific legal rules to govern the behaviour of citizens and economic stakeholders, as in the case of the new Canadian Environmental Protection Act.

1. the polluter pay principle;
2. the prevention principle;
3. the precautionary principle.

The polluter pay principle emerged fairly early in the development of environmental law. It is derived from the rules of tort liability and quasi-tort liability, but is devoid of the concepts of "fault" and "negligence" normally associated with civil liability, as in societies which have a legal system based on civil law or British Common Law. In environmental law, the polluter pay principle does not refer to "fault." Instead, it favours a curative approach which is concerned with repairing ecological damage.

Interestingly, it was an intergovernmental organization for economic cooperation–the OECD–which first conceptualized the polluter pay principle. In 1972 it was recognized as a means of establishing new cost charge-back rules for pollution prevention measures and re-establishing a balance in the allocation of public expenditures. The polluter pay principle was seen as a way of internalizing pollution-related costs within the context of the economic rationality of the enterprise. Thereby, market distortions are avoided which can occur when companies do not account for the costs of pollution in a context of competition and opt instead to ignore these costs or to pass them on to third parties or to the community as a whole.

In terms of domestic law, the polluter pay principle constitutes the backbone of environmental law. Indeed, it is by virtue of this principle that present and potential polluters are now required to: cover the cost of technical studies undertaken to assess the pollution they produce, as well as the cost of the technology required to monitor and control this pollution; compensate third parties whose property, person or quality of life have been compromised by pollution; and cover the costs of any legal penalties arising from their failure to observe the normative rules laid down by the state. It is also by virtue of the polluter pay principle that polluters are sometimes required to depollute or decontaminate certain areas, irrespective of the prescriptive rules that normally apply in cases involving civil or criminal recourse.

The prevention principle may well be the oldest of the guiding principles; reference to it is made in an arbitration award granted on March 11, 1941 in the Trail Smelter case. This was a case in which Canada was held responsible for damages caused by air pollution produced by a smelter located on its territory. The award recognized that states have an obligation to prevent cross-border pollution. Although this award could be viewed as an example of the polluter pay principle at work, since it required the polluter state to compensate a neighbouring state harmed by the pollution, it nonetheless established the rule that states have a duty to prevent pollution from affecting their neighbours. This pollution prevention obligation has been taken up in numerous international declarations emanating from so-called "soft law" and in many binding international conventions established in the past thirty years.

In domestic law, the prevention principal translates into prior authorization procedures that enable competent authorities to intervene before a project is undertaken, either to prevent it from going forward or to impose technical or other requirements designed to ensure that the project will adhere to standards, restrictions and other factors which are intended, individually and collectively, to limit harm to the environment.

Environmental impact assessment procedures also draw on the prevention principle. Such procedures are preventive in nature in that they are designed to encourage project proponents to attenuate the environmental impacts of their projects; when a project proponent fails to take the necessary measures, public authorities may prevent the project from going forward or impose various kinds of standards and restrictions. It is important to note that the public is also regularly invited to intervene in such procedures and to present its concerns and objections regarding specific projects.

The scientific testing procedures performed before new products are put on the market is another example of the prevention principle at work. Similarly, the regulatory standards which governments use to prohibit or restrict certain activities that are potentially harmful to the environment, such as industrial activity, are informed by the prevention principle. These kinds of legal standards are intended to prevent harm or to limit its scope and effects.

The precautionary principle is the most recent of the guiding principles in environmental law. Over the course of a few years, the international community, many governments, and, in some countries, the judiciary, have recognized and enshrined this new principle as a means of dealing with uncertainty. Whereas the polluter pay and prevention principles were conceived to address known situations and risks, the precautionary principle relates to the realm of the uncertain. It deals with suspected rather than known risks. Its goal is to protect civil society against possible or probable hazards. Since it does not rest on certainties, the precautionary principle is the most controversial of the three guiding principles.

A fuller understanding of this principle can be derived from the Rio Declaration on Environment and Development (1992), which states that:

"In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

Obviously, a principle of this kind represents a hitherto unheard of "letter of credit" in the management of possible and potential risks. Whereas the prevention principle provides a means of identifying known risks, in order to avoid or attenuate them, the precautionary principle can be used to justify the adoption of regulatory measures or even outright prohibition, in the absence of scientific certainty concerning potential risks of serious or irreversible damage to the environment.

The precautionary principle can be invoked to prevent a development project from going forward if it is suspected that the project may cause serious damage to the environment–that is, in the absence of scientific certainty.

In some ways, the precautionary principles seems to conflict with the sustainable development principle which seeks to reconcile economic development and environmental protection. According to the precautionary principle, environmental protection comes first, a fact which can have a chilling effect, in the sense that the status quo–that is inaction–is preferred to action which may entail risks that are considered "serious or irreversible."

Here, we touch on an area in which the judgement and values of individuals (be they judges, officials or politicians) play a determining role. In some instances, it may be difficult to achieve a peaceful coexistence between the goals of economic development and those of environmental protection.

Similarly, it is difficult to reconcile the precautionary principle with legal requirements for evidence which is "preponderant," "clear and convincing," and "beyond a reasonable doubt." This is why the precautionary principle is more commonly applied in the area of administrative discretion than in the judicial arena, at least in Canada. In any case, some sort of accommodation will need to be struck between the precautionary principle and the rules of positive law of individual states.

Today, environmental law is a reality that cannot be ignored. There is no doubt that environmental law can be disruptive. It is intended to respond to the concerns of a changing world, a world which is seeking to reestablish a balance between the human species and nature. Although environmental law does not always conform to traditional legal concepts, it is fulfilling an essential role in today's world.

