Alternative Approaches to Legal Control of Environmental
Quality in Canada
David Trezise*
I. Introduction
Law, whether legislative or “judge-made”, can be said to have
three principal social functions: to restore equilibrium to the social
order when an imbalance has arisen, to enable individuals to calculate
the legal consequences of their actions and to help mold and
advance the moral and social attitudes of people in order to cope
with emerging social problems.’
To fulfil the first of these general social functions, the law must
be practically feasible and must provide an appropriate remedy for
the cause of the social disequilibrium, not merely a cosmetic solution
to the problem. Moreover, legal remedies must be equitable in their
treatment of those affected to avoid exacerbating an existing prob-
lem or replacing it by another.
To secure uniformity in the expectations of individuals as regards
the consequences of their actions –
the second of its broad social
functions –
the law must be precise enough to allow a considerable
degree of certainty, yet must contain a measure of flexibility so as
not to discourage experimentation which may prove socially ad-
vantageous.
Finally, to perform its educative function – which is increas-
ingly important in a rapidly changing society –
law must not only
satisfy the criteria already mentioned, but must also prove effective
in remedying the wrong to which it is directed. No matter how
theoretically attractive they may be, legal remedies which fail to
accomplish their social goals do more harm than good in that they
foster contempt for law in general, and tend to encourage the
violations which they are intended to prevent.
When confronted with a serious imbalance in the social order
requiring legislative action to rectify it, the legislator has three
principal alternatives to work with: direct regulation of the offend-
* LL.B., Executive Editor, Volume 21. The author would like to thank
Professor Ivan A. Vlasic of the Faculty of Law, McGill University, for his
invaluable advice, and the Federal Department of the Environment for its
financial assistance. The opinions expressed herein are those of the author.
I Berman and Greiner, The Nature and Functions of Law 2d ed. (1966), 31-34.
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
405
ing activity; incentives to secure the desired change in the offend-
ing parties’ conduct; and disincentives to discourage the continua-
tion of the offending activity.
Direct regulation is of course the most familiar governmental
tool for influencing social behavior. It is best exemplified by the
criminal law, which seeks to deter anti-social conduct through the
enforcement of specified penalties and the accompanying stigma
of criminality.
Incentives and disincentives are theoretically two sides of the
same coin, although in practice their effects are quite dissimilar.
Illustrations of the application of incentives to promote desired
conduct may be found in the use of tax benefits to encourage certain
types of investments or business planning. Similarly, the use of
taxation as a disincentive is common, e.g., the tax on liquor, which
discourages its over-consumption as well as providing a source of
revenue. The practical difference is in their effect: whereas incentives
promote a specific course of action, disincentives serve only to
discourage a particular activity, leaving the choice of alternatives
wholly up to the individual.
A primary cause of our contemporary environmental problems is
the tacit pre-eminence accorded the right to despoil the environ-
ment over the right to a clean environment. In theory, since antiquity
the law has promoted common enjoyment of the environment:
[B]y natural law itself these things are the common property of all: air,
running water, the sea, and with it the shores of the sea.ia
In practice, however, this common property has been treated as a
common waste disposal system, checked only by private rights in
property and occasional legislation. While this practice may have
been acceptable so long as the volume of pollutants remained at a
level which could be safely absorbed by the environment, it is
clearly no longer defensible.
The purpose of this paper is to examine and analyze, in the light
of the general social functions of law outlined above, various
legislative means of establishing the pre-eminence of the right to a
healthy environment over the right to despoil it. Because ecological
damage can arise from a great many diverse sources, this paper will
concentrate on determining the most appropriate and efficacious
legislative policy for controlling air and water pollution arising
through industrial activity, principally production and transporta-
tion. This represents a major source of pollution which may be
more susceptible to legal control than, for instance, the consump-
tion habits of individuals.
in Inst. Just., bk,2, tit.1, para.1.
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II. Direct Regulation
Most Canadian environmental protection legislation was enacted
in the late 1960’s and early 1970’s, partly in response to a growing
public concern with pollution problems. This public concern, fueled
by doomsday prophecies and several very real environmental catas-
trophies, fostered a crisis atmosphere which inevitably affected the
legislator’s choice of remedies. The typical governmental response
to crisis situations is to apply a form of direct regulation to the
activity giving rise to the crisis, and this has been the prevailing
Canadian reaction to environmental problems.
Direct regulation of environmental quality may take various
forms: prohibitions coupled with criminal sanctions, licensing ar-
rangements, administrative controls or zoning regulations. Whatever
form of regulation is applied in the field of environmental protec-
tion, the underlying aim is to limit the traditional de facto right to
discharge waste into the air and water, and thus to limit overall
levels of contamination. Although similar in principle, the various
forms of direct regulation produce different results in practice,
and should therefore be examined individually to determine their
appropriateness as means of environmental quality control.
A. Prohibitions and Criminal Penalties
As long ago as 1307, a Royal Proclamation prohibited the burning
of coal in London furnaces, with the aim of alleviating air pollution.
To ensure compliance with the proclamation, the death sentence was
prescribed for offenders.2 Although more lenient, current Canadian
environmental protection legislation generally follows the same
form: it prohibits certains types or levels of waste discharge3 and
punishes the offenders with fines and, in some instances, imprison-
ment. There is no question that this approach can be crudely effective
in controlling specific sources of pollution. Nor can it be doubted
that provision for fines of up to $200,000, as in the federal Clean Air
Act,4 has a certain dramatic impact and serves to mollify the public
demand for aggressive governmental intervention.
2 Haar, Land Use Planning (1959), 131.
3 These prohibitions are of varying specificity. For instance, the Fisheries
Act, R.S.C. 1970, c.F-14, prohibits in s.33(2) the introduction of “deleterious
substances” into water frequented by fish. On the other hand, Ontario Reg.
133/70 under the Environmental Protection Act, S.O. 1971, c.86, provides
specific maximum emission levels for various contaminants, and provides
for the preparation of a smoke density chart, with certain densities declared
unlawful.
