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Full-Text Articles in Law
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
The Unbearable Licence Of Being The Executive: A Response To Stacey’S Permanent Environmental Emergency, Bruce Pardy
Osgoode Hall Law Journal
This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it …
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
The Environmental Emergency And The Legality Of Discretion In Environmental Law, Jocelyn Stacey
Osgoode Hall Law Journal
This article argues that environmental issues confront us as an ongoing emergency. The epistemic features of serious environmental issues – the fact that we cannot reliably distinguish ex ante between benign policy choices and choices that may lead to environmental catastrophe – are the same features of an emergency. This means that, like emergencies, environmental issues pose a fundamental challenge for the rule of law: They reveal the necessity of unconstrained executive discretion. Discretion is widely lamented as a fundamental flaw in Canadian environmental law, which undermines both environmental protection and the rule of law itself. Through the conceptual framework …
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
The Promise Of The Rule Of (Environmental) Law: A Reply To Pardy’S Unbearable Licence, Jocelyn Stacey
Osgoode Hall Law Journal
This short reply clarifies and defends the argument presented in “The Environmental Emergency and the Legality of Discretion in Environmental Law.” It responds to the arguments that were made, and that could have been made, in Pardy’s critique “An Unbearable Licence.” The reply further develops the public-justification conception of the rule of law, arguing that it is at home within Canadian public law. It also argues that this conception of the rule of law highlights possibilities for future research directions in Canadian environmental law.
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
"Are We There Yet?": Reflections On The Success Of The Environment Law Movement In Ontario, D. Paul Emond
Osgoode Hall Law Journal
In this short article, the author explores the history of the environmental law movement in Canada and explains how this history has affected many of the environmental laws and trends today. With a focus on Ontario, the author reports back from a round table discussion held in Toronto in early 2008. Some of Canada's leading environmental lawyers, as well as many of the pioneers of the environmental law movement, reflected at the round table on the extent to which their aspirations for strong, effective environmental laws have been met and how much more remains to be done. While we are …
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Putting Ethics Into Environmental Law: Fiduciary Duties For Ethical Investment, Benjamin J. Richardson
Osgoode Hall Law Journal
This article argues that environmental law must target the financial sector, which sponsors and profits from environmental pillage. The rise of a system of finance capitalism has made the financial sector a crucial economic sector. A long-standing movement for socially responsible investment (SRI) has recently begun to advocate environmental standards for financiers. While the SRI movement has gained more influence in recent years, it has come at the price of jettisoning its former emphasis on ethical investment in favour of an instrumental, business case approach. Some modest legal reforms to improve the quality and extent of SRI have yet to …
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Six Principles For Integrating Non-Governmental Environmental Standards Into Smart Regulation, Stepan Wood, Lynn Johannson
Osgoode Hall Law Journal
Ontario recently introduced environmental penalties (EPs), the environmental equivalent of speeding tickets. EPs are widely understood as part of a move toward "smarter" environmental regulation. As part of the EPs regime, facilities with an environmental management system aligned with ISO 14001 or Responsible Care qualify for reduced penalties. The Ontario government's attempt to incorporate voluntary standards-such as ISO 14001-into its EPs regulations was not very smart, however, because it failed to observe six principles that, in our view, should guide the incorporation of standards into smart regulation. First, do not reinvent the wheel. If an existing standard fulfills the objectives …
Environmental And Resource Law In Australia, Ben Boer
Environmental And Resource Law In Australia, Ben Boer
Osgoode Hall Law Journal
This article outlines the development of environmental and resource law in Australia and explores its constitutional and political setting. The need for a national approach to the environment within the context of Australia as a federally organized country is recognized, particularly with regard to Australia's international obligations and the fact that environmental issues span state, territory, and/or national boundaries. It is argued that, to date, federal action with respect to the environment does not satisfactorily demonstrate the emergence of a national environmental strategy. However, the recent Intergovernmental Agreement on the Environment, signed by the state and federal governments in 1992, …
Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt
Toward The Twenty-First Century: A Canadian Legal Perspective On Resource And Environmental Law, Constance D. Hunt
Osgoode Hall Law Journal
This paper surveys existing and emerging Canadian approaches to environmental and resource management issues, and assesses the strengths and weaknesses of some of our past and current approaches. It considers the challenges posed by the fact that Canada is a federal state as illustrated by jurisdictional competition regarding environmental assessment. The successful utilization of cooperative strategies is considered and examples are given of new problems that need to be addressed. Difficulties faced by governmental, judicial, and administrative bodies are surveyed. Examples are given of emerging legislative strategies. It is concluded that, while much change is apparent, it is far from …
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Federalism And Comprehensive Environmental Reform: Seeing Beyond The Murky Medium, Rodney Northey
Osgoode Hall Law Journal
This article examines the legal constraints that Canadian federalism places on comprehensive environmental reforms. Having specific regard for the Canadian Environmental Protection Act and its regulation of toxic substances, the article questions the ability of federal constitutional powers to support a broad scope for the statute. The article then examines two approaches to this problem. First, it examines an alternative vision of federalism which provides the federal government with broad environmental authority. Secondly, it examines various mechanisms of federal-provincial cooperation for their application to comprehensive environmental schemes. It concludes that these options provide enough scope to regulate environmental activities comprehensively …