A Contrast Model for Pollution Control

Merritt Clifton was an environmental journalist and lived in Brigham, Quebec.

A Contract Model for Pollution Control follows up on the consensus recommendations emerging from Environmental Law in the 1980s: A New Beginning. The latter volume, published two years ago by the Canadian Institute of Resources Law, offered papers from many of Canada’s leading environmental lawyers concerning how best to reform the legal system for pollution control. The first point of general agreement was that criminal law is usually inapplicable to pollution control because it requires a finding of either absolute innocence or absolute guilt, established beyond reasonable doubt. This means that polluters cannot be prosecuted successfully until after the harm done by pollution is manifest, by which time connective action comes too late. Further, prosecutors then must establish that environmental damage was done by the particular polluter in court, rather than by all polluters who might be contaminating the same area. A second point of agreement was that contract law might offer a better model for pollution control, since the common-law contract system was devised to resolve conflicts of interest rather than matters of strict right-and-wrong.

Environmental Law in the 1980s participant Andrew Thompson joins Barry J. Barton and Robert T. Franson in A Contract Model, examining exactly how contract law does work in pollution control at present and suggesting how it might be applied in the future. The three co-authors study three recent pollution control cases in British Columbia, arguing once again the inapplicability of criminal sanctions and the relative merits of the contract system. They note that the contract system also contains built-in flaws, since pollution control authorities could either enter into “soft,” “sweetheart” contracts with favored industries, or fail to enforce strict contract provisions. Thus they argue that such authorities should become more accountable to the general public, a position long shared by most environmentalists. At the same time, accountability must be balanced by leeway to take unpopular positions. For instance, environmental authorities may have to close temporarily an upstream polluter, costing jobs in one area, in order to protect fish downstream and preserve fishery jobs that may belong to a different political jurisdiction.

Ultimately, Canadian environmental law may have to be reformed to assume jurisdictional bounds and accountability according to watersheds, rather than politically defined territories. Meanwhile, Barton, Franson, and Thompson convincingly argue that contract law offers our fastest and most effective means to control pollution at present.