4 S.C. 1970-71-72, c.47, s.33(1).
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407
However, the long-term value of this type of regulation is debata-
ble, in view of industry’s traditional de facto right to deposit its
wastes in the natural environment. This “right” plays an important
role in our market economy by enabling producers to pass the costs
of pollution, in the form.of damages and clean-up costs, onto society
as a whole rather than adding such expenses to the costs of pro-
duction. In view of the importance of this “right” and its long-
standing existence, it is unlikely that the public will demand, or the
courts impose, sanctions severe enough to have a real deterrent
effect.5
Experience with various environmental protection statutes justi-
fies this conclusion. Pursuant to the Ontario Pollution Control Act 6
and its successor, the Environmental Protection Act,7 nearly 130
convictions were obtained between 1968 and 1975 for offences
ranging from the emission of unlawfully dense smoke to causing
loss of enjoyment of property through the emission of noxious
odours. The fines imposed, however, have been minimal, averaging
about $730.9 No fine of more than $2,500 was imposed, although the
Environmental Protection Act prescribes a maximum fine of $5,000
for a first offence and $10,000 for a second offence.’
It would be
naive to contend that such fines can have a real deterrent effect
on a major enterprise and the offenders have included Ford
Motors, Shell Oil, Gulf Oil and T. Eaton Realty.” Even more striking
than these figures are statistics indicating the average fine imposed
per day for violation of the Fisheries Act,’ which prohibits the in-
troduction of “deleterious substances” into waters frequented by
fish. The maximum fine for contravention of this provision is $5,000,
with each day of violation constituting a separate offence. 3 In 1969,
the fines averaged $10 per violation day; in 1970 the fines reached
$45 per violation day; incomplete figures for 1971 indicate average
fines of about $14 per violation day.’4
5 Grad, Rathjens and Rosenthal, Environmental Control: Priorities, Policies
and the Law (1971), 236.
G S.O. 1967, c2.
7 S.O. 1971, c.86.
8 Letter to the author dated March 10, 1975, from the Legal Services Branch
of the Ontario Ministry of the Environment.
9 Ibid.
10 Supra, f.n.7, s.102(1).
11 Supra, f.n.8.
12 R.S.C. 1970, c.F-14, s.33(2), as amended by R.S.C. 1970, c.17 (1st Supp.).
13 Ibid., s.33(5), (6).
14 Reuben, The Use of the Fisheries Act by the Department of the Environ-
ment in the Battle Against Pollution (Federal Department of the Environment).
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Apart from the minimal fines actually imposed, a major draw-
back with the use of penal sanctions is that they may never be
applied at all. The Clean Air Act authorizes the federal government
to set national emission standards where there is a significant danger
to health, where treaty obligations are affected and for federal
works.’ 5 As yet, no binding emission standards or regulations have
been established, so the provision for maximum fines of $200,000
has never been applied. 6 The failure to set emission standards and
to pass regulations may be partly ascribed to the technical difficulty
inherent in such an undertaking, though bureaucratic inefficiency
and neglect may be blamed as well. One might also suspect that the
failure to apply penal sanctions may in some situations be a matter
of official policy formulated with deference to the interests of in-
dustry.
It is instructive to note the discrepancy in the application of
penalties for the contravention of environmental protection statutes
between relatively economically depressed regions, such as the
Maritime provinces, and the more prosperous provinces of British
Columbia and Ontario. Whereas in Ontario and British Columbia
penal sanctions are applied with some degree of frequency, they are
applied rarely or not at all in Eastern Canada. 17 It is not unfair to
15 Supra, f.nA, ss.7, 11.
10 Estrin and Swaigen, Environment on Trial (1974), 44.
3- Under the Ontario Environmental Protection Act, supra, f.n.3, and its
predecessor, the Air Pollution Control Act, S.O. 1967, c.2, nearly 130 convictions
had been obtained up to the spring of 1975 (supra, f.n.8). Under the British
Columbia Pollution Control Act, S.B.C. 1967, c.34, there were at least 21
successful prosecutions completed in 1973 and 1974 alone (letters to the
author dated March 11, 1974 and March 10, 1975, from the office of the
Attorney-General of British Columbia). By contrast, no prosecutions have
been taken under the Nova Scotia Environmental Protection Act, S.N.S. 1973,
c.6 (letter to the author dated March 11, 1974, from the Nova Scotia Com-
munications and Information Centre). Nor have any convictions been obtained
under the Prince Edward Island Environmental Control Commission Act,
S.P.E.I. 1971, c.33 (letter to the author dated March 9, 1974, from the Prince
Edward Island Environmental Control Commission). One prosecution has
been successfully concluded under the New Brunswick Clean Environment
Act, S.N.B. 1971, c.3 (letter to the author dated March 22, 1974, from the
office of the Minister of Fisheries and Environment, New Brunswick). Under
the Newfoundland Clean Air, Water and Soil Authority Act, S.N. 1970, No. 81
(now repealed), and the Newfoundland Department of Provincial Affairs
and Environment Act, S.N. 1973, No. 39, four stop orders have been issued,
and two convictions obtained (letters to the author dated August 8, 1974
and April 7, 1975, from the Environmental Management and Control Division
of the Newfoundland Department of Provincial Affairs and Environment).
Quebec forms a sort of middle ground between these extremes. Approximately
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
409
conclude that the necessity of attracting industry is an important, if
not the determining, factor explaining the lack of prosecutions in the
East.
Criminal penalties may also fail to be applied simply out of a
lack of awareness of their potential applicability to environmental
offences. At least four sections of the Criminal Code – common
nuisance, 8 mischief,19 criminal negligence, 20 and deposit of an of-
fensive volatile substance21 –
could be applied to serious environ-
mental offences, but it does not appear that they have been so
used. While none of the sections is expressly intended to cover pollu-
tion offences, all are worded broadly enough to include such
activities.
Common nuisance is defined as the doing of an unlawful act or
the failure to discharge a legal duty which
the lives, safety, health, property or comfort of the
(a) endangers
public, or
(b) obstructs the public in the exercise or enjoyment of any right
that is common to all the subjects of Her Majesty in Canada.22
Clearly, this definition would encompass serious cases of pollution;
yet the only reported case which is remotely related to environ-
mental matters is that of Raymond v. Cook,23 where the defendant
was convicted of creating a nuisance by using a music box on an ice
cream van in violation of a municipal by-law. It is important to note
that for an activity to constitute a common nuisance, the act causing
the nuisance must itself be unlawful. In pollution cases, it is likely
that any offence serious enough to warrant prosecution as a common
nuisance would be contrary to either a municipal by-law or a
provincial statute, and therefore would come within the definition.
Mischief is defined as the wilful destruction or damaging of
property, the rendering useless of property, or the interference with
the lawful use of property. 24 “Wilful” means the doing or the omission
of an act “knowing that the act or omission will probably cause
the occurrence of the event and being reckless whether the event
40 penal prosecutions have been initiated pursuant
to the Environment
Quality Act, S.Q. 1972, c.49 (letter to the author dated June 19, 1975, from
the Legal Services Branch of the Quebec Ministry of the Environment).
