Tort, democracy and environmental governance: the case of non-enforcement
Tort Law Review, Vol. 15, pp. 107-126, 2007
20 Pages Posted: 17 Aug 2009
Date Written: 2007
This Article examines government liability in tort for harm resulting from environmental non-enforcement. Part II presents an overview of the problem of systemic non-enforcement of environmental laws and regulations in Canada. Part III explores the predominance of discretion in environmental legislation as a major cause of the phenomenon of non-enforcement, including an analysis of the impact of pervasive discretion on the democratic principles of transparency and the rule of law. Part IV briefly examines administrative and constitutional law remedies available to address harm caused by non-enforcement and concludes that these areas of law do not offer meaningful redress to injured citizens. Part V observes that Tort, for its part, offers a response that would be both confusing and disturbing to the average citizen. Because of the rule limiting government liability to operational decisions, isolated, aberrational incidents of non-enforcement causing harm may be actionable in tort, while systemic non-enforcement flowing from a policy decision to neglect environmental protection would likely be immune from tort liability. Part V-A examines the history of Crown liability in Canada, while Part V-B presents a brief examination of the theoretical debate surrounding the imposition of tort liability on elected governments. Part V-C introduces the development of the policy-operational distinction in Canadian law, and concludes that reliance on this dichotomy as a touchstone for liability preempts public dialogue on important questions regarding the appropriate relationship between government and the citizenry. Part V-D proposes a new analytical approach to Crown tort liability that makes explicit the substantive concerns motivating the imposition of liability or the grant of immunity. Finally, Part VI explores the application of existing tort doctrine, as well as the proposed reform, to the case of environmental non-enforcement. Part VII presents a brief conclusion.
Keywords: tort law, environmental law, environmental governance, private law, environmental non-enforcement
Suggested Citation: Suggested Citation