Limitations of the common law system in the context of environmental law
1) Discuss some of the limitations of the common (private) law system (principally the law of torts), including the available remedies, in addressing modern environmental problems. Have these shortcomings been adequately addressed by regulatory enactments?
The reduction and control of emissions of pollution in Canada and other parts of the world seem to be attributable mainly to government regulations, even though tort law has the control and reduction of pollution in the environment. However, tort law has played a minimal role because tort principles aim to protect private properties instead of preventing the damages caused to public lands and their ecosystems. In addition, it becomes very hard to gather all the evidence to prove in a court of law that a certain pollutant damaged a specific property or the health of a human being. In this view, the above question focuses on addressing some of the limitations associated with the law of tort when it comes to addressing modern environmental issues. In this connection, this essay will also address the available remedies in addressing modern environmental problems and state whether the shortcomings have been adequately addressed by regulatory enactments.
Limitations of common law (Tort Law) in addressing modern environmental problems
As already stated above, common law, such as tort law, has played a small role in the fight against pollution or the modern environmental problems the world is experiencing. One of the limitations of the common tort law in addressing modern environmental problems is that the common law focuses on the protection of private property and ignores damages the pollution does to public lands and other ecosystems. In relation to tort law, it is very difficult to prove that Y’s pollution released caused harm to Z’s health or property. In fact, the common law is viewed as a tool for advancing broader environmental protection and pollution prevention objectives.
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It also appears that the common law system is focused on allocating individual liability in particular disputes that might arise between private parties and compensating identifiable victims instead of protecting the environment generally for the benefit of the public and future generations. In short, the role played by tort law in the prevention of environmental problems is always limited. In addition, the process of identifying the injurer and the victim in the case of the tort of law in pollution cases becomes difficult. In any case, many victims are not related among them, and hence becomes difficult to identify them, as was in the case of Jones v. Mobil Oil Canada Ltd, where it was difficult to prove the link between contamination and animal health. This happens because of the high number of causes of modern environmental causes, for instance, the case of air pollution because of emission of carbon dioxide or other multiple sources as in the case of Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd.
In other cases, through private law, it is impossible to determine the causes of the harm done to the environment because the polluting activity usually occurs because pollution might come from multiple sources, as it was in the case of Tridan v. Shell. The plentiful was not compensated because the pollution might have been caused by other sources of pollution. Because of this, it becomes very costly for the victim to file a case in a court of law against a pollutant. Indeed, this creates another limitation of the insignificant time that it takes to complete a pollution court case. It is because of these limitations that there is public law. Nevertheless, one of the possible remedies is the law of nuisance. For example, in the case of Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd, if successful, Jones will be entitled to compensation based on restitution; the court awarded compensation from the stigma damages by the polluter (Shell) only when it will be determined that the cause of the damages were as a result of pollution by Shell products.
The remedies available in addressing environmental problems include nuisance, which means creating unreasonable interference with the health of people or their property, and negligence, which include the duty of care and standard of care, as was the case of Elec. Power Co. v. Connecticutor Kivalina v. ExxonMobil Corp.
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In conclusion, the common law has several limitations when it comes to addressing modern environmental issues. One of the limitations of the tort law in relation to the environmental problem is that the law focuses on its main objective, protecting private property, and ignores damages the pollution does to public lands and other ecosystems. In addition, the common law makes it harder to identify the injurer because in the modern days, there are many causes of environmental pollutants, and hence, it becomes costly for an individual to file a case on injuries in a court of law. However, due to the above limitations of the common law in protecting the environment and its ecosystem, the government has adopted public law to protect the environment from being polluted. Acts such as the Canadian Environmental Protection Act 1999 was developed to prevent pollution by protecting human health and the environment.
Elec. Power Co. v. Connecticut. (2011), 564 U.S. 410, 131 S. Ct. 2527.
Jones v. Mobil Oil Canada Ltd., (1999), 248 AR 1 (QB).
Kivalina v. ExxonMobil Corp. (2009), 663 F. Supp. 2d 863, 883 (N.D. Cal.).
Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd et al. (2002), 57 O.R. (3d) 503,
 Jones v. Mobil Oil Canada Ltd., (1999), 248 AR 1 (QB).
 Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd et al. (2002), 57 O.R. (3d) 503,
 Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd et al.
 Tridan Developments Ltd. Et al. v. Shell Canada Products Ltd
 Elec. Power Co. v. Connecticut. (2011), 564 U.S. 410, 131 S. Ct. 2527.
 Kivalina v. ExxonMobil Corp. (2009), 663 F. Supp. 2d 863, 883 (N.D. Cal.).