18 R.S.C. 1970, c.C-34, s.176.
19 Ibid., s.387.
20 Ibid., ss.202-204.
21 Ibid., s.174.
22 Ibid., s.176(2).
23 [1958] 1 W.L.R. 1098.
24 Supra, f.n.18, s.387.
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occurs or not”.25 This section could be applied to the situation where
a polluter “wilfully” introduces a harmful substance into the en-
vironment and causes damage to property, although it has not yet
been used for this purpose.
Criminal negligence involves the omission or commission of an
act in such a way as to show “wanton or reckless disregard for the
lives and safety of other persons” 6 If this type of negligence results
either in the bodily harm or death of a person, the offender is liable
to imprisonment for, respectively, ten years or life. Again, the
potential for application of this provision to environmental offences
is evident, although prosecutions for criminal negligence are current-
ly restricted almost exclusively to automobile accident cases.
Section 174 (a) of the Criminal Code makes it an offence punish-
able on summary conviction to deposit in a public place a volatile
substance that is likely to “alarm, inconvenience, discommode or
to cause discomfort to any person or to cause damage to pro-
perty…”. “Volatile substance” is not defined in the Criminal Code,
but may encompass some of the chemical wastes deposited in the
environment by industry.
The sanctions for these offences are rather severe, ranging from
a short term of imprisonment for the summary conviction offence
of depositing a volatile substance in a public place to life imprison-
ment for mischief causing actual danger to life 28 The severity of
the penalties, coupled with the stringent burden of proof required
and the necessity to show mens rea make these sections inappropriate
for all but the most serious pollution offences. It is, however, un-
likely that these sections of the Criminal Code will be applied to
environmental offences: pollution is largely the result of otherwise
legitimate and socially desirable activities carried on by respectable
enterprises, and the majority of the public, as well as the courts,
simply do not recognize it as criminal behaviour.
A possible solution to governmental reluctance to prosecute pollu-
tion offences is the exercise by private citizens of the common law
right to act as a “private prosecutor”. For summary conviction
offences, which would include most environmental protection sta-
tutes, it appears that any citizen has the right to act as prosecutor
where the Attorney-General fails to prosecute,29 unless the statute
25 Ibid., s.386(1).
26 Ibid., s.202(1).
27 Ibid., ss.203, 204.
28Ibid., ss.174(b), 387(2).
29 Bemer, Private Prosecution and Environmental Control Legislation: A
Study (1972, Department of the Environment), 9. Cf. Bums, Private Prosecu-
tions in Canada: The Law and a Proposal for Change (1975) 21 McGill L.J. 269.
1975) LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
411
creating the offence expressly limits this right3 For indictable
offences such as common nuisance, mischief and criminal ne-
gligence, there is some uncertainty as to the extent of the individual’s
right to prosecute.3′ In any case, the problems of expenses and proof,
and the possibility of a civil action for malicious prosecution may
inhibit the exercise of this right,32 particularly since the prosecuting
citizen has nothing to gain other than the satisfaction of bringing
an offender to justice 3 On occasion he may even be deprived of
this satisfaction. For example, in the Ontario case of R. (ex rel
McCarthy) v. Adventure Charcoal3 4 an. individual successfully pro-
secuted Adventure Charcoal for undertaking a pollution-causing en-
terprise without obtaining a certificate as required by the Ontario
Environmental Protection Act.3 5 The company was fined a mere
$500, obtained the certificate and continued operations. For his
trouble, the citizen-prosecutor was ordered to pay the court costs,
although this order was overturned on appeal 6
Aside from these essentially human failures in the application of
to environmental offences, there are certain
criminal penalties
intrinsic problems in the use of penalties generally which make them
inappropriate for the control of environmental quality. On the
practical side, criminal penalties are applied after the fact, when
irreparable harm may have been done to the environment. The
problem is exacerbated by the time-consuming task of gathering
sufficient evidence for a criminal prosecution (which is notoriously
difficult and expensive in environmental cases), and the defendant’s
inevitable use of stalling tactics and appeals designed to prolong
court proceedings.
Even when prosecutions are successfully concluded, criminal
courts are not usually empowered to issue injunctions,3 7 and the
30 See the Quebec Environment Quality Act, S.Q. 1972, c.49, s.116, for an
instance of the statutory limitation of this right.
31 Berner, supra, f.n.29, 11.
32 Ibid., 18-22.
33 A unique exception to this rule is afforded by the Penalties and Forfeitures
Proceeds Regulations, SOR/73-46, promulgated under the Fisheries Act, R.S.C.
1970, c.F-14, which provides that one-half of a fine imposed for violation of
the Act shall be awarded to the citizen who commences the prosecution.
34 (1972) 9 C.C.C. (2d) 81.
35 Supra, f.n.7, s.8(1).
36 Unreported. See (1972) 1:3 Can.Env.L.News 5.
37 Some of the important Canadian statutes dealing with the environment
do empower the courts to issue restraining orders. For example, see the
Fisheries Act, supra, f.n.12, s.33(7).
McGILL LAW JOURNAL
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small fines imposed are unlikely to have the necessary deterrent
effect. The burden of proof resting on the prosecution is of course
onerous, and is augmented in some cases by the necessity of proving
mens rea.3 8 Where the prosecution must rely only on a vague
statutory prohibition, the problem of proof may be insurmountable.
The setting of precise maximum emission and effluent standards
helps to alleviate this difficulty, but there remains the possibility
that these standards may not have the desired effect of lowering
overall contamination to a harmless level, since our understanding
of the interaction and long-term effects of various contaminants is
still rudimentary. Also, as sources of pollution proliferate, the
standards will have to be constantly adjusted to maintain desirable
environmental quality.
The use of maximum emission standards gives polluters no
incentive to seek to lower their levels of waste discharge below the
prescribed standards even where technically and economically feasi-
ble. Furthermore, the use of inflexible maximum standards for
waste discharges creates a situation in which minute differences in
discharge levels distinguish criminal activity from perfectly legal
activity, although the effects on the environment may be virtually
identical. This anomaly is aggravated by the fact that criminal
prosecutions are inevitably sporadic and the penalties inconsistent.
Even assuming that the penalties were imposed universally and
consistently, economically marginal enterprises are bound to suffer
disproportionately since they can least afford the expenses of legal
fees, fines and abatement measures.
