The Nova Scotia Law Reform Commission wrestled recently with the concept of fairness in environmental liability, especially in relation to retroactive laws and joint and several liability. It is interesting to compare this to the ERT decision in Kawartha Lakes in November:
The concept of joint and several liability, when included in legislation, enables the Government to require one or more of the responsible parties to pay for the full amount the cleanup cost. A person who pays more than his or her fair share is left to seek contribution from the other responsible parties. From the perspective of government, joint and several liability efficient. It need only pursue one responsible person. T the person who has paid a disproportionate amount and who must attempt to collect from other parties, however, the concept would be unfair and costly.
[A]allocating liability on a joint and several basis could result in a manifestly unfair result…
The Commission recommended that the issue be handled rather differently than in the recent Kawartha decision by our Environmental Review Tribunal. Like the ERT, the Commission accepted that government’s main goal is to have contaminated sites cleaned up, and that “fairness will vary according to the circumstances”. Unlike the ERT, the Commission agrees that fairness is an important criterion in allocating liability, presumably since concern over liability is already the major obstacle to remediation and reuse of contaminated sites. The Commission therefore recommends that the Minister consider a list of liability allocation principles, before imposing joint and several or retrospective liability on potentially responsible parties. The Nova Scotia Law Reform Commission is willing to trust the Minister to fairly exercise this discretion.
It’s hard to know whether this would change much. Provincial governments are still likely to use their regulatory powers to dump costs on others, especially in a time of huge structural deficits. Brushing aside fairness may allow the government to find money for an individual contaminated site, but its overall effect is likely to frighten even more people (and municipalities) away from having anything to do with contaminated sites. Given the huge economic and environmental benefits of encouraging reuse of such sites, this seems unlikely to be good for the environment in the long run.