Ancient Maxim, Modern Problems: De Minimis, Cumulative Environmental Effects and Risk-Based Regulation
36 Pages Posted: 21 Nov 2014 Last revised: 2 Jun 2015
Date Written: November 19, 2014
Abstract
This article considers the questions of when and how the ancient common law maxim de minimis non curat lex – the law does not concern itself with trifling matters – ought to be applied in Canadian environmental law. These questions are important because their answers determine whether certain conduct that results in some level of environmental harm will – or will not – be subject to a given regulatory regime, which in turn creates the potential for environmental degradation through cumulative effects. The first part observes that that there is presently considerable confusion about whether the maxim is even available in the Canadian environmental law context. Concluding that it is under certain legislative circumstances, the second part argues that the prevailing conception of de minimis as a single-step test concerned only with the magnitude of environmental harm in isolation is incorrect; rather, the foundational jurisprudence points to a two-step test that actually considers the potential for cumulative effects. This part also examines recent developments in cumulative effects assessment and the emerging paradigm of risk-based regulation in order to shed some modern light on this ancient maxim’s application. The paper concludes by considering the implications of applying de minimis in this way for regulators, industry and the public.
Keywords: de minimis, cumulative effects, risk-based regulation, environmental law
JEL Classification: K32
Suggested Citation: Suggested Citation