In sum, while criminal sanctions have the advantage of simplicity
and may fulfil both an educational and a deterrent function if
applied vigorously, the numerous disadvantages discussed above
suggest that penalties alone cannot provide the remedy to environ-
mental contamination. Such controls are most effective as regards
the punishment and deterrence of singular, fortuitous instances of
pollution, such as the discharge of pollutants by sea-going vessels.
The occasional nature of these occurrences, unlike continuing dis-
charges from stationary sources, does not lend itself to more
sophisticated methods of control.
38Mens rea is not generally a necessary component for offences under
environmental protection statutes since they are not criminal offences in any
real sense, but are rather actions prohibited in the public interest with
penalties attached. See R. v. Peconi [1970] 3 O.R. 693. Offences such as
mischief and common nuisance would require proof of mens rea.
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
413
The Oil Pollution Regulations39 under the Canada Shipping Act,4″
for instance, have been applied frequently and successfully. In 1971
there were 49 successful prosecutions, with fines averaging
nearly $1,700;
in 1972 there were 66 successful prosecutions,
with fines averaging $2,140; and in 1973 there were 42 success-
ful prosecutions, with the fines imposed averaging $3,620. 41 Although
not astronomical, it must be borne in mind that these fines were
imposed for isolated incidents, not ongoing, pollution-causing acti-
vities. It
is reasonable to assume that these prosecutions and the
fines imposed have caused shipmasters to take greater precautions
in Canadian waters than would be the case if no controls were in
effect.
4la
B. Licensing Arrangements
An alternative means of direct regulation which is also in wide-
spread use in Canada at the provincial level is the use of licensing
arrangements 4 2 Of course, as with any statutory enactment which
seeks to compel a particular mode of behaviour, licensing arrange-
ments must rely on penalties to enforce compliance, although these
penalties are not intended to be the principal control mechanism.
Licensing is generally used in conjunction with discharge standards,
although the British Columbia Pollution Control Act43 and the
Nova Scotia Environmental Protection Act4 4 rely solely on this
method of control.
The basis of licensing arrangements
is the requirement that
operators of sources of pollution, or those proposing to operate such
sources, must apply to an administrative body for authorization to
39 SOR/71-495.
40 R.S.C. 1970, c.S-9, as amended by R.S.C. 1970, c.27 (2d Supp.), s.730.
41 Letter to the author dated August 8, 1974, from the Bureau of International
and Environmental Affairs, Transport Canada.
43 S.B.C. 1967, c.34.
44 S.N.S. 1973, c.6.
41a See Mostert, Supership (1974), 191: “The Canadians
… have become
extremely vigilant, actually as well as legislatively, and sailors are going to
be much more careful in those [Canadian] waters in the future.”
4Some form of licensing is used under the Ontario Environmental Pro-
tection Act, supra, f.n.7; the British Columbia Pollution Control Act, S.B.C.
1967, c.34; the Nova Scotia Environmental Protection Act, S.N.S. 1973, c.6; the
New Brunswick Clean Environment Act, S.N.B. 1971, c.3; the Quebec Environ-
ment Quality Act, S.Q. 1972, cA9; the Alberta Clean Air Act, S.A. 1971, c.16 and
Clean Water Act, S.A. 1971, c.17; the Manitoba Clean Environment Act, S.M.
1972, c.130; the Newfoundland Department of Provincial Affairs and Environ-
ment Act, S.N. 1973, No.39; and the Saskatchewan Water Resources Manage-
ment Act, S.S. 1972, c.146.
McGILL LAW JOURNAL
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carry on the activity. 5 To facilitate the evaluation of the environ-
mental impact of the undertaking or proposed undertaking, the
application must be accompanied by information concerning the
nature and quantity of the discharge as well as plans and specifica-
tions of the works:” The administrative organ may grant the permit,
with alterations or additions if necessary, or may refuse it alto-
getherY1 Provision may also be made, as in the British Columbia Act,
to alter the terms of the permit at a subsequent time if conditions so
require, or to suspend or cancel it for non-compliance with its terms.48
The obvious advantages of licensing schemes are that offences
are relatively easy to detect, and proof of failure to obtain a licence
or to comply with its terms is not difficult to obtain. The revocation
or suspension of a licence, threatening the cessation of the operation
in question, is a harsh and not generally practicable remedy, but
it can be of highly effective coercive power. Furthermore, the li-
censing of potential polluters approaches environmental quality
control from a preventive rather than punitive perspective. Requiring
polluters to identify themselves and, if necessary, to take control
measures, is an approach more consonant with the desired end of
environmental protection.
Licensing is, however, by no means an ideally efficient and
effective control technique. Its implementation requires a large
staff, including numerous qualified engineers and other technicians,
to administer the scheme, to assess the impact on the environment
of the regulated activities and to insure that the terms of the
licences are fulfilled 9 Unless licensing is carried out in a well co-
ordinated and sophisticated fashion, free from pressure by special
interests, it is unlikely that desirable overall levels of clean air
and water can be achieved. If licences are granted indiscriminately
and on an individual basis rather than as part of a comprehensive
design, overall levels of contamination may be unacceptable, although
no single source is responsible for a serious and immediate pollution
problem. As with the use of discharge standards and criminal
penalties, licensing offers no incentive to polluters to take abatement
measures beyond those required by their licence, even when more
efficient processes are available.
s.8, as amended by S.O. 1972, c.106, s.2.
45 For example, see the Ontario Environmental Protection Act, supra, f.n.7,
461bid., s.8(2).
471Ibid., s.8(4).
48 Supra, f.n.43, s.7A, as amended by S.B.C. 1968, c.38, s.4.
49 Krier, The Pollution Problem and Legal Institutions: A Conceptual Over-
view (1971) 18 U.C.L.A. L.Rev. 429, 465.
19751 LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
415
As sources of pollution increase, the terms of the licences will
have to be constantly revised to maintain a consistent maximum
level of contamination. Alternatively, under this scheme new pollu-
tion-creating enterprises may be banned, or face much more strin-
gent emission requirements, both of which are highly inequitable
possibilities.
Licensing arrangements ultimately depend upon penalties
to
ensure compliance, so that mhny of the problems, discussed above,
which are associated with the use of such sanctions again apply, e.g.,
the tendency of courts to impose insignificant fines. Thus, for exam-
ple, in 1973 and 1974, the average fine under the British Columbia
Pollution Control Act for permitting a contaminating discharge
without a licence or failing to comply with the terms of a licence
was about $4600 hardly a compelling incentive to enforce compliance
with the licensing scheme.