Indeed, its relevancy has never been clearer than now , as societies contend with the globalization of trade, the emergence of new social values, the acceleration and omnipresence of technological change, and our increasing ability to modify the biosphere's biological systems.

Environmental law must now formalize the rules of a new social contract between civil society and the biosphere, a social contract which is not set in stone but which evolves as civil society itself evolves.

Biography

Mr Jean Piette was the first lawyer in Quebec to develop a practice entirely devoted to environmental law in 1972. He joined the law firm Oglivy Renault in September 1991. He is a partner and a member of the Business Law Group with twenty-seven years of experience in both environmental law and the development of environmental policy. Within Ogilvy Renault, Mr. Piette provides legal counsel and strategic advice on matters of Quebec, federal and international environmental law. He is a registered consultant in environmental law to the World Bank, which is headquartered in Washington, D.C., and in June 1999 he participated in the drafting of pesticide control legislation for Uzbekistan.

Before joining Ogilvy Renault, he worked successively for the Environment Protection Services, the Ministry of Justice and the Ministry of the Environment of Quebec. Within the Ministry of the Environment of Quebec, he acted as General Counsel from 1976 to 1983, Director of Environmental Strategy and Policy Development from 1983 to 1986 and Director for Intergovernmental Relations from 1986 to 1991. He was also responsible for the planning and drafting of all environmental laws and regulations in Quebec from 1972 to 1983, including the 1978 amendments to the Environment Quality Act.

Mr. Piette has lectured at the undergraduate and graduate levels at different universities in Quebec and has been a speaker at numerous conferences and seminars in North America and in Europe. He is the co-author of the first treatise on environmental law in Quebec, published in 1982 under the title La protection juridique de l'environnement au Québec, and has written many articles on environmental law and policy in professional and academic publications in Canada and Europe. He is also an active member of a number of environmental law associations and currently chairs the Standing Committee on Environmental Law of the Quebec Bar and is a member of the International Council of Environmental Law.

List of articles and reports by Mr Jean Piette

1. Duplessis, Y., Hétu, J. et Piette, J. La protection juridique de l'environnement : comprenant une jurisprudence inédite des tribunaux québécois. -- Montréal, Québec : Les Éditions Thémis, 1982. -- 707 p.
   
   
2. Piette, J. Aspects juridiques des études d'impact sur l'environnement. In L'impact des projets sur l'environnement : 14^e congrès AQTE (Montréal : 2-5 mai 1976) . -- [Montréal] : Association québécoise des techniques de l'eau, 1976. -- p. 4-1 - 4-19.
   
   
3. Piette, J. The role of provincial governments in the field of transfrontier pollution. In Common boundary, common problems : the environmental consequences of energy production : proceedings of a conference held at Banff, Alberta, March 19-21, 1981. -- Washington, D.C. : American Bar Association, Standing Committee on Environmental Law, 1982. -- p. 69-70.
   
   
4. Piette, J. La législation québécoise sur la gestion des déchets. L'Ingénieur (1984) 70 (359) : 6-10.
   
   
5. Piette, J. Initiatives des provinces de l'Est du Canada en matière de précipitations acides. In Conférence intergouvernementale sur les précipitations acides : Actes de la conférence, Québec, les 10, 11 et 12 avril 1985 = Intergovernmental Conference on Acid Rain : Conference proceedings, Québec, April 10, 11 and 12, 1985. -- Québec : Ministère de l'Environnement, 1986. -- p. 245-272.
   
   
6. Piette, J. La protection de l'environnement depuis la signature de la Convention. In Baie James et Nord québécois : dix ans après = James Bay and Northern Québec : ten years after / S. Vincent et G. Bowers, éditeurs. -- Montréal : Recherches amérindiennes au Québec, 1988. -- p. 119-123.
   
   
7. Piette, J. L'harmonisation des politiques et des normes fédérales et provinciales et la coopération intergouvernementale. In Le droit à la qualité de l'environnement : un droit en devenir, un droit à définir : V^e Conférence internationale de droit constitutionnel = Fifth International Conference on Constitutional Law (1987 : Québec) / N. Duplé, éd. -- Montréal : Québec-Amérique, 1988. -- p. 369-379.
   
   
8. Piette, J. The development of Quebec's acid rain policy. In Acid rain : the view from the States : proceedings of a conference [Dec. 2-3, 1987] / sponsored by : Center for Environmental Information, Inc., Acid Rain Information Clearinghouse, Rochester, N.Y. ; J.C. White, ed. -- Rockville, MD : Government Institutes, Inc., 1988. -- p. 76-82.
   
   
9. Piette, J. L'environnement, une préoccupation incontournable pour l'industrie minière. In L'industrie minière, moderne et dynamique. -- Sainte-Foy : Association minière du Québec inc., 1991. -- p. 87-96.
   
   
10. Piette, J. La mutation culturelle des fabricants et des consommateurs : la consommation verte. Ecodecision (1992) 7 : 57-59.
    
    
11. Piette, J. Évolution institutionnelle et modes d'intervention du droit international de l'environnement et du développement. Revue juridique de l'environnement (1993) 1 : 5-9.
    
    
12. Piette, J. Certaines implications juridiques de la nouvelle politique de la protection des sols et de réhabilitation des terrains contaminés. In Développements récents en droit de l'environnement. -- Cowansville, Québec : Éditions Yvon Blais, 1999. -- p. 161-181.
    
    
13. Piette, J. Liste des publications. [Montréal] : Ogilvy Renault, 2001.
    http://142.169.9.123/fr/data/pu_av/pu0172.htm
    
    
14. Piette, J. Publication list. [Montréal] : Ogilvy Renault, 2001.
    http://142.169.9.123/en/data/pu_av/pu0172.htm