Despite these disadvantages, licensing arrangements are poten-
tially effective in controlling certain sources of pollution. However,
the necessity of maintaining a large and expensive administrative
staff and of bringing prosecutions to ensure compliance makes this
method a less than ideal remedy to environmental offences.
As with prohibitions and criminal penalties, licensing finds its
most appropriate application as a means of pollution control in the
field of transportation, for the regulation of normal emissions such
as exhaust fumes and smoke. For example, it is more efficient to issue
licences certifying that vehicles meet specified standards of emission
control, and to require regular inspections, than to attempt to control
emissions from these sources by occasional criminal prosecutions.
C. Administrative Orders
Most of the major provincial environmental protection statutes
provide for the issuing of administrative orders to polluters requiring
either the temporary or permanent cessation of the offending activity
(“stop orders”) or the application of control techniques to lessen
the quantity of the discharge (“control orders”)?’ Stop orders are
reserved for situations where pollution presents an immediate
5oLetters to the author dated March 11, 1974 and March 10, 1975, from the
office of the Attorney-General of British Columbia.
51 For example, see the Ontario Environmental Protection Act, supra, f.n.7,
ss.70, 74. The Quebec, Nova Scotia, New Brunswick, Alberta, Manitoba,
Newfoundland, Saskatchewan and British Columbia statutes mentioned in
f.n.42, as well as the Prince Edward Island Environmental Control Com-
mission Act, S.P.E.I. 1971, c.33, contain similar provisions.
McGILL LAW JOURNAL
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threat to life, health or property,52 and are consequently rarely
issued.5 3 Control orders may be issued when discharges exceed
standards set by regulation or present a threat to environmental
quality. 4 These orders may prescribe the limitation of contaminant
discharges, and may specify the procedures to be taken in controlling
the discharge.55
The advantage of the use of these orders, as compared with
criminal sanctions, is that the strict requirements of proof, the
expense and the delay of a trial are avoided. These orders may be
appealed, however, and in the case of control orders, an appeal
suspends the operation of the order.” Administrative orders depend
on penal sanctions for enforcement but, as in the case of licensing,
proof of non-compliance is a relatively simple matter. One would
expect that the courts would be willing to impose heavy fines where
the offender has disobeyed a reasonable administrative order; in
fact, it appears that these orders are generally complied with 7
Stop and control orders share with criminal penalties the draw-
back of being crisis-oriented. They are best suited to remedy the
immediate hazards caused by individual sources of pollution rather
than to control overall pollution levels. As with criminal penalties,
these orders are necessarily applied sporadically, as individual
offenders are discovered, and significant disparities in the frequency
of their application may be found between regions of varying econo-
mic strength.58 Whereas citizens may usually act as private prose-
cutors to ensure the application of criminal penalties, there is no
machinery by which an individual may force the issuing of a stop
or control order, since they are wholly discretionary. Public pressure
may be successfully applied to obtain an order, 9 but the possibility
5 2 Environmental Protection Act, supra, f.n.7, s.7.
53 In Ontario, only four such orders have been issued (letter to the
author dated March 12, 1974, from the Legal Services Branch of the Ontario
Ministry of the Environment).
154 Supra, f.n.7, s.6.
55 Ibid., s3.70
5151bid., s.79(2).
57 In Ontario, only one conviction has been obtained for the failure to
comply with an order. The offender was fined only $150 due to his subsequent
compliance at a cost of $10,000 (supra, f.n.8).
58 In Ontario, some 142 control orders had been issued up to early 1974
(supra, f.n.53). In British Columbia, 93 engineers orders were issued in 1973
(supra, f.n.50). On the other hand, only two control orders have been issued
in Prince Edward Island and none in Nova Scotia or New Brunswick (supra,
f.n.17).
59 Estrin and Swaigen, supra, f.n.16, 51.
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
417
of countervailing pressures from industry to discourage their issu-
ance must not be discounted.
In some ways, then, stop and control orders are an improvement
over the use of criminal penalties, but they can only provide stop-
gap relief since they do nothing to decisively resolve the fundamental
conflict between the traditional right to discharge waste into the
air and water on the one hand, and the increasing need to protect
the quality of the natural environment on the other.
D. Zoning
“Zoning” involves the designation of certain areas as restricted
to particular uses, e.g., industrial, commercial or residential. Zoning
can hardly be regarded as an effective means of controlling the
quality of the environment. While zoning may have some application
in facilitating the centralized treatment of effluent discharged into
rivers and streams, it has no other relevance to controlling overall
contaminant levels. As it relates to environmental matters, the
objective of zoning is merely to separate the sources of pollution
from the public by isolating residential areas from industrial zones.
While this may have the short-term effect of making residential
areas more comfortable, the net result, in the absence of other
controls, is to subject the environment –
to “in-
creasing amounts of pollution in the aggregate, but from increasingly
numerous, remote, and unidentifiable sources”60
and people –
It has been suggested that a possible solution to pollution pro-
blems is to designate large areas as “clean” and allow other areas
to be contaminated, in the same way that some railways provide
“smoking” and “non-smoking” compartments 1 This solution is
clearly impractical in the long run in view of the essential unity of
the natural environment and the interaction and interdependence
of its various components.
E. Civil Remedies
Civil suits have been historically the principal means of defence
available to individuals against pollution damage. Under the common
law, property owners and possessors may obtain monetary com-
pensation and injunctive relief under numerous heads of action,
primarily nuisance, negligence, infringement of riparian rights and
60Esposito, Air and Water Poltution: What to do While Waiting for
Washington (1970) 5 Harv.Civ.Rights-Civ.Lib.Rev. 32, 48.
11 Dales, Pollution, Property and Prices (1968), 72.
McGILL LAW JOURNAL
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breach of statutory duty. Under the Civil Code of Quebec, articles
1053 and 1054 provide the basis for damage actions arising from
environmental contamination. 2 Although the nominate categories
of the common law are not expressed in these articles, the Civil Code
affords virtually the same protection against pollution damage as
does the common law.63 As at common law, the relevant civil law
remedies are damages
and injunctive relief.”‘
It is beyond the scope of this paper to discuss in detail the ad-
vantages and disadvantages of the use of civil suits as a means of
protecting the quality of the environment, but certain general
characteristics of civil suits should be noted. Initially, there are
serious problems of locus standi when the pollution does not directly
affect the plaintiff’s rights, or affects him in a manner common to
a large class of people.66 If the plaintiff succeeds in establishing his
right to bring the action, he must invest considerable time and
money to carry on the suit, and faces the possibility of appeals
as well. Where the plaintiff is an individual of ordinary means and
the defendant is a large corporation, the imbalance in resources
may prove fatal to the plaintiff’s case, particularly since convincing
evidence of pollution damage is often expensive and difficult to
obtain, and expert testimony will likely be decisive.
In the case of a successful civil action, injunctive relief, whether it
be permanent or temporary, limited or complete, is an effective
remedy, although economic considerations may sometimes prevent
courts from imposing this remedy. Moreover, legislative dissolution
of an injunction issued against a powerful enterprise is not un-
known in Canada. 7 Because civil suits are a matter of individual
initiative, they are brought in an haphazard fashion and are there-
fore unlikely to provide a comprehensive approach to environmental
protection.
It
is possible that concerted action by citizen groups may
prove effective in controlling overall levels of contamination, but this
requires a high degree of concern and dedication, as well as relatively
62 Art.501 of the Civil Code provides the basis for the “action negatoire”,
by which a declaration may be obtained that an upstream owner is abusing
the natural servitude of his land over land on a lower level, for example
by adding contaminants to the water.
For example, see Cohen, Nuisance: A Proprietary Delict (1968) 14 McGill
L.. 124.
64 Punitive damages are not available, however, under arts.1053 and 1054:
Chaput v. Romain [1955] S.C.R. 834.
05 Code of Civil Procedure, arts.751-761.
06 For example, see Hickey v. Electric Reduction Co. (1972) 21 D.L.R. (3d) 368.
67 See the K.V.P. Co. Ltd. Act, S.O. 1950, c.33.
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
419
large financial resources. An example of the potential efficacy of
citizen action is afforded by the Angler’s Co-operative Association in
England, an organization which brings civil actions on behalf of
the owners of private fisheries when pollution threatens the quality
of fishing. The A. C. A. is a fairly small organization, but it has been
able to muster considerable support, largely due to the importance
many Englishmen attach to good fishing. In its nineteen years of
operation up to 1967, the A. C. A. had investigated some 700 cases
of pollution, “and very rarely does it fail to get abatement or
damages, as the case requires”.0 8 The A. C. A. is credited with having
made a significant contribution toward the enviable state of clean-
liness of England’s streams and rivers. 9
Of course, the same legal, social and economic conditions do not
exist in Canada as in England. Nevertheless, given sufficient encour-
agement, citizen groups could contribute significantly to the control
of Canada’s environmental quality. Legislation modelled after the
could have the effect of
Michigan Environmental Protection Act
facilitating such citizen action. The principal provision of this statute
is the granting of standing in environmental protection cases to
virtually every potential plaintiff: government agencies, corporations
and individuals are given free access to the courts in order to
obtain equitable relief.71
To further encourage citizen action, statutory measures could
include a provision that costs not be assessed against losing plain-
tiffs in environmental cases unless the action is found to be “fri-
volous and vexatious”. To alleviate the problems of assembling
evidence, government experts could be provided for a nominal fee
to recognized, responsible citizen groups. Additionally, as provided
in the Michigan Environmental Protection Act, it may be stipulated
that a prima facie showing that the defendant has or is likely to
pollute will shift the burden of proof to him. 2
Nevertheless, even the increased use of the civil courts to control
pollution is unlikely to provide a complete solution to environmental
problems. At least it would allow for the development of a common
law of the environment (hopefully immune to the pressures of
vested interests), and help to avoid the problems of narrowly
woirded statutes and unresponsive administrators. It is undeniably
in the best interests of justice and democratic principles to promote
68 Dales, supra, f.n.61, 68.
69 Ibid.
70 Mich. Comp. Laws Ann. (Supp. 1972), paras.691.1201-1207.
71 Ibid., ss.2(1), 4.
72 Ibid., s.3(1).
McGILL LAW JOURNAL
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citizen participation in a matter as crucial as environmental protec-
tion, even if this participation is only secondary to some form of
governmental control.
III. Economic Incentives
Governmental incentives to encourage polluters to take abatement
measures include direct payments and grants for the elimination
or reduction of waste discharges, loans to be used for the installa-
tion of waste treatment facilities, and tax incentives (principally
accelerated capital cost allowances for pollution control equipment).
With the exception of governmental loans granted at current interest
rates,72 all forms of incentives are subject to the fundamental objec-
tion that they inequitably force the cost of pollution control onto
the public as a whole rather than placing the burden on the
producers and consumers of pollution-creating products.74 In this
way the workings of the free market are somewhat undermined, as
pollution-causing industries escape the full burden of their produc-
tion costs, resulting in artificially lower prices for their products.
As with any form of government largesse, the use of economic
incentives to encourage the control of pollution will inevitably give
rise to attempts to defraud the system. For instance, under the
federal Income Tax Act, taxpayers are granted an accelerated (50%)
capital cost allowance for property “acquired primarily for the pur-
pose of preventing, reducing or eliminating pollution” of the water
or air.75 No doubt some polluters will succumb to the temptation
to pass off capital improvements intended primarily to maximize
productive efficiency as pollution control measures in order to
benefit from the accelerated capital cost allowance.
Another general objection which may be raised against govern-
mental subsidization of pollution control programmes is that such
funding in effect benefits those enterprises which have been most
negligent in taking pollution abatement measures, to the economic
detriment of those which took these measures voluntarily at their
own expense.76
The most telling criticism of these incentives is that no subsidy,
by itself, will serve to induce polluters to take measures which are
73Low-interest or forgiveable loans are, in effect, equivalent to grants.
74 Grad, Rathjens and Rosenthal, supra, f.n.5, 249, 250.
75 S.C. 1970-71-72, c.63, Itar 1100(1)(t). (Sch.B., cl.24, 27).
7 Hines, Controlling Industrial Water Pollution: Color the Problem Green
(1968) 9 B.C.Ind. & Com.L.Rev. 553, 598.
19753 LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
421
by their nature not remunerative and which involve continuing
operating costs. It may be argued that the use of subsidies coupled
with direct regulation would effectively encourage polluters to take
abatement measures. While this approach would certainly be more
effective than either direct regulation or incentives alone, most of
the objections to both these approaches to pollution control would
still apply. It would remain advantageous for polluters to avoid
compliance by one means or another for as long as possible, in
order to apply their capital to more productive investments. Should
compliance with pollution standards finally be exacted by a com-
bination of criminal penalties and subsidies, there would still be
no incentive for polluters to seek emission levels below those
prescribed by statute or to utilize the most efficient treatment
process available.
These objections apply generally to the use of economic incen-
tives to encourage pollution control. There are, as well, several
specific problems with the use of tax incentives for this end. Tax
incentives may not promote the use of the most efficient control
measures, but rather the most beneficial from a taxation point of
view. The means of controlling industrial pollution are varied,
including changes in process, either in manufacturing or combus-
tion; the utilization of more efficient equipment; the substitution
of raw materials or fuels; or the operation and maintenance of
cleaning equipment at the point of discharge into the environment.”
Under the federal Income Tax Act, however, tax benefits are
only available for the acquisition of capital property intended to
control pollution. Thus an enterprise may choose to install relatively
inefficient pollution abatement devices in order to obtain the tax
benefit, although a change in the manufacturing process, for instance,
could effect a better result at a lower cost. Moreover, this tax
incentive is unlikely to be very attractive to most enterprises,
since the capital cost allowance only subsidizes the initial cost of
the equipment and does nothing to defray operating costs, which
may be considerable. Finally, the wisdom of granting further tax
breaks to industry should always be regarded critically, particularly
when the benefits tend to accrue, as here, to the more prosperous
enterprises. Economically marginal industries are unlikely to benefit,
since they have little or no profit against which the capital cost
allowance may be written off.
It seems that the only entirely defensible form of economic
incentive for pollution control is the goverment loan, at prevailing
77 Hagevik, Decision-Making in Air Pollution Control (1970), 59.
McGILL LAW JOURNAL
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interest rates, to enterprises which are unable to obtain private
financing for this end. While subject to potential abuse, fully
repayable loans do not have the undesirable effect of distorting
competition and forcing the cost of pollution control on the general
public. Since the loans would have to be repaid, and thus would in
a sense represent their own capital, industries would be encouraged
to use the money in the most efficient manner possible for con-
trolling pollution.
The availability of government loans does not make pollution
control expenditures any more attractive to industry; rather it makes
such expenditures possible where capital is not available from other
sources. Loans therefore must be used in conjunction with other
measures to promote pollution control. The great advantage of loans
over other forms of incentive is that they do not give the appearance
of a governmental recognition of a right to pollute at the public
expense, an attitude which must be discarded if effective environ-
mental policies are to be implemented.
IV. Disincentives: Pollution Fees
The use of economic disincentives to control pollution is pre-
mised on the assumption mentioned above that the underlying cause
of pollution is the traditional de facto “right” to use air and water as
free waste disposal systems. As a result of this “right”, the costs of
pollution have been borne not by the consumer or producer of the
product, but by individuals located downwind or downstream, and
by society as a whole. The aim of economic disincentives is to create
a charge for the use of the natural environment as a waste receptacle,
thus encouraging polluters to seek to reduce their costs by reducing
their waste discharges.
The prevailing approach to pollution control – maximum dis-
charge standards coupled with fines for their violation –
represents
a crude attempt to force the internalization by industry of some of
the costs of pollution by means of economic pressure. However,
because of the disparity between the real costs of pollution and the
level of fines, which are sporadically imposed, this approach rarely
has the desired effect of rendering pollution unprofitable for the
polluter. Economic disincentives, e.g., emission or effluent fees, are a
more systematic means of placing most or all of the costs of in-
dustrial pollution on the responsible producers and, in turn, on the
consumers of their products.
An example of legislation relying on the use of effluent fees to
control pollution is the Water Pollution Control sub-chapter of the
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
423
Vermont Conservation and Development Act.7 8 This statute requires
any person depositing waste into the state’s water on a regular basis
to apply for a discharge permit certifying that the effluent does
not “reduce the quality of the receiving waters below the classifica-
tion established for them”.7 a If the discharge does have this effect,
the polluter will be denied a discharge permit and must apply for
a “temporary pollution permit”,79 which will only be granted if the
discharge is not unreasonably destructive.” The holder of a tem-
porary pollution permit is required to pay periodic pollution
charges based on the quantity and quality of waste discharged into
the water.’
The stated aim of this charge is to provide:
… the economic incentive for temporary pollution permit holders to
reduce the volume and degrading quality of their discharges … thereby
raising the quality of the waters of the state.8 2
The revenue obtained through these charges is to be used solely for
the purposes of water quality management and pollution control.
To ensure compliance with the scheme, any violation of the statute
or any failure to comply with a permit is punishable by a fine of
$10,000 or five years imprisonment.’
A similar and highly sophisticated system has been employed in
the Ruhr Valley in Germany for over half a century. The revenue
generated is used to provide centralized, large-scale treatment of
the waste-receiving water. The system is credited with maintaining
clean waters in that highly industrialized region. 4
The Canada Water Act provides for the establishment of regional
water quality management agencies empowered to make recom-
mendations regarding the use of effluent fees as an instrument to
maintain water quality. 5 No such agencies have as yet been establish-
ed. On the municipal level in Canada, effluent charge schemes
(actually surcharges on effluent of greater than “normal” strength)
are employed in several cities,8 6 apparently with significant success.
78 Vt. Stat. Ann. (Supp. 1970), tit.10, pt.2.
7Sa Ibid., para.911a(b).
79 Ibid., para.912a.
so Ibid., para.912a(c) (7).
81 Ibid., para.912a(d) (5).
82 Ibid., para.912a(e) (1).
83Ibid., para.918.
4 Kneese, Water Pollution; Economic Aspects and Research Needs (1962),
and Kneese, The Economics of Regional Water Quality Management (1964).
85 R.S.C. 1970, c.5 (1st Supp.), s.13.
8GAmong them are Toronto, Edmonton, Winnipeg, Calgary, London and
the Waterloo Region.
McGILL LAW JOURNAL
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These municipal effluent charge schemes are credited with being
“an effective weapon in the hands of municipal authorities in
forcing or influencing industrial firms to reduce their water pollu-
tion loads” and with redistributing, to a large degree, “the respon-
sibility and burden of reducing discharges of waste into the environ-
ment from the public to the polluter, in accordance with the prin-
ciple that ‘the polluter must pay’ ,.87
The advantages of this approach to environmental protection
are numerous. The most attractive feature of levying fees on polluters
is that it corrects the inequitable situation that has long prevailed,
by which pollution costs were forced on the public at large. This
situation has also had the effect of creating artificially low prices
for some goods, since the pollution costs attendant on their manu-
facture are not included in their selling price. The low price tends to
stimulate demand for the product and thus increases the strain
on the environment, an effect which is countered by the imposition
of pollution fees which must be added into costs. Indeed, the use
of pollution fees encourages the expansion of “clean” industries
since the lower fees they would pay would be reflected in lower
prices for their products and therefore increased demand.
Pollution fees have the additional advantage of not absolutely
limiting the right to discharge waste into the environment, as direct
regulation seeks to do, but rather create a charge for the exercise
of rights which used to be free. Because the right to pollute is not
absolutely limited, the polluter has the choice of when and how to
implement pollution abatement measures, so that he may choose to
utilize the most appropriate and efficient method of abatement
for his operation. With no prescribed limit separating legal discharges
from illegal ones, the anomalous situation whereby a marginal
increase in waste discharged transforms a legitimate activity into
a criminal one is avoided. Pollution fees also provide a continuing
incentive to enterprises to abate their harmful activities in order
to lower their fees, whereas prescribed standards offer no such
incentive.
Pollution fees are a highly flexible control instrument, and may
be set to reflect the costs of cleaning up the contamination in
question or simply to provide a sufficient incentive to promote
abatement measures. Because such fees would be established in an
across the board fashion, rather than on an individual basis, the
possibility of industry pressure leading to abuses of the system are
minimized.
87 Demakeas, Effluent Charge Schemes in Canada (1974, Organisation for
Economic Co-operation and Development), 18.
19753 LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
425
Pollution fees are most appropriate for the control of water
pollution, since the revenue produced may be used to provide
centralized treatment of the receiving waters. Contaminant emissions
into the atmosphere are not susceptible to centralized treatment,
but emission fees should nevertheless have the effect of discouraging
continued emissions of airborne pollutants through economic pres-
sure. The revenue could be used to promote the development of
efficient pollution control systems and to pay for the administration
of the programme.
Despite the apparent advantages of pollution fees as a means
of protecting environmental quality, there are some important re-
servations concerning their application which must be examined.
The principal objection raised against the imposition of fees is
that they may not have the desired effect: polluters will simply
pay the fees, raise their prices and continue polluting. The assump-
tion underlying the pollution fees scheme is that the polluting firm,
in seeking to maximize profits, would choose the least costly method
– which would likely include some degree of pollution abatement.88
This anticipation is of course only theoretical, and there is no
guarantee that it would materialize in practice.
Considering the great number of variables inherent in economic
activity, it is possible that little or no abatement would result. In
the case of effluent introduced into water, this would perhaps be
tolerable since the revenue produced could be employed to provide
large scale treatment facilities on the river basin level. It would,
however, be unacceptable if atmospheric contamination continued
unabated despite the imposition of emission fees, since centralized
purification of the atmosphere is not feasible.
The objection that pollution fees will not lead to abatement is
plausible on the theoretical level, but empirical evidence from the
experience of the Ruhr Valley and the Canadian municipalities
mentioned above suggests otherwise. To avoid possible abuses of a
pollution fee system and to ensure that discharges do not exceed
tolerable levels, pollution fees could be used in conjunction with
maximum discharge standards and penalties. Civil actions could
also be expected to prevent serious abuses of the fee system.
The use of pollution fees also presents certain practical problems
which must not be ignored. Among the most troublesome is the
technological difficulty of monitoring waste discharges and deter-
mining their quantity and quality in order to assess the fees. Further-
88 Hagevik, Legislating for Air Quality Management: Reducing Theory to
Practice (1968) 33 Law&Contemp.Prob. 369, 373.
McGILL LAW JOURNAL
[Vol. 21
more, there is the informational problem of ascertaining how much
pollution is too much, and what scale of fees must be established in
order to force the lowering of pollution to an acceptable level. These
objections apply with equal force, however, to systems of direct
regulation, which also require at least spot-check monitoring, and
which must be coordinated with information on overall levels of
pollution. These technological problems must be resolved to achieve
a desirable degree of control, by any means, over environmental
quality.
The administration of a program of pollution fees would require
a large administrative staff to monitor waste discharges, to collect
the fees and to apply them to pollution control. Unlike other forms
of legal control which require administrative staffs funded at the
public expense, a pollution fee program would generate the revenue
necessary to be self-supporting. Other expenses, such as the cost of
prosecutions, would to a large extent be avoided.
V. Conclusion
The foregoing discussion of the various means of control of
environmental quality leads one to the conclusion that the most
appropriate form of control, in the light of the social functions of law
outlined at the beginning of this paper, is the levying of fees for the
discharge of contaminants into the air and water. This approach
strikes at the basis of the pollution problem by establishing the
notion that the natural environment may no longer be used as a free
waste disposal system. With the imposition of fees for the discharge
of waste, industry would be forced to seek the most efficient way to
reduce waste discharges in order to lower production costs. Such a
system would be highly equitable, applying in a uniform manner
and placing pollution costs on the responsible parties.
Pollution fees would also ensure a high degree of certainty in
the calculation of the legal consequences of pollution-causing activi-
ties, unlike the case with most forms of direct regulation. There
would remain the flexibility necessary to permit experimentation,
since pollution would not be banned but only rendered more costly.
Although pollution fees would not have the dramatic public relations
effect of criminal prosecutions, they would in the long run perform
the educative function of eliminating the traditional notion that the
environment may be freely abused.
The only serious drawbacks to the use of pollution fees are
the technical difficulties and the delay involved in implementa-
tion. For these reasons, and to ensure that the fee system is not
1975] LEGAL CONTROL OF ENVIRONMENTAL QUALITY IN CANADA
427
abused, the use of maximum discharge standards coupled with
penalties would need to be continued, and the increased use of civil
remedies encouraged. In order to facilitate the introduction of pollu-
tion control techniques, it would also be advisable to provide govern-
mental assistance to industry, principally in the form of loans, to
help cover the necessary expenditures.
Constitutional aspects of the legal control of environmental
quality have been deliberately avoided in this paper. Constitutional
problems will inevitably arise in the implementation of environ-
mental policies, and a large degree of federal-provincial cooperation,
as envisaged in the Canada Water Act, is necessary. 9 In particular,
the introduction of a system of pollution fees would demand a large
measure of such cooperation, since this system would function to
advantage on a river basin or air-shed level, which often span
provincial boundaries. Federal-provincial partnership in planning a
comprehensive environmental policy would in any case be a sig-
nificant improvement over the current haphazard, fragmented and
largely ineffective legal controls.
Finally, to ensure that public awareness of environmental issues
is maintained and intensified, publicity must be given to these
issues, and a vigorous and continuing educative program instituted.
No important advances can be expected in the protection of our
natural environment unless the public recognizes the hazards of
continued pollution and fully supports measures for its control.
s9Supra, f.n.85.
